Jackson v. Gallet

• Decision Date: 03 July 1924
• Citation: 228 P. 1068,39 Idaho 382
• Parties: N.D. JACKSON, Plaintiff, v. E. G. GALLET, State Auditor of the State of Idaho, Defendant
• Court: Idaho Supreme Court

228 P. 1068

39 Idaho 382

N.D. JACKSON, Plaintiff, v. E. G. GALLET, State Auditor of the State of Idaho, Defendant

Supreme Court of Idaho

July 3, 1924

ACT TO ORGANIZE IDAHO STATE BAR-REQUISITES OF VALID APPROPRIATION-TITLE TO ACT-ADMINISTRATIVE BOARD-SPECIAL CORPORATION-SPECIAL ACT.

1. The mere declaration in a legislative act that certain charges against the state must be paid out of a separate fund in the state treasury on the order of a board of commissioners created by the act does not constitute an appropriation of state money from said fund.

2. While no set form of words is required to make a legislative appropriation of money in the state treasury, the language in an act should show an intent on the part of the legislature to make an appropriation of such money within the meaning of the constitution, and the court should not be called upon to infer from doubtful or ambiguous language that it was the intention of the legislature to appropriate such public funds as would be necessary to carry out the purposes of the act.

3. Where the title states, as one of the purposes of the act "to relieve the state from the cost of holding examinations for admission to the bar," but the body of the act makes no provision for such relief, the title to that extent is delusive and misleading.

4. Where the title of a legislative act does not indicate or suggest an appropriation of state money, but negatives the idea of such appropriation, those portions of the act which purport to appropriate state money must fail.

Original petition for Writ of Mandate. Writ denied and proceeding dismissed.

Writ denied and the proceeding dismissed.

Hawley & Hawley, H. B. Thompson, Frank T. Wyman, Oppenheim & Lampert and S. S. Griffin, for Plaintiff.

Specific words of appropriation are not necessary in an act if from the words of the act the intent of the legislature to appropriate can be determined and the extent of the appropriation can be ascertained. (Gilbert v. Moody, 3 Idaho 3, 25 P. 1092; Kingsbury v. Anderson, 5 Idaho 771, 51 P. 744; Reed v. Huston, 24 Idaho 26 132 P. 109; Rich v. Huston, 24 Idaho 34, 132 P. 112; In re Huston, 27 Idaho 231, 249, 147 P. 1064; Jeffreys v. Huston, 23 Idaho 372, 129 P. 1065; Epperson v. Howell, 28 Idaho 338, 154 P. 621; Herrick v. Gallet, 35 Idaho 13, 204 P. 477; Blaine County Inv. Co. v. Gallet, 35 Idaho 102, 204 P. 1066; C. S., secs. 1269, 1272, 1274 (Sess. Laws 1923 chap. 108).)

Historical interpretation of and practice under a constitutional provision may be considered by the court in determining the meaning of such provision. (Lewis' Sutherland Stat. Const., 2d ed., pp. 884, 885.)

A title need not index the contents of an act; it is sufficient if it express the subject, since all provisions germane and incidental to the subject are covered thereby; provisions not incongruous, and having a proper relation to, the subject may be included in the act without mention in the title, and before the court will hold any provision not properly included under the title, the departure must be plain and manifest. (Art. 3, sec. 16, Const. of Idaho; Lewis' Sutherland Stat. Const., 2d ed., secs. 111, 112, 115, 118, 127-129, 131; Cole v. Hall, 103 Ill. 30; McCashin v. State, 44 Ind. 151, 178; Klein v. Kinkead, 16 Nev. 195; Martin v. Tyler, 4 N.D. 278, 60 N.W. 392, 25 L. R. A. 838; 25 R. C. L., "Statutes," p. 858; State v. Doherty, 3 Idaho 384, 29 P. 855; Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 101 Am. St. 201, 68 P. 295. For titles not referring to an appropriation, where the act has been considered as carrying one, see Sess. Laws 1899, p. 134; 1869, p. 96.)

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Defendant.

The act does not provide for a valid appropriation of public moneys. (Art. 7, sec. 13, Const. of Idaho.)

An appropriation to be valid must give authority from the legislature to the proper officers to pay from the public moneys a specified or maximum sum, and no more, for specified purposes, and no other. (Kingsbury v. Anderson, 5 Idaho 77, 51 P. 744; Kroutinger v. Board of Examiners, 8 Idaho 463, 69 P. 279; Jeffreys v. Huston, 23 Idaho 372, 129 P. 1065; Epperson v. Howell, 28 Idaho 338, 154 P. 621; Herrick v. Gallet, 35 Idaho 13, 204 P. 477; Blaine Co. Investment Co. v. Gallet, 35 Idaho 102, 204 P. 1066; State ex rel. Davis v. Eggers, 29 Nev. 469, 91 P. 819, 16 L. R. A., N. S., 630.)

An appropriation will not be inferred from doubtful or ambiguous language. (In re Continuing Appropriation, 18 Colo. 192, 32 P. 272; Blaine Co. Investment Co. v. Gallet, supra.)

The subject of a legislative act must be expressed in the title. (Art. 3, sec. 16, Const. of Idaho.)

The courts cannot enlarge the scope of the title and it is no answer to say that the title might have been more comprehensive when the legislature has not seen fit to make it so. (Turner v. Coffin, 9 Idaho 338, 74 P. 962; Sutherland on Stat. Construction, sec. 87, p. 94; Cooley, Constitutional Limitations, 6th ed., p. 178.)

The purpose of article 3, sec. 16, of the constitution, is to prevent deception of the people and the members of the legislature against provisions in the body of the act of which the title gives no indication. (Turner v. Coffin, supra; Cooley, Const. Limitations, supra; Katz v. Herrick, 12 Idaho 1, 86 P. 873; Northwestern Mfg. Co. v. Chambers, 58 Mich. 381, 25 N.W. 372.)

A title so general as practically to conceal the subject of the statute, or a delusive or false title, will be treated as not constitutionally framed. (Sutherland on Stat. Construction, sec. 82; Coxe v. State, 144 N.Y. 396, 39 N.E. 400.)

It is not enough that the act embrace but a single subject and that all parts are germane, but the title must express the subjects comprehensively enough to include all of the provisions in the body of the act. (Sutherland on Stat. Construction, sec. 89.)

BUDGE, J. William A. Lee, J., concurs, WM. E. LEE, J., Concurring in Part. MCCARTHY, C. J., Mr. Justice Dunn, Dissenting.

OPINION

BUDGE, J.

This proceeding was commenced for the purpose of procuring the issuance of a writ of mandate requiring defendant, as state auditor, to certify to the state board of examiners for approval a claim of plaintiff for expenses incurred by him in the performance of his duties as a member of the board of commissioners of the Idaho state bar, to which position he was elected under the provisions of chapter 211, 1923 Session Laws. To the application the defendant filed a demurrer setting up, first, that there is no appropriation of funds for the purpose of paying the claim in question or any claim made under the act; second, that the act violates the provisions of art. 3, sec. 16 of the constitution of this state in that the subject is not embraced in the title of the act; third, that the act violates the provisions of art. 11, sec. 2 of the constitution of this state in that it grants a special charter of incorporation; and, fourth, that it violates the provisions of art. 3, sec. 19 of the constitution of this state in that it creates a corporation. We shall discuss the points raised by the demurrer in the order as above stated.

The first question involved is whether the language of sections 9 and 10 of chapter 211, 1923 Session Laws, constitutes an appropriation for the payment of plaintiff's claim for actual and necessary expenses incurred by him in attending a meeting of the Idaho state bar. Section 9 reads as follows:

"Every member of the Idaho state bar shall, prior to the first day of July of each year, pay into the state treasury as a license fee the sum of five dollars and the fund thereby created shall constitute a separate fund to be disbursed by the state treasurer on the order of the board of commissioners, after the usual and necessary examination and approval has been made by the state board of examiners."

Section 10 provides that:

"For the purpose of carrying out the objects of this act, and in the exercise of the powers herein granted, the board shall have power to make orders concerning the disbursement of said fund, but no member of the board shall receive any other compensation than his actual necessary expenses connected with attending meetings of the board, or in the performance of the duties directed by the board."

Sec. 13, art. 7 of the constitution provides that:

"No money shall be drawn from the treasury, but in pursuance of appropriations made by law."

In discussing this provision of the constitution, particularly with reference to what constitutes an appropriation within the meaning thereof, this court, in the case of Blaine County Investment Company v. Gallet, 35 Idaho 102, 106, 204 P. 1066, had occasion to make the following observations:

"It will be noted that sec. 13 of art. 7 of the constitution does not define an appropriation nor specify when or how an appropriation by law shall be made, and these important matters are, therefore, proper subjects for judicial interpretation."

Several definitions have been given of the proper meaning of the word "appropriation" as contained in this section of the constitution and various statutory enactments. In Blaine County Investment Co. v. Gallet, supra, it is said:

"An appropriation in this state is authority of the legislature given at the proper time and in legal form to the proper officers to apply a specified sum from a designated fund out of the treasury for a specified object or demand against the state."

To the same effect, see Kingsbury v. Anderson, 5 Idaho 771 51 P. 744; Kroutinger v. Board of Examiners, 8 Idaho 463, 69 P. 279; Jeffreys v. Huston, 23 Idaho 372, 129 P. 1065. An examination of sections 9 and 10 of the act will disclose that every member of the Idaho state bar is required to pay to the...