Jewett v. Williams, 9104

• Court: United States State Supreme Court of Idaho
• Citation: 84 Idaho 93,369 P.2d 590
• Docket Number: No. 9104,9104
• Parties: Jeanne JEWETT, Arline Johanson, Idaho Children's Commission and W. D. Eberle, Arvil Millar, Mrs. H. Ferd Koch, Frances Sleep, William Roden, Emery Hedlund, Harold Lough, Marguerite Campbell, Karl Jeppesen, William C. Johnson, Jr., and Wilbur Waterman, Members of Said Commission, Plaintiffs, v. Joe R. WILLIAMS, Frank L. Benson, Arnold Williams, Robert E. Smylie and Board of Examiners of the State of Idaho, consisting of the above named defendants, Defendants.
• Decision Date: 13 February 1962

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369 P.2d 590 84 Idaho 93 Jeanne JEWETT, Arline Johanson, Idaho Children's Commission and W. D. Eberle, Arvil Millar, Mrs. H. Ferd Koch, Frances Sleep, William Roden, Emery Hedlund, Harold Lough, Marguerite Campbell, Karl Jeppesen, William C. Johnson, Jr., and Wilbur Waterman, Members of Said Commission, Plaintiffs,
v.
Joe R. WILLIAMS, Frank L. Benson, Arnold Williams, Robert E. Smylie and Board of Examiners of the State of Idaho, consisting of the above named defendants, Defendants. No. 9104. Supreme Court of Idaho. Feb. 13, 1962. Rehearing Denied Feb. 12, 1962.

[84 Idaho 96]

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W. D. Eberle, Boise, for appellants.

[84 Idaho 97] Frank L. Benson, Atty. Gen., Warren Felton, Asst. Atty. Gen., for respondents.

SMITH, Chief Justice.

This is an original proceeding for writ of mandate to compel defendants, Hon. Frank L. Benson, attorney general, Hon. Arnold Williams, secretary of state, and Hon. Robert E. Smylie, Governor, of the State of Idaho, as the board of examiners, to examine and approve for payment, and upon failure to compel Hon. Joe R. Williams, as state auditor, to issue warrants forthwith in payment of, certain claims drawn against Idaho Children's Commission appropriation, to-wit: for certain executive and secretarial salaries and items of expense incurred totaling $1501.

Alternative writ issued to which defendants made return and answer in the manner following:

Defendant Benson, as attorney general, on behalf of himself and Arnold Williams, made return alleging that they, and Lieutenant Governor W. E. Drevlow in the absence of Governor Smylie, acting as the board of examiners, by majority vote had [84 Idaho 98] rejected the claims, Messrs. Benson and Williams voting to disapprove, and Mr. Drevlow voting to approve them; and that defendant Joe R. Williams, as state auditor, cannot draw and deliver warrants in payment of the claims because of their rejection by the boad.

Defendant Joe R. Williams, as state auditor, made his separate return alleging 'that the claims which are the subject matter of this action are in proper form, that they have been duly approved and certified by the Idaho Children's Commission, for payment of obligations incurred by said Commission under authority of Chapter 287, 1961 Session Laws of the State of Idaho;' that because of disapproval of the claims by a majority of the board of examiners, he tenders the warrants in payment of the claims to the clerk of this Court and prays for an order directing disposition of the warrants.

Defendant Smylie, Governor and a member of the board of examiners, filed a 'Notice of Dismissal of Attorney,' notifying the attorney general that he no longer was authorized to represent defendant Smylie in any respect in the cause; thereupon the Governor made his return alleging that the claims presented were in proper form, properly certified and properly chargeable to the appropriation provided by Chapter 287 of Idaho Sess.Laws 1961, creating Idaho Children's Commission; that the state auditor, although willing to draw warrants in payment of the claims, had been prevented from so doing by a majority of the board of examiners; and that he, the Governor, as a member of the board, had urged speedy approval and payment of the claims. He prays for an order directing the state auditor to deliver the warrants for payment of the claims, and that the Court issue an order restraining and enjoining the board of examiners from exceeding its jurisdiction relative to the claims.

This Court, upon hearing the matter on the issues raised by the petition and return, unanimously concluded that no valid reason existed for rejection by the board of examiners of the claims submitted, even though at a time prior to the drawing and filing of an opinion herein, inasmuch as the claims were properly presented on prescribed forms of vouchers, and properly certified, and shown to be a proper charge against the appropriation made to the Director of Administration, and that there were sufficient funds of the commission's appropriation in the state treasury for the

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payment thereof; that the matter is of great public importance, and that sufficient urgency exists for a determination of the issues involved by ordering payment forthwith of the claims. The Court thereupon issued a peremptory writ of mandate directing the state auditor to deliver the warrants to the payees therein named. Defendants Benson and Arnold Williams [84 Idaho 99] thereafter petitioned for a rehearing and 'redetermination of the issues herein,' claiming error in certain regards within the purview of the issues herein decided, decisive also of such petition. The writ having issued, this decision is definitive of the power and duties of the board of examiners, and the reasons and authority for issuance of the writ.

Chapter 287 of Idaho Sess. Laws 1961, enacted by the Thirty-sixth session of the Legislature:----

Created Idaho Children's Commission to serve without pay, to be composed of eleven members appointed by the Governor, two to be members of the House of Representatives, and two of the Senate, but not more than two of these four to be members of any one political party; the remaining seven to be chosen each from a panel of four persons recommended by each of seven listed agencies, no such member to be employed by any agency listed;

Provided for employment by the commission of professional assistance to conduct a study and appraisal, and make findings and recommendations with regard to the laws, resources and facilities relating to delinquent, abused, neglected and handicapped children;

Provided for a report to the Governor by August 20, 1962, in order that appropriate budgetary recommendations may be made to the 37th session of the Legislature, copies of the report to be made available to the Legislature, and

Appropriated $20,000 from the General Fund to the Director of Administration to defray the commission's expenses in performing its prescribed duties, to be performed by September 30, 1962.

Defendants Benson and Arnold Williams contend that the commission is illegally constituted because in addition to the two Democratic party and the two Republican party members of the legislature, there is an additional member, Hon. W. D. Eberle, also a legislator.

The act does not prohibit more than four legislators, nor more than two members of any political party as members of the commission. The act provides for the initial four members of the commission to be members of the legislature, not more than two of whom shall be members of any one political party, but there are no such limitations as to the remaining seven members.

Mr. Eberle was appointed in accordance with the provisions of the act as a member selected from a panel of seven recommended by an agency listed in the act; it is not material that he happens to be a member of the legislature; nor was he shown to be employed by any agency listed in the act, thereby to preclude him from commission [84 Idaho 100] membership. Defendants' contention in the premises is without merit.

Defendants Benson and Arnold Williams contend that the act creating the commission is void in that it conflicts with Idaho Const. Art. II, § 1, providing for separation of the powers of state government, i. e., legislative, executive and judicial. Before disposing of this contention we must point out that we doubt the propriety of these defendants' questioning the constitutionality of the act creating the Children's Commission, since there appears to be no question as to form, certification or chargeability of the claims; for under the act the defendants are not personally or officially liable, nor authorized or directed to act in any way; nor have they shown injury to the state by enforcement of the act. The right of public officers to question a statute presupposes duties devolving upon the officers

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arising from the statute itself; here those duties under the act devolve upon officers who do not question the constitutionality of the act, i. e., the Governor, the Director of Administration, and the members of the commission, and not upon these defendants as members of the board of examiners, nor upon the board. Albrethsen v. State, 60 Idaho 715, 96 P.2d 437; State ex rel. Nielson v. City of Gooding, 75 Idaho 36, 266 P.2d 655; 16 C.J.S. Constitutional Law § 82, p. 251; 11 Am.Jur., Constitutional Law, § 117, p. 762; Anno. 30 A.L.R. 378; Anno. 129 A.L.R. 941.

In approaching the contention that the act creating the commission conflicts with Idaho Const. Art. II, § 1, the doctrine of separation of powers is stated in such section to be that 'no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others.' It is the basic powers of sovereignty which must remain separate; not subsidiary activities which include the ascertainment of facts, investigation and consultation, the duty of reporting facts and making recommendations, for the purpose of carrying out those basic powers. This principle is well stated in 11 Cal.Jur.2d, Constitutional Law, § 105, p. 453, as follows:

'* * * But the chief qualification of the separation requirement has been by way of denying the exclusive nature of any governmental power or function other than the basic or ultimate power or authority to make laws, to expound and apply laws, and to execute laws, exercised respectively by the legislative, judicial, and executive departments.'

Justice McKenna stated the applicable principle in Mutual Film Corp. v. Industrial Com., 236 U.S. 230, 35 S.Ct. 387, 392, 59 L.Ed. 552, 560, Ann.Cas.1916C, 296, 300:

'* * * Undoubtedly the legislature must declare the policy of the law [84 Idaho 101] and fix the legal principles which are to control in given cases; but an administrative body may be invested with the power to ascertain the facts and...