Kroutinger v. Board of Examiners

• Decision Date: 03 June 1902
• Parties: KROUTINGER v. BOARD OF EXAMINERS
• Court: Idaho Supreme Court

69 P. 279

8 Idaho 463

KROUTINGER v. BOARD OF EXAMINERS

Supreme Court of Idaho

June 3, 1902

STATE AND COUNTY CHARGES-EXPENSES IN EXTRADITING FUGITIVES FROM JUSTICE.-The expenses incurred by an agent designated in a requisition in returning a fugitive from justice from another state to this state is, under the provisions of section 8425 of the Revised Statutes, a state charge, and is not a charge against the county wherein the prosecution against said fugitive from justice may be pending.

BOARD OF EXAMINERS-ALLOWANCE OF CLAIMS-APPROPRIATIONS.-The board of examiners should allow claims which are, by law, made a charge against the state, although there may be no appropriation out of which the same can be paid, as, under the provisions of the constitution, the legislature is prohibited from passing upon claims that have not been considered and acted or by said board of examiners.

MANDAMUS.-Mandamus will not lie to compel the board of examiners to audit a claim upon which it has already acted. Affirming Pyke v Steunenberg, 5 Idaho 614, 51 P. 614.

(Syllabus by Quarles, C. J.)

ORIGINAL proceeding for writ of mandate.

Miles S. Johnson, for Plaintiff.

Section 8425 of the Revised Statutes of Idaho of 1887 reads as follows: "When the governor of this territory, in the exercise of authority conferred by section 2, article 4, of the constitution of the United States, or by the laws of this territory, demands from the executive authority of any state or territory of the United States, or of any foreign government, the surrender to the authorities of this territory of a fugitive from justice, who has been found and arrested in such state, territory or foreign government, the accounts of the person employed by him to bring back such fugitive must be audited by the controller and paid out of the territorial treasury." Article 21, section 2, of the constitution provides that: "All laws now in force in the territory of Idaho which are not repugnant to this constitution, shall remain in force until they expire by their own limitation or be altered or repealed by the legislature." (See Gilbert v. Moody, 3 Idaho 3 25 P. 1092.)

Attorney General Frank Martin, for Defendants.

Under the provisions of section 7, page 120, Session Laws of 1899 providing what are county charges, it would seem that all expenses connected with criminal prosecutions from any county are a county charge. But if this bill is a charge against the state, then out of what fund and in what way shall the state pay it? Article 7, section 13, of the state constitution is as follows: "No money shall be drawn from the treasury but in pursuance of an appropriation made by law." In the case of Kingsbury v. Anderson, 5 Idaho 771, 51 P. 744, this court held that said section of the constitution, together with section 214 of the Revised Statutes, prohibited the state auditor from drawing warrants on the treasurer in the absence of an appropriation, and for any sum under any appropriation exceeding the amount appropriated.

QUARLES, C. J. Sullivan and Stockslager, JJ., concur.

OPINION

QUARLES, C. J.

This is an original proceeding for a writ of mandamus compelling the defendants, as members of the board of examiners, to audit the claim of the plaintiff for expenses incurred in going to the state of Tennessee and bringing a fugitive from justice--a prisoner--therefrom to Nez Perces county, under a requisition duly issued by the governor of Idaho designating the plaintiff as the agent of this state to receive and return said fugitive from justice. The proceedings for said requisition appear to have been regular. To the alternative writ heretofore issued the defendants, members of the state board of examiners, file their return, wherein it is alleged that said board acted upon said claim on the fourth day of February, 1902, and rejected the same for the following reasons, to wit: "(a) That said claim was not a proper charge against the state of Idaho; (b) that said claim is a proper charge, and should be borne by the county of Nez Perces, state of Idaho; (c) that the legislature of the state of Idaho has provided no fund and has made no appropriation from which said charges specified in said petition can be paid by the state of Idaho." The return is in no way controverted. It is therefore apparent that the board of examiners has acted, and under the decision of this court in Pyke v. Steunenberg, 5 Idaho 614, 51 P. 614, the writ demanded cannot properly be granted. The...