Padgett v. Williams

• Decision Date: 29 January 1960
• Docket Number: No. 8829,8829
• Citation: 348 P.2d 944,82 Idaho 28
• Parties: Wm. R. PADGETT, Plaintiff, v. Joe R. WILLIAMS, State Auditor, Defendant.
• Court: Idaho Supreme Court

Page 944

348 P.2d 944

82 Idaho 28

Wm. R. PADGETT, Plaintiff, v. Joe R. WILLIAMS, State Auditor, Defendant.

No. 8829.

Supreme Court of Idaho.

Jan. 29, 1960.

Wm. R. Padgett, Oscar W. Worthwine, Boise, for plaintiff.

Frank L. Benson, Atty. Gen., E. G. Elliott and Thomas Y. Gwilliam, Asst. Attys. Gen., for defendant.

TAYLOR, Chief Justice.

This is an original proceeding for writ of mandate to compel the defendant, Joe R. Williams, as state auditor, to issue a warrant chargeable against the appropriation made to the Idaho board of highway directors by Idaho Session Laws, 1959, Chap. 114, enacted by the 35th session of the legislature, in payment of plaintiff's salary as legal counsel to the board. Alternative writ was issued, to which defendant filed a demurrer and motion to quash as well as return and answer.

Plaintiff is a member of the bar of this court in good standing. Defendant is the duly elected, qualified and acting state auditor of this state.

Plaintiff alleges that on August 1, 1956, he was appointed by the Idaho board of highway directors as attorney for the board with the designation of assistant attorney general; that he retained such position with such designation until August 6, 1959; that on August 7, 1959, the board reaffirmed its appointment of plaintiff as its attorney without the designation of assistant attorney general and set his compensation at a fixed monthly salary; that on August 20, 1959, plaintiff's name was submitted to the defendant on the regular monthly payroll voucher of the department of highways, properly certified by the state highway engineer, together with the names of 306 other officers and employees of the headquarters' office of the department; that defendant issued warrants to all officers and employees listed on said payroll voucher except plaintiff; that defendant did not submit this payroll voucher to the state board of examiners for approval; and that defendant refuses, and continues to refuse, to draw a warrant to plaintiff in payment for services as an employee of the Idaho board of highway directors. By both his demurrer and motion to quash defendant contends the petition is insufficient to entitle plaintiff to the relief sought in that it appears therefrom that plaintiff's claim was not first presented to the state board of examiners.

In his answer and return defendant

'alleges the facts, in this connection, to be that the Idaho Board of Highway Directors did submit its regular monthly payroll, for the month of August, 1959, setting forth the claims for wages due its officers and employees for the said month of August including that of plaintiff to defendant; that defendant, in turn, submitted said payroll, except the claim of the plaintiff, to the State Board of Examiners for its consideration; that said Board of Examiners approved said payroll; that the defendant had been directed by the Board of Examiners to disallow and refuse to pay to the plaintiff any claim for wages subsequent to August 6, 1959, and that the payroll submitted by the Idaho Board of Highway Directors provided for the payment of wages to the plaintiff for the entire month of August.'

Although this pleading is not entirely clear, it is obvious therefrom that plaintiff's claim was considered and disallowed by the state board of examiners, and that defendant's refusal to draw a warrant in favor of plaintiff for the payment thereof was obedient to the direction of the board.

Idaho Code, § 67-2012 provides:

'For all institutions or departments where the officers and employees are paid a fixed monthly salary, a voucher may be submitted in the form of a monthly payroll covering the compensation of such officers and employees. Subject to the rules of the state board of examiners, a warrant will be issued by the state auditor to each person carried on such rolls for the amount shown thereon. The vouchers must contain a certificate from the head of the department or institution to the effect that the services were necessary in the public service, that they were actually rendered as charged, that the rate of pay of each individual carried thereon has been lawfully fixed by proper authority and that the account is correct and just.'

Defendant does not contend that there was a want of compliance with this statute or any rule or rules of the state board of examiners. Idaho Code, § 40-2212 in part provides:

'All moneys at any time in the state highway fund, * * * are hereby appropriated for the purpose of defraying the expense, debts and costs incurred in carrying out the powers and duties of the department of highways as provided by law, and for defraying all administrative expenses of the department of highways, including salaries of the Idaho board of highway directors and salaries and/or wages of all subordinates and employees of the department of highways and Idaho board of highway directors, * * * and all claims against the said state highway fund shall be examined by said department of highways and certified to the state auditor, who shall, upon the approval of the board of examiners, draw his warrant against said state highway fund for all bills and claims so allowed by said department of highways.' (Emphasis supplied.)

In Rich v. Williams, 81 Idaho ----, 341 P.2d 432, we held that the foregoing section requires claims against the state highway fund to be first presented to the state board of examiners 'for examination.' As above stated, defendant's answer inferentially alleges that this statutory requirement was complied with.

Defendant further contends that he is prohibited from complying with the alternative writ by the provisions of Idaho Const., art. 4, § 18, and I.C. §§ 67-1008, 67-2018, 67-2023. It is urged that by these constitutional and statutory provisions, not only must plaintiff's claim be examined by the state board of examiners, but that if not approved by the board defendant is prohibited from drawing a warrant therefor.

Article 4, § 18, clothes the state board of examiners with 'power to examine all claims against the state.'

Idaho Code, § 67-1008, requires:

'All persons having claims against the state must exhibit the same, with the evidence in support thereof, to the auditor, to be audited, settled and allowed by the board of examiners, within two years after such claims shall accrue, and not afterward. * * *.'

Idaho Code, § 67-2018, makes it the duty of the state board of examiners to examine all claims and that it may approve or disapprove any claim or demand against the state, or any item thereof.

Idaho Code, § 67-2023, provides that the auditor shall be liable upon his official bond for the payment of any claim which is disapproved by the board of examiners.

It is plaintiff's contention that these constitutional and statutory provisions have application only to unliquidated claims against the state and are not applicable to his claim for salary regularly fixed by the department of highways. The following authorities support this view: Winters v. Ramsey, 4 Idaho 303, 39 P. 193; State v. National Surety Co., 29 Idaho 670, 161 P. 1026, 2 A.L.R. 251; Davis v. Moon, 77 Idaho 146, 289 P.2d 614; State ex rel. Lyon County v. Hallock, 20 Nev. 326, 22 P. 123; State ex rel. Schneider v. Cunningham, 39 Mont. 165, 101 P. 962. As to that issue we confine our decision to the claim in question. Here the claim was, in fact, considered and rejected by the board. Under Const., art. 4, § 18, the legislature is authorized to require the state board of examiners to 'perform such other duties as may be prescribed by law'. As we held in Rich v. Williams, supra, by I.C. § 40-2212, supra, the legislature required presentation of plaintiff's claim to the board of examiners. However, plaintiff's claim, like the claims involved in Rich v. Williams, is a claim based upon an obligation authorized by the legislature against a specific appropriation made by the legislature.

'* * * As to such claims, the authority of the Board of Examiners is limited to determining that the claims are in proper form, properly certified to the State Auditor by the Department of Highways, and chargeable against the appropriation.' Rich v. Williams, 81 Idaho ----, 341 P.2d 432, at 441.

Defendant further contends that only the attorney general of the state of Idaho, or his duly appointed assistants, can represent the state highway board in the courts of this state, and that the appointment of plaintiff as legal advisor to said board is an infringement on and an invasion of the duties, rights and powers constitutionally imposed on and vested in the attorney general; that the appointment of plaintiff as legal advisor to the Idaho board of highway directors by said board is without constitutional or statutory authority; that our constitution, art. 4 § 1, in establishing the office of attorney general, vested in that office all powers and duties held and exercised by said office under the common law and vested therein by statutes in existence at the time of the adoption of our constitution; further, that the legislature cannot deprive the attorney general of any of these powers and duties, abolish his office, or transfer his powers and duties, or any part thereof, to any other office or officer.

The office of attorney general was first created by the territorial legislature in 1885. General Laws, Territory of Idaho, 13th Sess., 1884-1885. Section 3 thereof provided:

'It shall be the duty of the Attorney-General appointed under the provisions of this act to prosecute all actions to which the people of the Territory of Idaho are a party, in the Supreme Court of the Territory, and all actions in which the Territory or any county thereof is a party in such Supreme Court, also all actions to which a Territorial officer in his official capacity is a party in the Supreme Court or any District Court of the Territory, and in all such cases he shall appear on behalf of the people, Territory, County or Territorial...