Pyke v. Steunenberg

Decision Date13 December 1897
Citation51 P. 614,5 Idaho 614
PartiesPYKE, RECEIVER, v. STEUNENBERG ET AL., AS STATE BOARD OF EXAMINERS
CourtIdaho Supreme Court

CONSTITUTIONAL LAW-BOARD OF EXAMINERS-MANDAMUS-JURISDICTION.-Where the constitution provides a board for the examination of claims against the state and such board for an unreasonable time delays action upon a claim presented, while a writ of mandate will issue to require said board to proceed and pass upon such claim, the court has no jurisdiction to direct how such board shall act.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Reversed and remanded, with instructions.

R. E McFarland, Attorney General, and S. L. McFarland, for appellants.

Is the state board of examiners vested with judicial discretion? We submit that this board is clothed with judicial discretion and is part and parcel of the executive department of the state. Article 4 of the constitution is entitled "executive department" and defines the duties of the executive branch of the state government. Section 18 of said article 4 clothes the board with full power to examine all claims against the state, excepting salaries and compensation of officers fixed by law, and further provides that no claim against the state, except salaries and compensation of officers fixed by law shall be passed upon by the legislature without first having been considered and acted upon by said board. It is a well-established principle that mandamus will not issue to govern the discretionary power of an officer or control his decision. (Ex parte Brown 116 U.S. 401, 6 S.Ct. 387; Ex parte Morgan, 114 U.S. 174, 5 S.Ct. 825; Ex parte Flippin, 94 U.S. 350; Ex parte Railway Co., 101 U.S. 720; Ex parte Burtis, 103 U.S. 238; People v. Illinois State Board Dental Examiners, 110 Ill. 185; State v. State Board of Health, 103 Mo. 22, 15 S.W 322; State v. Gregory, 83 Mo. 123, 53 Am. Rep. 565; State v. McGrath, 91 Mo. 386, 3 S.W. 846; State v. Humphreys, 47 Kan. 561, 28 P. 722.) The principle of law is well settled that mandamus will not lie to direct official acts which require the exercise of judgment and discretion. It is not within the jurisdiction of the judiciary to control or direct state board created by the constitution, or issue mandamus to control the acts of the executive department of the government. (State v. Board of Liquidation, 42 La. Ann. 647, 7 So. 706, 8 So. 577; People v. Board of State Auditors, 32 Mich. 291; United States v. Black, 9 S.C. 14; Litchfield v. Register and Receiver, 9 Wall. 575; Gains v. Thompson, 7 Wall. 347; United States v. Commissioners, 5 Wall. 563; Virginia v. Rives, 100 U.S. 314; Carrick v. Lamar, 116 U.S. 423, 6 S.Ct. 424; Decatur v. Paulding, 14 Pet. 610; Brashear v. Mason, 6 How. 92; People v. Governor, 29 Mich. 320, 18 Am. Rep. 89; People v. Auditor General, 38 Mich. 746; Auditor General v. Pullman Palace Car Co., 34 Mich. 59; Supervisors of Midland v. Auditor General, 27 Mich. 165; Royce v. Goodwin, 22 Mich. 496; People v. Board of State Auditors, 42 Mich. 422, 4 N.W. 274; State v. Whitcomb, 28 Minn. 50, 8 N.W. 902; Western Ry. Co. v. DeGrath, 27 Minn. 1, 6 N.W. 341; Dwelling-House Ins. Co. v. Wilder, 40 Kan. 561, 20 P. 265; State v. Boyd, 36 Neb. 60, 53 N.W. 1116.) Mandamus does not lie to compel an auditorial board to allow a claim; the power of the court in that proceeding extends no further than to require them to act upon it. (Auditorial Board v. Hendricks, 20 Tex. 60; People v. French, 24 Hun (N. Y.), 263; People v. Oneida Co. Supervisors, 24 Hun, 413; 2 Spelling's Extraordinary Relief, sec. 1468, p. 1220; Throop on Public Officers, sec. 822; Ex parte Gresham, 82 Ala. 359, 2 So. 486; McCreary v. Rogers, 35 Ark. 398; Willard v. Superior Court, 82 Cal. 456, 22 P. 1120; People v. Dulaney, 96 Ill. 503; Tilden v. Sacramento Co., 41 Cal. 68; People v. Buffalo State Asylum, 55 Hun, 603, 8 N.Y.S. 395.)

E. E. Chalmers, for Respondents.

It is difficult to conceive of any official action which does not entail the finding of the existence or performance of some condition precedent, and in this case all this board had to ascertain was, Did the contract exist, and has it been executed by the claimant? These were mere preliminary questions, and are distinct from the act to be performed, and the rule concerning discretion does not therefor apply. (State v. Murphy, 19 Nev. 89, 6 P. 840; Wood v. Strother, 76 Cal. 545, 9 Am. St. Rep. 249, 18 P. 766; State v. Board of Commrs., 22 Nev. 71, 35 P. 300.) The ultimate acts to be performed are directed by law. Section 753 of the Revised Statutes, commands the auditing officers to audit and allow these claims when certified and transmitted by the board of asylum directors and the state auditor to draw his warrants therefor. This gives the claimant a clear legal right to the warrants, and under these circumstances mandamus lies. (Smalley v. Yates, 36 Kan. 519, 13 P. 845; Wood v. Strother, 76 Cal. 545, 9 Am. St. Rep. 249, 18 P. 766; Woffenden v. Board of Supervisors (Ariz.), 25 P. 647; High's Extraordinary Legal Remedies, sec. 106; Wood on Mandamus, 19, 20, 25; Neu v. Voege, 96 Wis. 489, 71 N.W. 880; State v. Great Falls, 19 Mont. 518, 49 P. 15.) May a court issue a writ of mandate to direct or control the discretionary power vested in such board? Not as a general rule. But there are exceptions to all rules and the abuse of the discretion relied upon by appellants constitutes the exception to the above general rule and withal proves the same. Where a supposed discretion has been so flagrantly abused as in the case at bar, it may be controlled and directed by the courts. (Wood on Mandamus, 64; State v. Board of Livestock Commrs., 4 Wyo. 126, 32 P. 114; Wood v. Strother, 76 Cal. 545, 9 Am. St. Rep. 249, 18 P. 766; State v. Burdick, 3 Wyo. 588, 28 P. 146; Ex parte Bradley, 7 Wall. 364; Ex parte Commonwealth, 100 U.S. 313; Railroad Co. v. Stockton, 51 Cal. 328; McLeod v. Scott, 21 Or. 94, 26 P. 1061, 29 P. 1; High's Extraordinary Legal Remedies, secs. 9, 119; State v. Murphy, 19 Nev. 89, 6 P. 840; State v. Board of Commrs., 22 Nev. 71, 35 P. 300; Middleton v. Low, 30 Cal. 596; Marbury v. Madison, 1 Cranch, 137.) The alternative remedy suggested in appellant's brief is of a political nature, and not "a plain, speedy, and adequate remedy in the ordinary course of law" within the purview of section 4978 of the Revised Statutes of Idaho. (High's Extraordinary Legal Remedies, secs. 17, 20, 104; Fremont v. Crippen, 10 Cal. 215; People v. Mayor, 10 Wend. 395.)

HUSTON, J. Quarles, J., concurs. SULLIVAN, C. J., Dissenting.

OPINION

HUSTON, J.

Respondent filed in the district court for Bingham county a petition for a writ of mandate against the state board of examiners and the state auditor, commanding said board to audit and allow certain claims presented to said board of examiners, and upon which the board has neglected to act. The claims, as appears from the petition, were for supplies furnished to the state asylum for insane at Blackfoot, and had been duly audited and allowed by the board of directors of said asylum, as required by law. Such claims were then presented to the state board of examiners, for their action thereon, said board of examiners having for some time had said claims before them, during which period several meetings of the board had been held, but no action had been taken by said board of examiners upon said claim. The district court ordered the issuance of the peremptory writ of mandate, commanding said board to audit and allow said claims, and from such order of said court this appeal is taken.

The only question involved in this case is, Had the district court authority to order the issuance of the peremptory writ commanding the state board of examiners to "audit and allow" said bill? Section 18, article 4, of the constitution of the state of Idaho provides that "the governor, Secretary of State, and attorney general shall constitute . . . . a board of examiners, with power to examine all claims against the state, except salaries or compensation of officers fixed by law, and perform such other duties as may be prescribed by law. And no claim against the state, except salaries and compensation of officers fixed by law, shall be passed upon by the legislature without first having been considered and acted upon by said board." By "An act relating to the board of examiners," approved February 23, 1891, it is provided that "the board may approve or disapprove any claim or demand against the state, or any item thereof, or may recommend a less amount in payment of the whole, or any item thereof, and a decision of a majority of the members shall stand as the decision of the board."

It is contended that, the board of directors of the insane asylum having passed upon the claim, it only remains for the board of examiners to acquiesce in such action by auditing and allowing the same. If this view is correct in regard to this claim, it is equally true as to all other claims which both the constitution and the statutes require to be submitted to the board of examiners, and the board of examiners become, to all intents and purposes, a mere thing of straw. I suppose the intent and purpose of the framers of the constitution was to establish a board independent of all other boards, whose duty it is made to pass upon, "and approve or disapprove," all claims against the state not included in the classes excepted. The jurisdiction is conferred upon this court by the constitution (section 10 article 5) to hear claims against the state, and to make decisions thereon, which decisions "shall be merely recommendatory"; and this court has declined to hear any claims against the state until the same have been passed upon by the board of examiners. The board of examiners were...

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