State Board of Education v. Commission of Finance

• Decision Date: 19 August 1952
• Docket Number: No. 7785,7785
• Citation: 122 Utah 164,247 P.2d 435
• Parties: STATE BOARD OF EDUCATION, v. COMMISSION OF FINANCE et al.
• Court: Utah Supreme Court

Page 435

247 P.2d 435

122 Utah 164

STATE BOARD OF EDUCATION, v. COMMISSION OF FINANCE et al.

No. 7785.

Supreme Court of Utah.

Aug. 19, 1952.

Clinton D. Vernon, Atty. Gen., for plaintiff.

Paul H. Ray, Albert R. Bowen, Salt Lake City, for defendants.

WOLFE, Chief Justice.

This is an original proceeding to compel the Commission of Finance and the members thereof to issue warrants on the State Treasurer for the payment of salary claims of Dr. E. Allen Bateman who was appointed State Superintendent of Public Instruction by the State Board of Education on October 5, 1951. The Commission of Finance has refused to issue warrants on the ground that the State Board of Education was not lawfully constituted on October 5, 1951, and thus had no authority to make the appointment of Dr. Bateman.

Prior to November 5, 1950, the management of the public school system in this state was vested in an elective State Superintendent of Public Instruction and an appointive State Board of Education as will be seen by the following former provisions of our state constitution. Article X, Sec. 8, provided that:

'The general control and supervision of the Public School System shall be vested in a State Board of Education, consisting of the Superintendent of Public Instruction, and such other persons as the Legislature may provide.'

By Sec. 75-7-1, Utah Code Annotated 1943, the Legislature had provided that the State Board of Education 'shall consist of the state superintendent of public instruction and nine other persons, appointed by seven regional school board conventions; * * * ' Article VII, Secs. 1, 10 and 20, provided:

Sec. 1 'The Executive Department shall consist of Governor, Secretary of State, State Auditor, State Treasurer, Attorney General, and Superintendent of Public Instruction, each of whom shall hold his office for four years, beginning on the first Monday of January next after his election, * * *'

Sec. 10 '* * * If the office of secretary of the state, state auditor, state treasurer, attorney-general or superintendent of public instruction be vacated by death, resignation or otherwise, it shall be the duty of the governor to fill the same by appointment, and the appointee shall hold his office until his successor shall be elected and qualified, as may be by law provided.'

Sec. 20 'The Governor, Secretary of State, Auditor, Treasurer, Attorney-General, Superintendent of Public Instruction and such other State and district officers as may be provided for by law, shall receive for their services monthly, a compensation as fixed by law. * * *'.

In 1949, the 28th Legislature adopted two Joint Resolutions proposing certain amendments to Article X, Sec. 8 and Article VII, Secs. 1, 10 and 20. These proposed constitutional amendments were submitted to the electorate of this state and approved by them at the general election held November 7, 1950. The effect of the amendments, in general, was to vest the management of the public school system in an elective State Board of Education which was directed to appoint the Superintendent of Public Instruction. Specifically, Article X, Sec. 8 was amended to provide:

'The general control and supervision of the public school system shall be vested in a State Board of Education the members of which shall be elected as provided by law.

'The Board shall appoint the State Superintendent of Public Instruction who shall be the executive officer of the Board.'

The amendments to Article VII deleted in Section 1 the Superintendent of Public Instruction from the list of elective officers constituting the Executive Department; in Section 10, the office of Superintendent of Public Instruction was stricken from the list of offices to be filled by appointment by the Governor in the event of a vacancy therein; and in Section 20, the Superintendent of Public Instruction was deleted from the list of officers whose compensation for their services must be fixed by law.

The Regular Session of the 29th Legislature, which convened on January 8, 1951, and adjourned sine die sixty days later, failed to enact any legislation to implement the approved constitutional amendment to Article X, Sec. 8. It will be observed that that amendment, in so far as it provides for the election of Board members, was not self-executing, but required the Legislature to provide by law the manner in which members of the Board should be elected. At the First Special Session of the same Legislature which met in June, 1951, the Governor called this omission to the attention of the Legislature and added to the agenda of the Special Session the matter of enacting such implementing legislation. During that special session Chapters 16 and 17, Laws of Utah 1951, First Special Session, were enacted. Chapter 16 amended Sec. 75-7-1, U.C.A.1943, to provide that the 'state board of education shall consist of nine persons elected by qualified registered electors according to election districts', which districts were given the same geographical boundaries as the seven judicial districts of the state, each election district bearing the same number as the judicial district with which it corresponds. Further, in Chap. 16, provision was made for the holding of conventions in each election district for the purpose of nominating candidates for membership on the Board and the election of Board members was provided to be conducted as a part of the general election but with separate ballots. There was directed the election of (a) one Board member in District No. 7 at the general election in November 1951. [As will be hereafter pointed out, this was obviously a legislative error since general elections are held only in the even-numbered years]; (b) three Board members in District No. 3 at the general election in November, 1952, and every six years thereafter; (c) one Board member in each of Districts Nos. 1, 4 and 6 at the general election in November, 1954, and every six years thereafter; and (d) one Board member in each of Districts Nos. 2, 5 and 7 at the general election in November, 1956, and every six years thereafter. Following the above schedule for electing Board members, the following provision was made in Chapter 16:

'The terms of office of the present members of the state board of education are continued until their successors are elected and qualify.'

Also, Chapter 16 empowered the Board to appoint and fix the salary of the State Superintendent of Public Instruction 'who shall be the executive officer of the Board.'

Chapter 17, Laws of Utah 1951, First Special Session, amended Sec. 75-8-1, U.C.A.1943, specifying the qualifications of the State Superintendent of Public Instruction, and provided that he should 'serve at the pleasure of the Board.'

Chapters 16 and 17 took effect on August 15, 1951, sixty days after the close of the Special Session in accordance with Art VI, Sec. 25, Constitution of Utah. At a meeting of the State Board of Education on October 5, 1951, the Board appointed Dr. Bateman to the office of State Superintendent of Public Instruction and fixed his salary at $10,000 per annum. The Board of Examiners (composed of the Governor, Secretary of State and the Attorney General) which must approve all salary claims against the State, except those fixed by law, approved by a vote of two to one the request of the Board of Education to pay Dr. Bateman a salary of $10,000 per annum. Salary claims submitted for and on behalf of Dr. Bateman for the payroll period of October 1 to 15, 1951 and from October 16 to 31, 1951 were approved by the Board of Examiners by a vote of two to one, but the Commission of Finance refused to issue warrants on the State Treasurer in payment of said salary claims. No salary has been paid to Dr. Bateman since his appointment on October 5, 1951. In its answer to an alternative writ issued by this court on petition of the State Board of Education, the Commission of Finance and its members challenge the legality of the constituency of the Board of Education and the appointment of Dr. Bateman to the office of State Superintendent of Public Instruction.

At the general election in November, 1948, Dr. Bateman was elected Superintendent of Public Instruction for a term of four years. This was, of course, two years prior to the approval by the electorate of the constitutional amendments to Art. X, Sec. 8 and Art. VII, Secs. 1, 10 and 20, which changed the office from elective to appointive in character. The Joint Resolutions adopted by the Legislature in 1949 proposing the amendments specified that if the amendments to Art. VII, Secs. 1, 10 and 20 were approved by the electorate, they should take effect on January 1, 1951. (No provision was made in the Joint Resolutions for the effective date of the amendment to Art. X, Sec. 8 in the event of its approval by the electorate.) Thus when the amendments to Art. VII, Secs. 1, 10 and 20 were approved by the voters of this state at the general election held November 7, 1950, they accordingly became a part of the Constitution on January 1, 1951 and because they required no legislative implementation they had immediate operation. As heretofore stated, their effect was to delete the Superintendent of Public Instruction (1) from the list of elective officers constituting the Executive Department, (2) from the list of offices to be filled by appointment by the Governor in the event of a vacancy therein, and (3) from the list of officers whose compensation for their services must be fixed by law.

The defendants contend that the amendments abolished the office of Superintendent of Public Instruction as of January 1, 1951. With this contention was cannot agree. The amendments terminated the constitutional four year term of office to which Dr. Bateman had been elected in 1948, but did not abolish the office. That it was the intention of the amendments to cut short Dr. Bateman's term of office is manifest from the fact that (1) the amendment to Art. VII, Sec. 1...