State ex rel. Hansen v. Parsons

• Decision Date: 25 May 1937
• Docket Number: 6447
• Citation: 57 Idaho 775,69 P.2d 788
• Parties: STATE on the Relation of HENRY HANSEN, Plaintiff, v. HARRY C. PARSONS, State Auditor of the State of Idaho, Defendant
• Court: Idaho Supreme Court

69 P.2d 788

57 Idaho 775

STATE on the Relation of HENRY HANSEN, Plaintiff, v. HARRY C. PARSONS, State Auditor of the State of Idaho, Defendant

No. 6447

Supreme Court of Idaho

May 25, 1937

CLAIMS AGAINST STATE-EXPENDITURES IN EXCESS OF APPROPRIATION-ALLOWANCE OF CLAIMS-BOARD OF EXAMINERS-SUPREME COURT-JURISDICTION-CONSTITUTIONAL LAW.

1. Sole and exclusive original jurisdiction to pass upon, and allow or reject, claims against the state, is vested by Constitution in State Board of Examiners (Const., art. 4 sec. 18.)

2. Where Constitution requires that one department of state government shall act before another can take hold of or give relief in the same matter, Constitution is mandatory and its requirement must be observed (Const., art. 4, sec. 18).

3. If State Board of Examiners having exclusive original jurisdiction to pass on, allow, or reject claims against state, fails or refuses to act, court will issue proper writ commanding them to act, and, if board rejects claim, Supreme Court may hear case involving its validity, but its decision is merely recommendatory (Const., art. 4, sec. 18; art. 5 sec. 10).

4. Supreme Court will not hear or consider any claim against the state until the claim has been passed on by the State Board of Examiners (Const., art. 4, sec. 18; art. 5, sec. 10).

5. Legislature has no power or authority to pass upon claim against the state without claim first having been considered and acted upon by State Board of Examiners (Const., art. 4 sec. 18).

6. If claim against state was originally incurred in violation of statute and Constitution prohibiting expenditures in excess of appropriations, subsequent attempt of legislature to pay claim which had not been passed upon by State Board of Examiners was unconstitutional (Sess. Laws 1933, chap. 56; Sess. Laws 1935, 1st Ex. Sess., chap. 46; I. C. A., secs 57-1015, 57-1017, 65-2013, 65-2017; Const., art. 3, sec. 19, par. 18; art. 4, sec. 18; art. 7, sec. 13).

7. Stipulation showing that on date of purchase orders of State Industrial Insurance Department, there was enough in total state insurance fund appropriation to pay claim though there was at that time nothing in the special funds designated as "services other than personal" and "supplies," and that claim involved was for printing matter, could not be considered in determining whether legislature had power to pass act allowing claim where claim had been presented to State Board of Examiners but not acted upon by the board (Sess. Laws 1931, chap. 56; Sess. Laws 1935, 1st Ex. Sess., chap. 46; Const., art. 4, sec. 18).

8. Prohibitions of statute and Constitution against creating any expense or incurring any liability against the state in excess of existing appropriations therefor apply to the time of incurring the expense or liability, rather than to the time the particular bill or claim is presented for payment (I. C. A., secs. 57-1015 to 57-1017; Const., art. 7, sec. 13).

9. Where state industrial insurance fund became exhausted and department contracted debts in excess of specific appropriation therefor, statute enacted before State Board of Examiners had passed upon or approved claims for such excess expenditure violated Constitution prohibiting legislature from passing on claims against state not acted on by State Board of Examiners and Constitution forbidding passage of "local or special laws" (Sess. Laws 1933, chap. 56; Sess. Laws 1935, 1st Ex. Sess., chap. 46; I. C. A., secs. 57-1015 to 57-1017, 65-2013, 65-2017; Const., art. 3, sec. 19, par. 18; art. 4, sec. 18; art. 7, sec. 13).

Original proceeding for writ of mandate. Alternative writ issued. Writ quashed and action dismissed.

Alternative writ quashed and action dismissed. No costs awarded.

C. S. Hunter, for Plaintiff.

The subject matter of chap. 46 of the Extraordinary Session of 1935, called into session by the then Governor of Idaho under date of March 8, 1935, was within the call of the Governor. (Proclamation of the Governor of Idaho, March 8, 1935.)

Chapter 46 of the Extraordinary Session, 1935, provides appropriation for the payment of claims therein designated, which claims covered contracts legally made and authorized by the proper state officers. None of its provisions exempt any individual from the uniform operation of the penal laws of the State of Idaho. (State v. Banks, 33 Idaho 765, 198 P. 472; Barker v. Chesterfield, 102 Mass. 127, 128, cited in Bouvier's Law Dictionary, Third Revision; Fuller Desk Co. v. State, 6 Idaho 315, 55 P. 857; Coles v. County of Washington, 35 Minn. 124, 27 N.W. 497, 498; Demoval v. Davidson County, 87 Tenn, 214, 10 S.W. 353, 356.)

The legislature cannot curtail or circumscribe the power, authority or duties of the State Board of Examiners granted by the Constitution. (Sec. 18, art. 4, Constitution of Idaho; Pyke v. Steunenberg, 5 Idaho 614, 51 P. 614; Bragaw v. Gooding, 14 Idaho 288, 94 P. 438; McConnel v. Gallet, 51 Idaho 386, 6 P.2d 143.)

It is the duty of the State Board of Examiners to pass upon claims against the State, although there may be appropriation out of which the same can be paid. (Kroutinger v. Board of Examiners, 8 Idaho 463, 69 P. 279.)

J. W. Taylor, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Defendant.

It is the well established rule that no recovery can be had upon a claim for materials furnished in excess of appropriation. ( Sutton v. United States, 256 U.S. 575, 41 S.Ct. 563, 65 L.Ed. 1099; note, 19 L. R. A. 408, citing: State v. National Surety Co., 29 Idaho 670, 2 A. L. R. 251, 161 P. 1026.)

A "special law" as defined by this court and the authorities generally is: "One which applies only to an individual or to a number of individuals selected out of the class to which they belong, or to a special locality." ( Jones v. Power Co., 27 Idaho 656, 150 P. 35; Sasser v. Martin, 101 Ga. 447, 29 S.E. 278; Boise Irr. & L. Co. v. Stewart, 10 Idaho 38, 77 P. 25, 321; Mix v. Board of County Commrs., 18 Idaho 695, 32 L. R. A., N. S., 534, 112 P. 215; 59 C. J. 735, § 322 and notes 20 et seq.)

Constitutional provisions restricting the legislative right to act in matters of appropriation of public funds are in the highest degree mandatory. (59 C. J. 241 and cases compiled in notes 5 and 6.)

An act of an officer in exceeding his appropriation cannot be ratified. (Scott County v. Advance-Rumley Thresher Co., 288 F. 739; State v. Hackmann, 314 Mo. 33, 282 S.W. 1007; 12 C. J. 1140 (1141) § 873, notes 59 and 60.)

Charles F. Reddoch, J. R. Smead and Jess B. Hawley, Amici Curiae on petition for rehearing.

The claim concerned in this action is against the State Insurance Fund--not against the State of Idaho--therefore the constitutional provisions and legislative enactments governing claims against the State are inapplicable. (Sec. 18, art. 4, Idaho Const.; sec. 75, p. 289, 1917 Sess. Laws, (sec. 43-1701, I. C. A.); sec. 86, p. 282, 1917 Sess. Laws, (sec. 43-1710, I. C. A.); sec. 89, p. 284, 1917 Sess. Laws, (repealed p. 531, 1921 Sess. Laws); sec. 115, p. 293, 1917 Sess. Laws; Brady v. Place, 41 Idaho 747, 242 P. 314, 243 P. 654; 71 C. J. 901, sec. 628; State ex rel. Trenholm v. Yelle, 174 Wash. 547, 25 P.2d 569, 28 P.2d 1119; State ex rel. Stearns v. Olson, 43 N.D. 619, 175 N.W. 714.)

Moneys placed in the State Insurance Fund are not moneys in the state treasury of the State of Idaho, but moneys of a custodian specifically designated by the statute--the state treasurer--for the use and benefit of the employers whose premiums on insurance policies solely and alone constitute the fund, and also for the use and benefit of their employees insured by said premiums. (Sec. 77, p. 281, 1917 Sess. Laws, (sec. 43-1702, I. C. A.); sec. 75, p. 280, 1917 Sess. Laws, (sec. 43-1701, I. C. A.); sec. 86, p. 282, 1917 Sess. Laws, (sec. 43-1710, I. C. A.); Ohio v. Halvering, 292 U.S. 360, 54 S.Ct. 725, 78 L.Ed. 1307; Helvering v. Powers, 293 U.S. 214, 55 S.Ct. 171, 79 L.Ed. 291; State of North Dakota v. Olson, 33 F.2d 848.)

AILSHIE J., MORGAN, C. J. HOLDEN, J., Ailshie and Givens, JJ., Concurring.

OPINION

AILSHIE, J.

--The regular legislative session of 1933 enacted chapter 56 of the 1933 Sess. Laws, by which it appropriated for the use of the State Industrial Insurance Fund the following specific amounts for the ensuring biennium:

"For salaries and wages the sum of $ 60,880.00, to be classified for the biennium as follows:

Salary of regular officers and employees

$ 58,800.00

Extra help and per diem employees

1,080.00

Expert and special

1,000.00

Services Other Than Personal

$ 10,605.00

Supplies

2,820.00

Equipment

2,520.00

Fixed charges and contributions

1,618.00

TOTAL for salaries and wages and all other

expenses

$ 78,443.00"

It appears that this fund became exhausted in the latter part of 1934 and the department was without sufficient means to continue its regular administration, and thereupon contracted certain debts in excess of any specific appropriations therefor, among which is the claim here involved. Plaintiff is assignee of the claim. The claim was never passed upon by the State Board of Examiners prior to the legislative action hereinafter recited.

March 8, 1935, Governor Ross called the legislature into special or extraordinary session and during that session and on April 1, 1935, it enacted chapter 46 1935 Session Laws (1st Ex. Sess.), which was thereupon approved by the Governor. Subsequent to the enactment of chapter 46, the State Board of Examiners met, all members being present, and examined and approved the claims here involved and instructed and directed the state auditor, defendant herein, to issue warrants of the State of Idaho in payment thereof. Acting on the advice of the attorney general, the auditor...