State ex rel. Wright v. Gossett

• Decision Date: 20 March 1941
• Docket Number: 6886,6885
• Citation: 62 Idaho 521,113 P.2d 415
• Parties: STATE ex rel. CALVIN E. WRIGHT, State Auditor, Respondent, v. CHARLES C. GOSSETT, HARRY C. PARSONS, and UNITED PACIFIC CASUALTY INSURANCE COMPANY, a corporation, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation, Appellants. STATE ex rel. CALVIN E. WRIGHT, State Auditor, Respondent, v. HARRY C. PARSONS and UNITED PACIFIC CASUALTY INSURANCE COMPANY, a corporation, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation, and AUGUSTA SMITH, Administratrix of the estate of Troy D. Smith, Deceased, Appellants
• Court: Idaho Supreme Court

113 P.2d 415

62 Idaho 521

STATE ex rel. CALVIN E. WRIGHT, State Auditor, Respondent, v. CHARLES C. GOSSETT, HARRY C. PARSONS, and UNITED PACIFIC CASUALTY INSURANCE COMPANY, a corporation, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation, Appellants. STATE ex rel. CALVIN E. WRIGHT, State Auditor, Respondent, v. HARRY C. PARSONS and UNITED PACIFIC CASUALTY INSURANCE COMPANY, a corporation, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation, and AUGUSTA SMITH, Administratrix of the estate of Troy D. Smith, Deceased, Appellants

Nos. 6885, 6886

Supreme Court of Idaho

March 20, 1941

ON REHEARING MAY 20, 1941.

STATES-COMPENSATION OF LEGISLATIVE OFFICIALS-CONSTITUTIONAL LAW-RECOVERY OF ILLEGAL PAYMENTS.

1. The state was not "estopped" from questioning constitutionality of statute providing for payment of compensation to speaker of house of representatives and lieutenant governor as president of senate for remaining in Boise, Idaho, in their official capacity a sufficient length of time to complete the unfinished business of the legislature, since the state received no benefit from either the lieutenant governor or the speaker of the house by reason of the services rendered after the session adjourned excepting those benefits which such officers were already required to render to the state and for which a compensation in entirety was fixed. (Sess. Laws, 1937, chap. 167; Const art. 4, sec. 19.)

2. The statute providing for further compensation for speaker of house and president of senate for services performed after adjournment of session is unconstitutional, since under the constitution it was duty of such officers to perform all their acts as speaker of the house and president of the senate for compensation fixed by the constitution. (Sess Laws, 1937, chap. 167; Const., art. 3, sec. 23; art. 4, sec 19.)

3. In construing the constitution, words are to be given their ordinary meaning.

4. An officer who claims and receives compensation in excess of amount limited by the constitution is liable in the amount of such excess in an action brought by the state to recover the illegal payment.

5. Where speaker of house of representatives and lieutenant governor as president of senate had been paid, under unconstitutional statute, compensation in excess of that to which they were entitled under the constitution, the state was not precluded from recovering the illegal payments on theory that the board of examiners was vested with absolute power to determine rightly or wrongly the rejection or payment of claims, since the board of examiners does not pass on claims for salaries and compensation of officers fixed by law. (Sess. Laws, 1937, chap. 167; Const., art 3, sec. 23; art. 4, secs. 18, 19.)

6. The actual work of preparing legislative journals, inspecting them, completing the enrollment of bills, or indexing all laws, resolutions and memorials enacted during the legislative session and taking inventory of legislative furniture is not "germane" to office of speaker of the house of representatives or to office of lieutenant governor in his capacity as president of the senate but the employing of clerical help and supervising the employees of the legislature in performance of their work is germane to such offices, as regards validity of statutes providing further compensation for speaker of the house and president of senate for services performed after adjournment of session. (Sess. Laws, 1937, chap. 167; Const., art. 3, sec 23; art. 4, secs. 18, 19.)

7. The duty of signing bills and joint resolutions which have been passed by the legislature and which remain unsigned at time of adjournment devolves on the speaker of the house of representatives and lieutenant governor acting in his capacity as president of the senate, as regards validity of statute providing further compensation for speaker of the house and president of senate for services performed after adjournment of the session. (Sess. Laws, 1937, chap. 167; Const., art. 3, secs. 21, 23.)

8. The fact that the legislature designated a speaker of house of representatives and chief clerk of the house and president and secretary of the senate in their official capacities to complete unfinished business of legislature and then specified the acts to be done by the officials and so many of the attaches and employees of either house as might be necessary to finish the work, indicated that it was not the legislative intention that the speaker of the house and president of the senate should perform the manual labor of completing the legislative work, or that they were required, or expected, to do anything not germane to their respective offices, as regards constitutionality of statute providing further compensation for speaker of house and president of senate for services performed after adjournment of the session. (Sess. Laws, 1937, chap. 167; Const., art. 3, secs. 21, 23.)

9. In constitutional provision fixing salary of governor and other state officers, and providing that the compensation "enumerated" shall be in full for all services by said officers respectively, the word "enumerated" does not apply exclusively to the compensations which are expressed in a specified number of dollars per annum, but applies to the per diem compensation of lieutenant governor the amount of which is fixed by reference to the per diem compensation of the speaker of the house of representatives, since "enumerated" as used in the constitutional provision expresses the same meaning as would have been conveyed had the words "designated" or "specifically mentioned" been used in its stead. (Const., art. 4, sec. 19.)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Koelsch, Judge.

Actions to recover compensation paid the president of the senate and speaker of the house of representatives. Judgment for the state. Affirmed.

Judgment affirmed. Costs awarded to respondent.

George Donart, Dunlap & Dunlap, Francis M. Bistline and Maurice H. Greene, for Appellants.

To warrant a court in declaring a statute or administrative act void, its invalidity must be distinctly pointed out. Accordingly, one who alleges that a statute is unconstitutional, must ordinarily point out the specific constitutional provision that is violated by it. (16 C. J. S., p. 223, sec. 96, and cases cited under note 34; In re Brainard, 55 Idaho 153, 159, 39 P.2d 769.)

The board of examiners was constitutionally vested with absolute discretion to determine, rightly or wrongly, the allowance or disallowance of these claims. (Art. IV, sec. 18, Constitution of Idaho; Gem. Irr. Dist. v. Gallett, 43 Idaho 519, 253 P. 128; Bragaw v. Gooding, 14 Idaho 288, 94 P. 438; State v. National Sec. Co., 29 Idaho 670; Curtis v. Moore, 38 Idaho 193; Pyke v. Steunenberg, 5 Idaho 614.)

When a state has invoked the benefits of a statute or has made a statute passed by its legislature the basis of a suit, it may not question the constitutionality of such statute. ( Albrethsen v. State, 60 Idaho 714, 96 P.2d 437; 12 C. J., p. 771, par. 196; Utah Power & Light Co. v. Pfost, 286 U.S. 165, 52 S.Ct. 548, 76 L.Ed. 1038; Washington Water Power Co. v. Coeur d' Alene, 9 F.Supp. 263.)

Estoppel applies to State. (City Council v. Board of Commrs., 33 Colo. 1, 77 P. 858; State v. Roseberry, 37 Ariz. 78, 289 P. 515; Riverton Valley Drainage Dist. v. Board of Commrs., 52 Wyo. 336, 74 P.2d 871, 114 A. L. R. 1093.)

Administrative officers and citizens dealing with administrative officers are not presumed to know that statutes are unconstitutional and acts performed in good faith under an unconstitutional statute will be upheld. (Mo. Utilities Co. v. City of California, 8 F.Supp. 454, 467-468; U. S. v. Realty Co., 41 L.Ed. 215, 163 U.S. 427, 16 S.Ct. 1120.)

The rule that an unconstitutional statute is not a law is subject to the qualification of rights, duties and obligations which have been performed prior to the statute being declared unconstitutional. (Chicot Drainage Dist. v. Baxter State Bank, 84 L.Ed. 329.)

Where an increase in salaries is authorized under an unconstitutional statute, future payments will be enjoined but part payments cannot be recovered. (Wade v. Board of Comm'rs, (Okla.) 17 P.2d 690; Gordon v. Connor, (Okla.) 80 P.2d 322.)

Bert H. Miller, Attorney General, and Robert M. Kerr, Jr., and J. R. Smead, Assistant Attorneys General, for Respondent.

The Board of Examiners are not authorized to pass upon claims for "compensation" by the Lieutenant Governor or the Speaker of the House. In each instance that compensation is "fixed by law." (Constitution, art. IV, sec. 18; Sess. Laws, 1937, chap. 167.)

Pay "per diem" is used in our Constitution as synonymous with "salary." (Peay v. Nolan, 7 S.W.2d 815; 60 A. L. R. 408, 411-413.)

Nor is their action conclusive in a case wherein they have acted with full authority. (Constitution, art. V, sec. 10; art. IV, sec. 18; In re Huston, 27 Idaho 231, 242; Herrick v. Gallet, 35 Idaho 13, 17; Const., art. VII, sec. 13; State v. Malcom, 39 Idaho 185; I. C. A., sec. 65-2015, Am. Laws 1939, chap. 113, sec. 19.)

Acquiescence in an unconstitutional statute or practice for many years does not render it valid. (Continental Oil Co. v. Twin Falls, 49 Idaho 89, 101; In re Southard, et al., supra, p. 938.)

Such a statute is void ab initio and creates neither rights nor liabilities. (State v. Malcom, 39 Idaho 185.)

Changing an officer's salary during his term of office is prohibited. (Const., art. IV, sec. 19; Monroe v. Nation, (Kan.) 103 P. 107; Board of Commrs. v. Bruce, (Okla.) 152 P. 125.)

The word "compensation" as used in the Constitution includes any form of remuneration for services rendered whether to be calculated at a rate ...