Taylor v. State, 6818

• Citation: 109 P.2d 879,62 Idaho 212
• Decision Date: 21 January 1941
• Docket Number: 6818
• Parties: FRED M. TAYLOR, Plaintiff, v. STATE OF IDAHO, Defendant
• Court: United States State Supreme Court of Idaho

109 P.2d 879

62 Idaho 212

FRED M. TAYLOR, Plaintiff, v. STATE OF IDAHO, Defendant

No. 6818

Supreme Court of Idaho

January 21, 1941

CONSTITUTIONAL LAW-CONTROL OF INTOXICATING LIQUORS-LIQUOR BOARD-EMPLOYMENT OF COUNSEL.

Under constitutional amendment giving legislature full power and authority to control and regulate intoxicating liquors for beverages purposes, legislature could authorize Idaho Liquor Board to employ legal counsel, as against contention that furnishing of legal counsel and assistants to Board was official duty of the Attorney General. (Sess. Laws, 1939 chap. 222, sec. 308; Const., art. 3, sec. 26, as amended in 1934, Sess. Laws, 1935, p. 375.)

Original proceeding under article 5, section 10 Constitution, for a recommendatory judgment. Judgment for plaintiff.

Fred M Taylor, Maurice H. Greene and E. H. Anderson, for Plaintiff.

Vestal P. Coffin, Amicus Curiae.

The legislature of Idaho has plenary power to enact any law that is not expressly prohibited by either the federal Constitution or the Constitution of this state. (Const., Idaho, art. 1, sec. 21.)

It is settled that implied limitations on legislative power are inapplicable to the Constitution of Idaho because:

"Our Constitution is not a delegation of power, but a restriction (sec. 21, art. 1), and unless the legislature is expressly prohibited by the Constitution, it has plenary power." (State v. Johnson, 50 Idaho 363, 367, and cases cited, 296 P. 588; Lloyd Corp. v. Bannock County, 53 Idaho 478, 484, 25 P.2d 217; Koelsch v. Girard, 54 Idaho 452, 455, 33 P.2d 816; McGoldrick Lbr. Co. v. Benewah County, 54 Idaho 704, 708, 35 P.2d 659.)

The legislature has ample power to create a new administrative function of the state government, to vest in an administrative board complete power of administration, and to authorize that board to appoint its own attorney and prescribe his powers and duties. (State ex rel. Pew v. Porter, 57 Mont. 535, 189 P. 618; State v. Hall, 23 N. M. 422, 168 P. 715; Follmer v. State, 94 Neb. 217, 142 N.W. 908, Ann. Cas. 1914D, 151; State v. Homesteaders Life Assn., (C. C. A. 8) 90 F.2d 543; People v. Santa Clara Lumber Co., 55 Misc. 507, 106 N.Y.S. 624.)

J. W. Taylor, Attorney General, and Lawrence B. Quinn, E. G. Elliott, R. W. Beckwith and D. W. Thomas, Assistant Attorneys General, for Defendant.

The Constitution, in establishing the office of Attorney General, invested in that office the characteristic duties, powers and functions as they existed at common law and as partially enacted into statutes in existence at the time of the adoption of the Constitution, and the legislature cannot by legislation deprive the Attorney General of any of these powers, functions and duties, or transfer his powers, duties or functions, or any part thereof to any board, agency, office or officer created by a legislative act. (Art. 4, sec. 1, Idaho Const.; art. 4, sec. 3, Idaho Const.; Constitutional Convention Proceedings, vol. 1, pp. 414, 415; vol. 2, p. 1422; Rev. Stats. 1887; secs, 18, 171, 250 (1, 6, 11), 4612; Wright v. Callahan, 61 Idaho 167, 99 P.2d 961; Meller v. Board of etc. Logan County, 4 Idaho 44, 35 P. 712; Hampton v. Commissioners of Logan County, 4 Idaho 646, 43 P. 324.)

The office of Attorney General is constitutionally part of the executive department of our state government and in the performance of its constitutional duties is not subject to the control of or embarrassment by either the legislative or judicial departments of government. (Art. 2, sec. 1, Idaho Const.; Schmelzel v. Board of Commrs., 16 Idaho 32, 100 P. 106, 133 Am. St. 89, 17 Ann. Cas. 1226, 21 L. R. A., N. S., 199; 11 Am. Jur., sec. 18, pp. 880, 884; Cooley's Const. Lim., 8th ed., vol. 1, pp. 106, 107, 140, 221; Miller v. Meredith, 59 Idaho 385, 83 P.2d 206.)

BUDGE C. J. Givens, J., AILSHIE, J., Concurring. MORGAN, J., HOLDEN, J., Dissenting.

OPINION

BUDGE, C. J.

This action was filed in the Supreme Court on June 8, 1940, under and by virtue of section 10, article 5 of the Constitution of the State of Idaho, invoking the original jurisdiction of this court to hear claims against the State of Idaho and for a recommendatory judgment after action of the State Board of Examiners disallowing the claim of plaintiff.

The issues involved and the facts established by the amended complaint and amended answer are in effect as follows:

The plaintiff Fred M. Taylor, on May 15, 1939, was appointed as attorney to the Idaho State Liquor Board and Dispensary by said board under and by virtue of section 308 of chapter 222 of the 1939 Session Laws with the rate of pay of $ 83.33 a month and received on November 1, 1939, a new certificate of appointment by the State Liquor Dispensary increasing his salary to $ 100 a month. As such attorney his salary was allowed by the State Board of Examiners in full up to and including April 17, 1940, at about which time J. W. Taylor, Attorney General for the State of Idaho, informed the plaintiff by letter that his services as attorney for the State were no longer required. Subsequent to such notification, on April 26, 1940, plaintiff presented a claim to the State Liquor Dispensary for his salary for the month of April, 1940. This claim was approved by the State Liquor Dispensary and its manager and was presented to the State Board of Examiners for approval and allowance by said board. Upon advice of the Attorney General the Board of Examiners allowed said claim in part, that is for the sum of $ 56.67, covering the period from April 1, 1940, to April 17, 1940, and disapproved the balance. The State of Idaho, being represented by the Attorney General, has admitted the factual statements contained in the amended complaint but denies the legal authority of the Idaho Liquor Board to employ legal counsel, asserting that this right rests solely with the Attorney General of the State of Idaho, and that said Attorney General had not appointed said plaintiff, and that that portion of the law under which his appointment was made is unconstitutional and void and the State is not legally chargeable with his salary.

With the consent of plaintiff Vestal P. Coffin petitioned the court and was granted permission to appear herein as amicus curiae and permitted to sign in such capacity the brief to be filed by plaintiff.

Paragraph VI of defendant's amended answer alleges in part as follows:

"That the State Board of Examiners of the State of Idaho did not err in law in disapproving the said claim of Plaintiff; that Sec. 308, ch. 222 of the 1939 Session Laws of the State of Idaho, insofar as it purports to create the position of legal counsel or attorney of and for said State Liquor Board and said Dispensary and to empower said Board to select or appoint such legal counsel or attorney, to prescribe the qualifications of any person so selected or appointed, to fix compensation, assign the duties, and to discharge such or any such person so selected or appointed, is in violation of and contrary to the provisions of the Constitution of the State of Idaho; that the exercise by said Board of any or all of the purported powers attempted by said statute to be created and vested in said Board was and is an infringement on and an invasion of the duties, rights and powers imposed upon and vested in the Attorney General of the State of Idaho by the provisions of said Constitution, their intendment and effect, particularly Sec. 1, Art. 4; Sec. 3, Art. 4; and Sec. 1, Art. 2 of the Constitution of Idaho. . . ."

Section 308, chapter 222, Laws of 1939, page 465, provides:

"Without attempting or intending to limit the general powers of the board contained in section 307 hereof, such powers shall extend to and include the following: . . .

"(b) To prescribe the qualifications of and to select clerks, accountants, agents, vendors, inspectors, servants, legal counsel, and other personnel to conduct its business and perform its functions; to require from those holding positions of trust, bonds with approved sureties; to fix the compensation of all appointees and employees, assign their duties, and to discharge them."

The only issue in the case is whether that portion of chapter 222, 1939 Session Laws, empowering the State Liquor Board to employ legal counsel to conduct its business and perform its functions, fix his compensation, assign his duties and to discharge him violates the Constitution in that it deprives the Attorney General of such powers.

It may be said that the statute referred to and urged to be unconstitutional in the particulars above suggested found its inception in the amendment of section 26, article III, of the Constitution of the State of Idaho, ratified November 6, 1934, and reading as follows:

"Section 26. POWER AND AUTHORITY OVER INTOXICATING LIQUORS.--From and after the thirty first day of December in the year 1934, the Legislature of the State of Idaho shall have full power and authority to permit, control and regulate or prohibit the manufacture, sale, keeping for sale, and transportation for sale of intoxicating liquors for beverage purposes."

It is well settled that unless the legislature, a distinct and independent, but coordinate branch of the state government is prohibited by the Constitution it has plenary power. (State v. Johnson, 50 Idaho 363, 296 P. 588; State v. Nelson, 36 Idaho 713, 213 P. 358; State v. Banks, 33 Idaho 765, 198 P. 472.) From the foregoing may be derived the further proposition that unless the legislative power to appoint legal counsel as provided in section 308 of chapter 222, 1939 Session Law, supra, was limited by the Constitution, that is as urged by defendant,--granted to the Attorney General of the State of Idaho, the legislature had such power. It does not appear necessary to...