Thoreson v. State Board of Examiners

• Decision Date: 13 March 1899
• Court: Utah Supreme Court
• Parties: I. C. THORESON, RESPONDENT, v. STATE BOARD OF EXAMINERS, APPELLANT

57 P. 175

19 Utah 18

I. C. THORESON, RESPONDENT, v. STATE BOARD OF EXAMINERS, APPELLANT

Supreme Court of Utah

March 13, 1899

Rehearing granted May 2, 1899.

Appeal from the Third District Court, Salt Lake County, Hon. A. N Cherry, Judge.

Application of I. C. Thoresen for a writ of mandamus directing the State Board of Examiners to audit and allow in accordance with the requirements of Section 963 of the Revised Statutes, an unpaid balance ($ 38.96) of an amount paid by the relator's assignor on account of a lease of school lands made in pursuance of Chapter 76 of the Session Laws of Utah 1892.

From a judgment granting a peremptory writ defendant appeals.

Affirmed.

Hon. A. C. Bishop, Attorney-General, and William A. Lee, Esq., Deputy Attorney-General, for appellant.

Respondent bases his right for the writ of mandate prayed for upon the provisions of Section 963 of the Revised Statutes, which reads:

"The State Board of Examiners are hereby directed to receive, audit, and allow all just claims of persons who have paid moneys in pursuance of chapter seventy-six, of the session laws of the Territory of Utah of eighteen hundred and ninety-two, in relation to the leasing of school lands, and the State Auditor is hereby directed to draw his warrant therefor on the State district school tax fund."

Appellant contends that the language employed by the legislature in this section, in defining the powers and duties of the Board in relation to these claims, necessarily vests it with a judicial and discretionary power, and that it can not audit and allow just claims presented to it without first sitting in judgment upon such claims, and hearing the necessary evidence and making a proper investigation to determine what claims come within this class.

"Audit, means to hear and examine; to pass upon and to adust; to examine and adjust an account or accounts." Am. and Eng. Ency. of Law (2d Ed.), Vol. 3, p. 2.

The word implies an exercise of judicial discretion. In re Clark, 5 F. Cas., No. 2810, 9 N. B. R., 67; Morris v. People, 3 Den. (N.Y.), s91; Chase v. Saratoga County, 33 Barb. (N.Y.), 603; People v. St. Lawrence County, 30 How. Pr. (N.Y. S.Ct.), 173; People v. Barnes, 114 N.Y. 317; People v. Board of Apportionment, etc., 52 N.Y. 227; Territory v. Grant 3 Wyo., 243; 21 P. 693; High on Ex. Legal Rem. (3d Ed.), Sec. 24; Secretary v. Mc Garrahan, 9 Wal., 312; U.S. v. Seaman, 17 How., 472; U.S. v. Commissioner, 5 Wal., 563; High on Ex. Legal Rem., Sec. 102; Osborne v. Clarke, 25 P. (Ariz.), 797; State v. Boyd, 36 Neb. 60.

Appellant contends that were this a case in which the court is clothed with appellate jurisdiction or jurisdiction to review and correct the judgment of the appellate board, in case it should find that judgment erroneous, applying the law to the facts in this case, an appellate court must necessarily reach the same conclusion that the Board reached. The decision of the Board in rejecting petitioner's claim, for that part of the money which was never turned over by the authorities of Cache County into the Territorial school fund, was a correct interpretation of Section 963.

For the purposes of this action, all of the parties thereto conceded, that while $ 103.90 was received by the county clerk of Cache County, from the petitioner's assignor, by and on account of said pretended lease, that the sum of $ 38.96 was retained by the county officers, or some of them, and only the sum of $ 64.94 was turned into the Territorial district school tax fund.

The Territorial supreme court in Burrows v. Kimball, supra, found the act under which the payment was made absolutely void, ab initio.

An unconstitutional act is not a law; it confers no right; it imposes no duty; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. Norton v. Shelby County, 118 U.S. 425; County Commissioners v. Kansas City R. Co., 5 Kan.App. 43, 47 P. 326.

Applying this case to the case at bar, all parties who paid money upon these leases to the several county treasurers, were making mere voluntary payments under which, and from which, they derived no right whatever, other than a right of action for money had and received against the individual so taking the money. These county officers were not acting in their capacity as officials; they were not bound to account for the money; they could not embezzle it as public funds, and the State or Territory, as it was then, had no right of action against them to recover it. Indeed, we might go further, and say that no person who came into possession of this money, whatever might have been his official position, was in any manner liable to the Territory for the same. Had the Territorial Treasurer failed to turn this money over to the school fund, in which it was subsequently found, he would not in any manner have been liable upon his bond, or otherwise, except as hereinbefore stated, to the individual from whom he received the same. It was not money that came into his possession by virtue of any law, but a mere voluntary payment made to him.

Such was the condition as it existed when Section 963 was passed by the legislature, but the legislature recognizing the fact that certain sums of money had been paid under a mistaken belief that there was a law authorizing such payments, and that such money had been actually passed to the credit of the State district school tax fund, and considering that it was inequitable and unjust that the State district school tax fund should retain money that had been paid into it under a mistaken belief that there was a law authorizing it to be so paid into such fund, and, doubtless, also recognizing the further fact that the State could not be sued for money had and received, as an individual might be, enacted Section 963 for the purpose of authorizing the State Board of Examiners to return all such portions of this money as had actually found its way into the State district school tax fund. But it was never the intention of the legislature to invade that fund and authorize the State Board to pay claims out of the same in excess of what the fund had actually received. Indeed, the legislature did not have the constitutional power to appropriate money out of this fund for such a purpose. But the legislature could, very properly, authorize the board to repay sums of money that had been erroneously collected and paid into this fund under this void statute, such money, in contemplation of law, never having become a part of this fund. And this is all that the legislature intended, by the provisions of Section 963, to authorize the board to do.

Where an officer receives money which he is not by law authorized to receive, such money is not received by him in his official capacity, and any duty which he may owe to pay the money is only that which rests upon any debtor or bailee. Moore v. State (Neb.), 74 N.W. 319; San Jose v. Welch, 65 Cal. 358; San Luis Obispo Co. v. Farnum, 108 Cal. 562; 41 P. 445; People v. Pennock, 60 N.Y. 421; Orton v. City of Lincoln (Ill. Sup.), 41 N.E. 159; Lowe v. City of Guthrie (Okla.), 44 P. 198; Warswick v. State (Tex. C. R. App.), 35 S.W. 386; Fire Ins. v. State, 9 Kan. 210.

See also Throop on Public Officers, Sec. 230, et sequor.

Sec. 7, Art. X, of the Constitution provides: "All public school funds shall be guaranteed. by the State against loss or diversion."

We contend that this is an express limitation upon the legislative power to divert any portion of such fund to uses or purposes other than those for which the fund was created.

N. V. Jones, Esq., for respondent.

The respondent contends:

That it is mandatory on the defendant to receive, audit, and allow and certify to the State Auditor said claims.

That the law vests in the defendant Board no judicial or discretionary power in relation to allowance or disallowance of said claims, provided,

That the Board finds that said claims are for moneys paid in pursuance of Chap. 76, Sess. Laws of 1892. That the duties of the Board are ministerial merely. That the only duties imposed upon the Board under this statute are to ascertain and determine whether or not the moneys upon which said claims are based, were paid as alleged in pursuance of said Chap. 76, Laws of 1892; and whether this plaintiff is the present owner and holder thereof; whenever it be ascertained that these claims are truthful, as for money so paid, it is their duty under the law to approve and certify the amount of such claims to the proper officer, and it has no authority to reject such claims, either in whole or in part.

The class of cases which most nearly resembles the one under discussion are those where plaintiffs sue for taxes illegally collected. And we claim that the same rules of law are applicable to those cases as to the one under discussion. And that the duty of the Board being ministerial, that mandamus is the proper remedy.

That when the Board fails to approve claims such as those of plaintiff that it should be compelled to approve and certify them by a writ of mandate. People v. Otsego Co., 53 Barb., N.Y., 564; People v. Board of Supervisors, Herkimer Co., 56 Barb., 452; Am. and Eng. Ency. of Law, Vol. 14, p. 192.

BASKIN, J. BARTCH, C. J., and McCARTY, Dist. J., concur.

OPINION

BASKIN, J.

The appeal in this case is from a judgment granting a peremptory writ of mandate, directing the State Board of Examiners to audit and allow, in accordance with the requirements of Sec. 963, of the Revised Statutes, an unpaid balance ($ 38.96) of an amount paid by the relator's assignor, on account of a lease of school lands, made in pursuance of Chap. 76, Sess. Laws of Utah 1892.

Section 963 of the Revised Statutes is as follows:

"T...