Thoreson v. State Board of Examiners

• Decision Date: 19 March 1900
• Citation: 60 P. 982,21 Utah 187
• Court: Utah Supreme Court
• Parties: I. C. THORESON, RESPONDENT, v. STATE BOARD OF EXAMINERS, APPELLANT

60 P. 982

21 Utah 187

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

Supreme Court of Utah

March 19, 1900

For former opinion, see 57 P. 175.

This is a rehearing of this case, the original opinion of which is reported in 19 Utah at page 18. Former opinion affirmed.

Affirmed.

Hon. A C. Bishop, attorney-general, and William A. Lee, Esq., deputy attorney-general, for appellant.

N. V Jones, Esq., for respondent.

BASKIN J. BARTCH, J., MINER, J., concurring.

OPINION

BASKIN, J.

This case is before this court on a rehearing. The facts are fully set out in the opinion heretofore rendered herein, reported in 19 Utah 18; 57 P. 175.

The appellant, on the rehearing, has made the objection, which was not raised on the former hearing, that Sec. 963, Rev. Stat., which authorizes the repayment to the respondent's assignor of the money paid by said assignor on the lease to him of school lands made in pursuance of Ch. 76, Sess. Laws of the Territory of Utah of 1892, violates Sec. 13, Art. 7, of the constitution, which provides that "The governor, secretary of state, and attorney general * * * shall also constitute a board of examiners, with power to examine all claims against the State, except salaries or compensation of officers fixed by law, and perform such other duties as may be prescribed by law; and no claim against the State, except for salaries and compensation of officers fixed by law, shall be passed upon by the Legislature without having been considered and acted upon by the said board of examiners," for the reason that a claim for such payment was not presented to or considered by the board of examiners before the passage of Sec. 963, Rev. Stat.; that the Legislature is prohibited by the constitution from allowing a claim against the State except for salaries or compensation of officers fixed by law, unless the same shall have been first acted upon by the board of examiners.

The act which authorized the leasing of the school lands was passed by the Territorial Legislature, and before the State was formed the supreme court of the Territory, in the case of Burrows v. Kimball, 11 Utah 149, 41 P. 719, had held the act, and the leases made in pursuance thereof, void.

The persons who paid money to the officers of the Territory on the void leases made in pursuance of the void act of the Territorial Legislature, never had any claim against the Territory, and did not have any against the State until the passage of Section 963, Rev. Stat., nor was the State under any, except a moral, obligation to pass an act for the relief of such persons. Whether it would do so was a matter wholly within the discretion of the governor and Legislature, and the relief specified in said section of the Rev. Stat. was merely the bestowal of a favor based upon moral and equitable consideration, and not upon any legal claim, and as, until the favor was granted, the respondent's assignor had no claim against the State, the powers and duties of the board of examiners expressed in Section 13, Article 7, of the constitution, had no relevancy to the case at bar.

The board of examiners are required to perform the duties mentioned in said section of the constitution, and also to perform such other duties as may be prescribed by law, therefore the only duties in the premises imposed upon the board of examiners, are such as Section 963 of the Revised Statutes prescribes. In our former opinion we held that the only discretionary power which the board of examiners had in the matter was to ascertain whether or not respondent's assignor had paid on a lease made in pursuance of the void act of the Territorial Legislature, the sum claimed by the respondent, and it having been admitted that said sum had been so paid, that such payment was therefore a just claim within the meaning of said section of the statute, and that said board of examiners had no right to reject said claim on the ground that Section 963 of the Revised Statutes was violative of the constitution, but that it became and was the mandatory duty of the said board to receive, audit, and allow said claim, and that mandamus lies to enforce the performance of that ministerial duty.

We did not hold, as intimated in appellant's brief, that the...