Toronto v. Clyde
| Decision Date | 06 July 1964 |
| Docket Number | No. 10069,10069 |
| Citation | 15 Utah 2d 403,393 P.2d 795 |
| Parties | d 403 Lamont F. TORONTO, Plaintiff and Respondent, v. George D. CLYDE, A. Pratt Kesler, Clair R. Hopkins and The State of Utah, Defendants and Appellants. |
| Court | Utah Supreme Court |
A. Pratt Kesler, Atty. Gen., Richard L. Dewsnup, Asst. Atty. Gen., Salt Lake City, for appellant.
James B. Lee, H. R. Waldo, Jr., Salt Lake City, for respondents.
The plaintiff Secretary of State brought this action for a declaratory judgment to test the constitutionality of the State Finance Act, Chapter 148, S.L.U.1963 ().
This Act is purposed to vest in the Governor, and the newly created office of Director of Finance, powers theretofore regarded as vested in the Board of Examiners by the Constitution. 1 From a judgment of the district court declaring certain portions of the new Act unconstitutional, defendants appeal.
There is no dispute in the facts. They were stipulated by the parties and appear to be 'tailor-made' to test the validity of the provisions in question which will be discussed below. The Act went into effect on July 1, 1963, and on that day Governor George D. Clyde appointed Clair R. Hopkins to the new position of Director of Finance and set his salary at $14,520 per year. The new Director takes the position that his salary claim for the first pay period of that fiscal year, July 1, 1963, through July 15, 1963, and the payroll for the state employees for that period, did not require the approval of the Board of Examiners but that under the provisions of the new Act the salary claim and payroll required only the approval of the Governor and of the Director of Finance.
Prior to the advent of the new Finance Act, when a state department requested a disbursement of funds, it was submitted to the Department of Finance. 2 That department passed on the request only as to availability of funds appropriated to the requesting department, and so certified to the Board of Examiners, which approved or disapproved the same. Under the new 1963 Act, Finance has assumed both the prerogative and the duty of determining not only of the availability of funds, but also of passing on the propriety of the expenditures.
The defendant's contention that it is no longer necessary to present to Examiners requests for the setting or the payment of salaries raises the central issue in the case: whether the powers given to and exercised by the Director of Finance and the Governor under the new Finance Act cut into the powers conferred upon the Board of Examiners by Sec. 13, Article VII, of our Constitution, which provides:
The extent of the power conferred upon Examiners by the language, '* * * with power to examine all claims against the State * * *,' has been before this court on a number of occasions since statehood. 3 In the case of Bateman v. Board of Examiners, 4 we gave extensive consideration of this problem and reviewed the Utah decisions dealing with it. Upon the basis of the constitutional language, its background and history, including the decisional law of our state, we concluded that the framers intended to vest in the constitutional officers--the governor, the secretary of state and the attorney general, who are elected by and are thus directly responsible to the people--more than a mere auditing function, that is, power to examine into the advisability and necessity of any disbursement or proposed obligation of the state; and that this has the effect of giving Examiners general supervisory power over expenditures by the state government. 5
The first section of the 1963 Finance Act challenged as conferring upon the Director of Finance and/or the Governor powers belonging to the Board of Examiners is Section 13 (now cited as Section 63-2-13, U.C.A.1953).
'The director of finance shall prescribe and fix a schedule of salaries for the officers, clerks, stenographers and employees of all state offices, departments, boards and commissions, except where such salaries are fixed by statute, * * *.' The director of finance must in all cases given certification as to the availability of funds to pay salaries. The board of examiners in conducting any examination of claims shall not have authority to fix, reset or arbitrarily refuse to pay salaries set by the director of finance or officers' salaries as determined by agency governing boards. Such schedule of salaries shall have the force of law in all state offices, departments, boards and commissions, and shall in no case be exceeded without the express approval of the director of finance. No salary schedule shall be put into effect until approved by the governor.'
In attempting to justify the constitutionality of this statute, defendants argue that there is no basis in the language of Sec. 13, Art. VII of the Constitution to warrant a conclusion that the Board of Examiners may set or pass on salaries. This power is necessarily included within the general supervisory power over expenditures of state government heretofore adjudicated to be in Examiners.
Authorizing the Director of Finance to fix a schedule of salaries is constitutionally innocuous and undoubtedly salutary. But this is coupled with the provisions that such a schedule 'of salaries shall have the force of law * * * and shall in no case be exceeded without the express approval of the director of finance' and that '* * * No salary schedule shall be put into effect until approved by the governor.' It is plain to be seen that these provisions would give the power of final approval or disapproval over the payment of salaries to the Director of Finance and/or the Governor. This would make the submission of salary requests to the Examiners but a meaningless gesture and would effectively remove from them the control over state finances given them by the Constitution. This conclusion is re-enforced by the restriction in the statute that Examiners 'shall not have authority to fix * * * salaries set by...
To continue reading
Request your trial
-
Preece v. Rampton
...Session, 1941, Ch. 10, codified as Ch. 2 of Title 63, U.C.A.1953.12 Sec. 63--2--1, U.C.A.1953.13 See footnote 9, supra.14 15 Utah 2d 403, 393 P.2d 795 (1964).15 7 Utah 2d 221, 322 P.2d 381 (1958).16 7 Utah 2d at 228, 322 P.2d at 385.17 63 N.M. 106, 314 P.2d 712 (1957).18 314 P.2d at 713--71......
-
Dean v. Rampton, 14518
...State Road Comm., 95 Utah 242, 70 P.2d 857 (1937); Bateman v. Board of Examiners, 7 Utah 2d 221, 322 P.2d 381 (1958); Toronto v. Clyde, 15 Utah 2d 403, 393 P.2d 795 (1964).4 See Toronto v. Clyde, footnote 3 above, 15 Utah 2d at 405, 393 P.2d 795.5 77 Utah 455, 297 P. 434.6 It should be note......
-
Hulbert v. State, 16197
...at p. 177 of 57 P.6 34 Utah 99, 107-108, 95 P. 1071, 1074 (1908).7 It should be observed the broad statement is Toronto v. Clyde, 15 Utah 2d 403, 405, 393 P.2d 795, (1964) that the Board of Examiners had more than a mere auditing function, was made prior to the enactment of the Utah Governm......