Wright v. Callahan

• Decision Date: 03 February 1940
• Docket Number: 6733
• Citation: 99 P.2d 961,61 Idaho 167
• Parties: CALVIN E. WRIGHT, State Auditor of the State of Idaho, Respondent, v. DONALD CALLAHAN, Comptroller, Appellant
• Court: Idaho Supreme Court

99 P.2d 961

61 Idaho 167

CALVIN E. WRIGHT, State Auditor of the State of Idaho, Respondent, v. DONALD CALLAHAN, Comptroller, Appellant

No. 6733

Supreme Court of Idaho

February 3, 1940

STATE COMPTROLLER-STATUTES-CONSTITUTIONAL LAW.

1. In determining whether comptroller act attempts to take from state auditor any of his constitutional powers or duties debate in constitutional convention upon proposals to strike the word "auditor" and insert the word "controller," though not binding, would be examined. (Sess. Laws, 1939, chap. 113; Const., art. 4, sec 1.)

2. The term "state auditor" within Constitution providing for state auditor would be presumed to have been employed by framers of Constitution to connote a supervising officer of revenue whose duties were to audit all claims against the state, where at time of adoption and ratification of Constitution the terms "state auditor" and "controller" as evidenced by Constitutions and statutes of that period were generally and commonly understood to connote such meaning. (Const., art. 4, sec. 1.)

3. The constitutional provision providing for a "state auditor" did not change or add any powers and duties to nor take any from the office of territorial "controller" but simply gave the office a new but synonymous name. (Const., art. 4, sec. 1.)

4. The legislature may prescribe officers' duties in addition to those prescribed by Constitution, provided those prescribed by legislature do not conflict with duties either expressly or impliedly prescribed by the Constitution. (Const., art. 4 sec. 1.)

5. As respects constitutionality of statute creating office of state comptroller, it will be presumed that framers of Constitution which provided for office of state auditor, and people in ratifying it, had in mind the rule of construction announced prior to adoption of Constitution that legislature cannot transfer to other officers the powers and functions belonging to offices created by Constitution. (Sess. Laws 1939, chap. 113; Const., art. 4, sec. 1.)

6. As respects constitutionality of statute creating office of state comptroller, statute in the main takes from state auditor activities which prior to time of adoption of Constitution were vested in territorial "controller," and since adoption of Constitution have been in office of state auditor as constitutional officer notwithstanding some of such duties have not, by reason of intermittent enactments by legislature, always been in state auditor. (Sess. Laws, 1939, chap. 113; Const., art 4, sec. 1.)

7. The validity of statute creating office of state comptroller cannot be upheld on theory that notwithstanding term "state auditor" within Constitution impliedly includes powers and duties theretofore vested in territorial "controller," the constitutional provision constituting the governor, secretary of state and attorney general as board of examiners deprives state auditor of principal functions of territorial "controller," since state board of examiners is a "tribunal" and not a "board of auditors" and hence such constitutional provision does not confer upon the board, powers and duties conferred upon state auditor. (Sess. Laws, 1939, chap. 113; Const., art. 4, secs. 1, 18.)

8. The statute creating office of state comptroller is unconstitutional as taking from state auditor his constitutional duties and functions. (Sess. Laws, 1939, chap. 113; Const., art. 4, sec. 1.)

9. It is common knowledge that experts demand and receive high salaries.

10. When statute having but one object is in part valid and in part invalid, and parts are so mutually connected with and dependent upon each other as to warrant belief that legislature intended them as a whole, and if all could not be carried into effect legislature would not have passed residue independently, statute must be held void.

11. The entire statute creating office of state comptroller is void for unconstitutionality of part, the essential purpose of which is to divest state auditor of his constitutional powers and duties, where without transfer of such duties and functions, purpose of statute fails and it is apparent that legislature intended statute to operate as a whole. (Sess. Laws, 1939, chap. 113; Const., art. 4, sec. 1.)

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

Special proceeding by Calvin E. Wright, State Auditor, against Donald Callahan, Comptroller, to obtain a writ of prohibition prohibiting Comptroller Callahan from usurping, performing, or attempting to perform any of the constitutional powers and duties of the office of State Auditor. Writ granted. Affirmed.

Judgment affirmed. Petition for rehearing denied.

Edwin Snow, Dean Driscoll, E. H. Anderson, Fred M. Taylor and Edwin U. Driscoll, for Appellant.

The mere constitutional designation of an officer as state auditor does not, by reason of the accepted definition of the word "auditor" impliedly confer on him the functions here in question, for:

(1) Article 4, section 1 of the Constitution provides that all the elective executive officers shall perform such duties as are prescribed by the Constitution and as may be prescribed by law.

(2) The word "prescribed" refers to functions which are expressly designated by the Constitution. (Travelers Ins. Co. v. Industrial Com., 71 Colo. 495, 208 P. 465; Funk & Wagnall's New Standard Dictionary; Black's Law Dictionary; State v. Malcom, 39 Idaho 185, 226 P. 1083, distinguished.)

(3) The accepted definition of the word "auditor," is a person authorized to hear, settle and allow claims or accounts, and it does not include functions here in question. (Funk & Wagnall's New Standard Dictionary; Anderson's Law Dictionary; Morris v. People, 3 Denio (N. Y.), 381; article 4, sec. 18, of the Constitution; State ex rel. Taylor v. Robinson, 59 Idaho 485, 83 P.2d 983.)

The following presumptions and rules of construction are applicable:

(1) The legislature has plenary power to enact any law that is not expressly prohibited by the Constitution. ( State v. Johnson, 50 Idaho 363-367, 296 P. 588; Koelsch v. Girard, 54 Idaho 452-455, 33 P.2d 816.)

(2) Unconstitutionality must be established beyond all reasonable doubt. (Bannock County v. Citizens B. & T. Co., 53 Idaho 159-176, 22 P.2d 674; Robinson v. Enking, 58 Idaho 24, 69 P.2d 603.)

(3) Long continued acquiescence by the legislature, the executive branches, and the people in a given construction of a constitutional provision carries great weight. (Bannock Co. v. Citizens B. & T. Co., supra; United Pacific Ins. Co. v. Bakes, 57 Idaho 537-545, 67 P.2d 1024; Straughan v. Coeur d' Alene, 53 Idaho 494-502, 24 P.2d 321; State v. Omaechevvaria, 27 Idaho 797-803, 152 P. 280; 11 Am. Jur., pp. 697 to 702, secs. 78, 79, 80; Cooley Constitutional Limitations, vol. 1, p. 147 et seq.)

(4) Constitutional provisions must be given a practical and reasonable construction. (Oregon Short Line R. R. Co. v. Pfost, 53 Idaho 559-568, 27 P.2d 877; Reed v. Gallet, 50 Idaho 638-643, 299 P. 337; Grice v. Clearwater Timber Co., 20 Idaho 70-76, 117 P. 112.)

The transfer of duties from one officer to another by act of the legislature without republishing the statutes prescribing such duties in no manner violates the provisions of section 18, article 3 of the Constitution. (Noble v. Bragaw, 12 Idaho 265, 276, 85 P. 903; Boise City v. Baxter, 41 Idaho 368, 377, 238 P. 1029; Nampa & Meridian Irr. Dist. v. Barker, 38 Idaho 529, 223 P. 529; People v. Mahaney, 13 Mich. 481, 496.)

The Comptroller Act does not attempt to divest the governor of any duties as chief budget officer of the state. (The Comptroller Act, 1939 Laws, chap. 113, section 11, at p. 194.)

The sole and exclusive jurisdiction to examine, audit, allow approve, disapprove, or reject claims is vested in the board of examiners by the state Constitution. (State v. Parsons, 57 Idaho 775, 69 P.2d 788; Bragaw v. Gooding, 14 Idaho 288, 94 P. 438; Pyke v. Steunenberg, 5 Idaho 614, 51 P. 614.)

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

The Constitution, in establishing the office of state auditor, vested in that office all powers and duties held and exercised by such office under the common law, and vested therein by statutes in existence at the time of the adoption of the Constitution, and the legislature cannot by legislation, or failure to legislate, deprive the auditor of any of these powers and duties, abolish his office, or transfer his powers and duties, or any part thereof, to any other office or officer. (Art. 4, sec. 1, Idaho Const.; Tit. 1, chap. 7, Rev. Stats. Idaho 1887. secs. 205 to 222, inclusive; Constitutional Convention Proceedings, vol. 1, pp. 412, 413, 414 and 415: Gilbert v. Moody. 3 Idaho 3, 25 P. 1092; Conger v. Commissioners of Latah County, 5 Idaho 347, 48 P. 1064; McDonald v. Doust, 11 Idaho 14, 81 P. 60, 69 L. R. A. 220.)

The legislature may not alter, abolish, transfer or otherwise deprive a constitutional officer of the powers and duties inherent in or characteristic to his office whether expressly or impliedly vested in his office by the Constitution. ( State v. Parsons, 58 Idaho 787, 80 P.2d 20; State v. Troy, 190 Wash. 483, 68 P.2d 413, 110 A. L. R. 1211.)

Constitutional provisions are self-executing when there is a manifest intention that they should go into immediate effect, and no ancillary legislation is necessary to the enjoyment of the right given or the enforcement of any duty. (Cleary v Kincaid, 23 Idaho 789, 131 P. 1117; Day v. Day, 12 Idaho 556, 86 P. 531, 10 Ann. Cas. 260; Elliott v. McCrea, 23 Idaho 524, 528, 130 P. 785; Ingard v. Barker, 27 Idaho 124, 147 P. 293; State v. Malcom,...