E. Allеn BATEMAN and State Board of Education, Plaintiffs and Respondents, v. BOARD OF EXAMINERS OF the STATE OF UTAH, Defendants and Appellants.
No. 8457.
Supreme Court of Utah.
Feb. 28, 1958.
322 P.2d 381
The undisputed facts are that the accident occurred at dawn on a 63-foot four-lane highway with sufficient space for parking on either side. The lumber truck was stopped close to the curb and an overhanging street light. It also had its clearance lights on. The traffic was light and there were no cars in appellant‘s lane. Under such circumstances the trial court‘s finding that the sole proximate cause of appellant‘s injuries was the negligence of appellant‘s husband is supported by the evidence even if we assume, without deciding, that the truck was unlawfully parked where it was stopped at the curb. Where, as in this case, the parking of the truck created no danger or hazard to others using the highway who used any ordinary caution to see and avoid collisions with substantial objects plainly visible on the highway in front of them, the court‘s finding that the negligence of such other driver was the sole proximate cause of the accident was reasonable and amply supported by the evidence. We cannot hold that thе driver of the parked truck was as a matter of law guilty of negligence which proximately contributed in causing the accident.
McDONOUGH, C. J., and CROCKETT, WORTHEN and HENRIOD, JJ., concur.
Richards & Bird and Dan S. Bushnell, Salt Lake City, for respondents.
CROCKETT, Justice.
This case arose originally as a suit for declaratory judgment by the University of Utah against the State Board of Examiners and the State Finance Commission. The dispute between the University and those defendants was dealt with in a prior opinion.1 The State Board of Education intervened to determine its rights relating to both the University and the defendants, the issues between the University and the Board of Education have been resolved by stipulation. There is no dissonance between the Board of Examiners and the Commission of Finance in this action. Their interests being рarallel, for the purpose of this decision, we will proceed upon the assumption that the Commission of Finance is the statutorily created administrative arm of the Board of Examiners and consider the rights of the Board of Education relative to it. These parties are hereinafter for brevity referred to simply as “Examiners” and “Education.”
Reduced to its simplest terms the dispute is this: Education claims authority to administer the State Department of Education and school system without let or hindrance from Examiners; whereas the latter Board claims authority to examine and approve or disapprove of proposed expenditures, and to exercise general supervisory control of salaries and persоnnel practices of the Board of Education.2
Both parties advance plausible arguments in support of their claims to authority based on their respective constitutional origins and legislative implementation. Resolution of the problems presented will be facilitated by examining the constitutional foundation and the statutory structure of the authority of each separately.
The constitutional authority of Education is found in
The language of
The general purpose thus stated in the Constitution of establishing and maintaining a public school system is implemented in statutes which quite fully set forth the powers and duties of the superintendent and of the Board of Education.
“The state board of education shall be charged with the administration of the system of public instruction, and with general superintendence of the district schools of the state and of the school revenue set apart and appropriated for their support. * * *”
“The state superintendent with the approval of the state board of education shall prepare and submit to the governor to be included in his budget to be submitted to the legislature, a budget of the requirements of his office including the expenses of the state board of education, for his own and other salaries and wages, office and travel expense, equipment and repairs
necessary for carrying out the duties imposed upon the superintendent of public instruction and the state board of education * * *.”
“The state auditor shall transfer to the state general fund from the uniform school fund to the credit of the state board of education the amount designated by the legislature for the operation of the office of the state superintendent and the state board of education, * * *”
“The board may appoint such assistant superintendents, directors, supervisors, assistants, clerical workers, and other employees, as in the judgment of the board may be necessary to the proper administration and supervision of the public school system. The salaries of such assistant superintendents, directors, supervisors, assistants, clerical workers and other employees, shall be fixed by the board and shall be paid from money appropriated for that purpose.” (Emphasis supplied.)
If the above statutes and constitutional provisions stood alone and could be given literal application, there would be no difficulty in determining the scope of the powers of Education. However, when we look at the over-all picture of our law, difficulty is encountered because, as will be seen, these powers are overlapped by others conferred upon Examiners.6
The Board of Examiners was created by and its authority is rooted in
“Until otherwise provided by law, the Governor, Secretary of State and Attorney-General shall constitute a Board of State Prison Commissioners, * * *. [specifies duties] They 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.”
The question of importance is the extent of the authority conferred by the language, “* * * with power to examine all claims against the state.” This phraseology has
The first facet of Education‘s argument against the power claimed by Examiners is that the framers of the Constitution envisioned Section 13, abovе quoted, as legislative in nature, intended to be subsequently modified and controlled by legislative enactments such as the statutes conferring powers on Education. They emphasize that such was the plain import of its first clause, “Until otherwise provided by law, * * *” which they insist modified the entire section. Without going into the detail of the arguments pro and con on this facet of the subject it is readily seen that attempting to give that proviso application to each of the subsequent parts of the section gives rise to some difficulty grammatically. I. e. it would read: “Until otherwise provided by law, * * * [they shall] * * * perform such other duties as may be prescribed by law.” Absent knowledge of the facts concerning its adoption, the most natural meaning would be that it аpplies only to the first sentence dealing with the membership of the Board of State Prison Commissioners, and by parallel reasoning, to the second sentence relating only to the membership of the Board of Examiners.
Education points to the constitutional convention in support of its reasoning that the entire section was intended to be subject to future legislation. Sections 12 through 15 establish various administrative agencies: Section 12, the Board of Pardons; Section 13, the State Prison Commissioners and Board of Examiners; Section 14, Insane Asylum Commissioners; Section 15, Reform School Commissioners. At the Convention, a motion was made to strike all of the sections on the theory that they dealt with legislative matters. During subsequent debates, in which section 12 was most often mentioned, delegate Thurman observed:
“I do not see why this matter cannot be left to the Legislature. Of course, this leaves the matter where it is now, but it gives to the Legislature the right to create a board such as is here
named, or any other kind of a board of pardons. * * *” “Mr. Varian. Mr. Chairman, taking the propositions in their order, I would suggest, in speaking to the substitute offered by my friend from Utah County, that there is no reason why we should not leave it to the Legislature. * * *”7
and at the final reading, first Section 12 and then Sections 13, 14 and 15, were each amended by inserting at the beginning thereof the phrase: “Until otherwise provided by law.”8 Thus the manner in which the initial proviso of the section was adopted is somewhat persuasive that the whole section was intended to be applied and interpreted in aсcordance with subsequent legislative enactments.
The idea that the boards themselves were to be subject to change by the Legislature also finds support in the practical construction which has been placed upon it. The membership of all of the other boards provided for in the sections just referred to has now been changed.9 A conclusion that the initial clause affects the entire section would not cast the die in favor of Education any more than it would in favor of Examiners, as will appear from our discussion of the statutes relating to the powers of the latter board. Yet it does have an important bearing on the over-all conclusion we reach in this opinion, which is based to a considerable extent upon the concept that the fundamental power of government rests in the legislature.10
Another argument of Education against the claim to general supervisory powers asserted by Examiners is that the concluding clause of the section of the Constitution in question, “* * * 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 State Board of Examiners” characterizes the entire section, showing an intent that they should pass only upon unliquidated claims against the state. Certain it is that one of the functions of Examiners is to investigate and act as a fact finder and advisor to the lеgislature on claims of that nature, such as tort claims, or other claims for damages or compensation claimed for property, goods or services, by persons who would not otherwise have legal redress available.
One of the earliest cases dealing with the problem of the authority of Examiners was Thoreson v. State Board of Examiners, 21 Utah 187, 60 P. 982 (1900). Mandamus was sought to direct Examiners to audit and allow an unpaid balance for the lease of school lands. The statute provided:
“The state board of examiners are hereby directed to receive and audit and allow all just claims of persons who have paid monies in pursuance of chapter 76 of the Session Laws of the territory of Utah of eighteen hundred and ninety-two, in relation to the leases of school lands and the state auditor is hereby directed to draw his warrant therefor on the state district school tax fund.”
The provision of the 1892 Sessiоn Laws which had authorized leasing of school lands had been held unconstitutional13 and the statute was purposed to reimburse people for money advanced on such leases. The court took occasion to observe that Examiners is more than a perfunctory body, and may exercise discretion, but held that under the statute the amount paid in was a “just claim” and therefore the only determination for Examiners to make was whether the amount of money claimed had actually been paid in and was under a mandatory duty to authorize payment of the amount.
The next case dealing with the scope of Examiners’ authority was Marioneaux v. Cutler, 32 Utah 475, 91 P. 355 (1907). A district judge brought mandamus against Examiners for approval of his claim for a mileage which they had rejected. The refusal had been justified on the ground that the law authorizing the same was unconstitutional as containing more than one subject which position was sustained. This case is relied upon as authority for the discretionary power of Examiners but it is to be noted that the holding, if strictly limited to the facts, says only that they are not required to approve the payment of a claim which is not properly grounded under the law. The question
This case was followed by State ex rel. Davis v. Edwards, 33 Utah 243, 93 P. 720 (1908) wherein a court reporter sought to compel the State Auditor to allow his claim for mileage which the district judge had certified as correct. The statute stated that upon such certification by the judge and presentation of the certificate to the Auditor a wаrrant should be drawn for payment. In spite of this statute the Auditor refused, relying on Sec. 18, Ch. 35, L. 1896 which required approval of Examiners before he could draw the warrant. The court held that the claim must be presented to Examiners for approval as required by the statute and used some very pointed language pertinent to the instant problem:
“The powers conferred upon the board of examiners, with regard to claims against the state, by the constitutional provision quoted above, are general and sweeping. The power would include all claims against the state, were it not for the exception which excludes salaries or compensation of officers fixed by law. An exception of this character may not be еnlarged nor extended by implication. An exception which specifies the things that are excepted from a general provision strengthens the force of the general provisions of the law.” (Emphasis added.)
While it might be said that the case could have been based upon the express provisions of the statute involved, yet it indicated the conception the court had of the law and the trend of its development in recognizing a discretionary power in the Board of Examiners in passing on claims against the state.
That same year in State ex rel. Davis v. Cutler, 34 Utah 99, 95 P. 1071 (1908) the question of Examiners’ discretionary power was judicially appraised from a slightly different angle. Another court stenographer brought mandamus to compel the Auditor to allow a claim which had been rejected by Examiners. The court again opined that Examiners may exercise discretion in allowance of claims but must not do so arbitrarily and that, if the claim, “* * * is one which is admitted to be just, and is authorized by law, and there is no dispute with regard to any fact involved, and the claim is presented to the board in due form as the law requires, we know of no law nor reason why respondents [Examiners], although acting in a quasi-judicial capacity, should not be required to audit and allow the claim.”17 The actual holding was that Examiners had improperly refused to act, and thus the ob-
The landmark case on this subject is that of Uintah State Bank v. Ajax, 77 Utah 455, 297 P. 434, 438 (1931). Action was brought to compel the State Auditor to issue warrants to pay bounty certificates for killing predatory animals (coyotes). The plaintiff contended that inasmuch as the statute fixed the amount to be paid for each animal killed and directed the Auditor to issue the warrant upon the certificate of the County Clerk, and further that nothing in the act required submission of the claims to Examiners, the Auditor must issue the warrant upon presentation of the certificate. The bank argued that the amount having been thus “fixed by law,” there was nothing but the ministerial duty of paying the claim and hence it was unnecessary to present it to Examiners. This contention wаs rejected by the court, saying:
“The claims here are not fixed by law in the sense that the Legislature has made an appropriation of an amount certain to a definite named person.”
and further,
“all claims are subject to action by the board of examiners except only claims for ‘salaries and compensation of officers fixed by law.‘”
It refused to agree that Examiners should examine only “unliquidated” claims against the state, using the following language:
“If we should adopt petitioner‘s view, it would follow that the legislature might designate any officer other than the board of examiners as authorized in behalf of the state to settle, fix, or liquidate claims and agree upon the amount to be paid thereon, and thereby exclude the board of examiners from its duty * * *. We cannot agree to any such construction of the constitutional language, nor may we by construction interpolate the word ‘unliquidated’ into the Constitution [which] * * * has vested in the Board of Examiners the power to examine and pass on all claims except those exempted, and the Legislature is without authority to delegate such power to any other board or officer.”
The court went on to state:
“If the view is taken that the Legislature intended to make this claim payable by the auditor without presentation to the board of examiners, then the Legislature attempted to do that which it had no power or authority to effectuate, and on this question the language in the case of State ex rel. Davis v. Edwards is not only appropriate, but decisive.”
“The Board of Examiners * * * which must approve all salary claims against the State, except those fixed by law, approved by a vote of two to one the request of the Board of Education to pay Dr. Bateman a salary of $10,000 per annum.”
again indicating the court‘s understanding of the law as it has developed in our state under the decisions hereinabove discussed.
This intеrpretation of the law is also consonant with the legislative conception of the powers of Examiners as manifest in the various statutes implementing the powers of that board. They provide for the presentation of all claims against the state to the Board of Examiners to be passed upon;20 that it has certain supervisory powers over the Auditor;21 and the unanimous consent of its members is required before officer‘s of the state may make deficit expenditures.22 It is expressly provided that the Department of Finance, the legislatively created administrative arm of the Board of Examiners, is endowed with authority to approve or disapprove of the hiring of all personnel;23 and is also charged in broad language with the responsibility of investigating the need for existing positions in all departments of state government, “* * * with a view to eliminating any unnecessary ones, * * *” and “* * * no vacancy shall be filled until the commission [finance] has certified to the department requesting the creation of a new position or the filling of the vacancy that the position is necessary to carry on the work.”24
Finance is also endowed with a general grant of power as to all departments of state government, to establish salary schedules:
“* * * for the officers, clerks, stenographers and employees of state offices, departments, boards and commissions, except where such salaries are fixed by statute or by appropriation; and such schedule of salaries shall have the force оf law in all state offices, departments, boards and commissions, * * *”25
Further of significance is the statutory interdiction directed to the Board of Education:
“At the end of each month the state superintendent shall file with the state board of examiners an itemized account of his expenses, including those of the state board of education, verified by his oath. The said board shall examine the same, and if the account is found to be correct and the expenditures necessary, shall certify the same to the state auditor. The state auditor shall issue a warrant on the state treasurer for the amount due on such account, and at the end of each month he shall issue his warrant for one-twelfth of the superintendent‘s annual salary.”27 (Emphasis added.)
The argument of Education, not entirely implausible, is that if this section is construed with the other statutes relating to its powers and duties, the reasonable construction is that the account required to be filed with and approved by Examiners relates only to the personal expenses of himself and the Board, and not to the general costs of operation of the department. The statute admittedly could have been plainer in meaning had the minds of its framers adverted to the possibility of the difficulties here encountered. It is our view that if that section is considered against the background of the law as discussed in this opinion, and particular note is made of the fact that the final clause singles out for mandatory payment the superintendent‘s salary, (which is actually fixed by statute and thus under the exception from Examiners’ authority of “salaries fixed by law,“) a rather strong implication arises that all of the other expenses and expenditures of the department are left within the emphasized portion of the statute just quoted and under the discretionary power of Examiners. In fact it seems difficult to reconcile the language, “if the account is found to be correct and the expenditures necessary” in any other way.
Education advances another argument that under the rule giving preference to later statutes over prior ones where there is conflict,28 it is entitled to prevail in this controversy because
On the point of statutes taking priority because of subsequent enactment, the fact is that the sections hereinabove discussed conferring supervisory powers upon Finance were all enacted in connection with the reorganization of state government in 1941, (and some subsequent amendments thereto,) and thus, as expressions of legislative will as to governmental policy, were later indications thereof thаn the statutes relied upon by Education. Corollary to this and entirely consistent with the idea that Examiners has rather broad powers in respect to all of the departments of government, including Education, is the further clearly expressed intent in that regard is shown in Sec. 12 of each general appropriation act since the 1949 Session of the Legislature:
“The board of examiners shall promulgate and publish rules and regulations regarding the conduct and employment of state officers and employees covering working hours, overtime, sick leave, vacations and other matters of personnel policy and enforce such rules and regulations uniformly in all state departments * * * shall adopt rules and regulations * * *, with regard to thе establishment of salary schedules for all state departments and institutions * * *. No such salary schedule shall be put into effect until approved by the board of examiners.”29
Nor do we see anything persuasive in the rule of statutory construction that as to conflicting statutes, the more specific takes precedence over the general,30 which strangely enough, each party here contends
Usually we are not concerned with questions of policy, nor with the wisdom of legislation. Yet where there is confusion because of conflict between statutes, it is permissible to look to general governmental policies and purpose to interpret the legislative intent. In that vein there are some considerations which provide a reasonable basis for concluding that the legislature regarded it as desirable and therefore intended that Education should be subject to the same regulations as other departments of state government: It is in keeping with the fundamental policy of checks and balances which characterizes our entire system of government. It also tends to keep control close to the people, which is a touchstone of democracy. Examiners is made up of the three top executive officers of the state, who are directly elected by and responsible to the people. This is contrasted to the superintendent who is now appointed by the members of the Board of Education, whose members are elected from the various districts of the state, and whose terms are staggered so that in practical operation the superintendent could exercise a relatively high degree of control over them and himself be comparatively impervious to responsibility to the public. There are also advantages in having some common standards in regard to departmental budgets, personnel requirements, salary schedules, vacations, sick leave and other such matters in оrder to minimize difficulties which may arise because of lack of uniformity, or even competition in the various state departments.31
Were we interpreting the statutes and constitutional provisions relating to the Board of Examiners for the first time we might be more impressed by arguments proposed by Education. However, history and experience have always been the very bone and sinew of the law. As stated by the great Justice Holmes: “The life of the law has not been logic; it has been experience.”32
Looking at the problems here presented in broad perspective it is important to realize that our legislature has met biennially and in special sessions for many years with both the statutory and decisional law of this state being sо understood and applied that in practical operation the Examiners and Finance have exercised general supervisory powers over the fiscal and budgetary
On the basis of the constitutional provisions, legislative enactments and decisional law of our state as it has developed, we are constrained to reject the contention of Education that it is entirely free from control of or responsibility to Examiners. We do not desire to be understood as saying that Examiners can go so far as to in effect exercise a veto power over legislatiоn by arbitrarily refusing to make funds available which have been appropriated to Education for either general or specific purposes. Insofar as this has been done in certain instances which had considerable bearing upon precipitating this litigation, such actions were wrong. But inasmuch as the funds in question have reverted to the general fund, and the problems are now moot, there is no point in particularizing them.
Notwithstanding the powers conferred upon Examiners by the statutes hereinabove discussed, which must be recognized, that does not mean that it can by arbitrary actions in budgetary matters intrude into the internal affairs of management or control of the functions of Education within the purview of its purpose as prоvided by law. The latter alone is given the authority and charged with the duty of the “administration of the system of public instruction” in the schools of the state. In order to discharge that responsibility it is essential, and the law contemplates, that it have full control of the framing of policy and other aspects of the internal management of that department in accordance with such purpose.
It is our conclusion that, short of any such capricious or arbitrary actions, the Board of Examiners and its administrative arm, the Commission of Finance, have the authority to examine into and approve or disapprove of proposed expenditures, to adopt regulations pertaining generally to salary schedules and pеrsonnel in accordance with the statutes conferring such powers upon them, and that the Superintendent of Public Instruction and the Board of Education are subject thereto in a similar manner to other departments of state government.
Respective counsel are commended for their able and thorough presentations of the issues involved in this case.
No costs awarded.
McDONOUGH, C. J., and WORTHEN, J., concur.
WADE, Justice (concurring).
I concur with the main opinion, but think it desirable to point out that in certain instances in the past Examiners, Finance and/or the Governor have, by arbitrary
(a) Arbitrarily reduced the moneys appropriated to Weber College for fiscal 1953-54 by $79,027.91.
(b) Refused to make available to U.S. A.C. (now U.S.U.) $20,000.00 which had been appropriated and designated as a research fund.
(c) In April, 1953, reduced the appropriation to Weber College by $5,000.00 on the day the fund was expendable.
(d) Arbitrarily refused to approve numerous salary changes proposed by Education for administrative and supervisory personnel.
HENRIOD, Justice.
I concur. However I cannot subscribe to the concurring opinion of Mr. Justice WADE where he says “in certain instances in the past, Examiners, Finance and/or the Governor have, by arbitrary actions, and contrary to the law as set fоrth in the opinion, infringed upon the prerogatives of the Superintendent of Public Instruction and the Board of Education by unjustifiably interfering in their functions. A long list of such grievances are complained of. I set out but a few by way of example.”
Such language assumes that each and every one of the grievances complained of by respondent was an unlawful usurpation of power, including the four instances pointed out by Mr. Justice WADE. Such assumption cannot be indulged, since most of the fifteen grievances which were claimed by respondent to have been unlawful usurpations of power represent factual situations giving rise to highly debatable legal questions, and most of which, in similar situations, have been held by this Court not to have been any usurpаtion of power at all, but a proper exercise thereof.
The sweeping statement of Mr. Justice WADE, if taken literally, would dispossess the Board of Examiners and Finance Commission of any control whatsoever as to any and all existing or proposed salaries or personnel irrespective of budgetary control, statutory restriction, necessity, amount of compensation or number of personnel, since most of such grievances had to do with salaries and personnel.