174 P. 122 | Idaho | 1918
This is an original proceeding in this court.
By the Idaho admission act, Congress granted to the state 90,000 acres of land as an endowment for an agricultural college or colleges, in accordance with the terms of the act of July 2, 1862, (12 Stats, at L. 503); seventy-two sections of land in accordance with the act of February 18, 1881, (21 Stats, at L. 326), and 50,000 acres in addition thereto as an endowment for a state university; 100,000 acres as an endowment for a scientific school; 100,000 acres as an endowment for the state normal schools; also 150,000 acres for other state, charitable, educational, penal and reformatory institutions.
Art. 9, sec. 8, of the constitution contains the following provision: “The legislature shall, at the earliest practicable period, provide by law that the general grants of land made by Congress to the state shall be judiciously located and carefully preserved and held in trust, subject to disposal at public auction for the use and benefit of the respective objects for which said grants of land were made.....” -
In 1905 the legislature, by a series of acts, created and established a university fund, agricultural college fund, scientific school fund, normal school fund, Idaho Industrial Eeform School fund, now known as the Idaho Industrial Training School fund, and the Academy of Idaho fund, now known as the Idaho Technical Institute fund. Each of the two last-mentioned funds were to receive a specified portion of the proceeds from the 150,000 acre grant for state charitable, educational, penal and reformatory institutions.
Each of these various acts creating the funds, with the exception of the scientific school fund and the agricultural
With reference to the deaf and blind school, it does not appear that any fund has been created for this institution. In 1905 an appropriation was made from the state charitable institutions fund for the education of the deaf and blind in the state for the years 1905 and 1906, but no further appropriation appears to have been made from that fund. It would seem, therefore, that the appropriation in the 1917 laws contains the entire appropriation for that institution for this biennium.
Sess. Laws 1917, chap. 70, contain the appropriation for these institutions for the period commencing on the first Monday of January, 1917, and ending on the first Monday in January, 1919. This act contains the following provisos:
“Provided, however, that when any moneys or funds, not appropriated herein and which are properly available for the expenses of the current biennium are or have been received subsequent to February 1, 1917, except federal funds, which shall be computed as of January 1, 1917, by the state treasurer, by the treasurer of any institution or institutions herein named or by any agent or employee thereof from endowment or other sources of income for the support and maintenance of any work or operation carried on under the*618 •authority, control and direction of the state board of education and board of regents of the University of Idaho or any institutions, departments, officers or employees of said board, funds in an amount or amounts equal to the money or moneys so received shall be withdrawn by the state treasurer from the funds herein appropriated for the board or institution receiving such funds and placed in the general fund of the state, and the appropriation or appropriations herein made for such board or institution shall be decreased automatically by such amount or amounts equal to such money or moneys so received by such board or institution:
“Provided, further, that all funds received by and for the use of the board or any institution named herein, except federal aid received from the government of the United States which, under the law granting said aid, must be retained by the institution receiving the same, shall be turned into the state treasury monthly by such board or institution, and if said funds so reported and turned into the state treasury properly belong to the board or institution reporting the same, the state treasurer shall place such funds to the credit of said board or institution: ....
“All sums hereinafter appropriated shall be paid out by the state treasurer upon warrants drawn by the state auditor against the general fund of the state only. The amounts herein specified constitute the whole amounts appropriated by the legislature of the state of Idaho for the purposes specified, and no greater sum or sums shall be expended for the said purposes in any manner which will create a further claim against the state of Idaho.”
It appears that the defendants have maintained the several funds above referred to and in the first instance have placed therein the moneys properly applicable thereto. It further appears that all claims against the various institutions named above, during this biennium, have been allowed and paid by warrants drawn on the general fund.
The auditor gives the following explanation of his method of handling claims against these various institutions: “Out of the general fund of the state there is set aside on the
It appears further that since December 31, 1917, the state treasurer has refused to recognize the validity of such certificates.
By this action plaintiffs seek a writ of mandate to compel the defendant Yan Deusen, as state auditor, to amend and correct the books and records of his office so as plainly to open and show thereon a separate account of each and every of the said funds accrued, and hereafter to accrue, from the aforesaid respective grants of land and the proceeds thereof, for the benefit of each and every of the said institutions herein alleged to be entitled respectively to the use and benefit of said separate funds, and that he be required as auditor to draw his official warrants upon claims properly briefed and allowed against said funds respectively upon the particular fund against which such claims shall, from time to time, be properly allowed, and to command that he shall, under no circumstances, commingle or intermingle upon the
The funds referred to being declared by the constitution to be trust funds, are not, strictly speaking, subject to ’appropriation. They were appropriated or set apart for certain purposes designated by the terms of the grants which had been accepted by the state. The legislature, however, is required to provide the method by which they may be made available for such special purposes, and to that extent only are the funds subject to what may be called an appropriation. The courts are not concerned with the methods which the legislature may provide, further than that, upon proper proceedings therefor, they will prevent the diversion of the funds from the objects or purposes for which they have been granted. (Roach v. Gooding, 11 Ida. 244, 81 Pac. 642.)
In Evans v. Huston, 27 Ida. 559, 150 Pac. 14, it was held That the perpetual appropriation of the Albion Normal School fund was sufficient to justify the allowance of claims against it, and the drawing of warrants for claims properly allowed.
All of the. perpetual appropriations above referred to are practically in the same language. The appropriation bill of 1917 was carefully drawn and is clear in its terms. It does not amend or repeal the perpetual appropriations referred to and is not inconsistent therewith. It does not provide for a combined appropriation fund composed of the amounts of the income from the various endowment funds and the amount appropriated from the general fund of the state for the support of such institutions.’ It provides that all funds received by and for the use of any of the institutions named therein, except federal aid received from the government of the United States which, under the law granting said
By the terms of the first proviso it was expressly indicated that these funds are not a part of the appropriation made by the act. Nowhere in the act is there any provision that funds belonging to the various institutions above mentioned shall be transferred to any other fund in the treasury. The bill expressly provides that “funds in an amount or amounts equal to the money or moneys so received shall be withdrawn by the state treasurer from the funds herein appropriated, for the board or institution receiving such funds and placed in the general fund of the state, and the appropriation or appropriations herein made for such board or institution shall be decreased automatically by such amount or amounts equal to such money or moneys so received by such board or institution.” Moreover, the provision requiring that the warrants drawn by the state auditor shall be against the general fund of the state only, refers only to sums appropriated by that act from moneys belonging to the state and does not refer to funds already belonging to the institutions.
A writ of mandate is only properly issued to compel an officer to perform an act which the law specially enjoins upon him as a duty. It does not issue to prevent an officer from doing an unlawful act. It does not appear that the auditor and treasurer have failed or refused to maintain proper funds for the various institutions named in the petition. The petition, however, alleges that the auditor has failed, neglected and refused, and still fails, neglects and refuses, to draw his warrant or warrants upon any of said separate funds upon presentation to him of claims properly briefed and allowed against the said separate funds.
This is a general allegation, and does not amount to an averment that claims have been properly briefed and allowed against any of said separate funds for which the auditor has
The writ will be denied. No costs awarded.
