Melgard v. Eagleson

172 P. 655 | Idaho | 1918

BUDGE, C. J.

This is an original proceeding for a writ of mandate to compel the defendants to pay over to the plaintiff the sum of $50,000 for the use and benefit of the University of Idaho and to compel them to correct the boobs and records of their respective offices by canceling thereon all entries showing the aforesaid sum to be a part of the general fund of the state of Idaho, and for general relief. The petition alleges in substance that the fund in question was paid by the United States to the defendant Eagleson, as state treasurer, on July 10, 1917, under the provisions of the act of Congress August 30, 1890, 26 Stat. 417, as amended by the act of Congress March 4, 1907, 34 Stat. 1256, providing for the appropriation from the public treasury of the United States of the sum of $50,000 annually for the more complete endowment and maintenance of each of certain designated classes of colleges, of which the University of Idaho is one. That thereafter the board of regents duly made an order upon the treasurer that this sum be paid .over to plaintiff in his official capacity. That on July 10, 1917, the defendant Yan Deusen, as auditor, issued his certificate directing that the sum be deposited in the general fund; that the defendant state treasurer issued his official receipt for the sum and purported to deposit it in the general fund, and that, the state auditor and treasurer respectively have carried the sum on their books as part of the general fund. That they have refused to pay the sum to the plaintiff or to correct their books in this respect and still carry the sum as a part of the general fund. That unless the fund be turned over to plaintiff as provided by the acts of Congress, the University will be unable to obtain any use or benefit of the same to its great and irreparable injury and detriment, and that plaintiff will be unable to report to the Secretary of Agriculture and the Secretary of the Interior a detailed statement of the disbursements of said- sum as he is required to do by the acts of Congress.

Defendants have demurred to the petition on the grounds:

1st. That it does not state facts sufficient to entitle the plaintiff to the relief prayed;

2d. That it appears from the petition that the sum in question has been deposited in the general fund and that to grant the relief prayed for would be a violation of sec. 13, art. 7 of the constitution of the state of Idaho, which provides that no money shall be drawn from the treasury but in pursuance of appropriations made by law, and that it does not appear from the petition that any appropriation has been made therefor.

3d. That the petitioner has a plain, speedy and adequate remedy at law, in that if defendant Eagleson is withholding funds properly belonging to petitioner the same can be recovered in an action at law.

By three acts of Congress, namely: Act of July 2, 1862, U. S. Compiled Statutes 1916, sec. 8870; act of August 30, 1890, Id., sees. 8871 to 8876, inclusive; act of March’4, 1907, Id., sec. 8877, the sum of $50,000 is appropriated for the use and benefit in each state and territory of agricultural and mechanical colleges, the beneficiary institutions to be selected by the several states. These acts provide that this sum shall be paid by the Secretary of the Treasury of the United States to the state treasurer “ . . . . who shall, upon the order of the trustees of the college, .... immediately pay over said sums to the treasurers of the respective colleges or other institutions. entitled to receive the same, and such treasurers shall be required to report to the Secretary of Agriculture and to the Secretary of the Interior, on or before the first day of September of each year, a detailed statement of the amount so received and of its disbursement.” (Act of August 30, 1890, c. 841, sec. 2; U. S. Compiled Stats. 1916, sec. 8872.)

Our state legislature by IT. B. 192, Sess. Laws 1909, p. 38, approved the action of the board of regents in establishing and maintaining a college of agriculture in accordance with the foregoing acts of Congress.

It is apparent that the fund in question cannot properly be placed in the general fund of the state of Idaho. (Yale College v. Sanger, 62 Fed. 177.) The exclusive supervision of the fund is vested by the act of Congress in the trustees of the institution designated by the state legislature as the beneficiary entitled to receive the fund. (State Board of Agriculture v. Auditor General, 180 Mich. 349, 147 N. W. 529.) Under the acts of Congress, the state treasurer, to whom the fund is transmitted by the Secretary of the treasury, has, with reference to this fund, a mere clerical or ministerial duty to perform, that is, to pay over the fund immediately to the treasurer of the board of trustees, in this case the board of regents, upon their order. The acts of the defendants, state treasurer and state auditor, in this instance, of placing this fund in the general fund by making appropriate entries upon their books to that end were mere nullities. (Blaine County v. Fuld, ante, p. 358, 171 Pac. 1138.) Under the acts of Congress in question the state auditor has no duty whatever to perform with respect to this fund and no authority over it. It is therefore apparent that the defendant, state treasurer, has but one duty to perform in the premises, and that is to pay over the sum in controversy immediately to the plaintiff, as treasurer of the board of *regents. The writ of mandate should issue directing him to do so, and it is so ordered. No costs awarded.

Morgan and Rice, JJ., concur.