Mary Amelia WOOD, Hazel Stevens, Lloyd Warner, Guardian Ad Litem for Nancy Louise Ovard, Wayne John Sterling and Dean J. Hadfield, Plaintiffs and Respondents, v. Walter L. BUDGE, Attorney General of Utah, Defendant and Appellant.
No. 9541.
Supreme Court of Utah.
Sept. 5, 1962.
374 P.2d 516 | 13 Utah 2d 359
As to the issues of fact, we think it unnecessary to examine minutely the evidence on which the jury reached its verdict. Each cause depends on its own circumstances and when the applicable law is applied to these circumstances, the verdict reached cannot be disturbed. There was legal evidence upon which the jury based its verdict. All the testimony pertaining to custom was received in evidence for the purpose of showing the precautions taken as bearing upon the degree of care required.
Mr. Justice Holmes clearly, succintly and, we think, correctly stated the general rule to be applied to custom and usage when he said in Texas & P. R. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905, “The charge embodied one of the commonplaces of the law. What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not.”
Affirmed. Costs to respondent.
WADE, C. J., and CALLISTER and CROCKETT, JJ., concur.
HENRIOD, J., concurs in result.
McDONOUGH, J., having disqualified himself, did not participate herein.
C. N. Ottosen, Edward F. Richards, Quentin L. R. Alston, John L. Black, J. Lambert Gibson, Salt Lake City, for respondents.
CROCKETT, Justice.
The Attorney General appeals from an order of the District Court of Salt Lake County directing payment of certain sums
The claims are of various kinds, but have these things in common: Each is asserted to be a claim against the State, which it is contended would provide a basis for a cause of action, except for the doctrine of sovereign immunity;1 each was presented to the Board of Examiners as permitted by law;2 that Board reviewed each and transmitted it to the Legislature with the recommendation that it be denied; and the Legislature did not follow the recommendation, but approved the claim and appropriated the funds to the Attorney General with which to pay it.3
Upon subsequent presentation of the claims to the Attorney General he withheld payment, stating that, “There is much uncertainty as to the law covering this subject matter. It is my opinion that no claim should be paid * * * until the law pertaining thereto is clarified by court determination.”
The reason assigned for doubt as to the propriety of the appropriations for these claims was set forth in his answer that he was without “* * * authority to pay the claims of the plaintiff in view of the fact that Article VII, Section 13, of the Utah Constitution vests final authority in the Board of Examiners to pass upon all claims against the State of Utah, and the Board of Examiners has denied plaintiffs’ claims.”
The questioning of the Legislature‘s prerogative in approving and appropriating money for claims which have been denied by the Board of Examiners makes it advisable to discuss briefly the source and extent of the authority of the latter Board. It is created by
We are in accord with the defendant‘s assertion that the constitutional grant of authority “to examine all claims against the State” gives the Board something more than an auditing duty to perform; and that within its proper prerogative it has extensive power and discretion in examining into and determining the merits of claims asserted against the State. We so observed in the recent case of Bateman v. Board of Examiners, 7 Utah 2d 221, 322 P.2d 381,5 after quite thoroughly consider-
“* * * Certain it is that one of the functions of Examiners is to investigate and act as a fact finder and advisor to the legislature 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.” (Emphasis added.)
The provision of
It is also pertinent to observe that if one of the executive officers constituting the Board could circumvent legislative action by refusing to pay out funds appropriated to pay such a claim, problems would arise in determining how far actions of that character could extend; and may well result in perplexities relating to the balance of power between the executive, legislative and judicial branches of our state government. These departments, though to a degree interrelated and cooperating in the overall functions of government, have separate powers which should be safeguarded
There is another principle which bears upon the question here under consideration. Our Legislature is directly representative of the people of the sovereign state, and thus has inherently all of the powers of government except as otherwise specified by the State Constitution. By way of comparison, it is significantly different in that respect from the federal government, which is a government of limited powers that can properly do only those things within the scope of the powers expressly granted to it by the states through the Federal Constitution;9 whereas, the State Legislature, having the residuum of governmental power, does not look to the State Constitution for the grant of its powers, but that Constitution only sets forth the limitations on its authority. Therefore, it can do any act or perform any function of government not specifically prohibited by the State Constitution. In order to justify a conclusion that the power to approve and pay such claims has been taken away from the Legislature and placed exclusively within the control of the Board of Examiners, it would have to clearly so appear, which is not the case here.
The Attorney General has also suggested that the appropriation to pay these claims may be outside the bounds of constitutional propriety as gifts of public funds to private individuals. It is an elementary principle of justice that there should be “equal rights to all and special privileges to none.”10 And that thus there should be no discrimination against nor favoritism toward some persons over others. It is quite unthinkable that the Legislature could properly make gifts of public funds merely to confer favors on certain individuals, or to appease self-seeking persons, who make pretended but groundless claims against the State.11 In order to justify approval and payment there must be at least some semblance of a valid claim; or some relationship to the public interest or welfare, on the basis of which some responsibility on behalf of the State could properly rest.
For these reasons it is unquestionable that this function of the Board of Examiners was intended to be regarded as an important one; and that it is the legislative duty to give serious consideration to its recommendations to the end that such claims be acted upon with prudence and wisdom to best serve the interests of the whole State and to avoid making grants in cases where the State should assume no responsibility.
In the instant case there was no trial of the issues as to the merits or frailties of these claims, and there is no record before us of any proceeding on them. The complaint stated, and the answer admitted, facts which, if true, would show that they are claims against the State which were filed and proceedings taken in accordance with law. We are obliged to apply the principle that legislative actions are endowed with a presumption of validity; and that they will not be stricken down unless it clearly appears that the Legislature acted beyond its authority.12 Upon our survey of the record before us in that light, we have concluded that there is no showing that approving and providing compensation for these claims transgressed the legislative prerogative.
Affirmed. No costs awarded.
WADE, C. J., and McDONOUGH and CALLISTER, JJ., concur.
HENRIOD, Justice (concurring in result).
The record in this case reflects a simple writ of mandate problem, which poses a question as to whether the Attorney General should be ordered to pay over funds
The petition alleged a filing of the claims with the Board in compliance with provisions of
It is axiomatic that constitutional law questions will not be convassed or adjudicated which are not made an issue by the pleadings and which are not reflected in any segment of the record. None was issuable here. None of the provisions of
The petition stated facts which, if true, would show regularity in the filing and processing of the claims. No attack having been made urging irregularity, there is nothing this court can do but presume regularity. A further presumption must be indulged in this court to the effect that, without meritorious attack on the Legislature‘s disposition of the matter, its action was regular, consonant with and within the ambit of its authority. Therefore, there is nothing left but for this court to ignore any constitutional straw man set up, on matters dehors the record, arguments for or objections to which are rhetorical and interesting but inapropos. It follows that the trial court must be affirmed and the Attorney General must pay the claims from moneys appropriated to him for that purpose, upon obtaining the releases mentioned in the pleadings and the legislation.
Mandamus is rarely employed, and not designed to referee internecine conflicts between constitutional agencies of the State, without profound or serious reason. Generally, it is dedicated to the proposition that an official, failing to carry out a requirement imposed by law, must comply. That is all that the pleadings in this case ask, and from the record before us, and
As pointed out in the main opinion, the Legislature cannot make gifts unrelated to any real public purpose simply because an isolated individual is in need, is injured, or because an end result morally might be charitable and commendable. The public weal may justify assistance generally where the public generally is concerned and benefited, but a gift of public moneys simply because a written plea is advanced, labeled a “claim” against the State, historically and traditionally has been denounced.1
It seems obvious to this writer that the Board of Examiners was a creature of its constitutional parents, who deliberately and with wisdom designed it to include the highest elected legal officer of the State. Also obvious, it seems, is that such officer was made a member of the Board to determine if a so-called “claim” really is one against the State, or whether it simply is a request for a gift inaccurately called a “claim,” or some other illegitimate petition for funds.
Furthermore, the decision of the Board, after it has “passed upon” a “claim” should be overridden by the Legislature only upon a clear showing that its action wholly was arbitrary and capricious. Any arbitrary and capricious action of either the Board or the Legislature itself in effectuating any action beyond its recognized functions would be subject to judicial review in an appropriate proceeding. All this, — and each case must stand alone, — to assure the citizen and taxpayer whose funds are held in trust for governmental purposes, will not be spoliated or denied of access, depending on the law and justice demonstrated in each individual case. To hold otherwise, the judiciary would be impotent in protecting the fundamental rights of those who embrace our tripartite system, and would render one branch helpless to close any Pandora‘s Box through which could flow “claims” that appeared legitimate on their faces, but which under the test of probative judicial machinery and the application of simple principles of due process, would be unmasked and shown to be false.
It may be suggested that in a case where processing a claim through the Board of Examiners on to the Legislature has not been accomplished substantially in compliance with statutory interdictions, or where the so-called “claim” proves abortive, the action of the Legislature in appropriating money to satisfy such “claim” would be subject to examination by the Judiciary with respect to merit and justiciability, — a duty this court must accept, and
Much of this concurring opinion is gratuitous, since I think the case decidable strictly on procedural grounds, but I feel justified in indulging in it in the light of the fact that I think much of the main opinion is gratuitous, and I feel free, therefore, to address myself thereto.