Pyke v. Steunenberg , 5 Idaho 614 ( 1897 )

HUSTON, J.

Respondent filed in the district conrt for Bingham county a petition for a writ of mandate against the state board of examiners and the state auditor, commanding said board to audit and allow certain claims presented to said board of examiners, and upon which the board has neglected to act. The claims, as appears from the petition, were for supplies furnished to the state asylum for insane at Blaekfoot, and had been duly audited and allowed by the board of directors of said asylum, as required by law. Such claims were then presented to the state board of examiners, for their action thereon, said board of examiners having for some time had said claims before them, during which period several meetings of the board had been held, but no action had been taken by said board of examiners upon said claim. The district court ordered the issuance of the peremptory writ of mandate, commanding said board to audit and allow said claims, and from such order of said court this appeal is taken.

The only question involved in this case is, Had the district court authority to order the issuance of the peremptory writ commanding the state board of examiners to “audit and allow” said bill? Section 18, article 4, of the constitution of the state of Idaho, provides that “the governor, Secretary of State, and attorney general shall constitute .... a board of examiners, with power to examine all claims against the state, except salaries or compensation of officers fixed hy law, and perform such other duties as may he prescribed by law. And no claim against the state, except salaries and compensation of officers fixed by law, shall be passed upon by the legislature without first having been considered and acted upon by said board.” By “An act relating to the board of examiners,” approved February 23, 1891, it is provided that “the board may approve or disapprove any claim or demand against the state, or any item thereof, or may recommend a less amount in payment of the whole, or any item thereof, and a decision of a majority of the members shall stand as the decision of the board.”

It is contended that, the board of directors of the insane asylum having passed upon the claim, it only remains for the board of examiners to acquiesce in such action by auditing and allowing the same. If this view is correct in regard to this claim, it is equally true as to all other claims which both the constitution and the statutes require to be submitted to the board oí examiners, and the board of examiners become, to all intents and purposes, a mere thing of straw. I suppose the intent and purpose of the framers of the constitution was to establish a board independent of all other boards, whose duty it is made to pass upon, “and approve or disapprove,” all claims against the state not included in the classes excepted. The jurisdiction is conferred upon this court by the constitution (section 10, article ■5) to hear claims against the state, and to make decisions thereon, which decisions “shall be merely recommendatory”; and this court has declined to hear any claims against the state until the same have been passed upon by the board of examiners. !The board of examiners were created by, and derive their jurisdiction and authority from, the same source as this court, and, while acting within the scope of such authority, the courts have no power to direct or control their action. It is true that, should the board refuse to act in a matter upon which the law requires them to act, it is within the legitimate authority of the courts to compel them to act, because, as heretofore shown, until they do act the claimant- is debarred from further pursuing his remedy. But we know of no authority, vested in this or any other court, which would authorize them to direct how the board of examiners should act in any case. To do so, would be, in our opinion, to override both the constitution and the laws, and to substitute for a tribunal provided by the constitution one clearly never contemplated by the framers of that instrument. Neither the constitution nor the statutes provide for or ever intended an appeal from the board of examiners to the courts. When a claim has been rejected by the board of examiners, the claimant may present his claim to the supreme court for a hearing, and that court, if it deems such action proper, may recommend its-allowance by the legislature; and these proceedings are not limited to claims for which no appropriations have been made, but cover all claims against the state not included within the classes excepted by the constitution and the statutes. ¿^The growing apprehension in this country of evil from encroachments by the judiciary upon the co-ordinate branches of the government are not unfounded, and while we hold it to be the first and most imperative duty of a court to fearlessly administer tbe law as made, and never to permit, if in its power to prevent, any infractions of the constitution we are all sworn to uphold and maintain, still we do not think courts can be too careful in assuming, by construction, authority and jurisdiction not only not conferred upon them by the constitution, but clearly invested in another and co-ordinate branch of the government.^ Mr. Merrill, in his work on Mandamus (section 32), has this to say upon this subject: “The writ lies to make a body or officer charged with a duty involving judgment or discretion take action in the matter. When a subordinate body is vested with power to determine a question of fact, the duty is judicial, and, though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it may be made to appear what the decision ought to be. . ... It is said there is not a case where the king’s bench has ordered an inferior court to render a particular judgment. When a decision has been reached in a matter involving discretion, a writ of mandamus will not lie to review or correct it, no matter how erroneous it may be.” (See Merrill on Mandamus, sec. 32, and cases cited.) Had the district court limited its writ to a command to the board of examiners to proceed and pass upon the claim, we think there would have been no error; but, when the court went to the extent of commanding said board to act in a certain way, we think it was error. The action of the district court is reversed, and the cause remanded, with instructions to recall the peremptory writ, and issue a writ of mandate requiring and commanding the board of examiners to proceed and pass upon said claim, each party to pay his own costs.

Quarles, J'., concurs.