State Ex Rel. Taylor v. Taylor ( 1938 )

The contract set out in the foregoing opinion contains matter which may render it unnecessary to decide the constitutional questions discussed. The rule is well established in this state that the constitutionality of a law will not be passed upon unless it is absolutely necessary to do so in order to decide the case. (State v. Ridenbaugh, 5 Idaho 710, 51 P. 750; Statev. Baker, 6 Idaho 496, 56 P. 81; In re Fred Marshall, 6 Idaho 516,56 P. 470; McGinness v. Davis, 7 Idaho 665, 65 P. 364;Jack v. Village of Grangeville, 9 Idaho 291, 74 P. 969; Statev. Jones, 9 Idaho 693, 75 P. 819; Mills Novelty Co. v.Dunbar, 11 Idaho 671, 83 P. 932; Kimbley v. Adair, 32 Idaho 790,189 P. 53; Logan v. Carter, 49 Idaho 393, 288 P. 424;In re Allmon, 50 Idaho 223, 294 P. 528.)

It is agreed in the contract that Ada county will "build up to standard and surface" certain county roads and make them ready for oil, and that the state will furnish necessary engineering and furnish and apply necessary oil to the roads. It is also agreed, as a part of the consideration for the service and material to be supplied by the state, that the county will, after completion, maintain the roads to the satisfaction of the state; also that all construction work shall be done to the satisfaction of the state. The contract further provides that wherever the word "standard" is used therein it means the standard prescribed by the commissioner of public works.

This contract presents the question as to the right of the board of county commissioners to delegate its discretionary powers to the state and to its commissioner of public works.

I. C. A., sec. 30-705, specifies, among the powers of boards of county commissioners, the following:

"To lay out, maintain, control and manage public roads, turnpikes, ferries and bridges within the county, and levy such tax therefor as authorized by law."

Undoubtedly, the laying out, maintenance, control and management of public roads involves the exercise of discretion by the board of county commissioners. In Johnson v. Young, on rehearing, 53 Idaho 275, 23 P.2d 724, discussing a contract excuted by a board of county commissioners, we said:

"Furthermore, the board of county commissioners has, by this contract, attempted, in violation of law and of the public policy of the state, to delegate powers which it possesses with respect to county property, and which involve the exercise of judgment and discretion. . . . ."

There is nothing in the constitution to prohibit the legislature from authorizing boards of county commissioners to delegate their discretionary powers, but unless it has so authorized, they cannot be delegated. The question narrows down to this: Is anything to be found in the statute authorizing boards of county commissioners to delegate to the state, or to its commissioner of public works, power and authority to direct and control the construction and maintenance of county roads?

This case presents a controversy between the state and one of its counties. It is a matter of great public importance and the validity of the contract should be determined before money is expended in an attempt to carry out its terms.

The questions above suggested have not been urged by the parties. Because of its public importance, I am in favor of resubmitting the case to counsel with the request that they brief the questions as to whether this contract is an attempt on the part of the board of commissioners of Ada county to delegate its discretionary powers, and as to whether or not the statute authorizes such delegation.