Ackley v. Perrin

AILSHIE, J. —

This is an application for a writ of mandate to 0. S. Perrin to compel him to deliver up the possession of the Idaho state penitentiary, together with the inmates thereof, the keys, books, moneys and property thereunto belonging to the plaintiff, Ackley. The application is based on the proceedings of the board of state prison commissioners had on the twenty-first day of November, 1904. A copy of the record of their proceedings is attached to the petition. The answer of the defendant puts in issue the regularity and legality of the meeting so held and the proceedings had thereat. It admits that the proceedings referred to in the complaint were had, but denies that the action taken by the attorney general and Secretary of State were acts of the state prison board, or that they constituted such board at the time and in the manner they assumed to act. This matter is presented on a motion for judgment on the pleadings. It is conceded that if the proceedings were the proceedings of the board of state prison commissioners, that the removal of the warden was legal. It is unnecessary for us to go into a detailed statement of the contentions of both parties.

By section 5, article 10 of the state constitution, the governor, Secretary of State and attorney general are constituted a board to be known as the state prison commissioners, and are given “the control, direction and management of the penitentiaries of the state.” It also provides that “the governor shall be chairman and the board shall appoint a warden who may be removed at pleasure.” It will thus be seen that the constitution confers on this board the management and control of the state penitentiary. That being true, the legislature has not the power to take from that board the management and control of that institution, or make any rules and regulations for the government .of the board that would in any way interfere' with the efficient management and control of that institution. The authority to legislate in aid of the full and complete exercise of this power is clearly recognized by section 18 of article 4 of the constitution, but the right conferred upon the legislature by this section cannot be employed to diminish or abridge any of the powers conferred by section 5 of article 10.

The only question presented by the pleadings for our consideration is whether or not the action of the • Secretary of State and attorney general had at the time' and in the manner they are shown by the pleadings to have acted is in law the legal action of the board of state prison commissioners. Article 10 of the constitution is dealing with “Public Institutions,” and while section 5 makes no provision as to the time of meeting nor the manner of calling meetings, nor the manner of exercising the “control, direction and management” delegated to them, it is significant that section 6, immediately following this provision, provides for directors of the insane asylum, and in prescribing the powers of that board uses the same language, namely, that they shall have the “control, direction and management of the asylum,” and concludes the sentence with the provision that it shall be exercised under such regulations as the state legislature may provide. This provision following immediately after the creation and granting of authority to the board of state prison commissioners implies to my mind that the framers of the constitution did not mean to authorize the legislature to in any way abridge or curtail the exercise of any of the powers granted to the board of state prison commissioners. The first legislature that convened after the adoption of the constitution, by act of February 3, 1891, enumerated a large number of duties to be performed by the prison board, and in the same act, by section 6 thereof, provided that the board should hold quarterly meetings but nowhere in the act did they specify any date on which meetings should be held. It is true that by section 13 of that act certain things are required to be done by the board on the first Monday in December, and presumably at a meeting, but a meeting as such is not mentioned. This act enumerates duties to he performed which of necessity require that meetings be held much oftener than quarterly, and it is our opinion that the legislature in requiring quarterly meetings to be held by the board had no intention or purpose of limiting the power of the board to these meetings only. The board of state prison commissioners is a board created by the constitution and selected by the people every two years. They are responsible to no appointive power, but are accountable directly to the people, and it seems to us that this is one of the controlling reasons why the framers of the constitution left the exercise of the powers granted to this board to their judgment and discretion. While the legislature have the undoubted right to point out a method of exercising these powers and impose special duties upon them, we are satisfied that the legislative department of the government would have no power or authority to limit or in any way interfere with the full and complete exercise of the powers and duties conferred by the constitution, and we do not think they have attempted to do so. This phase of the question is, however, not a serious matter in this case, for the reason that it is admitted by counsel for the defendant that under certain conditions the board might meet at any time.

It is contended, however, that the full membership of the board should be present, or notice thereof should be given. The serious question, to our minds, is as to the manner of calling these meetings and whether or not notice should be given. Neither the framers of the constitution nor the legislature have seen fit to make any provision for the time of holding meetings, nor the method nor manner of calling them. They have required no notice, and the question arises as to whether or not the court can, hy construction or otherwise, require the giving of'a notice; and if so, what kind of notice shall be given; and what shall be the manner of service and the time intervening between the service and the meeting — and a host of other such questions would necessarily arise. As to the propriety and wisdom of all the members of the board being notified of meetings, and having an opportunity to attend, there can be no question, but as to the right of the courts to interfere with the exercise of the judgment of the board or attempt to control their meetings or prescribe a method and manner of eon-vening them, there is most serious doubt.

It appears to me that it was the intention of the framers of the constitution to grant exclusive power to this board in all these matters, and with the exercise of that power within the scope of their duties, the courts cannot interfere. The members of the board are accountable to the people, and if they exercise these powers unwisely the people will call them to account. It is true there may be special instances where it will result in working a great hardship, and possibly an injustice, on some person or persons, but that is one of the consequences of the service and is a risk which must necessarily be assumed by those who undertake the service.

If we should require notice, then by analogy it might be such notice as is required in other similar matters under the statute; this might be done when the members of the board are within the state, but we would still be without a means of service of notice upon a member beyond the jurisdiction of the state. I am of the opinion that in such case the court is powerless to require notice of any kind. If I could find authority for the requirement I should be very much inclined to hold that notice should be given. The authorities cited do not cover this case for the reason that in all those cases the boards whose actions were questioned were creatures of the legislature, and their meetings and methods of acting were prescribed by statute.

Section 14 of the Revised Statutes provides that wherever joint authority is given to three or more public officers or other persons to act, that the same shall be construed as giving such authority to the majority of them, unless it is otherwise expressed in the act giving the authority. This statute, it may be justly said, does not eliminate the question of notice where the constitution or statute requires such, but it is strong evidence of the legislative intent to authorize a majority of all boards deriving their powers from the legislature to act in every matter over which they have authority, unless otherwise expressed by statute. It would seem that this authority might extend to the determination as to the manner and method of calling of holding a meeting where such question has not been settled by law. We hold that a meeting of the state prison commissioners can be lawfully held by a majority of the board without giving notice to a member who is at the time of calling and holding the meeting beyond the borders of the state. It is conceded by all parties to the action that if the meeting of November 21, 1904, was a legal and lawful meeting of the state board of prison commissioners, they could remove the warden at pleasure and without assigning any reason, and appoint his successor. These things were done — the defendant was removed as warden and the office declared vacant, and the petitioner was appointed to fill the vacancy.

It follows from what has been said that a peremptory writ of mandate should issue as prayed for, and it is so ordered. Writ issued. No costs awarded.

Sullivan, C. J., concurs.