State ex rel. Black v. State Board of Education

BUDGE, J. This is an original action in this court for a writ of prohibition by the state, upon the relation of the attorney general. It is sought to prohibit the state board of education, acting as the board of regents of the University of Idaho, from pursuing a course of conduct and from doing — 421 — certain specific acts in furtherance thereof. The sufficiency of the petition is attacked by general demurrer. The course of conduct on the part of the regents sought to be prohibited is set forth in a resolution passed by them October 1, 1920, as follows: “The State Board of Education and Board of Regents of the University of Idaho being in session and a quorum being present and the affairs of the University of Idaho being under consideration, the following preamble and resolutions were submitted, and on motion duly seconded were carried unanimously. “Whereas, Under Article IX, Section 10, of the Constitution of the State of Idaho, the Board of Regents of the University of Idaho have not only the general supervision of the university but the control and direction of all the funds of, and appropriations to, the University, subject only to such reasonable regulations as may be prescribed by law; and ' “Whereas, By the same article and section, the Constitution perpetuated in the Board of Regents all the rights, immunities, franchises and endowments prescribed by the then existing laws of the territory of Idaho, which included all the powers necessary or convenient for carrying out the purposes of the University, as defined in the act of the territorial legislature approved January 30, 1889; and “Whereas, Various state officers, and particularly the State Board of Examiners, the State Treasurer, the State Auditor and the Department of Public Works, acting as a purchasing bureau for the state, have interpreted their duties as prescribed by the legislature so as to infringe upon and limit the Board of Regents in the exercise of its constitutional duties to the detriment of the welfare of the University; and “Whereas, The Board of Regents denies that a claim against the University is a claim against the State of ~Idaho and subject to the regulations prescribed for the latter; and “Whereas, The Board of Regents denies the^uithOTity”of the legislature, under the guise, of ‘regulations,’ to deprive — 422 — the said Board, which is a co-ordinate constitutional body of the state government, of the absolute exercise of full discretionary powers in the purchase and sale of property, and the employment.of services, or to interfere in any way with the expenditure of the funds belonging to the University; and “Whereas, The Board of Regents denies that in the expenditure of the funds received under direct or indirect grants from the Federal government, or from funds received for services rendered, or from the sale of any property belonging to the institution, it is under any legal obligation to submit to the Board of Examiners for examination and approval claims against the University which are to be paid from the said funds; and “Whereas, The Board of Regents denies that the legislature has authority under the Constitution to require it, or any of its agents, to pay into the state treasury the proceeds of any sales or rentals or moneys received for services, or any other moneys coming into its possession from any source whatsoever. “Now, Therefore, be It Resolved by the State .Board of Education and Board of Regents of the University of Idaho, that the said Board when acting as Regents of the University is a constitutional corporation having exclusive supervision of the University and the exclusive control and direction of all the funds of, and appropriations to, the University. “Resolved, That the executive officers of the Board of Regents and of the University be and hereby are instructed to act in accordance with the spirit of this resolution and in subordination alone to the Board of Regents, and without regard to any pretended legislation infringing upon the constitutional rights and duties of the Board. ‘ ‘ Specifically: “The Board of Regents of the University hereby directs the executive officers and agents not to pay into the State Treasury moneys coming into the hand of its treasurer, or — 423 — other agent, any pretended law to the contrary notwithstanding. “The Board of Regents directs its executive officers and agents, upon the sole authorization of this Board, to buy or purchase anything necessary to carry out the purposes of the act creating the institution, any pretended legislative acts to the contrary notwithstanding. “The Board of Regents will demand of the State Auditor and Treasurer the payment from time to time of the proceeds of the interest on the endowment funds and rentals of endowment lands on claims of the University against the state for such funds and not upon the vouchers of individual claimants against the University. “Resolved, That the bursar of the University be and he is hereby directed to pay to the treasurer of the University, and to refuse to pay to the State Treasurer, any and all moneys received from the sale and rental of property of the University; and moneys received for services and from other sources. “Resolved, That the bursar be and he is hereby authorized to voucher against the moneys so deposited with the treasurer of the University any claims against the University which may be properly paid therefrom, without submitting such claims to the Board of Examiners of the State. “Resolved, That whereas there has been sold to the Preston Machine Co. of Moscow two condemned boilers, the payment for which has been received and is now in the custody of the bursar of the University, Frank M. Stanton; the said bursar, Frank M. Stanton be and hereby is directed to disregard the provision of the statute directing this money to be paid to the State Treasurer, and instead to pay the same to the treasurer of the University. “Resolved, That the bursar be and he is hereby authorized to let printing contracts and to purchase necessary supplies and apparatus, without requisitioning the Department of Public Works, acting as state purchasing agent for the state of Idaho, and to pay for the same without submitting the vouchers therefor to the Board of Examiners; — 424 — but in letting said contracts and in making said purchases and in drawing vouchers therefor, said bursar shall be sub^ ject only to such rules and regulations as may be prescribed by the Board of Regents. “Resolved, That the bursar is hereby directed to purchase from Julia A. Moore, of Moscow, Idaho, a certain tract of land necessary for agricultural experimentation, .... And to pay therefor a sum not to exceed $100, one-half of said purchase price to -be paid upon execution and delivery of the deed by warrant upon the treasurer of the University, without submitting the voucher for the payment of said sum to the Board of Examiners of the state for allowance; the balance of said purchase price to be paid six months from the date of the execution of said deed by warrant upon the treasurer of the University, without submitting the voucher for the payment of said sum to the Board of Examiners of the state for allowance. “Resolved, That the bursar of the University be and hereby is directed to submit from time to time vouchers to the State Auditor suitable for the payment to the University of the proceeds of the interest endowment fund arising from the sale or rental of University lands, agricultural college lands, and scientific school lands, which may be in the State Treasury. “Resolved, That the executive officers of the Board are hereby authorized to employ counsel to ,aid in the enforcement of this resolution and the establishment in court of the constitutional rights of this Board; also to employ accountants or auditors to determine the correct amount of public funds heretofore deposited in the State Treasury or derived from the sale of University lands for which the State is indebted to the Regents.” The specific acts complained of are as follows: The regents, having received $75 from the sale of a discarded boiler belonging to the university, will pay the same to the treasurer of the university instead of the treasurer of the state, in alleged violation of see. 1 of the general appropriation bill for 1919, Sess. Laws 1919, pp. 304, 305. — 425 — The regents will pay claims against the university out of funds in the hands of the state treasurer without submitting them for allowance by the state board of examiners. In particular, they propose the purchase of lands on a time contract for university needs, without specific authorization by the board of examiners, in alleged violation of sec. 4, Sess. Laws 1919, p. 309. The regents will make purchases of supplies and enter into contracts for printing on behalf of the university without requisition upon and without the consent or action of the commissioner of public works of the state, in alleged violation of C. S., sec. 367, which provides that: “The Department of Public Works shall have power .... 3. To procure and supply all furniture, general office equipment, and general office supplies .... needed by the several state departments. ’ ’ The regents will continue to employ attorneys when necessary to represent the interests of the university, instead of relying upon the constitutional law officer of the state, whose duty it is to represent all executive departments of the state government. By an act of the legislature of the territory of Idaho approved January 30, 1889 (Ter. Sess. Laws, 1888-89, p. 21), the University of Idaho was established at the town of Moscow, and its government was vested in a board of regents to be appointed by the Governor. “The Board of Regents,” it was provided, “shall constitute a body corporate, by the name of ‘The Regents of the University of Idaho,’ and shall possess all the powers necessary or convenient to accomplish the objects and perform the duties prescribed by law, and shall have the custody of the books, records, buildings and other property of said University.” The board elects its own president, secretary and treasurer, whose duties are similar to those of corresponding officers in private corporations. By-laws may be adopted by the board, prescribing specific rules for the conduct of its officers and fixing the amount of the treasurer’s bond. It was also vested with power to enact laws for tie government of — 426 — the university, to make expenditures for the erection of suitable buildings, and for the purchase of apparatus and library, and to employ and discharge professors and instructors. “The treasurer of said board,” the act provides, “shall, out of any moneys in his hands belonging to said Board, pay all orders drawn upon him by the President and Secretary thereof, when accompanied by vouchers fully explaining the character of the expenditure.” At the close of each fiscal year, the regents, through their president, are required to report in detail to the Governor the progress, conditions and wants of the university, the amount of receipts and disbursements, and such other information as they may deem important. This act was amended by Sess. Laws 1899, p. 392, sec. 2, by extending the terms of the regents from two to six years; by Sess. Laws 1901, p. 15, reducing the number of regents from nine to five; and by implication by Sess. Laws 1913, p. 328, which latter act created the state board of education, “which shall also constitute the Board of Regents of the University,” and provided, in sec. 3, that said state board of education and board of regents “shall have control of all moneys so appropriated.” Sess. Laws 1891, p. 42, and 1893, p. 48, amended the provisions of the act of 1889 relating to the annual levy for the university building fund. With the exception of these amendments, the constitutionality of which is not involved, the act of 1889 has not been altered, and was the only law in force when art. 9, sec. 10, of the constitution was adopted. Art. 9, see. 10, permanently located the university in Moscow, and confirmed unto the said university all the rights, immunities, franchises and endowments theretofore granted thereunto by the territory of Idaho, and perpetuated the same unto the university, giving to the regents, then consisting of nine members, “the general supervision of the university, and the control and direction of all of the funds of, and appropriations to, the university, under such regulations as may be prescribed by law.” — 427 — With the italicized provision omitted, the similar constitutional provisions of the states of Michigan and Minnesota are essentially the same as art: 9, sec. 10, of our constitution. Construing the Michigan constitutional provision, the supreme court of Michigan said: “It is made the highest form of juristic person known to the law, a constitutional corporation of independent authority, which within the scope of its functions is co-ordinate with and equal to that of the legislature.” (Board of Regents v. Auditor, 167 Mich. 444, 132 N. W. 1037.) The regulations which'may be prescribed by law and which must be observed by the regents in their supervision of the university, and the control and direction of its funds, refer to methods and rules for the conduct of its business and accounting to authorized officers. Such regulations must not be of a character to interfere essentially with the constitutional discretion of the board, under the authority granted by the constitution. It is admitted by the attorney general, and we think correctly so, that the proceeds of federal land grants, direct federal appropriations, and private donations to the university, are trust funds, and are not subject to the constitutional requirement that money must be appropriated before it is paid out of the state treasury. Claims against such funds need not be passed upon by the board of examiners, and the moneys in such funds may be expended by the board of regents subject only to the conditions and limitations provided in the acts of Congress making such grants and appropriations, or the conditions imposed by the donors upon the donations. (Melgard v. Eagleson, 31 Ida. 411, 172 Pac. 655; Evans v. Van Deusen, 31 Ida. 614, 174 Pac. 122.) If a claim against the regents is a claim against the state, it must be presented to the board of examiners for approval. The supreme court has original and exclusive jurisdiction to hear claims against the state, which have been disallowed in whole or in part by the board of examiners. There is no other authority in the constitution or statutes authorizing an — 428 — action against the state, and. such authority must be so expressed. Const, art. 4, sec. 18, is as follows: “The Governor, Secretary of State and Attorney General .... shall also constitute a Board of Examiners with power to examine all claims against the State except salaries or compensation of officers fixed by law .... ” Const, art. 5, sec. 10, provides: “The Supreme Court shall have original jurisdiction to hear claims against the State,but its decision shall be merely recommendatory; no process in the nature of execution shall issue thereon. They shall be reported to the next session of the Legislature for its action.” That an action may be maintained in the district court on a claim against the board of regents and that court has jurisdiction, and the supreme court is without original jurisdiction, has been frequently held, and is well settled as the law of this state. In Thomas v. State, 16 Ida. 81, 100 Pac. 761, it is held that: “The district court has no jurisdiction of an action against the state which involves a claim' against the state, such jurisdiction being vested in the supreme court under article 5, section 10, of the constitution.” American Bonding Co. v. Regents, 11 Ida. 63, 81 Pac. 604, was an action commenced in the district court and appealed to the supreme court, where a judgment in favor of the board of regents was affirmed. Moscow Hardware Co. v. Regents, 19 Ida. 420, 113 Pac. 731, was an action for a recommendatory judgment brought originally in the supreme court, and this court of its own motion in the course of its opinion says: “It is clear that this court has no jurisdiction to render a recommendatory judgment herein” (p. 430). To the same effect is First Nat. Bank v. Regents, 19 Ida. 440, 113 Pac. 735. That a claim against the regents is not a claim against the state is finally disposed of in First Nat. Bank of Moscow v. Regents, 26 Ida. 15, 140 Pac. 771, in the following language: — 429 — “There is no merit in the contention that the district court was without jurisdiction, and that the only jurisdiction to hear this case was in the supreme court.....The doctrine there announced (Moscow Hardware Co. v. Regents and First Nat. Bank v. Regents, supra), is sound and consonant with the provisions of the constitution and statutes and is affirmed in so far as it applies to the board of regents of the state university.” This necessarily follows for the reason that the board of regents is a constitutional corporation with granted powers, and while functioning within the scope of its authority, is not subject to the control or supervision of any other branch, board or department of the state government, but is a separate entity, and may sue and be sued, with power to contract and discharge indebtedness, with the right to exercise its discretion within the powers granted, without authority to contract indebtedness against the state, and in no sense is a claim against the regents one against the state. To hold that art. 4, sec. 18, of the constitution, and C. S., sec. 242, confer upon the hoard of examiners power to pass upon claims against the board of regents would make the latter board subservient to the former, and in the final analysis would operate to deprive the board of regents of the control and direction of the funds of and appropriations to the university. When a constitutional provision or legislative act is fairly open to two constructions, one of which will carry out and the other defeat some great public purpose for which it was designed, the former construction should be applied. “This rule is applicable with special force to written constitutions in which the people will be presumed to have expressed themselves in careful and measured terms, .... One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood hy itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together.” (Cooley’s Constitutional Limitations, 7th ed., p. 92.) — 430 — Bearing this principle in mind, we interpret the phrase “claim against the state” as used in art. 4, sec. 18, as not including claims against the regents, and there is, therefore, no conflict either in the statute or these separate provisions of the constitution. When an appropriation of public funds is made to the university, the legislature may impose such conditions and limitations as in its wisdom it may deem proper. If accepted by the regents, it is coupled with the conditions, and can be expended only for the purposes and at the time and in the manner prescribed, and can be withdrawn from the state treasury only as provided by law. The board of regents may purchase property without compliance with the provisions of C. S., secs. 367-380. The power and duties of the department of public works could pertain only to such contracts or purchases as create claims against the state. If the regents have funds available for the purpose of making purchases of supplies, they may do so without requisition upon and without the consent of the commissioner of public works, and if they have money which is available for the purchase of land, or the payment of counsel fees, or to employ accountants and auditors, other than state accountants and auditors, we know of no valid reason why they should not do so. This in no way would involve the power of the legislature to provide that the accounts and records of the regents shall also be examined and audited by regular accountants and auditors of the state. In the absence of conditions contained in an appropriation which, by being accepted, raised an implied contract on the part of the board of regents, there is no obligation resting upon them to pay to the state treasurer the proceeds of the sale of property belonging to the university. The same may be paid to the treasurer of the university. The writ will be denied, and it is so ordered. Bice, C. J., and McCarthy and Lee, <TJ., concur.