Curtis v. Moore

221 P. 133, 38 Idaho 193, 1923 Ida. LEXIS 68

• Court: Idaho Supreme Court
• Decided: November 3, 1923
• Status: Published

Opinion

MCCARTHY, J.

— This is an original application for a writ of mandate. One C. A. Bieknell contracted with the state of Idaho to build a portion of the state highway and borrowed the necessary money from the Overland National Bank. The state retained, until completion of the contract, five per cent of the amount due the contractor, or $5,587.19. Bicknell assigned to the bank his claim for the retained percentage to secure payment of the loan. The amount of the loan unpaid and owing exceeds the retained percentage. Plaintiff is receiver of the bank. The contract was completed, the work accepted, and the claim approved by the department of public works. During the time he was performing his contract Bicknell became indebted to the State Insurance Fund for premiums due for workmen’s compensation insurance in an amount substantially the same as that due him under the contract. The department in charge of the State Insurance Fund secured no assignment of and made no levy against the amount due Bicknell on the contract. Defendants, the members of the state board of examiners, have examined said claim and admit its validity, but decline to approve it, solely upon the ground that it is offset by the amount due the State Insurance Fund from Bicknell. On the above facts plaintiff prays a writ of mandate commanding defendants to approve the claim. Defendants have demurred to the petition on the ground it does not state facts sufficient to entitle plaintiff to the issuance of the writ prayed for.

Has this court jurisdiction to issue a writ of mandate, as prayed for, ordering defendants as the state board of examiners to allow plaintiff’s claim? The board of examiners has power to examine all claims against the state except salaries or compensations of officers fixed by law. (Const., IV, 18.)

“The supreme court shall have original jurisdiction to hear claims against the state, but its decisions 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.” (Const., V. 10.)

Under these constitutional provisions, this court is without jurisdiction to command how the board of examiners shall act upon claims against the state. To do so would be a clear usurpation of authority. (Pyke v. Steunenberg, 5 Ida. 614, 51 Pac. 614; Bragaw v. Gooding, 14 Ida. 288, 94 Pac. 438.) Nor can it make any difference whether the issue before the Board with reference to the allowance of a claim against the state is one of law or of fact, or a mixed question of law and fact. Such considerations cannot diminish or enlarge the power of the board or of this court. This court is without jurisdiction to issue the wi’it of mandate prayed for in this action, commanding the board of examiners to allow this claim. The demurrer is sustained, the alternative writ is quashed, and the cause dismissed, with costs to defendants.

Dunn, William A. Lee and Wm. E. Lee, JJ., concur.