Thoreson v. State Board of Examiners

Utah Supreme Court

Thoreson v. State Board of Examiners

60 P. 982, 21 Utah 187, 1900 Utah LEXIS 57

CourtUtah Supreme Court

DecidedMarch 19, 1900

StatusPublished

Cited by7 cases

This text of 60 P. 982 (Thoreson v. State Board of Examiners) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thoreson v. State Board of Examiners, 60 P. 982, 21 Utah 187, 1900 Utah LEXIS 57 (Utah 1900).

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Opinions

Baskin, J.

This case is before this court on a rehearing. The facts are fully set out in the opinion heretofore rendered herein, reported in 19 Utah 18; 57 Pac. Rep., 175.

The appellant, on the rehearing, has made the objection, which was not raised on the former hearing, that Sec. 963, Rev. Stat., which authorizes the repayment to the respondent’s assignor of the money paid by said assignor on the lease to him of school lands made in pursuance of Ch. 76, Sess. Laws of the Territory of Utah of 1892, violates Sec. 13, Art. 7, of the constitution, [188]*188which provides that “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, and perform such other duties as may be prescribed by law; and no claim against the State, except for salaries and compensation of officers fixed by law, shall be passed upon by the Legislature without having been considered and acted upon by the said board of examiners,” for the reason that a claim for such payment was not presented to or considered by the board of examiners before the passage of Sec. 963, Rev. Stat.; that the Legislature is prohibited by the constitution from allowing a claim against the State except for salaries or compensation of officers fixed by law, unless the same shall have been first acted upon by the board of examiners.

The act which authorized the leasing of the school lands was passed by the Territorial Legislature, and before the State was formed the supreme court of the Territory, in the case of Burrows v. Kimball, 11 Utah, 149, had held the act, and the leases made in pursuance thereof, void.

The persons who paid money to the officers of the Territory on the void leases made in pursuance of the void act of the Territorial Legislature, never had any claim against the Territory, and did not have any against the State until the passage of Section 963, Rev. Stat., nor was the State under any, except a moral, obligation to pass an act for the relief of such persons. Whether it would do so was a matter wholly within the discretion of the governor and Legislature, and the relief specified in said section of the Rev. Stat. was merely the bestowal of a favor based upon moral and equitable considerations, and not upon any legal claim, and as, until the favor was granted, the respondent’s assignor had no claim against the State, the [189]*189powers and duties of the board of examiners expressed in Section 13, Article 7, of the constitution, had no relevancy to the case at bar.

The board of examiners are required to perform the duties mentioned in said section of the constitution, and also to perform such other duties as may be prescribed by law, therefore the only duties in the premises imposed upon the board of examiners, are such as Section 963 of the Bevised Statutes prescribes. In our former opinion we held that the only discretionary power which the board of examiners had in the matter was to ascertain whether or not respondent’s assignor had paid on a lease made in pursuance of the void act of the Territorial Legislature, the sum claimed by the respondent, and it having been admitted that said sum had been so paid, that such payment was therefore a just claim within the meaning of said section of the statute, and that said board of examiners had no right to reject said claim on the ground that Section 963 of the Bevised Statutes was violative of the constitution, but that it became and was the mandatory duty of the said board to receive, audit, and allow said claim, and that mandamus lies to enforce the performance of that ministerial duty.

We did not hold, as intimated in appellant’s brief, that the board of examiners is a mere perfunctory body, not capable of exercising any judgment or discretion in matters of allowing or rejecting claims against the State, but held that in the particulars mentioned in this case, where the claim is admitted to be just, the board had no discretion, but their duties were mandatory. Upon a careful review of the case, we are satisfied that our former conclusions are correct.

It is therefore ordered that the judgment of the court below be affirmed, with costs, and that the case be re[190]*190manded with instructions to issue the writ of mandate as prayed for by the relator.

Bartch, C. J., concurs.

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Baskin, J.

This case is before this court on a rehearing. The facts are fully set out in the opinion heretofore rendered herein, reported in 19 Utah 18; 57 Pac. Rep., 175.

The appellant, on the rehearing, has made the objection, which was not raised on the former hearing, that Sec. 963, Rev. Stat., which authorizes the repayment to the respondent’s assignor of the money paid by said assignor on the lease to him of school lands made in pursuance of Ch. 76, Sess. Laws of the Territory of Utah of 1892, violates Sec. 13, Art. 7, of the constitution, [188]*188which provides that “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, and perform such other duties as may be prescribed by law; and no claim against the State, except for salaries and compensation of officers fixed by law, shall be passed upon by the Legislature without having been considered and acted upon by the said board of examiners,” for the reason that a claim for such payment was not presented to or considered by the board of examiners before the passage of Sec. 963, Rev. Stat.; that the Legislature is prohibited by the constitution from allowing a claim against the State except for salaries or compensation of officers fixed by law, unless the same shall have been first acted upon by the board of examiners.

The act which authorized the leasing of the school lands was passed by the Territorial Legislature, and before the State was formed the supreme court of the Territory, in the case of Burrows v. Kimball, 11 Utah, 149, had held the act, and the leases made in pursuance thereof, void.

The persons who paid money to the officers of the Territory on the void leases made in pursuance of the void act of the Territorial Legislature, never had any claim against the Territory, and did not have any against the State until the passage of Section 963, Rev. Stat., nor was the State under any, except a moral, obligation to pass an act for the relief of such persons. Whether it would do so was a matter wholly within the discretion of the governor and Legislature, and the relief specified in said section of the Rev. Stat. was merely the bestowal of a favor based upon moral and equitable considerations, and not upon any legal claim, and as, until the favor was granted, the respondent’s assignor had no claim against the State, the [189]*189powers and duties of the board of examiners expressed in Section 13, Article 7, of the constitution, had no relevancy to the case at bar.

The board of examiners are required to perform the duties mentioned in said section of the constitution, and also to perform such other duties as may be prescribed by law, therefore the only duties in the premises imposed upon the board of examiners, are such as Section 963 of the Bevised Statutes prescribes. In our former opinion we held that the only discretionary power which the board of examiners had in the matter was to ascertain whether or not respondent’s assignor had paid on a lease made in pursuance of the void act of the Territorial Legislature, the sum claimed by the respondent, and it having been admitted that said sum had been so paid, that such payment was therefore a just claim within the meaning of said section of the statute, and that said board of examiners had no right to reject said claim on the ground that Section 963 of the Bevised Statutes was violative of the constitution, but that it became and was the mandatory duty of the said board to receive, audit, and allow said claim, and that mandamus lies to enforce the performance of that ministerial duty.

We did not hold, as intimated in appellant’s brief, that the board of examiners is a mere perfunctory body, not capable of exercising any judgment or discretion in matters of allowing or rejecting claims against the State, but held that in the particulars mentioned in this case, where the claim is admitted to be just, the board had no discretion, but their duties were mandatory. Upon a careful review of the case, we are satisfied that our former conclusions are correct.

It is therefore ordered that the judgment of the court below be affirmed, with costs, and that the case be re[190]*190manded with instructions to issue the writ of mandate as prayed for by the relator.

Bartch, C. J., concurs.

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60 P. 982, 21 Utah 187, 1900 Utah LEXIS 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thoreson-v-state-board-of-examiners-utah-1900.

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