Opinion
No. 8666.
July 1, 1958.
Charles Herndon, Salmon, for plaintiffs.
Graydon W. Smith, Atty. Gen., J.R. Smead, Asst. Atty. Gen., for defendant.
The State Auditor may be compelled by writ of mandate to issue a state warrant to a public officer where act of the State Legislature authorizes the payment. Jeffreys v. Huston, 23 Idaho 372, 129 P. 1065; Gilbert v. Moody, 3 Idaho 3, 25 P. 1092.
Where a Statute is capable of different constructions, it will be given the construction which will avoid conflict with the Constitution, and, if possible, give to it the effect intended. Robinson v. Enking, 58 Idaho 24, 27, 69 P.2d 603; Grice v. Clearwater Timber Co., 20 Idaho 70, 117 P. 112; Continental Life Ins. Inv. Co. v. Hattabaugh, 21 Idaho 285, 121 P. 81; In re Gale, 14 Idaho 761, 95 P. 579; Oregon Short Line R. Co. v. Pfost, 53 Idaho 559, 27 P.2d 877; Garrett Transfer Storage Co. v. Pfost, 54 Idaho 576, 590, 33 P.2d 743.
Appropriation of monies from the Highway Fund for use in construction, repair or maintenance of public highways is not special or local legislation. Constitution of Idaho, Article VII, Section 17; Sections 40-101, 40-401, 40-402, I.C.; Ada County v. Wright, 60 Idaho 394, 92 P.2d 134.
The Highway Fund is provided by Section 40-2210, which was last amended in 1915. The monies constituting the State Highway Fund, excepting only that paid out for the specified uses permitted by the State Constitution, may be expended only on State Highways and may not "be diverted to any other purpose whatsoever". Idaho Constitution, Art. VII, § 17; State ex rel. Moon v. Jonasson, 78 Idaho 205, 299 P.2d 755.
The 1957 Act is a local and special Act. It violates Art. III, § 17 of our Constitution in that it attempts authorizing the working on, constructing, repairing and maintaining, at State expense paid from said Highway Fund, a road which is neither owned nor controlled by the State nor is it any part of its Highway System. Maxwell v. Tillamook County, 20 Or. 495, 26 P. 803; Sears v. Steel, 55 Or. 544, 107 P. 3.
All county roads, which is to say, those constituting a County Road System, are under the control, management and supervision of the Board of County Commissioners and a road superintendent by them appointed, including construction, repair and maintenance. Sections 40-130, 40-133, 40-132 and 40-135, Idaho Code.
And all costs of construction, repair and maintenance of county roads must be borne by the county. Sections 40-131, 40-137, Idaho Code.
This is an original application for writ of mandate filed by the Board of County Commissioners of Lemhi County, Idaho, against the State auditor of the State of Idaho.
The State Legislature, by Senate Bill 41, approved March 22, 1957, Chapter 295, 1957 Session Laws, appropriated $35,000 from the Highway Fund, a dedicated fund, of the State of Idaho to the county treasurer of Lemhi County, Idaho, to be placed in a special fund and used as directed by the county commissioners of said county. This sum is for the designated purpose of construction and repair necessary to provide a minimum safety program on the Williams Creek Road, a county roadway, in Lemhi County, Idaho. These funds so appropriated are to be expended by or under the direction of the county commissioners of Lemhi County, and the unused portion thereof on July 1, 1959, shall revert to the general fund of the State of Idaho. It is conceded by counsel that this provision for the reverting of funds to the general fund violates Article 7, section 17, of the Constitution.
On September 9, 1957, the county commissioners and the county treasurer of Lemhi County, Idaho, requested the State auditor, defendant herein, to draw a warrant on the State treasurer in order to make payment of the funds so appropriated to the county treasurer under the act. Upon refusal of the defendant to comply with the plaintiffs' request, this action was instituted and an alternative writ of mandate issued.
In resisting the plaintiffs' demand, the defendant urges that the act of the Legislature violates Article 3, section 19, paragraph 7, of the Constitution of the State of Idaho, which is as follows:
"The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say:
* * * * * *
"Authorizing the laying out, opening, altering, maintaining, working on, or vacating roads, highways, streets, alleys, town plats, parks, cemeteries, or any public grounds not owned by the state. * * *"
We have heretofore discussed this constitutional provision in Ada County v. Wright, 60 Idaho 394, 92 P.2d 134, 138. The rule as laid down in that case is well established and supported by prior decisions of this Court. It is said therein:
"It is next contended that the act is a local and special law and, as such violates par. 7. sec. 19, of art. 3, of the Const. That contention is unsound. The act applies to all counties alike; it applies to all highways and good road districts alike. Its application is general and uniform as to all that fall within its classifications. A special law applies only to an individual or number of individuals out of a single class similarly situated and affected, or to a special locality. A law is not special simply because it may have only a local application or apply only to a special class, if in fact it does apply to all such classes and all similar localities and to all belonging to the specified class to which the law is made applicable. Mix v. Board of Com'rs, etc., 18 Idaho 695, 705, 112 P. 215, 32 L.R.A., N.S., 534; Hettinger v. Good Road District No. 1, 19 Idaho 313, 318, 113 P. 721; In re Crane, 27 Idaho 671, at page 690, 151 P. 1006, L.R.A. 1918A, 942."
In view of the language used in Ada County v. Wright, supra, it must be concluded that Senate Bill 41 of the 1957 Session Laws, Chapter 295, is a local and special law, prohibited by Article 3, section 19, paragraph 7, supra, and is therefore unconstitutional.
The alternative writ of mandate is quashed, and the proceedings are dismissed.
KEETON, C.J., TAYLOR and SMITH, JJ., and BAKER, D.J., concur.