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Points Decided.

in question in connection with other land. There is no error in the action of the court in admitting that exhibit.

Counsel for appellant contends that the only practical problem confronting the court is the construction of the law applicable to the facts and that there is no material conflict in the evidence introduced on the trial. As we view it, there is a substantial conflict in the evidence, since some of the evidence introduced by the plaintiffs was intended to and does contradict the contents of written instruments which had been introduced in evidence.

After an examination of the entire record, we are satisfied that the finding of facts is fully supported by the evidence and that the court did not err in making such finding of facts, and under the law applicable to such facts the court did not err in entering judgment in favor of the defendants.

The judgment must therefore be affirmed, with costs in favor of respondents.

Budge and Morgan, JJ., concur.

(June 18, 1915.)

D. L. EVANS et al., Constituting the State Board of Education and the Board of Regents of the University of Idaho, Plaintiffs, v. FRED L. HUSTON, State Auditor, Defendant.

[150 Pac. 14.]

MANDATE-STATE AUDITOR-ALBION NORMAL SCHOOL FUND-INCOME ACCRUING THEREFROM-LEGISLATIVE APPROPRIATION OF CONSTITUTIONAL AND STATUTORY CONSTRUCTION.

1. Sec. 13, art. 7, of the state constitution, provides that no money shall be drawn from the treasury but in pursuance of the appropriations made by law.

2. The first section of the appropriation act of 1913 (Sess. Laws 1913, p. 637) makes an appropriation for the support and maintenance of the several state institutions for the period commencing

Argument for Petitioner.

on the first Monday in January, 1913, and ending on the first Monday of January, 1915, and provides "That the amounts specifically appropriated for stated purposes by this act constitute the whole amount appropriated and to be used for any purposes during the years 1913 and 1914."

3. Said sec. 13, art. 7, of the constitution, prohibits the state auditor from drawing his warrant upon any fund in payment of any claim until a proper legislative appropriation is made for the payment of such claim.

4. Under the provisions of the fourth section of an act creating and establishing a normal school fund (Sess. Laws 1905, p. 393), it is provided: "That perpetually from and after the first day of January, 1907, one-half of all moneys which may accrue to the said normal school fund shall be, and the same are hereby, appropriated and set apart for the support and maintenance of the said Albion State Normal School and the same shall be, and they are hereby, made available for such purpose immediately upon their being credited to the said fund."

5. Under the provisions of subd. 66, sec. 17, of the Rev. Codes, said act of 1905 establishing the normal school fund was con. tinued in force.

6. Secs. 3 and 7 of said act of 1905 make appropriations of certain funds.

7. The act of 1905 makes an appropriation of the income accruing from said school fund and continues such appropriation until amended or repealed by the legislature.

8. Held, that the balance remaining in said Albion State Normal School fund and the income from that fund during the years 1915 and 1916 have been appropriated for the support and maintenance of said normal school, and are available for that purpose.

An original proceeding in this court for a writ of mandate to compel the state auditor to draw his warrant for the payment of the January, 1915, salary for the principal of the Albion Normal School and to charge the same against the Albion Normal School fund which had accrued previous to the first day of January, 1915. After hearing, peremptory writ granted.

Gco. C. Huebener, for Petitioner.

If, at the end of any biennium, there is an unexpended balance in any of specified school funds, it should still be there

Opinion of the Court-Sullivan, C. J.

subject to the use of the specified schools and cannot be diverted into the "general fund," or any other fund, nor can it be appropriated for any other purpose, nor is any further legislative action required to dispose of it, nor can the state auditor refuse to follow the direction of the state board of education, when such direction is within the express terms of the grant and of the several legislative acts; nor can he, under any circumstances whatsoever, divert any portion of the "unexpended balance" to the "general fund" or to any other fund; and the unexpended balance must always remain in the fund available for the use of the Albion Normal School. (State v. Fitzpatrick, 5 Ida. 499, 51 Pac. 112; Roach v. Gooding, 11 Ida. 244, 81 Pac. 642; State v. Maynard, State Treasurer, 31 Wash. 132, 71 Pac. 775; Sheldon v. Purdy, 17 Wash. 135, 49 Pac. 228; Mitchell v. Colgan, 122 Cal. 296, 54 Pac. 905; State v. McMillan, 12 N. D. 280, 96 N. W. 310; State v. Board of Regents of University, 55 Kan. 389, 40 Pac. 656, 29 L. R. A. 378; Wyman v. Banvard, 22 Cal. 524.)

J. H. Peterson, Attorney General, T. C. Coffin, E. G. Davis and Herbert Wing, Assistants, for the Defendant, cite no authorities.

SULLIVAN, C. J.-This is an original application to this court for a writ of mandate to Fred L. Huston, as auditor of the state of Idaho, to require the defendant as such auditor to issue a state warrant in payment of the January, 1915, salary to G. A. Axline, principal of the Albion Normal School, and to charge the same against money of the Albion Normal School fund which had accrued thereto previous to the first day of January, 1915. A sufficient part of said fund to pay said warrant remained in said fund on said date.

The alternative writ was issued and the return made thereto, admitting the main allegations thereof and averring that all of the provisions of the general appropriation act for the biennium of 1913 and 1914 must be construed together, and that the provisions of said act place the income accruing to the Albion Normal School from its endowment fund upon

Idaho, Vol. 27-36

Opinion of the Court-Sullivan, C. J.

exactly the same basis as the appropriations made in the said act from the general fund in the state treasury, and under the provisions of the first paragraph of sec. 1 of said act, such appropriations are made "for the support and maintenance of the several state institutions for the period commencing on the first Monday of January, 1913, and ending on the first Monday of January, 1915," and for no other period, and prays that the temporary writ of mandate be denied.

It is the position taken by the state auditor in this proceeding that in view of the provisions of sec. 13, art. 7, of the state constitution, to wit, "No money shall be drawn from the treasury, but in pursuance of appropriations made by law," and the statutes, that the income accruing to the Albion Normal School during the biennium of 1913 and 1914 and not expended in the payment of claims originating in that biennium cannot be used for claims arising in the biennium of 1915 and 1916 unless the same has been made especially available for this purpose by direct appropriation of the legislature. In other words, the position of the auditor is that in view of the proviso found in sec. 6 of chap. 193 (Sess. Laws 1913, p. 637) (commonly known as the general appropriation act), the income accruing to the Albion Normal School during the biennium of 1913 and 1914 was appropriated to that institution for that biennium and was made subject to the provisions of the general appropriation act, limiting the appropriations made for that biennium to the payment of claims arising therein, and prohibiting their use at any other time or for any other purpose, at least until a lawful appropriation was made of them by the legislature.

In the first section of said act we find the following provision:

"That the following sums of money, or so much thereof as may be necessary, are hereby appropriated for the payment of salaries and compensation of the state officers and employees of the state of Idaho and the general expenses of state government, and for the support and maintenance of the several state institutions for the period commencing on the first Monday of January, 1913, and ending on the first

Opinion of the Court-Sullivan, C. J.

Monday of January, 1915. . . . . That the amounts specifically appropriated for stated purposes by this act constitute the whole amount appropriated, and to be used for any purposes during the years 1913 and 1914."

That section construed with sec. 13, art. 7, of the constitution above quoted does not permit the auditor to draw his warrant upon said fund until a proper appropriation is made of the balance remaining in said fund after the payment of claims originating during the biennium of 1913 and 1914.

The sole question for determination by this court is whether or not the position of the state auditor is correct, or if a legal appropriation of said funds has been made by the legislature.

It is contended by counsel for plaintiffs that under the statutes there is a continuing appropriation of said funds and that warrants may be drawn upon them for all legal claims against such funds without any further legislative appropriation. In order to determine this matter, we shall have to refer to certain enactments of the legislature touching the question here at issue.

By the fourth section of the act creating and establishing a normal school fund, etc. (Sess. Laws 1905, p. 393), it is provided "That perpetually from and after the first day of January, 1907, one-half of all moneys which may accrue to the said normal school fund shall be, and the same are hereby, appropriated and set apart for the support and maintenance of the said Albion State Normal School and that the same shall be, and they are hereby, made available for such purpose immediately upon their being credited to the said fund." By that act the legislature has attempted to perpetually appropriate and set apart for the support of the Albion Normal School the fund therein mentioned. Of course, that act is not binding on any subsequent legislature, or at least not so binding as to prevent them from amending it.

Subd. 66 of sec. 17 of the Rev. Codes, which were adopted in 1909, continued in force said act of 1905 establishing the normal school fund. The general appropriation act of 1905 (Sess. Laws, p. 277) contains the following section:

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