Dissenting in Part. — I concur fully in the decision of the majority of the court that claims against the state university or the board of regents are not required to be- submitted to the state board of examiners, and that to require such claims to be submitted to said board would make it possible for the board of examiners to take away from the board of regents the power and authority granted by art. 9, sec. 10, of the state constitution, but I am not able to accept their conclusion that such claims are not claims against the state.
My opinion that such claims are claims against the state is based upon the following grounds:
1. The constitution imposes on the legislature the duty of supporting the university. (Art. 10, sec. 1.)
2. The uniform course of the state in dealing with the university during the thirty-two years of that institution’s existence in providing its funds and discharging its obligations.
3. The state university has no funds except such as are provided by the state.
4. The constitution recognizes no distinction between the university and other state institutions as to their duty to account for moneys received from the state and as to the authority of the Governor to investigate their condition and require reports.
It seems beyond question to me that the claims being discussed in this case must be held to be against the one by whose authority and for whose benefit they are created, and whose duty it is to provide the means for payment.
Art. 10, see. 1, state constitution, provides: “Educational, reformatory, and penal institutions, and those for the benefit of the insane, blind, deaf and dumb, and such other institutions as the public good may require, shall be established and supported by the state in such manner as may be prescribed by law.”
This provision includes the university and in obedience thereto the state legislature every two years since the found*432ing of that institution has provided support for it as well as for the normal schools, the Idaho Technical Institute, the insane asylums, the penitentiary, and all other state institutions. It lays upon the legislature a continuing duty to provide such support so long as this section of the constitution remains, and there can be no doubt that the legislature will continue to provide such support in such amounts as that body finds necessary, considering the requirements of the school and the financial condition of the state, these being matters in which the judgment of the legislature is supreme.
The board of regents and the university are without means to meet the expenses of the university, except as such means are supplied by the state. It is conceded that claims payable out of the federal income of the university need not be submitted to the board of examiners, and that in this case we are considering only appropriations made by the legislature.
The constitution recognizes no distinction between the university and other state institutions as to their duty to account for moneys received from the state, and the authority of the Governor to investigate their condition, management and expenses and require sworn reports from those in charge.
Art. 4, sec.. 8, ■ state constitution, reads: “The Governor . . . . may also require information in writing, at any time, under oath, from all officers and managers of state institutions, upon any subject relating to the condition, management and expenses of their respective offices and institutions, and may at any time he deems it necessary, appoint a committee to investigate and report to him upon the condition of any executive office or state institution. ’ ’
Art. 4, sec. 17, state constitution, reads: “An account stiall be kept by the officers of the executive department and of all public institutions of the state, of all moneys received by them severally, from all sources, and for every service performed, and of all moneys disbursed by them severally, and a semi-annual report thereof shall be made *433to the Governor, under oath; they shall also, at least 20 days preceding each regular session of the legislature, make full and complete reports of their official transactions to the Governor, who shall transmit the same to the legislature.”
These provisions, which include the university, can be explained only on the theory that the persons in charge of all state institutions are transacting the state’s business and spending the state’s money, and that the claims that they are paying from time to time are claims against the state.
The question whether claims against the university are claims against the state has never been directly passed upon by this court. The decision in the case of Bank v. Regents, 26 Ida. 15, 140 Pac. 771, relied on by the majority, shows on its face that it is in substance only a recommendatory' judgment. It suggests that the claim there established might, if not paid by the regents, be presented to the legislature. It may well be asked what right the legislature would have to allow it if it were not a claim against the state. If it were not a claim against the state, why should the judgment of this court have been only recommendatory?
If I correctly understand the majority decision, it rests upon these propositions: That this court has exclusive jurisdiction to hear claims against the state; that claims against the university must first be heard in the district court, and therefore such claims are not claims against the state.
Art. 5, sec. 10, of the constitution says: “The supreme court shall have original jurisdiction to hear claims against the state, but its decisions shall be merely recommendatory.” In the case of Thomas v. State, 16 Ida. 81, 100 Pac. 761, this court held that it had exclusive jurisdiction to hear such claims, and the majority opinion in the case at bar follows that holding. But this holding can be sustained only by reading into that clause the word “exclusive,” which is not written there.
If the language quoted above means that this court has exclusive jurisdiction to hear claims against the state, what does the very same language mean in art. 5, sec. 9, which says: “The supreme court shall also have original jurisdic*434tion to issue writs of mandamus, certiorari, prohibition, and habeas corpus” 1 This clause is held by this court to mean that it has jurisdiction concurrent with the district courts to issue these writs, and it refuses, very properly, to exercise its original jurisdiction to issue such writs except in extraordinary eases. There can be no question that the construction given to sec. 9 is right, and if so, that given to sec. 10 must be wrong.
It does not appear reasonable that it was intended to burden this court in the first instance with all of the trifling controversies that might arise over Claims against the state, presented to the board of examiners and disallowed, if claimants should decide to sue. According to the majority, such cases must be tried here. Otherwise their reasoning with regard to the university claims must fall.
The majority opinion says that it necessarily follows that claims against the regents are not claims against the state, “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 of any other branch, board or department of the state government, but is a separate entity, and may sué and be sued, with power to contract and discharge indebtedness, and with the right to exercise its discretion within the powers granted, without authority to contract an indebtedness against the state.”
But these are not marks that distinguish the board of regents from the respective boards that control the other state institutions. For instance, the board of prison commissioners is a constitutional body having “control, direction and management of the penitentiaries of the state.” (Art. 10, sec. 5.) The board of directors of the asylum for the insane is a constitutional body having “control, direction and management” of the asylums. (Art. 10, see. 6.) In addition to these general powers the. constitution gives these two governing boards certain specific powers. The powers of these two boards, being constitutional, are certainly equal in rank with those of the board of regents, *435though not so in extent. But these two boards and the state board of education, in exercising the powers conferred by the legislature, have the power to contract and discharge indebtedness. None of them have any authority to contract indebtedness against the state except when expressly empowered by the legislature, but in this respect- they do not differ from the executive and judicial branches of the state government. The state board of education may sue and be sued. All of them have certain discretionary powers.
It seems to me that the board of regents and all the other bodies mentioned are simply agencies established by the state for the purpose of carrying on certain business of the state, and that in determining whether claims against the university or the other institutions are claims against the state, it is immaterial whether the governing body is a corporation or not, or whether such body is of constitutional or statutory origin.
The constitution of this state contains art. 4, sec. 18, and art. 9, sec. 10. These were inserted in that instrument at the time it was framed. They read:
Art. 4, sec. 18': “The Governor, Secretary of State and Attorney General shall .... constitute a board of examiners, with power to examine all claims against the state, except salaries or compensations of officers fixed by law, and perform such other -duties as may be prescribed by law. ’ ’
Art. 9, sec. 10: “The location of the University of Idaho, as established by existing laws, is hereby confirmed. All the rights, immunities, franchises, and endowments, heretofore granted thereto by the territory of Idaho are hereby perpetuated unto the said university. The regents shall have the general supervision of the university, and the control and direction of all the funds of, and appropriations to, the university, under such regulations as may be prescribed by law. No university lands shall be sold for less than ten dollars per acre, and in subdivisions not to exceed one hundred and sixty acres, to any one person, company or corporation.”
Art. 4, see. 18, is a general provision written without specific reference to any department of the state government. *436Given its most comprehensive meaning, it would include claims against the university, which are claims against the state. But this clause must be construed in connection with art. 9, sec. 10, which was written at the same time with special reference to a particular subject. This provision conferred on the university and the board of regents all the rights, powers and privileges claimed for them in the majority opinion. To hold that claims against the university must be submitted to the board of examiners would completely nullify art. 9, sec. 10. To hold that claims against the university, which are claims against the state, are not, by reason of art. 9, see. 10, to be submitted to the board of examiners would simply reduce by that much the number of claims to be submitted to that board, but would leave it in the full exercise of all its powers as to other claims against the state.
This, it seems to me, is far more reasonable and less dangerous than reading into the constitution the word “exclusive” and thus by construction extending the jurisdiction of this court.
I agree with the majority that the regents are not required to buy supplies for the university through the department of public works.
In my opinion, when an appropriation is made to the university for a specific purpose, it must be used for that purpose and no other. If after it has been used for 'such purpose the property purchased with such appropriation is no longer needed, it may be sold and the proceeds again used in harmony with the original purpose of the appropriation. But if such receipts are to be used for an entirely different purpose, the money must be returned to the state, to which it belongs, and again appropriated by the legislature. Any other course would open the way for serious irregularities and abuses.