(dissenting) :
I can agree that the holding of the prevailing opinion is in harmony with prior decisions of this Court. However, I am unable to agree with those cases, and I think it is time to examine the provisions of Section 13, Article VII of the Utah Constitution with an eye directed to the true intent and meaning thereof.
In 1963 the legislature enacted Chapter 150 of the Laws of Utah (also found in Volume 7A, U.C.A. 1953, as Section 63-6-1) which reads:
The governor, the secretary of state and the attorney general shall constitute a board of examiners, with power to examine all claims against the state for which funds have not been provided for the payment thereof, except salaries or compensation of officers fixed by law. No claim against the state for which funds have not been provided, except salaries and compensation of officers fixed by law, shall be passed upon by the legislature without having been considered and acted upon by the board of examiners. . . . [Emphasis added.]
This statute clearly states the intent of the Constitution. Where a claim is made against the state, if funds have not already been provided, it would, of course, be necessary to present it to the executive department of government; that department has the- funds and is the only department with the power to get the funds. Consequently the auditor or the treasurer may not, singly or in combination, disburse money until the Board of Examiners has approved the claim.
I.t is an entirely different matter where the legislature, by enactment, has already provided the funds and the governor has approved the bill. There is no need to have a further approval by the executive department in such cases. To permit the Board of Examiners to direct how funds appropriated for the use of the legislative or judicial branches of government shall be spent is to contravene the provisions of Section 1, Article V of our Constitution which reads:
The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, ex*209cept in the cases herein expressly directed or permitted.1
An example will illustrate the point. The legislature appropriates $1,000 to the Supreme Court for traveling expenses. The Court decides that it would be proper and advantageous to the State of Utah to send one of its members to Denver to attend a regional conference of appellate justices to discuss means of coping with the encroachment of the federal courts into state affairs. Even though the funds have already been appropriated and the legislature is not called upon to pass upon a claim, no member of this Court can attend the conference unless, and until, he secures the permission of the Board of Examiners.
The same is true for members of the legislature. In the instant matter, members of the legislature attended a convention which, to them, seemed appropriate. The trip was proper and was authorized by the rules and regulations of that department of government. No claim is made to the contrary by the appellants herein. The only complaint made is that the members of the legislature did not come on bended knee with hat in hand to ask for permission from the executive department if they might go. If the expenses incurred during the trip are claims within the meaning of Section 13, Article VII of the Constitution, then the legislature may not appropriate the money to pay them until the Board of Examiners has first had a chance to exam-me them. In this matter the legislature has already appropriated the funds, and consequently there is no need to have the legislature pass upon the matter.
Section 13, Article VII of our Constitution reads:
. They 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.
Although in this case the legislators had already been given an appropriation of money for the trip, it is claimed that they may not use it because they did not ask permission of the executive department in advance. If the governor does not want the legislators to make a proper trip, he should veto the appropriation bill when it comes up for approval.
I cannot agree with the holding and reasoning of the prevailing opinion and would overrule all prior cases holding in accordance therewith.
I would affirm the judgment of the trial court.
. Cases expressly provided for are:
(1) The legislature my impeach officers of the other departments of government (Article VII, Sections 17-21, inclusive).
(2) I.t may enlarge judicial districts (Article VIII, Section 6).
(3) It may remove a judge from office (Article VIII, Section 11).
(4) The legislature may not pass a claim against the state until the Board of Examiners shall have considered it (Article VII, Section 13).
(5) The Supreme Court may issue writs of mandamus, prohibition, and quo warranto affecting officers in the other divisions of government (Article VIII, Section 4).