dissenting.
The defects of the majority opinion are many. It consigns to oblivion more than 100 years of state and territorial history. It overturns more than 50 years of legislative fiscal responsibility. In my view it is an unconstitutional invasion by the judiciary of the most fundamental legislative process, the power to allocate and appropriate money.
At issue here is a function which has come to be known as “post-audit.” Paraphrasing the language of the New Mexico court in a somewhat analogous case: “Post-audit” is a desirable modern approach by which the legislature designates its own officer to perform a legislative function, i.e., the legislature having appropriated the funds, should have its own official report to it with respect to how the funds are expended. Thompson v. Legislative Audit Commission, 79 N.M. 693, 448 P.2d 799 (1968). I would take judicial notice that the practice is likewise widespread in the private business sector. Corporate stockholders, potential bond purchasers, financial institutions and creditors are not content to rely upon the representations of those who receive and disburse funds and keep books of account, but rather they require experts (usually certified public accountants) to scrutinize and examine the books of account to determine if the financial status is correctly stated, if they correctly reflect the financial transactions, and if the records are kept and maintained according to generally accepted accounting principles.
Such a “post-audit” process is a relatively recent development both in the governmental and the private sector. In the context of Idaho’s history, and this case, the term “post-appropriation examination,” or any of a number of other terms, could have as well been used. Our history demonstrates clearly to me, at least, that during Territorial times, at the time of the adoption of our Constitution, and until the present time, the term “audit” has meant that the State Auditor, upon being presented money claims against the state, ascertained that the claim was valid, was supported by such documentation as he might feel necessary, and that there existed in a designated appropriated fund sufficient monies to pay the claim. Thereafter the State Auditor issued a warrant drawn upon the State Treasurer and the treasury of the State of Idaho, directing that the claim be paid. While agencies and departments of our state government are appropriated funds by the legislature and maintain books of account, they in actuality disburse no funds. The disbursement of funds is only accomplished through the mandated authority and duties of the State Auditor and the State Treasurer. I.C. §§ 67-1011, 67-1201(4). The books of account of any agency or department are maintained in accordance with the requirements specified by the State Auditor, and claims for payment of monies are submitted only on forms prescribed by the State Auditor, together with documentation required by him. I.C. §§ 67-2005, -2010, -2011, -2012.
There is no showing in this record, the State Auditor does not assert and the majority opinion concedes, that the Office of the State Auditor for the entire existence of the Territory and State of Idaho, has never performed or attempted to perform the function at issue here. The legislature has specifically defined the qualifications necessary to perform the so-called “post-audit” function. I.C. § 67-443. The record before this Court is totally devoid of any showing that the plaintiff herein possesses any of the necessary qualifications to perform the duties at issue here. Indeed, the lower court and the majority here implicitly recognize this by requiring that the legislature designee who possesses the requisite qualifications, shall now become an employee of the plaintiff State Auditor. Such a result can be termed as nothing but incongruous.
*163More than 50 years ago the Idaho Legislature recognized a need for post-appropriation information. Undoubtedly it was felt that the legislature needed to review, at each legislative session, the efficacy of the previous session’s appropriations. To that end it created the Bureau of Public Accounts, and in Smylie v. Williams, 81 Idaho 335, 341 P.2d 451 (1959), this Court held that the legislative creation of that bureau and its post-audit authority was constitutional. In 1970 the legislature created the Office of Legislative Auditor, defined its duties and authority, and legislatively determined the qualifications which must exist in the person holding that office. Since 1935 the function of post-auditing of the public funds of the State of Idaho has been performed only by the Bureau of Public Accounts or the Office of the Legislative Auditor.
The majority opinion hangs solely on an illogical and faulty premise, i.e., while no such function as “post-audit” existed in Territorial days or at the time of the adoption of our Constitution, and while it is a process of relatively recent vintage, we, in our omniscience, have determined that if it had existed, and if the framers of our Constitution had thought about it, they would have included such function in the Office of State Auditor. Albeit the function and the office were legislatively rather than constitutionally created, the majority holds that the function belongs constitutionally in the Office of State Auditor. Holmes is reputed to have said that experience rather than logic has been the life of the law. The majority here, in its desire to obtain the result, has consigned both logic and experience to oblivion.
It is to be noted that the majority opinion cites little authority for its broad and sweeping invasion of the legislative process. Wright v. Callahan, 61 Idaho 167, 99 P.2d 961 (1940), was a relatively simple and straightforward case. There the legislature, for whatever reason, decided to abolish the Office of the State Auditor by transferring all of its duties and responsibilities to the legislatively created office of State Comptroller. The Court there properly held that the legislature could not abolish a constitutionally created office. That, and no more, was the Court’s holding.
In Smylie v. Williams, 81 Idaho 335, 341 P.2d 451 (1959), the Court held that the legislature, indeed, could constitutionally create the Office of the Bureau of Public Accounts and place in such office the duties and responsibilities for conducting the “post-audit function.” The Court held only that, and no more. Although the parties there were essentially identical to those in the instant case, and the issue was precisely the same, the Court did not find it necessary to hold that compliance with the Constitution requires two offices to duplicate and perform exactly the same function with a corollary duplicative waste of public money.
Admittedly there is sparse authority from other jurisdictions on the precise issue presented here. Such a paucity of precedent only indicates to me that no other court, however aggressive or activist, has found it desirable to so invade the legislative process. However, I point out that the New Mexico Supreme Court placed its stamp of constitutional approval on legislation designed to accomplish the same purpose. It was only when the New Mexico Legislature attempted to entirely dismantle that state’s office of State Auditor, remove all of its duties, authority and responsibility, and reduce its salary to five dollars a year, did the New Mexico court, just as did this Court in Wright v. Callahan, supra, hold that the legislature had no power to totally abolish the Office of State Auditor. Thompson v. Legislative Audit Commission, 79 N.M. 693, 448 P.2d 799 (1968).
Most disturbing in the holding of the majority is its implicit conclusion that this Court can and will dictate to the legislature what appropriation of money will be made. From the infancy of this state the appropriation process has been considered peculiarly and particularly the realm of the legislature, and there has been an absolute prohi*164bition against the expenditure of monies unless and until the legislature has appropriated monies therefore. ID. CONST. art. 7, § 13; State v. Musgrave, 84 Idaho 77, 370 P.2d 778 (1962); Epperson v. Howell, 28 Idaho 338, 154 P. 621 (1916). This Court now directs the expenditure of monies in the absence of any legislative appropriation.
The action of the majority today is an unnecessary step in the wrong direction in the context of interdepartmental relations of state government. Admittedly, a few jurisdictions have held that courts may mandate the expenditure of monies which the legislature has failed to appropriate. Noble County Council v. State, 234 Ind. 172, 125 N.E.2d 709 (1955); Judges For Third Judicial Cir. v. County of Wayne, 386 Mich. 1, 190 N.W.2d 228 (1971); State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99 (Mo.1970); Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193 (1971). Such cases usually result from a confrontation between the judicial and legislative branches of government resulting from the asserted inability of courts to carry out their mandated constitutional duties. The instant case, in my opinion, presents no such gut-wrenching decision of monumental governmental policy. Rather, the legislature 50 years past created an office and assigned duties to it which had never been performed by any other office in the previous 100 years. The Court today, under the aegis of constitutional law, holds that such legislative policy judgment was, and is, prohibited.
I fear that the majority of the Court has failed to adequately consider the road down which it will travel in the future, and the obstacles it will confront as a result of today’s decision. As indicated in the majority opinion, the legislature did not appropriate money to the Office of State Auditor for the function at issue here. If the 1987 session of the Idaho Legislature again refuses to appropriate such funds to the State Auditor, how will this Court act? Will it abandon its intrusion upon the legislative process and merely hold that since the State Auditor cannot perform the function, no one else may, and thus prohibit what is an admittedly desirable and necessary function. Or will it, under some assumed power, mandate the members of the legislature to vote for and pass, and the governor approve, an appropriation to the State Auditor. If the legislature and/or governor refuse, what action will this Court then take. Assuming that the sum of $50,000.00 is an inadequate amount to perform the function, what if the legislature appropriates that sum to the Office of State Auditor to perform the “post-audit” function. Will this Court then determine what is an adequate sum and mandate the legislature to vote for and pass, and the governor approve, an appropriation measure for a specific sum adequate to perform the post-audit function. I suggest that there are a host of possible legislative reactions to this Court’s opinion, any number of which may place this Court in stormy and unchartered waters.
Finally, and ironically, I must express my approval of what I view as implicit in footnote one of the majority opinion. The majority warns against the existing legislative language authorizing an audit “to evaluate the performance of another branch” of government and the implication of the separation of powers provision of the Idaho Constitution. ID. CONST, art. 2, § 1. In my view a fiscal examination to determine the validity of the financial books and records, and the legality of the expenditures reflected therein, is desirable. But also in my view, the use of public funds by one branch of government to critique the performance of another department or branch of government is beyond the ambit of legislative authority and to be condemned as intrusive and violative of the separation of powers provision of our Constitution.
DONALDSON, C.J., concurs.