The Gem Irrigation District comprises some 28,000 acres, 10,000 of which consist of lands belonging to the state of Idaho. In March, 1923, there was passed by the legislature and approved by the Governor the following act, now known as chap. 141 of the 1923 Session Laws:
"An Act "Appropriating the Sum of Ninety-eight Thousand Dollars out of the General Fund of the State of Idaho for the Reclamation of State Lands Within the Gem Irrigation District in Owyhee County, and Authorizing the State Board of Land Commissioners to Expend the Same for the Reclamation of Said State Land, and Declaring an Emergency.
"Be It Enacted by the Legislature of the State of Idaho:
"Section 1. There is hereby appropriated out of the general fund of the State of Idaho not otherwise appropriated *Page 523 the sum of ninety-eight thousand dollars, or so much thereof as may be necessary, which sum of money shall be expended by the state board of land commissioners for the purpose of aiding in the reclamation of state lands lying within the Gem Irrigation District in Owyhee county.
"Provided, That the state board of land commissioners shall pay out said sum of money only upon the condition that by the payment thereof the state shall be fully relieved of all obligations and demands by reason of past or future assessments heretofore levied, or hereafter to be levied upon the lands within said district belonging to the state of Idaho, or in which the state is interested by outstanding sale contracts.
"Sec. 2. The moneys hereby appropriated shall be kept in a separate fund to be known as the Gem Irrigation District State Land Commission Fund, and the state auditor is hereby authorized to draw his warrant on said fund payable to the treasurer of the said Gem Irrigation District for such sum as shall be approved by the state board of land commissioners and allowed by the state board of examiners.
"Sec. 3. An emergency existing therefor, it is hereby declared this act shall take effect and be in force from and after its passage and approval.
"Approved March 13, 1923."
In January, 1925, the Gem Irrigation District filed with the state board of land commissioners for approval its claim for $98,000 representing the state's proportion of expense incurred in reclaiming the state land embraced by the district. Having been approved by the land board, the claim was submitted to the state board of examiners, which approved and allowed the same, and directed the state auditor to draw his warrant therefor in favor of the district's treasurer, to be paid out of the fund theretofore appropriated by said act. After demand, the auditor refused to execute such warrant, and upon application of the district to this court, an alternative writ of mandate directed to the auditor was issued. He made return contending that the application did not state facts constituting a cause of action, and *Page 524 that the act in question was "void, invalid and unconstitutional, and of no force and effect," his specifications, as presented by the attorney general, being that the act was not passed in conformity with the provisions of art. 3, sec. 5, of the state constitution, in that "said bill never received a majority vote of the members of the House of Representatives of the Seventeenth Legislature of the state of Idaho present at any of the times the said bill was considered; nor was a vote taken on the final passage of the said bill, either by yeas or nays, or otherwise; nor was the vote on the final passage of said bill, if any such vote was taken, entered upon the journal of said House of Representatives."
It will be noticed that the auditor's contention constitutes a collateral attack upon the determination of the state board of examiners adjudicating the correctness and propriety of the claim submitted. There is no question raised as to the regularity of the submission and approval. It would appear, therefore, that all statutory and constitutional requirements to that end had been complied with. [1] The application states that the district has expended in reclamation on state land $373,987.57, no part of which has been repaid; that it has agreed with the state through the land board to accept $98,000 "in full payment and satisfaction of all obligations and demands, moral and legal, against the state, by reason of past or future assessments heretofore levied or to be levied on the lands within said district belonging to the state of Idaho"; that its claim for such has been approved by the land board and the state board of examiners, and that the auditor has refused to issue a warrant pursuant to the latter board's order.
Do or do not these allegations constitute a cause of action? We think they do. Admittedly, all the facts were before the board of examiners. [2] Upon these facts the board was constitutionally vested with the sole and exclusive power to determine, rightly or wrongly, the allowance or disallowance of the claim. The board's discretion was absolute.
"The constitution creates the state board of examiners as a tribunal, with full power and jurisdiction to pass upon all *Page 525 claims against the state, except those specifically excepted by the constitution, and no court or other tribunal is authorized to set aside or reverse such action." (Bragaw v. Gooding,14 Idaho 288, 94 P. 438.)
The claims exempted from the board's examination are "salaries and compensation of officers fixed by law." (Const., art. 4, sec. 19.)
It may be insisted that the claims contemplated by the constitution must be claims in their nature strictly legal; and, the state being immune to taxation and assessment, this particular claim was in nowise a legal one. Granting that, in the absence of statute, the state's land cannot be taxed or assessed or legally subjected to any other charge, it must be remembered that the people through their duly constituted agent, the legislature, determined that these particular lands should be reclaimed and the reclamation paid for, thereby recognizing a potential claim in favor of the reclaiming district, and attaching to it a contingent legality to become fixed when the respective boards should have registered their approval.
It is urged that the claim is unsupported by a consideration, the district's agreement being ultra vires in that its board of directors could enter into no contract with respect to future claims or charges. Taking this agreement in its broadest significance, it merely covenants to give the state a clean bill of health for all services rendered or to be necessarily rendered in accomplishing a definite object. Obviously, the main consideration was for outlay already suffered and the remaining consideration related to future outlays incidental to the maintenance of the project as a whole. The agreement was no more ultra vires than would have been an agreement to build and maintain a bridge for the convenience of some extra-district farmer through who field the district might have desired to run its feeder canal.
Further contention is that the agreement impairs the lien given the district under C. S., sec. 4449, upon state lands immediately upon their purchase by third parties. Sufficient answer to this is the language of the agreement *Page 526 itself which undertakes specifically the satisfaction of all demands "against the state." Were the language to be construed to work an abolition of the lien hovering over such lands prior to individual purchase, that part thereof would undoubtedly beultra vires and void. There would, however be no failure of consideration toward the state, since it cannot be relieved of a lien to which it was never subject.
The state board of examiners having allowed the claim, it was the auditor's duty to honor its action, unless he found the act authorizing such allowance invalid. (Rice v. Gwinn, 5 Idaho 394,49 P. 412; Wycoff v. Strong, 26 Idaho 502, 144 P. 341; In reHuston, 27 Idaho 231, 147 P. 1064; see, also, State v. Howard,83 Vt. 6, 74 A. 392; State ex rel. New Orleans Canal Banking Co. v. Heard, 47 La. Ann. 1679, 18 So. 746, 47 L.R.A. 512; Wiles v. Williams, 232 Mo. 56, 153 S.W. 1,34 L.R.A., N.S., 1060.)
As heretofore stated, the only ground of unconstitutionality specified in the return was the alleged failure to pass the act in conformity with the constitutional requirements. When the bill making the appropriation was before the house, the speaker announced the question: "Shall the bill pass?" A motion was offered that the bill be placed on general orders for further consideration, and the previous question was moved as a substitute. Following the last motion, according to the journal, there was a roll-call, showing the yeas and nays, followed by a declaration by the speaker that the bill had passed. The constitution, art. 3, sec. 4, requires that a yea and nay vote on the final passage of a bill shall be taken and "entered upon the journal," but the constitution neither requires the taking nor the entry on the journal of a yea and nay vote on the motion for the previous question, although, of course, the disposition of a motion for the previous question should be noted on the journal. The failure of the journal to disclose the action of the house on the motion for the previous question is not fatal to the validity of the act, and the error in the journal is in its failure to record the action of the house on the motion for *Page 527 the previous question. From the fact that the speaker, immediately on the completion of the yea and nay vote, announced the passage of the bill, and, because the constitution requires that a yea and nay vote shall be taken and entered on the journal on the final passage of a bill but does not require such a vote on a motion for the previous question, it will be presumed that the indispensable requirement of the constitution was complied with, and that the yea and nay vote disclosed by the journal was on the passage of the bill. (In re Drainage Dist. No. 1, 26 Idaho 311,143 P. 299, L.R.A. 1915A, 1210.)
Notwithstanding the well-known rule so often by the court announced that it will not go outside the declared issues to find an act unconstitutional, there have crept into the argument specifications of unconstitutionality not found in the return, namely: that the act is special legislation, and that it authorizes the state to give or lend its credit to a corporation. It is suggested that, if the act is construed to grant the district the power to waive or compromise assessments, it is a local or special law in two respects, in that it purports to legalize against the state the invalid acts of the board of directors of the district, and to impair the lien which the district has upon such state lands. Even a hasty reading of the act will disclose that it does not purport to, nor in fact does, legalize as against the state, any act of the board of directors of the district, nor does it purport to or in fact impair any lien against such state lands. When this law was enacted, the district had not made or done anything valid or invalid which the law purports to legalize. Everything done by the district, its resolution to contract with the state, acting by and through the land board, and the contract which the board, acting for the state, approved, were each and all done and performed subsequent to the passage of the act. The law did not legalize, as against the state, any invalid act of the directors of the district. There is a clear distinction between the power of the legislature to authorize a thing to be done and in attempting *Page 528 by a local or special act to validate something which was illegal when it was done. The act does not purport to authorize the impairment of any lien. An irrigation district has no lien on lands the title to which is in the state. The existence of such a lien is expressly prohibited. (C. S., sec. 4402.) What may be done by an irrigation district with respect to the imposition of liens on so-called state lands after they pass into private ownership is not in this case, and any pronouncement with respect thereto would be improper.
Nor does the act authorize a giving or lending of state credit to the district. In its last analysis, the appropriation sanctions the direct improvement and protection of the state's own property. It is a cash transaction in which the legislature has determined that the state shall receive its quid pro quo. The state gives nothing; it lends nothing; it recognizes and discharges a moral obligation for past benefits accrued and of necessity further to accrue. The sole object of the act was the creation and maintenance of a public use. Whether or not the legislature acted wisely is beside the issue. It had the constitutional right to do as it did. Art. 9, sec. 8 of the state constitution makes it the duty of the land board to "protect . . . . " state lands; and the same section enjoins the legislature "at the earliest practicable period" to provide by law that such lands shall be " . . . . carefully preserved. . . . . "
"There is nothing upon the face of the statute to indicate that the private corporation referred to, or any individual, will or can, if the appropriation is honestly expended, receive one dollar as a gratuity, or by way of assistance, or except in return for something of value which the officers charged with its disbursement shall deem necessary to secure, in order to effect the general purpose and object of the act. . . . . The only protection against reckless and improvident appropriations for public purposes must be found in the character of those intrusted with the power of legislation, and in the integrity and firmness of the chief executive *Page 529 of the state." (Daggett v. Colgan, 92 Cal. 53, 27 Am. St. 95, 28 P. 51, 14 L.R.A., N.S., 474.)
The writ will issue as prayed for.
Wm. E. Lee, C.J., and Givens, J., concur.