Idaho Code Annotated, sec. 35-116, provides that the employees of the fish and game department, including the chief clerk, "shall be paid from the fish and game fund upon theirsworn statement, which accounts shall be approved by the state fish and game warden."
Monthly payrolls were submitted to Mr. Gallet, then state auditor, signed by respondent as a receipt for the amount of salary she claimed was due her. Mr. Bailey, then game warden, certified the rolls were correct; warrants were issued by Mr. Gallet, and were delivered to respondent, and accepted by her, in satisfaction of her claims. The duty to certify these payrolls devolved on Mr. Bailey, not on Mr. Eckert, the present game warden, and the code will be searched in vain for a provision making it Mr. Eckert's duty to correct errors, if any exist, in them, or to certify that respondent, who has not been chief clerk since he has been head of the department, is entitled to be paid more than her employer certified she was entitled to, more than she demanded for her services, and more than she received and receipted for.
The writ of mandamus may be issued "to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station." (Idaho Code Annotated, sec. 13-302.) Since the law does not impose the duty on appellant, Eckert, to correct the payrolls of his predecessor, nor to certify that salary is due to an employee for services rendered in the fish and game department when he was not connected with it, mandamus is not available to require him to do so.
It is contended respondent's salary, certified by Mr. Bailey, was less than that provided by statute and any agreement that she be paid less than the statutory amount was against public policy and void. The weight of authority sustains this contention, but it does not follow that mandamus, against Mr. Eckert, is the proper remedy. His duty with respect to payrolls is fixed by sec. 65-2011, quoted in the foregoing opinion. It is his duty to certify the monthly *Page 403 payrolls as the salaries of employees in his department become due, if their claims are sworn to as required by law. When he has done this his duty with respect to payrolls has been discharged and nothing more can legally be required of him.
Applying to this situation the statement quoted in the foregoing opinion from Campbell v. Hunt, 18 Ariz. 442,162 P. 882, with respect to the writ of mandamus, that: "It is rather an extraordinary and expeditious legal remedy, which proceeds in every case upon the assumption that the applicant has an immediate and complete legal right to the thing demanded," brings the answer that whatever remedy respondent may or may not have, mandamus against Mr. Eckert is not available. Nor is it available against Mr. Parsons, present state auditor.
Speaking of the writ of mandamus, it is said in 18 Rawle C. L. 89:
"It is regarded as a personal action against the respondent, instead of an action in rem directed against the office."
The supreme court of the United States, in United States exrel. Lewis v. Boutwell, 17 Wall. 604, 21 L. ed. 721, said:
"The office of a writ of mandamus is to compel the performance of a duty resting upon the person to whom the writ is sent. That duty may have originated in one way or in another.
"It may, as is alleged in the present case, have arisen from the acceptance of an office which has imposed the duty upon its incumbent. But no matter out of what facts or relations the duty has grown, what the law regards and what it seeks to enforce by a writ of mandamus, is the personal obligation of the individual to whom it addresses the writ. If he be an officer, and the duty be an official one, still the writ is aimed exclusively against him as a person, and he only can be punished for disobedience. The writ does not reach the office. It cannot be directed to it. It is, therefore, in substance, a personal action, and it rests upon the averred and assumed fact that the defendant has neglected or refused to perform a personal duty, to the performance *Page 404 of which by him the relator has a clear right." (See, also,Knights v. Burrell, 236 Mass. 336, 128 N.E. 637.)
In Boise-Kuna Irr. Dist. v. Hartson, 48 Idaho 572,285 P. 456, cited in the majority opinion, this court said:
"It would be futile to issue the writ against Judge Hartson, formerly district judge, for the reason that he cannot be required to perform judicial duties unless he is a judge at the time when the duty is required to be performed. (Bailey v.Baker, 33 Cal. App. 452, 165 P. 543; Leach v. Aitken, 91 Cal. 484,28 P. 777.) Nor could the successor in office of Judge Hartson be punished for contempt for refusing to obey a writ issued against Judge Hartson, his predecessor in office, and who had gone out of office when the writ issued, as such judgment against Judge Hartson would have no validity against his successor in office. (Ex parte Truman, 124 Cal. 387,57 P. 223; Sargent v. Cavis, 36 Cal. 552.)"
Thereafter, the legislature amended Compiled Statutes, sec. 6652, now Idaho Code Annotated, sec. 5-319, by providing for substitution of the successor in an action or proceeding brought by or against any public officer in his official capacity which is pending at the time of his death, resignation, retirement or removal from office.
While this amendment would authorize the substitution of the present state auditor for Mr. Gallet in a proper case, it does not change the nature of a mandamus proceeding, which, as heretofore pointed out, is a remedy personal in its nature and available only against one whose legal duty to perform the act sought to be compelled is clear.
Furthermore, this is not an original proceeding in this court, but is here on appeal from the district court. Due process of law requires that a party litigant have his day in each and every court wherein the cause of action is litigated.
The claim of respondent was not sworn to as required by statute. This is, of course, a complete defense to the auditor in refusing to draw a warrant in payment of that claim, in whole or in part, for to do so would violate the law. That defense was not made in the district court by *Page 405 Mr. Parsons' predecessor in office and cannot, of course, be made for the first time here. It is true a majority of this court offered Mr. Parsons an opportunity to set up any defense he had after the case was appealed and after it had been argued and submitted for decision. Such procedure finds no foundation in our code and is foreign to the principles of American jurisprudence.
In the foregoing opinion it is said:
"It is conceded that prior to the commencement of these proceedings respondent made and filed her claim, in due form, with the appellant game warden, for the balance of the amount claimed by her as salary, which claim he refused to approve."
That concession is made in the brief filed by the former attorney general and his assistant, before Mr. Parsons became state auditor. Mr. Parsons never made such a concession, and has been forced into this case, over his objection, by a majority of the court, and denied the right to make a complete defense which was available to him. One of the payrolls on which respondent claimed her monthly salary is before us, and is not sworn to. It was stipulated, in effect, that the other payrolls in which her claims were incorporated are in the same form as the one introduced in evidence. It does not appear in the record that respondent ever presented a sworn statement of her claim for salary, in whole or in part, as required by sec. 35-116. Auditor Parsons cannot legally issue a warrant in payment of this claim, regardless of the concession made in the brief of the former attorney general and his assistant.
Not only has no demand ever been made by respondent on Mr. Parsons to issue a warrant for the payment of her claim, but, although it is alleged in the complaint that "plaintiff has requested and made demands on the said defendants, and each of them, for the approval of said claim and for the issuance to plaintiff of a warrant for the amount due thereon, but that the requests and demands of said plaintiff have been, and will continue to be, denied . . . ."; and although Mr. Gallet, in his answer, alleged: *Page 406
"That no claim or demand for said additional sum of Six Hundred Fifty Five Dollars and Eighty three Cents ($655.83), or in any amount as a balance owing plaintiff for her services, has ever been filed with or presented to this defendant by or on behalf of plaintiff, or by said defendant Amos H. Eckert; nor has the claim of defendant referred to in the writ of this court been transmitted to this defendant,"
there is no evidence to be found in the record that a demand was ever made upon the state auditor to issue the warrant, the issuance of which is sought to be enforced by this writ.
In 38 C. J. 576, it is said:
"As a general rule the relator must have demanded performance of the act or duty which he seeks to enforce. . . . .
"This principle, it is believed, has never been questioned in so far as the duty is of a private nature affecting the right of the relator only; . . . .
The foregoing opinion bases the right to the writ ofmandamus, in this case, on the fact, that respondent is clearly entitled to receive from the state the money she seeks to recover. Jurisdiction to issue the writ of mandamus cannot be made to depend on the strength of the claim to the relief sought. Frequently, in cases of this kind, the right to the writ is challenged before an answer is filed. In this case, before answer, the defendants moved to quash the writ; the motion was denied, and the ruling is assigned as error. The court, being without jurisdiction to issue a writ of mandamus for the purpose of collecting a debt, did not acquire jurisdiction when it became apparent the debt was due.
The alternative writ of mandate was issued in this case before the facts were established which this court uses as a foundation upon which to base jurisdiction.
Particular attention is invited to the following part of the foregoing opinion:
"It was the legal duty of Bailey to approve respondent's claim in the full amount, and Mr. Gallet should have paid it. They having failed in their clear and well defined duty, *Page 407 mandamus is the proper remedy because an action against the board of examiners in the Supreme Court for an advisory or recommendatory judgment is neither speedy nor adequate. This is so because its fruition depends on the action of the legislature, which might not act when it has already provided that the chief clerk should receive a fixed and definite amount."
That statement is not only predicated on an unjustified assumption that the legislature, a co-ordinate branch of our government, would refuse to do its duty should a judgment of this court, recommending the payment of a debt found due from the state, be placed before it, but it holds inadequate a remedy which the Constitution recognizes to be adequate and has attempted to make exclusive for the litigation of claims against the state. However, it is hardly safe to assume the action would be against the board of examiners. Article 5, sec. 10, is as follows:
"The Supreme Court shall have original jurisdiction to hear claims against the state, but its decision shall be merely recommendatory; no process in the nature of execution shall issue thereon; they shall be reported to the next session of the legislature for its action."
The holding to the effect that, because the legislature may not be depended on to do its duty, the remedy provided by the Constitution is inadequate is something this court will, probably, sometime repudiate, or explain, distinguish or otherwise apologize for.
No contention has been made that this claim has been barred by the statute of limitations and, therefore, the reference to secs. 5-217, 5-218, 5-219 and 5-224, I. C. A., in the foregoing opinion appears to be unnecessary.
Section 5-217 is our four year statute of limitations of actions, and relates to actions upon contract not founded upon an instrument of writing. Section 5-218 is our three year statute of limitations, relating to actions upon statutory liability, trespass, trover, replevin and fraud. Section 5-219 is our two year statute, and relates to actions against officers, for penalties, on bonds, and for personal injuries, and *Page 408 sec. 5-224 relates to actions for relief not provided for in other sections of the statute, and limits the commencement of such actions to four years after the cause of action shall have accrued. Just how these sections could all have been made applicable to this cause of action, had they been pleaded as a defense, would be difficult to decide.