Idaho Industrial Training School fund, and the Academy of Idaho fund, now known as the Idaho Technical Institute fund. Each of the two last-mentioned funds were to receive a specified portion of the proceeds from the 150,000-acre grant for state charitable, educational, penal, and reformatory institutions. Each of these various acts creating the funds, with the exception of the Scientific School fund and the Agricultural College fund, contained a provision to the effect that perpetually from and after the 1st day of January, 1907, all moneys which might ac crue to the several funds should be appropriated and set apart for the support and maintenance of the respective institutions named in the acts, and should be made available for such purpose immediately upon being credited to the various funds. In 1917 a similar perpetual appropriation was made, with reference to the moneys which would thereafter accrue to the Scientific School fund. In 1911 the Legislature again established the Agricultural College fund, and made similar perpetual appropriations of the moneys which would thereafter accrue for the support and maintenance of the said college. These various acts, creating the several funds mentioned, and providing for the perpetual appropriation of the moneys which should accrue With thereto, have never been repealed. reference to the Deaf and Blind School, it does not appear that any fund has been created for this institution. In 1905 an appropriation was made from the state charitable institutions fund for the education of the deaf and blind in the state for the years 1905 and 1906, but no further appropriation appears to have been made from that fund. It would seem, therefore, that the appropriation in the 1917 law contains the entire appropriation for that institution for this biennium. Sess. Laws 1917, c. 70, contains the appropriation for these institutions for the period commencing on the first Monday of January, 1917, and ending on the first Monday in January, 1919. This act contains the following provisos: or institution: Provided, further, that all funds ho." * It appears that the defendants have maintained the several funds above referred to, and in the first instance have placed therein the moneys properly applicable thereto. It further appears that all claims against the various institutions named above, during this biennium, have been allowed and paid by warrants drawn on the general fund. The auditor gives the following explanation of his method of handling claims against these various institutions: "Out of the general fund of the state there is set aside on the books of the state auditor the total amount of the appropriation made in said This then constitutes act for each institution. a distinct and separate appropriated fund out of which expenditures by the various institutions are paid by warrants after the allowance Each warrant drawn of the claims therefor. it is drawn and the nature of the expense. shows specially the appropriation against which While warrants so drawn appear in the first instance against that part of the appropriation derived from the general fund, the account is properly chargeable against the combined appropriation consisting of both the general fund appropriation and the portion of the interest fund appropriated. At stated intervals, therefore, the money accumulated in the interest fund is transferred to the appropriation fund. This has not been and is never done prior to the withdrawal from said appropriation of an amount equal or greater, and in all instances it has been greater, than the accession. * The transfer referred to is made by the state auditor drawing a certificate authorizing the state treasurer to make the transfer, after which both of said officers post their books accordingly." 串 By "Provided, however, that when any moneys or funds, not appropriated herein and which are properly available for the expenses of the current biennium are or have been received subseIt appears further that since December 31, quent to February 1, 1917, except federal funds, which shall be computed as of January 1, 1917, 1917, the state treasurer has refused to recogby the state treasurer, by the treasurer of any nize the validity of such certificates. institution or institutions herein named or by this action plaintiff's seek a writ of mandate any agent or employé thereof from endowment or other sources of income for the support and to compel the defendant Van Deusen, as maintenance of any work or operation carried state auditor, to amend and correct the books on under the authority, control and direction and records of his office, so as plainly to of the State Board of Education and Board of Regents of the University of Idaho or any in- open and show thereon a separate account stitutions, departments, officers or employés of of each and every of the said funds accrued, said board, funds in an amount or amounts and hereafter to accrue, from the aforesaid equal to the money or moneys so received shall respective grants of land and the proceeds be withdrawn by the state treasurer from the funds herein appropriated for the board or in- thereof, for the benefit of each and every of stitution receiving such funds and placed in the said institutions herein alleged to be the general fund of the state, and the appro- entitled respectively to the use and benefit priation or appropriations herein made for such of said separate funds, and that he be requirboard or institution shall be decreased automatically by such amount or amounts equal to ed as auditor to draw his official warrants such money or moneys so received by such board upon claims properly briefed and allowed a part of the appropriation made by the act. Nowhere in the act is there any provision that funds belonging to the various institutions above mentioned shall be transferred to any other fund in the treasury. The bill expressly provides that: against said funds respectively upon the expressly indicated that these funds are not particular fund against which such claims shall, from time to time, be properly allowed, and to command that he shall, under no circumstances, commingle or intermingle upon the said books and records of his office any of the separate accounts of said educational funds with the records or accounts of any other funds or moneys and that the said separate accounts and records of the same shall be perpetually maintained upon the said books and records of his office until the law pertaining to said separate fund shall be repealed or so amended as to become inconsistent with the order of this court. Similar directions are prayed for with reference to defendant Eagleson as state treasurer. [1] The funds referred to, being declared by the Constitution to be trust funds, are not, strictly speaking, subject to appropriation. They were appropriated or set apart for certain purposes designated by the terms of the grants which had been accepted by the state. The Legislature, however, is required to provide the method by which they may be made available for such special purposes, and to that extent only are the funds subject to what may be called an appropriation. The courts are not concerned with the methods which the Legislature may provide, further than that, upon proper proceedings therefor, they will prevent the diversion of the funds from the objects or purposes for which they have been granted. Roach v. Gooding, 11 Idaho, 244, 81 Pac. 642. In Evans v. Huston, 27 Idaho, 559, 150 Pac. 14, it was held that the perpetual appropriation of the Albion Normal School fund was sufficient to justify the allowance of claims against it, and the drawing of warrants for claims properly allowed. [2] All of the perpetual appropriations above referred to are practically in the same language. The appropriation bill of 1917 was carefully drawn and is clear in its terms. It does not amend or repeal the perpetual appropriations referred to and is not inconsistent therewith. It does not provide for a combined appropriation fund composed of the amounts of the income from the various endowment funds and the amount appropriated from the general fund of the state for the support of such institutions. It provides that all funds received by and for the use of any of the institutions named therein, except federal aid received from the government of the United States, which, under the law granting said aid, must be retained by the institution receiving the same; shall be turned into the state treasurer monthly by such board or institution, and if said funds so reported and turned into the state treasury properly belong to the board or institution reporting the same, the state treasurer shall place such funds to the credit of said board or institution. "Funds in an amount or amounts equal to the money or moneys so received shall be withdrawn by the state treasurer from the funds herein appropriated, for the board or institution receiving such funds and placed in the general fund of the state, and the appropriation or appropriations herein made for such board or institution shall be decreased automatically by such amount or amounts equal to such money or moneys so received by such board or institution." Moreover, the provision requiring that the warrants drawn by the state auditor shall be against the general fund of the state only refers only to sums appropriated by that act from moneys belonging to the state, and does not refer to funds already belonging to the institutions. [4] A writ of mandate is only properly issued to compel an officer to perform an act which the law specially enjoins upon him as a duty. It does not issue to prevent an officer from doing an unlawful act. It does not appear that the auditor and treasurer have failed or refused to maintain proper funds for the various institutions named in the petition. The petition, however, alleges that the auditor has failed, neglected, and refused, and still fails, neglects, and refuses, to draw his warrant or warrants upon any of said separate funds upon presentation to him of claims properly briefed and allowed against the said separate funds. This is a general allegation and does not amount to an averment that claims have been properly briefed and allowed against any of said separate funds for which the auditor has refused to draw his warrant, and is insufficient to justify the issuance of the writ. The writ will be denied. No costs awarded. MORGAN, J., concurs. took no part in the decision. BUDGE, C. J., (31 Idaho, 514) STATE v. ANDERSON. (Supreme Court of Idaho. July 2, 1918.) 1. CRIMINAL LAW 395-ADMISSIBILITY SOURCE UNLAWFUL SEARCH OR SEIZURE. to the issues is not rendered inadmissible by reaEvidence otherwise competent and relevant son of its having been disclosed by an unlawful search or obtained by an unlawful seizure. 2. CRIMINAL LAW 995 (5)—SENTENCED TO IMPRISONMENT-CONDITIONAL DIRECTION. absolute imprisonment in a criminal case, couUnder Rev. Codes, § 7994, a judgment of an pled with the payment of a fine and costs, may also contain a direction that the defendant be imprisoned until the fine and costs have been satisfied. Morgan, J., dissenting. Appeal from District Court, Shoshone [3] By the terms of the first proviso it was County; Wm. W. Woods, Judge. Charles Anderson was convicted of unlaw-, ing instructive discussions of the question fully transporting intoxicating liquors in a are the following: Gindrat v. People, 138 Ill. prohibition district, and he appeals. Af- 103, 27 N. E. 1085; State v. Fuller, 34 Mont. firmed. 12, 85 Pac. 369, 8 L. R. A. (N. S.) 762, 9 Ann. Cas. 648; People v. Campbell, 160 Mich. 108, 125 N. W. 42, 34 L. R. A. (N. S.) 58, 136 Am. St. Rep. 417; Commonwealth v. Tibbetts, 157 Mass. 519, 32 N. E. 910; Commonwealth v. Tucker, 189 Mass. 457, 76 N. E. 127, 7 L. R. A. (N. S.) 1056. See, also, 3 Wigmore on Evidence, §§ 2250 and 2264, and an exhaustive annotation following the case of State v. Turner in 136 Am. St. Rep. 129. Horning & McEvers and C. L. Heitman, all of Wallace, for appellant. T. A. Walters, Atty. Gen., J. P. Pope, Asst. Atty. Gen., and H. J. Hull, Pros. Atty., of Wallace, for the State. RICE, J. An information was filed against appellant, charging him with the crime of transporting intoxicating liquors from the state of Montana into Shoshone county, a prohibition district. Before the cause was called for trial, appellant presented a petition to the district court setting forth that he was traveling upon a public highway in Shoshone county in a certain automobile; that one J. D. Foster, a deputy sheriff, and others, forcibly, unlawfully, and without a search warrant, or other warrant, stopped appellant, searched his automobile, and seized therein certain intoxicating liquors; that the deputy sheriff "then and there and thereupon" arrested the defendant and took possession of the said liquors. The appellant prayed for an order for the destruction of the intoxicating liquor, and that the same should not be received as evidence against him upon the trial of the cause. The petition was denied. On the trial of the cause appellant objected to the deputy sheriff testifying as to any facts discovered by his search of the automobile, and objected to the reception in evidence of any intoxicating liquors so taken. It may be conceded that the search of the automobile and the seizure of the liquors in this case was accomplished by a trespass of the deputy sheriff, and was illegal, and that the statute under which he acted, in so far as it attempts to authorize a search and seizure without warrant, is unconstitutional and void. Nevertheless, we think the testimony of the witness and the intoxicating liquors seized were properly admitted. [1] Evidence otherwise competent and relevant to the issue is not rendered inadmissible by reason of its having been disclosed by an unlawful search or obtained by unlawful seizure. In 1 Greenleaf on Evidence (15th Ed.) § 254(a), it is said: "It may be mentioned in this place that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, there is no valid objection to their admissibility if they are pertinent to the issue. The court will not take no tice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.' The text quoted above is supported by the cases of Legatt v. Tollervey, 14 East, 302; Jordan v. Lewis, Id. 306; Commonwealth v. Dana, 2 Metc. (Mass.) 329. [2] The sentence imposed upon the appellant was as follows: in the county jail of Shoshone for the full "That said Charles Anderson be imprisoned period of thirty days, and that he be, and he hereby is, fined in the sum of $400.00, and the costs of this prosecution, hereby taxed in the and decreed, that in the event said defendant sum of $11.05. It is further ordered, adjudged shall fail to pay said fine and costs he shall serve the same out in the county jail of Shoshone county at the rate of $2.00 for each day of twenty-four hours." The imposition of the conditional sentence of imprisonment, dependent upon the failure of the appellant to pay a fine of $400 and costs, is assigned as error, for the reason that the court had no such authority where the sentence imposes both imprisonment and fine, and also that in case of failure to pay the fine the imprisonment would then exceed the total imprisonment prescribed by law as a penalty for the offense committed. In considering this question the following sections of the Rev. Codes are material: "Sec. 7994. A judgment that the defendant pay a fine, or pay costs, or pay both fine and costs, may also direct that defendant be imprisoned until the fine, or costs, or both fine and costs, have been satisfied; specifying the extent of the imprisonment, which cannot exceed one day for every two dollars of the fine, costs, or fine and costs, as the case may be. "Sec. 7995. A judgment that the defendant pay a fine, pay costs, or pay fine and costs, constitutes a lien in like manner as a judgment for money in a civil action." "Sec. 8006. If the judgment is for the payment of fine, or costs, or fine and costs, only, execution may be issued thereon as on a judgment in a civil action. "Sec. 8007. If the judgment is for imprisonment, or a fine and imprisonment until it be paid, defendant must forthwith be committed to the custody of the proper officer, and by him detained until the judgment is complied with." By the restriction of the issuance of execution for the recovery of fines to cases of judgment for a fine, or costs, or fine and costs only, it follows that when a judgment is for fine and imprisonment until paid, or for absolute imprisonment coupled with a fine, no execution can be issued upon it. The crime of which appellant was convicted is punishable by fine and imprisonment, not by one or the other, but by both. Sess. Laws 1915, c. 11, § 18, p. 46. If a judgment The doctrine has received the approval of | cannot direct that the defendant stand comthe courts of a majority of the states. mitted after the expiration of the time of imAmong the more recent authorities contain-prisonment until the fire be satisfied, the provision that he be both fined and imprisoned is rendered nugatory for the reason that the payment of the fine is left entirely to the prisoner's volition. The Legislature has failed to provide means by which a judgment, both for absolute imprisonment and the payment of fine in addition thereto, may be made effective unless the provisions of section 7994 are applicable thereto. The omission of the word "only" from this section appears significant in view of its presence in section 8006. in the district court reciting that one J. D. Foster, a deputy sheriff, and certain other deputies sheriff, whose names are to appellant unknown, forcibly, unlawfully, and without a search warrant or any other authority of law, stopped him and searched his automobile and seized the whisky, "and that then and there and thereupon the said J. D. Foster and the said other deputy sheriffs forcibly, unlawfully, and without warrant or authority so to do arrested this defendant.” At the hearing upon the petition it was stipulated that all representations of fact therein set out are true. From the language employed in the petition no other conclusion can be reached than that the events mentioned transpired in the order stated, to wit: First, appellant was way; second, a search of his person and automobile was made; third, whisky found in the automobile was seized; fourth, after the search for and discovery and seizure of the whisky-not before-appellant was arrested. Words & Phrases Judicially Defined, vol. 8, p. 6953; Second Series, vol. 4, p. 904. We hold therefore that it was the intention of the Legislature that section 7994 should apply to judgments of absolute imprisonment, coupled with a fine, where the judgment also directs that defendant be imprisoned until the fine has been satisfied. The provision that the maximum imprisonment | stopped while traveling on the public highshall not exceed six months applies only to the maximum sentence of absolute imprisonment. It does not limit the power of the judge to impose a fine up to the maximum amount provided by statute, nor is there any limitation upon his power to direct that the defendant be imprisoned until the fine is paid, except that the time of such imprisonment cannot exceed one day for each $2 of the fine. These various statutes must be so construed as to give effect to all where there is no necessary conflict between them. We find no error in the instructions complained of by appellant. The judgment is affirmed. BUDGE, C. J., concurs. MORGAN, J. (dissenting). Some time ago I was assigned the task of preparing the opinion of the court in this case. A draft of an opinion was prepared, but my utmost efforts have not convinced the other justices of the soundness of my logic, nor of the wisdom of the decisions of the Supreme Court of the United States, ably expressed, in similar cases. My views, which have been rejected by this court, have not been thereby modified. They are as follows: On the night of August 13, 1917, appellant, who was traveling in his automobile in company with another man upon the public highway in Shoshone county from the direction of the Idaho-Montana line, was stopped by an officer, or officers, who searched the men and the automobile. The search of the automobile disclosed the presence therein of a quantity of whisky. Thereupon appellant and his companion were arrested. The latter was, upon preliminary examination, discharged, and the former held to answer in the district court to an accusation of unlawfully transporting intoxicating liquor into Shoshone county in violation of section 15, c. 11, Sess. Laws 1915, p. 46. The trial resulted in a verdict of guilty, and from a judgment of conviction based thereon this appeal Is prosecuted. From the stipulated facts and from the testimony of Deputy Sheriff Foster at the trial, the conclusion is inevitable that the search was made for the purpose of discovering whether or not a crime was being committed and that the arrest was made by reason of the disclosures produced thereby. He testified: "I stopped. I flashed the car down. I stopped it. We had two cars stopped, one going east. I flashed the car down. I was standing down the road some little distance from where the other cars were. I climbed on the running board of the car and I told him to get out of the car. I wanted to see if he had a gun, as some of the other boys had that night. Mr. Anderson got out, and I looked him over, as well as the driver." At this point counsel for appellant asked, and was granted, permission to make crossexamination, which was as follows: "Q. Did you have a search warrant that night for the search of Mr. Anderson? A. I had a copy of the state law, is all. Q. Copy of the A. To search state law is all. You refer to automobiles. Q. You had no search warrant for the search of this car or person? A. Not that particular car, no. Q. Did you have a warrant for his arrest? A. I did not." After objection by appellant's counsel to any testimony as to facts, the knowledge of which was gained by means of this search, was made and overruled, the dupty sheriff further testified, upon direct examination: "A. After I had looked Mr. Anderson over, we talked a few minutes. He said he was just taking in a few bottles for his own use and he the expression he made. I told him I wouldn't would not have been caught for $500; that is either. We came to Wallace. Q. Did you search the car at that time? A. I did. Q. What A. Found ten cases did you find in the car? marked whisky." It is alleged in the petition that the officers took the whisky into their possession, that it Prior to the trial appellant filed a petition was being kept for the purpose of being in troduced in evidence at the trial, and that preme Court, in case of Boyd v. United appellant's rights were being thereby invad-States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. ed. The petition concludes with a prayer for an order that the liquor be forthwith destroyed and that no portion thereof be used as evidence; also, that the court direct that neither of the officers, nor any other person in any wise connected with or present at the search and seizure, be used as a witness against appellant with respect, particularly, to any fact the knowledge of which was gained or in any wise derived from, or by reason of, the search and seizure. The petition was denied, and that action of the court is brought here for review by bill of exceptions. Objections were made to testimony showing the facts disclosed at the time of, and by means of, the search and seizure and to the introduction of the liquor in evidence, and were overruled. At the close of the introduction of evidence on behalf of the state, counsel for appellant incorporated the same point in a motion, which was denied, that the court direct the jury to find appellant not guilty. These rulings are assigned as error. It is appellant's contention, among others, that the action of the officers, in making the search and seizure, was in violation of sections 13 and 17, art. 1, of the Constitution of Idaho, and that the evidence secured was inadmissible. It is apparent the search was made pursuant to section 1, c. 45, Sess. Laws 1917, p. 103, which is as follows: "Whenever a sheriff or any other peace officer has probable cause to believe that intoxicating liquor is being transported or kept within the state of Idaho in violation of the law such sher iff or other peace officer is authorized and empowered to search, with or without a warrant, any depot, baggage room, premises, building, satchel, suit case, grip, trunk, receptacle of any kind, wagon, automobile, car, boat or vehicle of any kind wherein or whereby, in the opinion of such sheriff or other peace officer, intoxicating liquor is being concealed or transported in violation of the laws of this state." The portion of that section which seeks to permit an officer, under the circumstances therein stated, without a warrant, to make search as therein sought to be provided for, is in direct violation of section 17, art. 1, of the Constitution of the state of Idaho, which was copied from the fourth amendment to the federal Constitution. It provides: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue without probable cause shown by affidavit, particularly describing the place to be searched and the person or thing to be seized." It is provided in section 13, of that article, which was taken from the fifth amend Ed. 746, and we are deemed to have adopted them in view of the interpretation placed upon them by that court and with the intention that they receive a like construction. Stein v. Morrison, 9 Idaho, 426, 75 Pac. 246; In re Schriber, 19 Idaho, 531, 114 Pac. 29, 37 L. R. A. (N. S.) 693. The Boyd Case was one wherein the court had under consideration section 5 of the act of Congress approved June 22, 1874 (18 Stat. at L. 186, c. 391 [U. S. Comp. St. 1916, 5799]), wherein it was attempted to be provided, in effect, that whenever, in the opinion of the attorney representing the government, in any suit or proceeding arising under the revenue laws of the United States, other than a criminal action, any business book, invoice, or paper belonging to, or under the control of, the defendant, or claimant, would tend to prove any allegations made by the United States, he might make a written motion particularly describing such book, invoice, or paper and setting forth the allegations which he expected to prove, and thereupon the court might issue a notice to the defendant, or claimant, to produce such book, invoice, or paper in court, and, if he fail or refuse to do so, the allegations stated in the motion would be taken as confessed, unless his failure or refusal be explained to the satisfaction of the court. That if the book, invoice, or paper be produced, the attorney should be permitted, under the direction of the court, to make examination of such entries therein as related to or tended to prove the allegations above mentioned, and might offer the same in evidence on behalf of the United States. The court held that the proceeding before it being intended for the purpose of declaring a forfeiture of claimant's property by reason of an offense committed by him, though civil in form, was criminal in its nature; that the order directing private books and papers to be delivered up to be used in evidence against him was within the scope of the fourth amendment, prohibiting unreasonable searches and seizures; that it was not substantially different from compelling him to be a witness against himself, the law which attempted to authorize such prohibited by the fifth amendment; a proceeding was unconstitutional; and that the evidence secured pursuant to it was inadmissible. that The Supreme Court of Georgia, in Williams v. State, 100 Ga. 511, 28 S. E. 624, 39 L. R. A. 269, discussing a constitutional provision like our section 17, art. 1, while holding that an illegal and unreasonable search * * No person shall be * pelled in any criminal case to be a witness and seizure would not render evidence thereagainst himself. by procured inadmissible, said: ment to the federal Constitution: ** com These sections had, more than five years prior to the adoption of our Constitution, been co istrued by the United States Su ate upon legislative bodies, so as to render in"This wise restriction was intended to opereffectual any effort to legalize by statute what the people expressly stipulated could in no event |