Gileillan, C. J.*
The case comes here upon appeal from an order sustaining demurrers to the complaint.
The complaint alleges the corporate existence of the plaintiff, and that it is the company mentioned in the joint resolution of the legislature of March 11, 1873, “To facilitate the settlement of the title to swamp-lands heretofore granted by the state of Minnesota to state institutions and railroads. ”
The defendant Davis, when the suit was brought, was governor of the state, and the other defendants, trustees of the Minnesota Hospital for Insane.
The complaint alleges the corporate existence of the St. Paul and Pacific Railroad Company, authorized to construct and operate a branch railroad from St. Paul to Winona, and to acquire, hold and convey lands, and that in 1867 the plaintiff succeeded to all its rights, powers, qu'ivileges, immunities, franchises and property appertaining to the branch from St. Paul to Winona. It then refers to the act of March 6, 1863, entitled “An act granting lands to aid the St. Paul and Pacific Railroad Company in the construction of their branch railroad from St. Paul to Winona, ” and to the acts of March 2, 1865, March 2, 1867, March 4, 1868, March 5, 1869, each extending the time for the original company, or plaintiff, to comply with the conditions of the land grant, and alleges the final completion of the road and the performance of such conditions.
It alleges that within the limits of seven miles on each side of its line from St. Paul to Winona, there were only 3,541 •91-100 acres of swamp-lands, and that it is entitled to swamplands to be selected outside of said limits, to the amount of the deficiency of 919,338 9-100 acres, and that in all there have been certified to it by the governor only 112,032 10-100 acres. It then refers to the act of February 13, 1865, entitled “An act to appropriate swamp-lands to certain educational and charitable institutions therein named, and for the [573] purpose of erecting a state prison,” and alleges that on September 15,'1870, the commissioner of the state land-office selected and set apart for the Hospital for Insane 19,816 78-100 acres of swamp-lands, donated by congress to the state, and made a record thereof. It alleges that the entire amount of swamp-lands patented by the United States to the state is only 923,825 27-100 acres, and that the state, under grants prior to that to plaintiff, has disposed of 576,495 72-100 acres, and under grants subsequent to plaintiff’s, including that by the act of 1865 to educational and charitable institutions, 136,520 65-100 acres, leaving undisposed of, 98,776 80-100 acres, which are liable to be set apart to the above institutions; and that all the swamp-lands in the state which have been surveyed, except an inconsiderable quantity, have been patented to the state; and that after it became entitled to do so, it selected, to make up the deficiencies in its swamplands, the lands set apart to the Hospital for Insane, and demanded a conveyance thereof, and the governor refused to convey. It prays that the title to the lands be determined and adjudged to plaintiff.
To this complaint demurrers were interposed on the part of the governor^ on the grounds that the court has not jurisdiction over him, and that the complaint does not state facts sufficient to constitute a cause of action; and on the part of the trustees, on the grounds that the court has no jurisdiction of the persons or of the subject of the action; that plaintiff has not legal capacity to sue; that there is a defect of parties defendant; that the complaint does not state facts sufficient, to constitute a cause of action. The demurrers were sustained.
The demurrer on the part of the governor was properly sustained, on the ground that the court has no jurisdiction over him. The duties of the governor sought to be enforced in this action are duties belonging to him as executive of the' state, and not as an individual. Rice v. Austin, 19 Minn. 103. He is not subject to the control of the judiciary in tha [574] performance of such duties, and no action or proceeding before any court will lie against him to compel such performance. Nor can the joint resolution of the legislature, referred to in the complaint, bring him under such control. The independence of each of the three departments of the government — the executive, legislative and judicial — rests upon the constitution, article 3, and cannot be affected by any legislative act, although it may be approved by the governor at the-time it passes.
The same ground of demurrer taken by the trustees is not well founded. The exemption from control by the judiciary, on the part of the governor, does not extend to mere administrative agents, who are created, and their powers and duties defined, by the legislature. The courts may entertain suits against them as against any merely ministerial officers.
The subject-matter of the action is property belonging to the state, and the action, though nominally against the trustees, is virtually against the state, to determine its right in the property involved. The exemption of the state from actions by its citizens is not based on any constitutional provision, but merely on grounds of public policy. A waiver of such exemption does not trench upon the independence of any department of the government. There can be no doubt that the legislature may waive such exemption, nor that its consent to do so may be expressed by joint resolution, passed in the manner prescribed by the constitution, as effectually as in the more formal mode by bill. It is to matters of this character that section 12, article 4 of the constitution relates, The joint resolution of 1873 is an answer to the objection that the action is virtually against the state.
There is nothing in the ground of demurrer stated — that the plaintiff has not legal capacity to sue. Its corporate character and the purposes of its creation fully appear by the complaint. The capacity to sue and be sued, and to protect its rights and enforce its claims by judicial process is an incident to every corporation. That the plaintiff may hold these lands, [575] if they belong to it, appears from the complaint, and that it may sue to determine its right to them follows of course.
The ground of demurrer — that there is a defect of parties defendant — is based on the proposition that the state auditor, because he certified the lands to the trustees, should be made a party defendant. The auditor is not, and never was, in any way connected with the title to the lands, any more than an attorney to convey lands is, by virtue of that relation, connected with the title to lands to which he executes a conveyance for his principal.
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Gileillan, C. J.*
The case comes here upon appeal from an order sustaining demurrers to the complaint.
The complaint alleges the corporate existence of the plaintiff, and that it is the company mentioned in the joint resolution of the legislature of March 11, 1873, “To facilitate the settlement of the title to swamp-lands heretofore granted by the state of Minnesota to state institutions and railroads. ”
The defendant Davis, when the suit was brought, was governor of the state, and the other defendants, trustees of the Minnesota Hospital for Insane.
The complaint alleges the corporate existence of the St. Paul and Pacific Railroad Company, authorized to construct and operate a branch railroad from St. Paul to Winona, and to acquire, hold and convey lands, and that in 1867 the plaintiff succeeded to all its rights, powers, qu'ivileges, immunities, franchises and property appertaining to the branch from St. Paul to Winona. It then refers to the act of March 6, 1863, entitled “An act granting lands to aid the St. Paul and Pacific Railroad Company in the construction of their branch railroad from St. Paul to Winona, ” and to the acts of March 2, 1865, March 2, 1867, March 4, 1868, March 5, 1869, each extending the time for the original company, or plaintiff, to comply with the conditions of the land grant, and alleges the final completion of the road and the performance of such conditions.
It alleges that within the limits of seven miles on each side of its line from St. Paul to Winona, there were only 3,541 •91-100 acres of swamp-lands, and that it is entitled to swamplands to be selected outside of said limits, to the amount of the deficiency of 919,338 9-100 acres, and that in all there have been certified to it by the governor only 112,032 10-100 acres. It then refers to the act of February 13, 1865, entitled “An act to appropriate swamp-lands to certain educational and charitable institutions therein named, and for the [573] purpose of erecting a state prison,” and alleges that on September 15,'1870, the commissioner of the state land-office selected and set apart for the Hospital for Insane 19,816 78-100 acres of swamp-lands, donated by congress to the state, and made a record thereof. It alleges that the entire amount of swamp-lands patented by the United States to the state is only 923,825 27-100 acres, and that the state, under grants prior to that to plaintiff, has disposed of 576,495 72-100 acres, and under grants subsequent to plaintiff’s, including that by the act of 1865 to educational and charitable institutions, 136,520 65-100 acres, leaving undisposed of, 98,776 80-100 acres, which are liable to be set apart to the above institutions; and that all the swamp-lands in the state which have been surveyed, except an inconsiderable quantity, have been patented to the state; and that after it became entitled to do so, it selected, to make up the deficiencies in its swamplands, the lands set apart to the Hospital for Insane, and demanded a conveyance thereof, and the governor refused to convey. It prays that the title to the lands be determined and adjudged to plaintiff.
To this complaint demurrers were interposed on the part of the governor^ on the grounds that the court has not jurisdiction over him, and that the complaint does not state facts sufficient to constitute a cause of action; and on the part of the trustees, on the grounds that the court has no jurisdiction of the persons or of the subject of the action; that plaintiff has not legal capacity to sue; that there is a defect of parties defendant; that the complaint does not state facts sufficient, to constitute a cause of action. The demurrers were sustained.
The demurrer on the part of the governor was properly sustained, on the ground that the court has no jurisdiction over him. The duties of the governor sought to be enforced in this action are duties belonging to him as executive of the' state, and not as an individual. Rice v. Austin, 19 Minn. 103. He is not subject to the control of the judiciary in tha [574] performance of such duties, and no action or proceeding before any court will lie against him to compel such performance. Nor can the joint resolution of the legislature, referred to in the complaint, bring him under such control. The independence of each of the three departments of the government — the executive, legislative and judicial — rests upon the constitution, article 3, and cannot be affected by any legislative act, although it may be approved by the governor at the-time it passes.
The same ground of demurrer taken by the trustees is not well founded. The exemption from control by the judiciary, on the part of the governor, does not extend to mere administrative agents, who are created, and their powers and duties defined, by the legislature. The courts may entertain suits against them as against any merely ministerial officers.
The subject-matter of the action is property belonging to the state, and the action, though nominally against the trustees, is virtually against the state, to determine its right in the property involved. The exemption of the state from actions by its citizens is not based on any constitutional provision, but merely on grounds of public policy. A waiver of such exemption does not trench upon the independence of any department of the government. There can be no doubt that the legislature may waive such exemption, nor that its consent to do so may be expressed by joint resolution, passed in the manner prescribed by the constitution, as effectually as in the more formal mode by bill. It is to matters of this character that section 12, article 4 of the constitution relates, The joint resolution of 1873 is an answer to the objection that the action is virtually against the state.
There is nothing in the ground of demurrer stated — that the plaintiff has not legal capacity to sue. Its corporate character and the purposes of its creation fully appear by the complaint. The capacity to sue and be sued, and to protect its rights and enforce its claims by judicial process is an incident to every corporation. That the plaintiff may hold these lands, [575] if they belong to it, appears from the complaint, and that it may sue to determine its right to them follows of course.
The ground of demurrer — that there is a defect of parties defendant — is based on the proposition that the state auditor, because he certified the lands to the trustees, should be made a party defendant. The auditor is not, and never was, in any way connected with the title to the lands, any more than an attorney to convey lands is, by virtue of that relation, connected with the title to lands to which he executes a conveyance for his principal.
The further proposition is made in the argument “that if the legal title to the lands is in the state the governor cannot be required by the court to convey, and no alternative decree will be rendered by the court when the court has no power to direct and insist upon both conditions involved in the alternative.” Section 14-, c. 75, General Statutes, provides, “The district court has power to pass the title to real estate by a judgment, without any other act to be done on the part of the defendant, when such appears to be the proper mode to carry its judgment into effect.” A case in which the court has jurisdiction over the land, but has not, or for any cause cannot enforce, jurisdiction over the person to compel a conveyance, comes within this section, and so far as compelling a conveyance by the governor is concerned, that is this case. The consent of the state and service on the trustees in whom the nominal title is vested gives the court jurisdiction to determine such title.
These grounds of demurrer being disposed of, we come to the merits of the case involved in the ground of demurrer alleged — that the complaint does not state facts sufficient to constitute a cause of action. This ground of demurrer has been discussed by counsel with great ability, the arguments taking a much wider range than we deem it necessary to follow. The arguments are mainly directed to the right of the plaintiff to the swamp-lands certified by the commissioner of the state land-office to the Hospital for Insane. [576] The plaintiff bases its claim upon the act of March 6, 1863, (Sp. Laws 1863, c. 4,) entitled “An act granting lands to aid the Saint Paul and Pacific Railroad Company in the construction of their branch railroad from St. Paul to Winona.” Section one — the granting section — reads, “That for the purpose of aiding in the construction of a branch railroad from St. Paul to Winona along the valley of the-Mississippi river, there is hereby granted to the St. Paul and Pacific Railroad Company all the swamp-lands belonging to this state, lying and being within the limits of seven miles on each side of the line of said branch road from St. Paul to Winona as the same shall be located and constructed; and as soon as any twenty continuous miles of said branch road shall be located, and as often thereafter as any further twenty continuous miles thereof shall be located, the said lands within the limits aforesaid shall be withheld from market and sale; and as soon as any twenty continuous miles of said branch road shall be completed, and as soon and as often thereafter as any further twenty continuous miles thereof shall be completed, the said lands within said limits shall be certified and conveyed to the said company by the governor of the state» And if, when, and as often as twenty continuous’miles of said branch road shall have been completed, with the cars running thereon, it shall be found that any portion of the said swamplands within the said seven miles have been sold or otherwise disposed of by the United States or this state, the amount shall be made up and supplied to said company out of the swamp-lands belonging to the state, to be selected by said company outside of said limits. And if, upon the completion of any twenty continuous miles of said road, as aforesaid, it shall be found that within the said seven miles of said line there shall not be an amount of swamp-lands on each side of said line, belonging to the state, equal to at least seven full sections per mile of said road so completed, then the said company shall have the right to and may select from the swamp-lands belonging to this state, outside of said seven-[577] mile limits, other swamp-lands in an amount equal to such deficiency, and the said lands so selected by said company outside of said seven-mile limits shall be certified and conveyed to said company by the governor of the state. And the said lands shall not be subject to taxation until the same shall have been sold and conveyed by the said company: provided, that if the said company shall not, within three years, construct and equip for business, with the cars, running thereon, at least twenty miles of said road, and the residue thereof within five years from the passage of this act, then and in that case all the lands hereby granted, appertaining to the unbuilt portion of the said branch road, shall be forfeited to the state.”
On this act the defendants make, in substance, the following propositions: (1) That it was not a present grant of the lands involved in the suit, or of any lands whatever; that at most it was a mere executory promise by the state to convey, upon the performance by the company of certain conditions; (2) that this promise does not involve an undertaking by the state to reserve or retain any swamp-lands outside the seven-mile limits for the company to select from when the right to select should accrue, but merely permission to the company to select from the swamp-lands which the state might have after it had, in the meantime, made such disposition of such lands as it pleased, by grant or otherwise; (3) that the state had, before any right of selection accrued to the company, disposed of the lands held by the trustees defendants, by vesting the title in them upon the trusts specified in the act of February 13, 1865, and that when the company made its selection, those lands did not belong to the state within the meaning of the act of March 6, 1863; (4) that if the act of March 6, 1863, was merely an executory promise to convey on the conditions specified, there was no promise or undertaking of the company to perform these conditions; that it lacked the element of mutuality to make it a binding contract, was therefore without consideration until the company should [578] commence to perform the conditions, and until that time the state might, at any time, withdraw its promise.
The terms of the act are those of present grant. “ There is hereby granted to, etc.” * * “All the lands hereby granted appertaining to the unbuilt portion of the said branch road shall be forfeited to the state.” Notwithstanding the difficulty of conceiving a grant which shall at once vest in the grantee the title, when the lands to which it is intended to apply are not known, acts of congress in the terms of this act have been held by the supreme court of the United States in a number of cases, and most distinctly in Schulenberg v. Harriman, 21 Wall. 44, to pass a. present title, which, at first imperfect, acquires precision and becomes attached to specific lands as soon as the land is ascertained. But upon the case presented we do not deem it necessary to decide the point; for the act is, if not a present grant, good as an executory contract to convey, even if it be conceded, that, as an executory promise on the part of the state, it was at first without mutuality of consideration, and for that reason might be withdrawn by the state before the company should do anything toward performing the conditions of the promise. It could not be withdrawn without notice to the company. No such notice appears from the complaint. It appears that the plaintiff performed the conditions, and, so far as the complaint shows, that the state not only gave no notice of an intention to withdraw its promise, but that it never intended to withdraw it.
It is immaterial so far as concerns this controversy whether the act be considered a present grant or an executory contract to convey. In either case it is equally binding upon the state. In the latter case, the state could not rightfully defeat the right of the company, upon its performing the conditions of {he act, to select and receive the lands intended by it. We see no such intention on the part of the legislature. The first section of the act of February 18, 1865, (Laws 1865, e„ 5,) which is claimed to have defeated this right of selec[579] tion, so far as concerns the lands held by the trustees, is as follows: “That as soon as the title to the swamp-lands donated by congress to the state of Minnesota shall become vested in this state, the commissioner of the state land-office shall, from the even-numbered sections of any such lands not otherwise disposed of prior to the passage of this act, proceed to select, or cause to be selected and set apart for the erection and support of an insane asylum, one hundred thousand acres of swamp-lands,” and so for the other institutions. The power of the commissioner to set apart lands pertained only to those “not otherwise disposed of prior to the passage of the act.” None of the lands referred to had as yet been ascertained and patented to the state, and they could have been disposed of prior to the passage of the act, and in advance of the title to them vesting in the state, only by grants similar to that to plaintiff. To save such grants was intended by confining the appropriation to state institutions to land not otherwise previously disposed of. The legislature did not intend to dispense its charities in the name of the state, but at the expense of those to whom it had made grants of swamplands. The commissioner of the land-office was, therefore, not authorized to set apart to the institutions named any swamp-lands except out of the surplus that should remain after prior grants and appropriations should be filled. And this was in strict accordance with honesty and good faith; for a contract by the state to convey to this plaintiff a designated number of sections of swamp-lands, and giving it the right to select, in order to make up deficiencies, from swamp-lands outside of the designated limits, involves the obligation on the part of the state to retain for such selection, if it receive them, enough of such lands to give effect to the right of selection.
The construction of the act of March 6, 1863, as to this feature, contended for by the defendants, is entirely inadmissible. On that construction the effectual right of selection would depend entirely upon the will of the state, for the [580] state would have the right to prevent it by disposing of the lands as fast as received. A contract by which the rights of one party, after performance on his part, would be at the absolute pleasure of the other would be an anomaly. It is true the act of 1863 implies that until the lands are ascertained inside of the limits by location of the line, and outside by selection, the state may keep them in the market for sale. This however, would be for sale in the ordinary course of the market, which could not seriously diminish the quantity of land, nor materially interfere with the plaintiff’s right of selection, and it does not contemplate a disposition of them en masse, or any other disposition except by ordinary sale.
What would be the respective rights between the plaintiff and other grantees of the state in grants made subsequent to the plaintiff’s, but completed by appropriation of the lands to them before a selection made by the plaintiff, leaving not enough for plaintiff to select from, we need not consider. The trustees do not stand in the position of such grantees. Beyond any question, they are merely agents or officers of the state, appointed to hold for it, and manage, the lands set apart for the hospital. The title is the title of the state, held for it by its agents or officers, as fully so as if the legislature, instead of appointing them for that purpose, had designated to perform the duties imposed on them the state auditor, or treasurer, or attorney-general, and had, for the more convenient performance of such duties, declared that the title to the lands set apart should vest in such officer. No one but the state has any'interest in the lands or control over them, except such as it permits, and as its agents. The control of the state, both over the legal title and the use, is absolute, and it is the control of the owner.
There is no analogy in this respect between the trustees, though they are a corporation, and a city, county, or other corporation created for municipal purposes. Such corporation is, indeed, created by, and its existence depends upon, the will of the state, but it is created for the benefit of, and [581] is maintained by, not the whole state, but the people of a district, who are cestuis que trust of the property held by the corporation. The state has no interest in it or right of control over it, except as sovereign. The lands held by the trustees belong to the state, and are within the designation in the act of 1863, of lands from which the plaintiff may select to make up its deficiencies, and, having selected' them, it is entitled to them.
Probably the most important question presented in the argument is, as to the amount of lands granted to the plaintiff by the act of 1863. The case might be decided without determining this, but each side wishes it decided, and the preamble to the joint resolution of 1873 seems to contemplate an action in which that question may be determined. We will therefore decide it. The plaintiff claims that the act granted fourteen full sections per mile. The defendants insist that it granted only seven full sections per mile.
The granting part of the act — that part in the section we have quoted — down to the words “governor of the state, ” first occurring, purports to grant to the company all the swamplands, more or less, lying within the limits of seven miles on each side of the line of road when located. The succeeding paragraph provides for giving to the company other swamplands in lieu of those which shall, at the time of such location, have been sold or otherwise disposed of within the limits, by the United States or state. Had the act stopped there, the whole amount of land to which the company was entitled would be measured by the amount of swamp-lands actually lying within those limits, and the amount which it might take outside of the limits by the amount disposed of within the limits, by the United States or state. In the construction of the act it is proper to observe that if it had been the intention to grant fourteen sections per mile, and no more and no less — and that is what plaintiff claims — the most obvious and natural way to have expressed the intention would have been to state that as the amount intended in the [582] granting part of the act, instead of stating, as the amount granted, all the swamp-lands lying within the limits.
Following the portions of the act referred to, is the language upon which the doubt arises, as follows: “And if, upon the completion of any twenty continuous miles of said road, as aforesaid, it shall be found that within the said seven miles of said line there shall not be an amount of swamp-lands on each side of said line, belonging to the state, equal to at least seven full sections per mile of said road so completed, then the said company shall have the right to and may select, from the swamp-lands belonging to this state outside of said seven-mile limits, other swamp-lands in an amount equal to such deficiency.” This is in the nature of a guaranty or undertaking on the part of the state that the swamp-lands designated in the granting part of the act, to wit, all the swamplands lying within the prescribed limits, shall be at least equal to a certain amount — that is, the state, having made a grant of all the swamp-lands, whatever the amount might be, within those limits, such amount being unknown, in order to induce the company to accept the grant and build the road, undertakes that if the quantities or amounts in the several subdivisions surveyed as swamp-lands, added together, do not equal a given number of full sections, it will make up the deficiency from its-swamp-lands outside of the limits.
The defendants claim that the number of full sections intended for the entire line is seven per mile, or equal to one-half of all the land lying within the strip; the plaintiff claims that it is fourteen, or equal to the whole of the lands within the strip. And it may be remarked again, as to this part of the act, that, had it been the intention to make up fourteen full sections per mile, the easiest, shortest and most obvious mode of expressing the intention would-have been by using the word fourteen instead of the word seven.
The words, “on each side of said line,” certainly indicate that the amount named in this part of the act — to wit, seven full sections per mile — is to apply to the half of the strip on [583] each side of the line, and not to the entire strip. On the other hand, the words, “equal to at least seven full sections per mile,” imply that within the space intended by the legislature there may be found to be more or less than the designated amount. There might be more than that amount of swamplands in the entire strip of fourteen miles wide; there could not by any possibility be more than that amount, and there was no probability that there would be as much as that amount, within each half of the fourteen mile strip. To make the sentence, standing by itself, clear and consistent, it is necessary to either change the position in it of the words “each side,” or reject from it entirely the words “at least.” As the grant is not in terms of fourteen sections per mile, nor of swamplands equivalent in amount to all lands lying within the strip of fourteen miles wide, but of all swamp-lands within the strip, with an undertaking to make up to the company so much as such swamp-lands should be found to fall short of a given amount in full sections, we think the words “at least” have an important place in the sentence, and ought not to be rejected from it. Putting it most favorably for the plaintiff, it is doubtful whether the act intends to give it seven or fourteen sections per mile, and within the rule that nothing will pass by legislative grant except what is clearly and manifestly intended by the legislature, the doubt requires a construction against the claim of the company. The grant is equivalent to a grant of seven full sections per mile, and no more.
The order appealed from, so far as it sustains the demurrer of the defendant Davis, -is affirmed. So far as it sustains the demurrer of the other defendants, it is reversed, but without costs.