State Board of Land Com'rs v. Ririe

190 P. 59, 56 Utah 213, 1920 Utah LEXIS 39

• Court: Utah Supreme Court
• Decided: April 29, 1920
• Docket: No. 3463
• Status: Published

Opinions

GIDEON, J.

This is an original proceeding in this court. By it the State Land Board, and the individual members thereof, as plaintiffs, seek, by mandamus, to compel the defendant State Auditor to issue a warrant upon the Treasurer of the state in favor of the State Land Board in the sum of $20,000, to be used as a first payment on an investment of $110,000 in bonds of tbe town of Orem, located in Utah county.

Tbe board, at a regular meeting, bad. determined to make sucb investment from tbe funds under its control. On February 25, 1920, the board drew its notice and requisition directed to tbe Auditor, requesting him to issue bis warrant on tbe State Treasurer for tbe said sum of $20,000. Tbe Auditor refused to recognize tbe request and issue the warrant as directed; hence this proceeding.

Tbe defendant demurred to tbe petition on the ground that it does not state facts sufficient to entitle plaintiff to tbe relief sought. On that state of tbe record the matter has been argued and submitted to this court for decision.

Lengthy arguments are submitted, both on the part of tbe Attorney General for plaintiffs and by counsel for defendant, respecting tbe duties of tbe State Auditor. Tbe petitioners contend that it is no part of his duty to inquire into tbe purpose or object for which tbe state funds are to be investedthat tbe Land Board having decided that it is to tbe best interests of tbe state to make tbe investment and having issued tbe requisition, and tbe Auditor having satisfied himself that there is sufficient money in the particular fund upon which tbe warrant is ordered drawn to pay sucb warrant, and finding that the board is a legally constituted agency with authority to make the requisition, it then becomes bis duty, and bis only duty, to issue tbe warrant in accordance with tbe notice and requisition. On the other band, it is tbe contention of defendant that it is bis duty to inquire into tbe authority of the board to make tbe particular investment and that if such investment is not authorized by law it then becomes bis duty to decline to issue tbe warrant, and that this court will not, by mandamus or other order, coerce or compel him to comply with tbe notice and requisition.

Comp. Laws Utah, section 5715, defines the duties of tbe State Auditor. Subdivision 16 thereof reads as follows:

“To draw warrants on the State Treasurer for the payment of moneys directed' hy law to he paid out of the treasury; hut no warrant must be drawn unless authorized by law. Every warrant must be drawn upon the fund out of which it is payable and specify the apprdpriation applicable to the payment thereof.”

As we view this record, it is neither necessary nor desirable to enter into a lengthy discussion respecting the general duties imposed by law upon the Auditor. It may, however, be said, as a general proposition, which we think is within the authorities and supported by reason, that when money is appropriated for a particular purpose, and it is attempted to be used for a different purpose, then it is not only the Auditor’s privilege, but it his duty as well, to interpose an objection to such application of the funds. That 1, 2 would be the duty of any officer having to do with the funds of the state. He would, in fact, be derelict in his duty if he failed so to do. However, it is no concern of the Auditor, neither is it a part of his duty, to ascertain whether the investment is desifable or whether the security is sufficient. Whenever the Land Board, or any committee or official whose duty it is to determine those matters, has acted, such acts or conclusions are final and binding upon the Auditor, so long as the investment is authorized by law. If, therefore, the Land Board in this case has attempted to invest or pay out the funds intrusted to it for any purpose not authorized by law, then, clearly, the Auditor would be within his legal rights and duties in declining to move.

In State v. Tarpen, 43 Ohio St. at page 321, 1 N. E. at page 215, it is said:

“If bis [tbe auditor’s] duty is clear, its performance will not be excused by bis doubts concerning it, however strong or bonest they may be. It is not doubted that it is competent for an auditor to defend against an application for mandamus to compel bim to issue bis warrant on tbe treasurer, upon an allowance and order of tbe commissioners, by showing that tbe order was wholly unauthorized, and that tbe commissioners bad no authority to make it. State v. Yeatman, 22 Ohio St. 546. It is enough to say that in the present case no fact is shown which impeaches tbe original order of tbe commissioners, or excuses tbe auditor from obeying its command. His duty to draw bis warrant in favor of tbe relator is clear. That mandamus is tbe proper remedy to compel tbe performance of that duty is abundantly established by authority.”

The Land Board in this case has acted. It has decided to invest certain of the state’s money intrusted to it for investment in the bonds of the town of Orem. This court has the right to indulge the presumption, in the absence of any showing to the contrary, that the board has satisfied itself as to the desirability of the investment and the sufficiency of the security as well as the legality of the bonds. If the Land Board is authorized under the statutes to invest the state funds in the bonds of a town, then it is no part of the Auditor’s duty to question the wisdom of that investment. Neither is he required, nor is it his duty, to investigate 3 any of the preliminary steps leading up to the action of the Land Board in deciding to make the investment. The law has granted to, and imposed upon, the Land Board both that power and responsibility. In the very nature of things, in carrying on the affairs of the state, it could not be otherwise. If the Auditor were charged with the duty and responsibility of examining, and determining the regularity and desirability of the investment of the funds of the state, then, indeed, would conflicts, disputes, and general chaos follow. The law has vested no such duty or authority in the Auditor. It therefore only remains for this court to determine whether the Land Board has authority, under the statute creating it and defining its duties to invest the funds under its control in the purchase of town bonds. That is the precise question here presented and the one upon which, as we are advised, the judgment of this court is desired.

The act which is known as chapter 1, tit. 101, Comp. Laws Utah 1917, gives to the State Land Board the direction, management, and control of all lands which have heretofore been, or which may hereafter be, granted to the state by the United States government or otherwise, with power to sell or lease the same for the best interests of the state and in accordance with the provisions of said chapter and the Constitution of the state. It is also made the duty of the State Land Board to invest the funds arising from the sale and lease of such lands “in the manner provided in this chapter.” In section 5607 (which is a part of said chapter and title) it is provided:

“The hoard shall make the necessary orders for the investment or disposal of the funds derived from the sale and rental of public lands of the state, in the state treasury. Such funds shall be invested for and on account of the specific purposes for which the lands were granted, in government, state, county, city, or school district bonds. * * * Whenever the board shall order the investment of any part of such funds, said board shall notify the State Auditor of such order and the State Auditor shall draw a warrant for the amount stated in the notice in favor of the State Board of Land Commissioners, and the State Treasurer shall pay such warrant out of the funds designated. * * * ”

Defendant contends that, under tbe provisions of the foregoing statute,, the State Land Board is without authority to invest the state school funds in bonds of incorporated towns; that the act has undertaken to and does enumerate the political subdivisions whose bonds may be purchased by the board; that the mention or enumeration of certain municipalities or legal subdivisions of the state negatives the intent to authorize the investment in bonds of any other or additional political subdivisions. It is further contended that by the general statutes of the state cities and towns have different powers and are organized under different provisions of law; that their powers are not similar; and that the authority and powers delegated to trustees of towns are much more limited than those delegated to the governing bodies of cities. Therefore it is insisted that the Legislature, recognizing this difference, intentionally omitted the word towns from the statute enumerating the municipalities in the bonds of which the funds of the state may be invested.

It is the contention of the plaintiffs that Comp. Laws Utah 1917, section 5848, constitutes the rule of 4 construction to be applied to section 5607, supra. Section 5848, so far as material here provides:

“In tbe consrtuction of the statutes the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the Legislature or repugnant to the context of the statute: * * * (21) The word ‘town’'may mean incorporated town and may include cities, and the word ‘city’ may mean incorporated town.”

In 36 Cyc. 1105, it is said:

“It is competent for the Legislature to enact rules for the construction of statutes, present or future, and when it has done so each succeeding Legislature, unless a contrary intention is plainly manifested, is supposed to employ words and frame enactments with reference to such rules.”

It is a well-recognized rule of construction that, in order to determine the intent of the Legislature, the words used must be considered in their relationship to the 5 context and the general purpose or intent of the act in which such words are found.

The evident intent of the particular section under consideration was to direct or provide for the investment of the funds in the custody of the Land Board in securities usually considered safe, and such as would in due course be redeemed, both principal and interest. It is therefore pertinent to inquire what elements of security, if any, a city bond has over that of a town bond. In every ease the final answer to such inquiry must depend (a) upon the prior indebtedness of such city or town; (b) the value of the taxable property in such city or town. The ascertainment of these facts are questions that must, in tbe present case, be left to the determination of the Land Board. Authority is granted towns to issue bonds for certain specific municipal purposes, and we, as before indicated, assume that the bonds of the town of Orem have been regularly authorized and are legally issued. Such being the case, the town trustees have the same power and authority to levy taxes for the redemption of such bonds as have city officials. That the powers of the governing bodies of cities and towns may differ in other respects ought not to be of much influence in the determination of the question here involved.

The act in question was first adopted in 1897 (Laws 1897, chapter 37), and the provision above quoted was substantially the same in the original enactment as in the present law. It was carried forward into the revision of 1898 (Rev. St. 1898, section 2357), then into the compilation of 1907 (Comp. Laws 1907, section 2357. The Legislature amended said section 5607 in 1911 (Laws 1911, chapter 71), and again in 1915 (Laws 1915, chapter 37). As amended it was carried into the Compiled Laws of 1917. It was again re-enacted and amended in 1919 (Laws 1919, chapter 109). The particular part of the statute authorizing the investment of the funds in the custody of the Land Board “in government, state, county, city or school district bonds” has remained the same from the original enactment through all revisions, compilations, and amendments down to the present law.

It has been the custom of the Land Board for more than fourteen years to invest funds in its custody in town bonds within this state. Such is a matter of public record, both in the Auditor’s office and in the office of the State Land Board. The Auditor and the State Land Board are 6 parts and parcels of the executive department of the state. This court, therefore, is authorized to and will take judicial notice of the acts and proceedings of the two offices. Comp. Laws Utah 1917, section 7076.

The Legislature is presumed to know the construction placed upon the language of the act by both the Land Board and the State Auditor. Notwithstanding that fact, the Legislature has met biennially, and there have been three revisions or compilations of the statutes since the original enactment. Furthermore, the particular section has been amended by the Legislature in 1911, 1915, and 1919. At no time, apparently, has the Legislature been dissatisfied with the interpretation of the Land Board and the State Auditor, but has given its affirmative approval by the reenactment of the section with full knowledge of the 7, 8 interpretation placed upon it. "While it is true that the construction of a statute by the executive department is not binding upon the courts, it is, nevertheless, also true, and is so determined by the overwhelming weight of authority, that unless such construction does violence to the apparent intent of the language used it is entitled to serious consideration by the courts, and especially so if the statute bas been in force for any great length of time and has been so construed. Tbe general rule .under such facts may be found stated in Black, Int. Laws (2d Ed.) section 94. There the author says:

“The executive and administrative officers of the government are hound to give effect to the laws which regulate their duties and define the sphere of their activities, and in so doing they must necessarily put their own construction upon such acts. * * * Now, such practical constructions are never binding upon the courts. * * * But it is a rule, announced by the Supreme Court of the United States at an early day, and which has since been followed in numerous cases, both in the federal and state courts, that the contemporaneous construction put upon a statute by the officers who have been called upon to carry it into effect, made the basis of their constant and uniform practice for a long period of time, and generally acquiesced in, and not questioned by any suit brought, or any public or private action instituted, to test and settle the construction in the courts, is entitled to great respect; and if the statute is doubtful or ambiguous, such practical construction ought to be accepted as in accordance with the true meaning of the law, unless there are very cogent and persuasive reasons for departing from it.”

In Bloxham v. Consumers’ Elec. L. & St. R. Co., 36 Fla. at page 540, 18 South, at page 446, 29 L. R. A. at page 509, 51 Am. St. Rep. at page 47, the court says:

“Besides, the judicial construction of statutes, there is known to the law another kind of construction. This kind of construction has especial application to statutes made for the regulation of the different departments of the government, and is the interpretation put upon them by the actual administration of them by such departments. As distinguished from judicial construction, it is called the practical construction of statutes. While not of such high authority as a judicial interpretation of the act, such practical construction of the class of statutes referred to, when not in conflict with the Constitution or the plain intent of the act, is of great persuasive force and efficacy.”

The second headnote to City of Louisville v. Louisville School Board, 84 S. W. 729 (119 Ky. 574), which correctly reflects the decision, reads as follows:

“The contemporaneous construction of legislation, covering a long period of time, by those charged with its enforcement, is highly persuasive of the correctness of that interpretation, especially where the Legislature readopts the act without change after the construction has been given.”

The syllabus to State v. Sheldon, 79 Neb. 455, 113 N. W. 208, reads as follows.

“When a statute has for nearly forty years been practically construed by the officers whose duty it is to enforce it, and has during that time been several times re-enacted by the Legislature in substantially the same terms, such construction will be regarded as adopted by the Legislature, although the language of the statute would indicate a different meaning.”

The second beadnote to Van Veen v. Graham County, 108 Pac. 252 (13 Ariz. 167), reads as follows:

“Where the Legislature re-enacts a statute after uniform construction by the officers required to act under it, the presumption is that the Legislature knew of such construction, and adopted it in re-enacting the statute.”

We are of the opinion that by reason of the interpretation of this law by the executive department and its implied adoption by' the Legislature, the provision of the statute that the word “city” may include incorporated towns, and it not appearing that such interpretation is inconsistent with the manifest intent of the Legislature or repugnant to the context of the statute, that this court ought not, under all the surrounding facts, adopt a construction contrary to that given the statute by the executive department. No, “very cogent and persuasive reasons for departing from” such construction have been suggested. These conclusions are supported by the opinion of this court in Mutart v. Pratt, 51 Utah 246, 170 Pac. 67.

Moreover, and aside from the rule of construction stated in our statute-, it is held by the great weight of authority that “cities include towns.” 11 C. J. 790. See, also, note “City as Including Towns and Villages,” Ann. Cas. 1914B, 215.

The alternative writ of mandate heretofore issued is vacated and a peremptory writ is ordered issued.

CORFMAN, C. J., and WEBER, J., concur.