State ex rel. Bickford v. Cook

43 P. 928, 17 Mont. 529, 1896 Mont. LEXIS 32

• Court: Montana Supreme Court
• Decided: February 24, 1896
• Status: Published

Opinion

Hunt, J.

In order to erect and complete a state capitol, the legislature, by the act of March 7, 1895, created a board to be known as the ‘ ‘State Capitol Commission, ’ ’ defining its duties, fixing the compensation of • its members, and prescribing their terms of service. Five members compose the commission, relator being one. The members are appointed by the governor, by and with the advice of the senate. The term of office is until the completion of the capitol, and the acceptance thereof by the state. Each commissioner shall give bond, conditioned for the faithful performance of the duties imposed by law. These duties are of a very important nature. They exact a high degree of intelligence and care due to the public in the selection of proper architectural designs, plans, and specifications for a statehouse, to cost, when completed, a million dollars. The selection of an architect and a superintendent of construction devolves upon the commission. All disbursements on account of the construction of the capitol shall be made pursuant to certificates issued by the board, and all claims shall be passed upon after careful examination oh every item thereof.

The statute creating the commission contemplated that the construction of the capitol would last several years; and, in order that the people xnay be kept fully advised of how the commissioners are fulfilling their duties, the secretaiy of the board is oblig?d to prepare full financial reports each year, which shall be published in two newspapers, and a copy shall be transmitted to the legislature. The compensation of each commissioner is five dollars a day for each and every day he is actually engaged in the performance of his official duties. Clearly, the members of the commission are public agents, with tenure, duration, emolument, powers, and duties under the statute ref erred to. (United States v. Hartwell, 6 Wall. 385; Throop, Pub. Off. §§ 3, 4, seg; Com. v. Evans, 74 Pa. St. 124; State v. Burke, 8 Wash. 412, 36 Pac. 281.)

Having determined that capitol commissioners are officers, we find their compensation is fixed by the law above .referred to, and that the services of the commissioners and their expenses shall be “certified to the state auditor with vouchers therefor, such warrants to be drawn on the state capitol fund. ’ ’ (Political Code, § 2442.) Under section 20, art. VII, of the constitution, the state board of examiners has nothing to. do with the compensation of “officers fixed by law. ” Where, the rate of compensation, and the kind of service to be paid for, are established and provided for by statute, and the amount of compensation for every act of service is definitely fixed by law, and the sum to be paid to the officer is out of a particular fund, and is to be ascertained and certified, as in this case, by the board of capPol commissioners, the state board of examiners is not required to pass upon such claim. The computation and allowance of the commissioners’ mileage is but an incident to the compensation. It is to be certified to the state auditor, with vouchers and warrants, then to be drawn on the state capitol building fund.

In no event is the compensation of the commissioners, under the law creating the board, a claim against the state.' When congress made a grant of land to the state for public buildings at the capital of the state, by act of congress approved February 22, 1889, providing for the admission of the state into the Union, it was enacted that the lands so granted should be held, appropriated, and disposed of exclusively for the purposes mentioned in the act, in such manner as tbe legislature of the state might provide. The state, by Ordinance No. 1, § 7, has accepted these lands for the purposes specified, and by legislation has provided for the erection of a capitol, exclusively out of moneys from a fund to be created from the disposition of the lands so granted by congress. The state is an agent to carry out the objects of the donation. The fund created by the statute is a trust fund established by law in pursuance of the act of congress. It is not a state fund in the sense that moneys realized from taxes, for instance, and in the public treasury, are state funds. Nor is the disbursement of this capitol fund an expenditure of the state, within the meaning of expenditures generally referred to in the constitution.

The restrictions of section 12, art. XII, of the constitution, forbidding appropriations or expenditures by the legislature whereby the expenditures of the state during any fiscal year shall exceed the total tax then provided by law, unless provision is made for levying a special tax, not exceeding the rate allowed by the constitution, are therefore not applicable to this trust fund. The state cannot use the fund created by this act for any purpose except as provided for by the act of congress. The state officers have no control over it, except to carry out the trust relation; and the treaurer is merely an agent for receiving and disbursing the fund under the act of congress, and in manner provided by the law of the state. So, too, the auditor is but one of the agents or subagents designated by the law of the state in the execution of the trust. All this seems very clear to us from the law. It is also in full accord with the decision of the supreme court of Washington, where, under the same act of congress above referred to, a similar grant of lands was made by the United States to that state for state buildings at the state capital, and a like question to this at bar was before the court. (Allen v. Grimes (Wash.) 37 Pac. 662.) In the execution of the trust no state debt is created, for the law (section 2454, Political Code) especially prohibits the appropriation of any moneys except the funds derived from the sale or rental of lands granted for erecting public buildings at the state capital, and known as the “State Capitol Building Fund. ” As was said by Justice Stiles in Washington: “There is, under the law, absolutely no obligation resting upon the state to pay any sum whatever, and those who may receive the auditor’s warrants will be limited in their rights to the requirement of the proper officers to perform their duties as prescribed by the statute. ’ ’ (Allen v. Grimes, supra.)

As no indebtedness against the state can be created by the issuance of warrants drawn against the specific fund, the provisions of section 12, art. XII, of the constitution, restricting the powers of the legislature to create debts within certain limitations, do not obtain. Nor has the board of examiners any duty to perform in passing upon the claims against the capitol fund. The legislature had the power to control the fund and its disposition for the specific purposes for which the lands are granted. It therefore had the right, unless otherwise restricted by the act of congress or the law of the state, to appropriate amounts in, anticipation of moneys to be realized from the sales of the lands granted, and by sections 2442, 2454, Political Code, warrants upon such fund may be drawn and registered by the officers mentioned in the statute as agents of the state, whether there are moneys on hand to meet the warrants or not.

We know of no constitutional limitation upon the price for which lands granted by congress to the state may be disposed of for the erection of public buildings at the capital. The limitation created by the enabling act relates to lands granted for educational purposes. Sections 12, 17, and 11 of the act of congress “to provide for the division of Dakota into two states, and to enable the people of * * * Montana * * * to form a state constitution,” etc. (section 1, art. XVII, const.), are not pertinent.

The only other material point raised by the answer is the alleged ineligibility of Charles F. Lloyd and William K. Floweree to the office of capitol commissioner. This being a collateral question, it cannot be tried in this proceeding. (Carland v. Custer Co., 5 Mont. 579; Reed v. City of Buffalo, 4 Abb. Dec. 22.) Even if the persons named were ineligible upon principles of policy and justice, the law holds the acts of an officer de facto valid, so far as the public are concerned in the exercise of the duties of the office, where he acts under color of a known appointment from competent authority. (State v. Carroll, 38 Conn. 449; Conover v. Devlin, 15 How. Prac. 470.)

The demurrer to the answer is well taken, and must be sustained. The relator is entitled to the relief prayed for, and a writ will be issued accordingly.

Writ granted.

Pemberton, C. J., and De Witt, J., concur.