ME. JUSTICE SMITH
delivered the opinion of the court.
In April, 1910, an action was begun in the district court of Sanders county by one Steele and others against the state of Montana and others, for the purpose of condemning certain lands belonging to the defendants, by the exercise of the power of eminent domain. The state interposed a demurrer to the complaint, on the grounds that the court had no jurisdiction of the person of that defendant or of the subject of the action; and that the complaint did not state facts sufficient to constitute a cause of action. The district court overruled the demurrer, whereupon the state, through the attorney general, sued out of this court an alternative writ of prohibition commanding the district court and the Honorable Henry L. Myers, one of the judges thereof, to desist from exercising jurisdiction in said action until the further order of this court, and to show cause, at a day named therein, why a mandatory and permanent writ of prohibition should not issue. The respondents appeared and answered, and the cause has been argued.
The complaint in the case of Steele and others against the state of Montana and others, alleges that the plaintiffs are about [112]*112to construct a dam across the Clark’s Fork of the Columbia river, a navigable stream, for the purpose of generating electricity for general sale; that the state is the owner of the bed of the stream and also of the land between low and high water marks; also of certain lots in section 36, township 22 north of. range 30 west, in the county of Sanders, situated on both sides of said river, upon which it is proposed to place the abutments of the dam; that plaintiffs also intend to flood portions of section 36; that the dam will rest upon the bed of the stream. The prayer of the complaint is that the use to which plaintiffs seek to devote the land be declared to be a public use; that they be adjudged to be entitled to perpetually use the same for that purpose; and that commissioners be appointed to ascertain and determine the amount to be paid by them to the defendants, as damages.
1. Plaintiffs in the condemnation proceedings claim the right to take the lands in question, by virtue of the provisions of section 7333, Revised Codes, subdivision 2 of which reads as follows: ■“The private property which may be taken under this title [Title VII, Eminent Domain], includes * * * 2. Lands belonging to the state, or to any county, city or town, not appropriated to some public use. ” It is contended by the attorney general that this section of the Codes does not give consent for the state to be sued and does not authorize a suit to condemn lands owned by the state. The supreme court of Idaho, in Hollister v. State, 9 Idaho, 8, 71 Pac. 541, speaking of a similar statute, said: “This statute alone would not authorize this action.” It then decided that authority is granted by another statute of Idaho, so that it will be seen that the remark above quoted was an unnecessary one. Although the opinion is not very clear upon the point, the California court of appeals, in California & N. Ry. Co. v. State, 41 Cal. App. 142, 81 Pac. 971, appears to have held that a statute similar to ours authorizes a suit against the state. We are of opinion that the supreme court of Idaho was wrong in saying that such a statute does not authorize the action. The language appears to us to be clear, and if it means anything at all, it means that lands belonging to the state may be taken by [113]*113the exercise of the power of eminent domain, and that the state may properly be made a party to the action. In other words, the state has expressly consented to be sued under such circumstances.
2. It will be observed that a part of the land sought to be taken is in section 36, commonly known as a school section, and the attorney general argues that on that account it cannot be taken in condemnation proceedings, for the reason that “state school lands can only be disposed of in accordance with the terms of the grant to the state, the Constitution, and general laws consistent with both.”
Section 10 of the Enabling Act provides in part: “Upon the admission of each of said states into the Union, sections numbered 16 and 36 in every township * * * are hereby granted to said states, for the support of common schools. * * * ” Section 11 provides: “That all lands herein granted for educational purposes shall be disposed of only at public sale, and at a price not less than ten dollars per acre, the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools. But said lands may, under such regulations as the legislatures shall prescribe, be leased for periods of not more than five years, in quantities not exceeding one section to any one person or company; and such lands shall not be subject to pre-emption, homestead entry or any other entry under the land laws of the United States, whether ■surveyed or unsurveyed, but shall be reserved for school purposes only.”
Section 7 of Ordinance No. 1, appended to the state Constitution, reads thus: “The state hereby accepts the several grants of land from the United States to the state of Montana mentioned in an Act of Congress (the Enabling Act) upon the terms and conditions therein provided.”
Section 1 of Article XYII of the state Constitution reads as follows: “All lands of the state that have been, or that may hereafter be granted to the state by Congress, and all lands acquired by gift or grant or devise, from any person or corpora[114]*114tion, shall be public lands of the state, and shall be held in trust for the people, to be disposed of as hereafter provided, for the respective purposes for which they have been or may be granted, donated or devised; and none of such land, nor any estate or interest therein, shall ever be disposed of except in pursuance of general laws providing for such disposition, nor unless the full market value of the estate or interest disposed of, to be ascertained in such manner as may be provided by law, be paid or safely secured to the state; nor shall any lands which the state holds by grant from the United States (in any case in which the manner of disposal and minimum price are so prescribed) be disposed of, except in the manner and for at least the price prescribed in the grant thereof, without the consent of the United States. # # * ”
It has been repeatedly held that the fund created from the sale of lands granted to the state by the federal Congress for a particular purpose is a trust fund ‘ ‘ established by law in pursuance of the Act of Congress.” (See State ex rel. Bickford v. Cook, 17 Mont. 529, 43 Pac. 928; State ex rel. Dildine v. Collins, 21 Mont. 448, 53 Pac. 1114; State ex rel. Koch v. Barrett, 26 Mont. 62, 66 Pac. 504.) Section 7332, Revised Codes, provides, in part: “The following is a classification of the estate and rights, in lands subject to be taken for public use: 1. A fee simple, when taken for public buildings or grounds or for permanent buildings, for reservoirs and dams, and permanent flooding occasioned thereby, or for an outlet for a flow, or a place for the deposit of debris or tailings of a mine. ’ ’ It seems clear from the allegations of the complaint that the plaintiffs in the Steele case seek to take a fee simple title to the lands of the state. We hold that the title in fee to state common school lands, granted by section 10 of the Enabling Act, cannot be acquired in condemnation proceedings. In the case of Hollister
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ME. JUSTICE SMITH
delivered the opinion of the court.
In April, 1910, an action was begun in the district court of Sanders county by one Steele and others against the state of Montana and others, for the purpose of condemning certain lands belonging to the defendants, by the exercise of the power of eminent domain. The state interposed a demurrer to the complaint, on the grounds that the court had no jurisdiction of the person of that defendant or of the subject of the action; and that the complaint did not state facts sufficient to constitute a cause of action. The district court overruled the demurrer, whereupon the state, through the attorney general, sued out of this court an alternative writ of prohibition commanding the district court and the Honorable Henry L. Myers, one of the judges thereof, to desist from exercising jurisdiction in said action until the further order of this court, and to show cause, at a day named therein, why a mandatory and permanent writ of prohibition should not issue. The respondents appeared and answered, and the cause has been argued.
The complaint in the case of Steele and others against the state of Montana and others, alleges that the plaintiffs are about [112]*112to construct a dam across the Clark’s Fork of the Columbia river, a navigable stream, for the purpose of generating electricity for general sale; that the state is the owner of the bed of the stream and also of the land between low and high water marks; also of certain lots in section 36, township 22 north of. range 30 west, in the county of Sanders, situated on both sides of said river, upon which it is proposed to place the abutments of the dam; that plaintiffs also intend to flood portions of section 36; that the dam will rest upon the bed of the stream. The prayer of the complaint is that the use to which plaintiffs seek to devote the land be declared to be a public use; that they be adjudged to be entitled to perpetually use the same for that purpose; and that commissioners be appointed to ascertain and determine the amount to be paid by them to the defendants, as damages.
1. Plaintiffs in the condemnation proceedings claim the right to take the lands in question, by virtue of the provisions of section 7333, Revised Codes, subdivision 2 of which reads as follows: ■“The private property which may be taken under this title [Title VII, Eminent Domain], includes * * * 2. Lands belonging to the state, or to any county, city or town, not appropriated to some public use. ” It is contended by the attorney general that this section of the Codes does not give consent for the state to be sued and does not authorize a suit to condemn lands owned by the state. The supreme court of Idaho, in Hollister v. State, 9 Idaho, 8, 71 Pac. 541, speaking of a similar statute, said: “This statute alone would not authorize this action.” It then decided that authority is granted by another statute of Idaho, so that it will be seen that the remark above quoted was an unnecessary one. Although the opinion is not very clear upon the point, the California court of appeals, in California & N. Ry. Co. v. State, 41 Cal. App. 142, 81 Pac. 971, appears to have held that a statute similar to ours authorizes a suit against the state. We are of opinion that the supreme court of Idaho was wrong in saying that such a statute does not authorize the action. The language appears to us to be clear, and if it means anything at all, it means that lands belonging to the state may be taken by [113]*113the exercise of the power of eminent domain, and that the state may properly be made a party to the action. In other words, the state has expressly consented to be sued under such circumstances.
2. It will be observed that a part of the land sought to be taken is in section 36, commonly known as a school section, and the attorney general argues that on that account it cannot be taken in condemnation proceedings, for the reason that “state school lands can only be disposed of in accordance with the terms of the grant to the state, the Constitution, and general laws consistent with both.”
Section 10 of the Enabling Act provides in part: “Upon the admission of each of said states into the Union, sections numbered 16 and 36 in every township * * * are hereby granted to said states, for the support of common schools. * * * ” Section 11 provides: “That all lands herein granted for educational purposes shall be disposed of only at public sale, and at a price not less than ten dollars per acre, the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools. But said lands may, under such regulations as the legislatures shall prescribe, be leased for periods of not more than five years, in quantities not exceeding one section to any one person or company; and such lands shall not be subject to pre-emption, homestead entry or any other entry under the land laws of the United States, whether ■surveyed or unsurveyed, but shall be reserved for school purposes only.”
Section 7 of Ordinance No. 1, appended to the state Constitution, reads thus: “The state hereby accepts the several grants of land from the United States to the state of Montana mentioned in an Act of Congress (the Enabling Act) upon the terms and conditions therein provided.”
Section 1 of Article XYII of the state Constitution reads as follows: “All lands of the state that have been, or that may hereafter be granted to the state by Congress, and all lands acquired by gift or grant or devise, from any person or corpora[114]*114tion, shall be public lands of the state, and shall be held in trust for the people, to be disposed of as hereafter provided, for the respective purposes for which they have been or may be granted, donated or devised; and none of such land, nor any estate or interest therein, shall ever be disposed of except in pursuance of general laws providing for such disposition, nor unless the full market value of the estate or interest disposed of, to be ascertained in such manner as may be provided by law, be paid or safely secured to the state; nor shall any lands which the state holds by grant from the United States (in any case in which the manner of disposal and minimum price are so prescribed) be disposed of, except in the manner and for at least the price prescribed in the grant thereof, without the consent of the United States. # # * ”
It has been repeatedly held that the fund created from the sale of lands granted to the state by the federal Congress for a particular purpose is a trust fund ‘ ‘ established by law in pursuance of the Act of Congress.” (See State ex rel. Bickford v. Cook, 17 Mont. 529, 43 Pac. 928; State ex rel. Dildine v. Collins, 21 Mont. 448, 53 Pac. 1114; State ex rel. Koch v. Barrett, 26 Mont. 62, 66 Pac. 504.) Section 7332, Revised Codes, provides, in part: “The following is a classification of the estate and rights, in lands subject to be taken for public use: 1. A fee simple, when taken for public buildings or grounds or for permanent buildings, for reservoirs and dams, and permanent flooding occasioned thereby, or for an outlet for a flow, or a place for the deposit of debris or tailings of a mine. ’ ’ It seems clear from the allegations of the complaint that the plaintiffs in the Steele case seek to take a fee simple title to the lands of the state. We hold that the title in fee to state common school lands, granted by section 10 of the Enabling Act, cannot be acquired in condemnation proceedings. In the case of Hollister v. State, supra, the supreme court of Idaho took an opposite view. Mr. Justice Ailshie, writing the opinion, said: “Again it is urged by appellant that the court had no jurisdiction of the subject matter of the action; that the.Act of Congress known as the ‘Idaho Ad[115]*115mission Act, ’ granting sections 16 and 36 in each township to the state for school purposes, and providing that such lands ‘shall be disposed of only at public sale, the proceeds to constitute a permanent school fund,’ prohibited the taking of this property under the claim of eminent domain. Under this Act it is claimed that the state cannot authorize any disposition of such lands other than at public sale, and that, therefore, the court had no jurisdiction of an action to condemn any such lands to a public use. * * * When Idaho became a state, it at once necessarily assumed the power of eminent domain, one of the inalienable rights of sovereignty; and that right, we take it, may be exercised over all property within its jurisdiction. # * * But even if Congress had the authority, in granting these lands to the state, to restrict and prohibit the state in the exercise of the power of eminent domain, we do not think it was intended or attempted in the Admission Act. It was evidently the purpose of Congress in granting sections 16 and 36 in each township to the state for school purposes to provide that the revenue and income from all such lands should go to the school fund, and that" when sold it should be at the highest market price. We cannot believe that Congress meant to admit into the Union a new state, and by that very act throttle the purposes and objects of statehood by placing a prohibition on its internal improvements. To prohibit the state the right of eminent domain over all the school lands granted would lock the wheels of progress, drive capital from our borders, and in many instances necessitate settlers who have taken homes in the arid portions of the state seeking a livelihood elsewhere.” We are unable to agree with the reasoning of the learned judge. It seems to us that the decision on this point simply amounts to a declaration that the Congress of the United States did not mean what it said when it commanded that sections 16 and 36 in every township should be sold at public sale. Neither can we agree that there is any question of the right of the United States to dictate and restrict the manner in which the state shall dispose of the lands. They all belonged to the United States; a grant to the state, as trustee for its common [116]*116schools, was in contemplation, and we know of no authority which has the power to question the right of the grantor to make such terms as it saw fit. Neither is there any authority in the state to change the terms of the grant without the consent of the Congress of the United States. The framers of the state Constitution did not attempt to do so. They expressly agreed, for the state, not to dispose of any lands granted by the United States in any case in which the manner of disposal was prescribed in the grant, except in the manner prescribed, without the consent of the United States. It is expressly declared in the Enabling Act that the territory of Montana may become the state of Montana “as hereinafter provided”; that “sections 16 and 36 are hereby granted for the support of common schools”; that “all lands herein granted for educational purposes shall be disposed of only at public sale.” The Congress is presumed to have had good and sufficient reason for thus restricting the right of alienation, and the state solemnly accepted the conditions. If those restrictive words can be disregarded in favor of the right to exercise eminent domain, then the condition of the grant is not general in its application, as its phraseology would appear to indicate, exceptions may be read into it, and the entering wedge be inserted by which the safeguard may be entirely broken down and removed.
The supreme court of Washington, in State ex rel. Heuston v. Maynard, 31 Wash. 132, 71 Pac. 775, said: “The manner of the disposition of the sale of such lands * * * is subject to the limitations contained in section 11 of the Act.” The supreme court of North Dakota, in State ex rel. Board v. McMillan, 12 N. D. 280, 96 N. W. 310, said: “Perhaps it is not necessary to state that by the acceptance of the grant for educational purposes * * * a trust was created, the character of which was fixed by the terms of the grant. By the mere acceptance of the grant the honor of the state was pledged to the observance of the obligation of the trust, * * * ”
We cannot think that the mere fact that certain individuals may not condemn a portion of a school section which happens to [117]*117be particularly advantageous as a dam-site for generating electricity will have the effect of placing a prohibition upon internal improvements, or lock the wheels of progress, or necessitate the removal of settlers. Provision is made for the disposal of these lands at public sale, and in our judgment this provision will eventually be invoked not only to enhance and énlarge the internal improvements of the state, but to put money into the common school fund at the same time. Not such a sum as three commissioners or a petit jury in a county may think adequate, but such an amount as shall be realized from competitive bidding in open and unrestricted competition. We think the Congress of the United States and the framers of our Constitution so intended, and we so hold.
Rehearing denied, December 12, 1910.
While it is true that the power of eminent domain is one of the inherent and inalienable rights of sovereignty, and may ordinarily be exercised over all property within the jurisdiction of the state, it is not to be supposed that this right is so limitless as to enable the state to violate its contract with the federal government.
Other questions are raised and argued in the briefs of counsel, but it is thought that the foregoing disposition of the main question makes the solution of others unnecessary. If we are in error, the fact may be brought to our attention.
It is ordered that a writ issue prohibiting the respondents from further proceeding in the case of Steele et al. v. The State of Montana et al., in so far as such proceedings will in any way affect those portions of section 36, township 22 north of range 30 west, county of Sanders and state of Montana, mentioned and described in the plaintiffs’ complaint. Costs to the relator.
Writ granted.
Mr. Justice Holloway concurs.
Mr. Cheep Justice Brantly, being absent, takes no part in the foregoing decision.