State ex rel. Haire v. Rice

83 P. 874, 33 Mont. 365, 1906 Mont. LEXIS 5

• Court: Montana Supreme Court
• Decided: January 8, 1906
• Docket: No. 2,258
• Status: Published

Opinions

MB. JUSTICE HOLLOWAY

delivered the opinion of the court.

The Ninth Legislative Assembly of Montana passed an Act entitled, “An Act to enable the Normal School Land Grant to be further utilized in providing Additional Buildings and Equipment for the Montana State Normal College,” approved February 2, 1905. This Act authorizes the state board of land commissioners to issue bonds, sell the same, and apply the proceeds to the erection, furnishing, and equipment of an addition to the present State Normal School building at Dillon. It is provided that the funds realized from the sale or leasing of the lands granted by the United States to Montana for State Normal School purposes (100,000 acres), and the licenses received from permits to cut timber on any of said lands, are pledged as security for the payment of the principal and interest on such bonds, except such sums as may be necessary to pay other bonds heretofore issued. There is the further provision that the state of Montana shall not be liable for the payment of the bonds or the interest. Pursuant to the provisions of this Act, the state board of land commissioners issued coupon bonds to the amount of $75-000, dated May 1, 1905, in denominations of $1,000 each, bearing interest at four per cent per annum, payable semiannually, and caused the same to be executed as prescribed by such Act. Thereafter such bonds were duly advertised for sale by the state treasurer, and the state board of land commissioners submitted a bid for said bonds at par as an investment for the permanent common school fund, which bid was accepted, and, presumably, the money for the bonds paid over to the credit of the building fund of the Normal School, although this does not appear affirmatively from the petition filed herein.

This relator, having performed services in connection with the erection of the addition to the State Normal School building, presented a claim for $1,200 to the executive board of the State Normal School, which was allowed and approved by that board and allowed and ordered paid by the state board of examiners, a warrant issued for the same by the state auditor, and this warrant presented by the relator to the state treasurer, who refused to pay it. Thereupon this proceeding in mandamus was commenced to compel the state treasurer to pay said warrant. An alternative writ and an order to show cause issued, and upon the return the state treasurer, represented by the attorney general, moved to quash the alternative writ and dismiss the proceedings, upon the ground that the petition for the writ does not state facts sufficient to entitle the relator to any relief.

The contention of the respondent is that the Act of the Legislative Assembly above referred to is unconstitutional, first, because the Act authorizes the expenditure of funds received from the sale of the Normal School lands for the payment of these bonds; second, because the issuance of said bonds increases the indebtedness against the state of Montana to an amount in excess of $100,000; and, third, because the Act authorizes the expenditure of the money for the erection of a building for the State Normal School.

By the provisions of section 17 of the Act of Congress, approved February 22, 1889 (25 Stats, at Large 676), commonly known as the “Enabling Act,” there was granted to the state of Montana “For State Normal Schools” 100,000 acres of the public land. Other grants were made for the School of Mines, the Agricultural College, the State Eeform School, the Deaf and Dumb Asylum, and the State Capitol buildings; and by other sections of the same Act a grant of seventy-two sections of the public land was made for a University, and grants, additional to those mentioned in section 17, for the State Capitol buildings and Agricultural College. Other like grants of land were made by the same Act to the states of North Dakota, South Dakota and "Washington, and of the grants made by section 17 it is said: “And the lands granted by this section shall be held, appropriated, and disposed of exclusively for the purposes herein mentioned, in such manner as the legislatures of the respective states may severally provide. ’ ’

Section 5 of the Act of February 2, 1905 (Laws 1905, p. 5), provides that the state treasurer shall keep all moneys derived from the sale, leases, or sale of timber from lands granted in aid of the State Normal School, in a separate fund to be known as the “State Normal School Fund,” and out of this fund he shall pay the interest on these bonds as it accrues, and the principal at maturity.

Section 12 of Article XI of the Constitution of Montana provides: “The funds of the State University and of all other state institutions of learning, from whatever source accruing, shall forever remain inviolate and sacred to the purpose for which they were dedicated. The various funds shall be respectively invested under such regulations as may be prescribed by law, and shall be guaranteed by the state against loss or diversions The interest of said invested funds, together with the rents from leased lands or properties, shall be devoted to the maintenance and perpetuation of these respective institutions.”

Beyond question the State Normal School is one of the institutions of learning to which reference is here made, and, as it is the only one with which we are directly concerned in this proceeding, we may paraphrase section 12 above as follows: The funds of the State Normal School, from whatever source secured, shall be invested as prescribed by law, and the interest from such invested funds, together with the rents from leased lands belonging to the Normal School grant, shall be devoted to the maintenance of such Normal School. The provisions of this section of the Constitution are mandatory and prohibitory. (Sec. 27, Art. III.) The funds referred to mean all funds. They shall be invested to draw interest, and used for no other purpose. The interest from such invested funds, and the rents from lands belonging to this grant, which have not been sold — and not the principal sum derived from the sale of such lands or from the sale of timber- — shall be used for the maintenance and perpetuation of the Normal School, and for no other purpose. If, then, the principal sum received from the sale of lands belonging to the Normal School grant must be invested to draw interest, that principal sum cannot be used to pay off the principal of or interest on the bonds authorized by the Act of February 2, 1905, as provided by such Act.

It is apparent from the most casual reading of section 12 of Article XI of the Constitution, and section 5 of the Act of February 2, 1905 (Laws 1905, p. 5), above, that as soon as the treasurer receives any moneys from the sale of Normal School lands or timber therefrom into “The State Normal School Fund” such moneys shall be invested to draw interest, under such regulations as may be prescribed by law, and that only the interest on such invested funds, together with the rents from leased lands, can be devoted to the maintenance and perpetuation of the Normal School. If this section of the Constitution is to be given- force and effect, it is apparent that the Act in diverting the moneys received from the sale of Normal School lands, or the sale of timber therefrom, to the payment of these bonds, is in direct violation of the provisions of this section of the Constitution.

But on behalf of the relator it is contended that by the terms of section 17 of the Enabling Act the lands granted to the state for Normal School purposes are to be held, appropriated, and disposed of for Normal School purposes in such manner as the legislature of Montana may provide, and that this Act is sufficiently broad to warrant the legislature in borrowing money and pledging such lands for the payment of the principal and interest. And it is further contended that, if section 12 of Article XI of the Constitution contravenes the provisions of section 17 of the Enabling Act, section 12 is invalid and of no force or effect. It is perfectly apparent, then, that, in order to hold the Act of the legislature approved February 2, 1905, binding and the bonds issued in pursuance thereof valid, this court must hold section 12 of Article XI of the Constitution inoperative and of no effect. However, as the Constitution of Montana is the supreme law of this state, aside from the provisions of the Constitution of the United States and the treaties made and statutes enacted in pursuance thereof, it becomes incumbent upon this court to reconcile, if possible, the provisions of our Constitution with the Enabling Act under which the Constitution was adopted and the state admitted into the Union; for, however reluctant a court is to declare unconstitutional and invalid an Act of a legislative assembly, it will with even greater hesitation hold inoperative and invalid a provision of a state Constitution.

It is to be observed that the lands granted to the state by the Enabling Act are granted for specific purposes -which are clearly defined: 100,000 acres are granted for State Normal Schools, and the only limitation upon the grant is that such lands shall be held, appropriated, and disposed of exclusively for the purposes mentioned, in such manner as the legislature may provide. Under section 17 above the legislature might designate the agent to select and classify the lands. It might specify that the lands should be sold at private sale or at 'public auction. It might specify the quantity of land to be sold at any one time or the amount to be sold to any one individual. It might provide the terms upon which the land should be sold, and the price to be received for it. It might make suitable provision for renting the land, and fix the amount to be let to any one person and the price at which it should be let; and, finally, it might make provision for the sale of growing trees upon the lands selected under the terms of this grant. All of these provisions in section' 17 were met by legislative enactments. comprised in Title VIII, Part III, of the Political Code.

The question now arises: Does section 12 of Article XI of the Constitution contravene the provisions of section 17 of the Enabling Act? Is there any conflict between the provisions of the Enabling Act which grants to the state legislature authority to prescribe the manner in which these Normal School lands shall be held, appropriated, and disposed of, and the provisions of section 12 of Article XI of the Constitution, which provides that the funds of the State Normal School shall be invested, and only the interest from the invested funds, together with the rent from leased lands, may be used for the maintenance and perpetuation of the State Normal School? We are of the opinion that there is no conflict whatever. Under the provisions of section 17 of the Enabling Act the legislature has to do only with the manner of the management and disposition of the lands themselves, and cannot control the funds derived from sales or leases, except in conformity with the constitutional provisions of section 12 of Article XI above.

The lands were granted to the state of Montana, not to the Legislative Assembly. The legislature may say how the lands shall be held; but it is the state which holds them, which has title to them. It is the state which says what shall be done with the lands. The legislature may prescribe the manner of holding or disposing of them, but the title passes from the state, and the funds derived from sales or leases pass to the state, to be disposed of by the state as it may see fit, subject only to the condition that they shall be used exclusively for Normal School purposes. The state may act through its constitutional convention, and, if it does so, such action is conclusive. In the absence of constitutional provision, it may act through its legislative assembly. Therefore, when the Constitution says that all moneys coming into the State Normal School fund, from whatever source, shall be invested and only the interest and rental from leased lands shall be used for Normal School purposes, the legislature may prescribe the manner in which the funds shall be loaned, but it cannot say that they shall go into any other channel. The absence of any constitutional provision respecting the grant for Capitol Building purposes, and the grant of the Penitentiary at Deer Lodge City and the lands connected therewith, left the legislature free to make such disposition of these grants as it saw fit, so long as the original purpose of the respective grants was observed.

In the very highest sense the purpose of the grant in aid of the State Normal School is observed and carried into effect by section 12 of Article XI of the Constitution. In the wisdom of the framers of that instrument provision is made for the support of our State Normal School for all time. The principal sums derived from the sales of the lands or of timber are made to serve this institution by earning interest which may be applied to its maintenance and perpetuation, while the principal sums themselves are kept inviolate.

A great deal of consideration was given by counsel to the question whether or not the language of section 11 of the Enabling Act modifies the language of section 17; and, while we are of the opinion that it does not do so, under our view of the ease it is, not necessary to give further' attention to this feature of the ease. Neither are we disposed to enter into a discussion now as to whether the bonds authorized by this Act increase the state debt.

So far' as the other question is concerned, it need only be noticed in passing. The United States granted 100,000 acres of land to Montana “for State Normal Schools.” The Congress was only concerned in seeing that this grant was applied to the purpose for which made. It was apparent that, in order to be available, the lands must be utilized, and the Congress therefore left it to the legislature of this state to designate the manner in which such lands should be held, appropriated, or disposed of; but it went no further than this. It did not attempt to say when the Normal School should be instituted, how many Normal Schools should be established, or how the funds derived from the sale or leasing of these lands should be controlled or made to work out most effectually the end sought by the grant.

The constitutional convention adopted Ordinance No. 1, whereby the grant of these lands was accepted upon the terms and conditions provided in the Act; and as an extra precaution and as an additional safeguard section 12 of Article XI of the Constitution was adopted, making the grant in fact an endowment, and only the interest and rental immediately available for the use of the school, and such interest and rental may be used for any legitimate purpose connected with the maintenance or perpetuation of the school.

But it is said that other like bond issues have been made against these various land grants, and that for a number of years the legislative and executive branches of this state government have given to section 17 of the Enabling Act the construction for which contention is now made by this relator, and that such construction ought to be given great weight by this court. But, as said before, such construction has the effect of nullifying a section of our state Constitution, and this court ought to be slow indeed to declare such a result, no matter if the legislative and executive branches of the state'government m^y have done so. Furthermore, the rule that contemporaneous, construction by the department specially delegated to carry into effect a particular provision of law shall raise a strong presumption that such construction rightly interprets the provision, only becomes effective when there is a reasonable doubt as to the meaning of the provision. Such construction can never abrogate the text or fritter away its obvious sense. And acquiescence for no length of time in a- construction by the co-ordinate branches of government which has the effect of nullifying a provision of the Constitution will justify a court in adopting such construction unless it is the only reasonable one. (Cooley’s Constitutional Limitations, 7th ed., 104-106.) Furthermore, such construction, to be available as an argument, must have been uniform, and such is not the fact with reference to the subject now under consideration.

The Enabling Act was passed February 22, 1889, and it is not contended that any attempt was ever made by the legislative or executive departments of the state government to give to section 17 the construction now claimed for it by relator prior to March 6, 1895, when the first of these bond issues was authorized (Political Code, sections 1630-1637), so that the construction thereafter given by the legislature was not in fact contemporaneous with the passage of the Act. But, on the other hand, the constitutional convention met in July, 1889, and adopted section 12 of Article XI as the expression of- its interpretation of’ section 17 of the- Enabling Act and the Second Legislative Assembly passed an Act entitled “An Act to Provide for the Selection, Location, Appraisal, Sale, and Leasing of State Lands,” approved March 6, 1891 (Laws 1891, p. 174a), by the terms of which it is specifically provided that all moneys derived from the sale of these lands shall be invested, and only the interest of such invested funds and rental from leased lands shall be used for the purpose for which the grant was made. These provisions were re-enacted in an act of the Third Legislative Assembly, approved March 9, 1893 (Session Laws, 1893, p. 49), and again re-enacted in a Code provision (section 3509, Political Code) approved February 25, 1895. Thus, within five months after the Enabling Act was passed, we have a construction of section 17 of it, by the constitutional convention, directly opposed to the view now urged by relator, and we further have apparently the same construction placed upon it, or at least an attempt to carry into effect the idea of the framers of the Constitution, by every session of the legislature, barring the first — which did not accomplish anything in the way of legislation — from the time of the passage of the Enabling Act to March 6, 1895; and it does not affect the result to say that the various institutions had not been established prior to 1893.

It would seem that the early sessions of our legislature understood that the Congress meant that the state of Montana should in the first instance build the necessary buildings for a State Normal School out of its own proper funds, and that this bounty should constitute an endowment for the maintenance and perpetuation of such school for all time to come thereafter; and that this was the construction given to section 17 of the Enabling Act by our legislative assembly is demonstrated by the action tak.en by it at the time these several state institutions were established. The Third Legislative Assembly provided for the establishment and location of the Agricultural College, the University, the Normal School, and School of Mines, and made an appropriation for each of these institutions. That for the State Normal School is similar to the others, and provides for an appropriation of $15,000, and respecting this appropriation the Act says: “The money hereby appropriated shall be expended under the direction of the state board of education, in the manner and under such restrictions as may be provided by law, and for the purpose of establishing said State Normal School, by commencing the construction of suitable buildings for maintenance of said State Normal School.” It was clearly the understanding of the legislative assembly at that time that the state itself must erect the buildings, and it provided for the commencement of such work evidently with the idea that future legislatures would make other appropriations to complete the work then initiated. So that the construction given to section 17 of the Enabling Act by the Montana legislature has not been uniform, even if the terms of that section were of doubtful meaning, which does not appear to be the fact. We do not think that the construction given to that section since 1895 has been done under such circumstances, or that the result to be anticipated from a different construction now by the courts is of such character as to render applicable here the maxim, “Communis error facit jus.”

While we do not agree with the reasoning of the supreme courts of Washington and North Dakota respecting the meaning of section 11 of the Enabling Act, it is interesting to note that they have held legislation of the character of the Act of February 2, 1905, invalid, and bond issues similar to that authorized by our legislature void, and that, too, under the same Enabling Act and somewhat similar constitutional provisions. (State ex rel. Heuston v. Maynard, 31 Wash. 132, 71 Pac. 775; State ex rel. Board v. McMillan, 12 N. Dak. 280, 96 N. W. 310.) The Act of the legislature now under consideration in authorizing the expenditure of moneys received from the sale of Normal School lands, or the timber on lands granted in aid of the State Normal School, for the payment of these bonds or the interest accruing thereon, is in direct violation of the provisions of section 12, Article XI, of the State Constitution, and is therefore void and of no effect; and, being so, the state treasurer rightly refused to proceed under it and cannot be coerced by mandamus.

The alternative writ of mandamus is quashed and these proceedings are dismissed.

Dismissed.

Mr. Chief Justice Brantly concurs.