Betts v. Comm'rs of the Land Office

• Citation: 1910 OK 51,27 Okla. 64,110 P. 766
• Decision Date: 11 February 1910
• Docket Number: Case Number: 1222
• Parties: BETTS v. COMMISSIONERS OF THE LAND OFFICE.
• Court: Supreme Court of Oklahoma

1910 OK 51

110 P. 766

27 Okla. 64

BETTS v. COMMISSIONERS OF THE LAND OFFICE.

Case Number: 1222

Supreme Court of Oklahoma

Decided: February 11, 1910

Syllabus

¶0 1. PUBLIC LANDS--State Land Office--Expenses--Funds Available. Under the terms of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267), the state is not prohibited from using ft part of the proceeds of the sale of the lands granted by the federal government to the state of Oklahoma for the State University and University Preparatory School, normal schools, the Agricultural and Mechanical College, and the Colored Agricultural and Normal University, penal institutions, and public buildings, and for the support of the common schools, or rentals therefrom, to pay the expenses of the sale or leasing thereof.

2. SAME--Common School Fund--Enabling Act. Under the provisions of the enabling act, the state is not prohibited from using any of the interest derived from the $ 5,000,000 donated to the state for the use and benefit of the common schools in lieu of sections 16 and 36 and other lands of the Indian Territory, or the income from the permanent school fund as constituted by section 2 of article 11 of the Constitution to pay the expenses of the loaning and investing of the same.

3. SAME--Constitutional Provisions. Under the provisions of sections 2 and 3 of article 11 of the Constitution, the Commissioners of the Land Office are not permitted to utilize any portion of the interest derived from the $ 5,000,000 donated to the state by the federal government for the use and benefit of the common schools in lieu of sections 16 and 36 and other lands of the Indian Territory, or the income of the permanent school fund, as constituted by section 2 of article 11 of the Constitution, in order to defray the expenses of loaning or investing such permanent fund.

3 (a). Under the provisions of section 3 of article 11 of the Constitution, the Commissioners of the Land Office are permitted under the rules and regulations as prescribed by the Legislature to utilize a portion of the rentals derived from the lands granted the state by the federal government for the common school fund in order to defray the expenses of leasing the same.

4. PUBLIC LANDS--State School Lands--Sale and Lease--Expenses. A portion of the proceeds of the sale of the lands granted to the state by the federal government for the State University, the University Preparatory School, normal schools, the Agricultural and Mechanical College, and the Colored Agricultural and Normal University by the terms of the enabling act and the provisions of the Constitution of the state, under rules and regulations as prescribed by the Legislature, may not be utilized to pay the expenses of the sale thereof.

4 (a). A portion of the proceeds of the sale of the lands granted to the state by the federal government for penal or charitable institutions and public buildings by the terms of the enabling act and the provisions of the Constitution of the state, under rules and regulations to be prescribed by the Legislature, may be utilized to pay the expenses of such sales.

4 (b) A portion of the rentals derived from the leasing of said penal or charitable and public building land may be likewise utilized to pay the expenses of the renting of the same.

5. SAME--Employees. The Commissioners of the Land Office, under rules and regulations continued in force in the state by virtue of section 10 of the enabling act, until the Legislature of the state prescribes rules and regulations are authorized to determine the number of employees necessary for the leasing of the public lands, fix their salaries and pay them or cause them to be paid out of the rentals derived therefrom, together with the expenses incident to such leasing, without an appropriation made as required by section 55 of article 5 of the Constitution.

5 (a). When the Legislature of the state acts and prescribes rules and regulations for the leasing of such lands, the Commissioners of the Land Office will not longer be authorized to determine the number of employees necessary for the leasing of said lands or any other department of said office, and to fix their salaries.

5 (b). The Legislature of the state in prescribing rules and regulations for the Commissioners of the Land Office cannot delegate its authority to said board.

6. PUBLIC LANDS--School and University--Sales and Investments--Expenses. It is neither permissible for the Commissioners of the Land Office, either with or without an enactment of the Legislature, to utilize any part of the proceeds of the rentals derived from the leasing of the lands granted by the general government to the state for the use and benefit of the common schools, the State University, University Preparatory School, normal schools, Agricultural and Mechanical College, and the Colored Agricultural and Normal University, in order to pay the expenses of the sale of said lands, or of loaning, investing, or reinvesting the permanent school fund.

Original proceeding in mandamus by Lew Betts against the Commissioners of the Land Office., Writ denied in part and granted in part.

Dale, Bierer & Hegler, for plaintiff.--Citing: In re Dickson, 166 Pa. 134; Wheeler & Wilson Mfg. Co. v. Winette (Neb.) 91 N.W. 514; In re Curtis Will, 16 N. Y. Supp. 180; Williamson v. U. S., 207 U.S. 425; Campbell v. Comm'rs (Ind.) 18 N.E. 33; Shattuck v. Kincaid (Or.). 49 P. 758; Sate v. Hickman (Mont.) 23 P. 740; Corpe v. Brooks, 8 Or. 222; Robertson v. Board, 42 Or. 183; Hasard's Appeal, 9 Or. 366; Continental Imp. Co. v. Phelps, 47 Mich. 299; Bingham v. Miller, 17 Ohio, 445; McPherson v. State Secretary, 92 Mich. 377; Union Ins. Co. v. Hodge, 21 How. (U. S.) 35; City Council v. Board of Comm'rs. (Colo.) 77 P. 858; Marye v. Hart, 76 Cal. 291; Tuttle v. Nat. Bank, 161 Ill. 497; People ex rel. v. Angle, 109 N. Y. 564; People ex rel. v. Potter, 47 N. Y. 375; People ex rel. v. Rice, 135 N. Y. 473; Matter of McPherson, 104 N. Y. 306; Bryan v. Menefee, 21 Okla. 1.

Charles West, Attorney General, and W. C. Reeves, Assistant Attorney General, for defendants.--Citing: In re L. E. Waterman Co., 68 N. Y. Supp. 892; Martin v. Francis, 13 Kan. 167; In re Internal Improvement Fund, 24 Colo. 247; In re Internal Improvements, 18 Colo. 317; Sheldon v. Harris, 17 Wash. 35; Roach v. Gooding (Idaho) 81 P. 642; State v. McMillan (N. D.) 96 N.W. 310; Mitchell v. Colgan, 122 Cal. 296; Nevada. v. Rhodes, 4 Nev. 769; Page v. Ordway, 40 N. H. 253; Ingram v. Colgram, 106 Cal. 113; State v. Wallicks, 12 Neb. 407, 15 Neb. 609, 16 Neb. 679; Stratton v. Green, 45 Cal. 149; Railway Co. v. State, 22 Kan. 1; Bank v. Curry (Kan.) 46 P. 204; Smith. v. Hubert, 31 N. Y. Supp. 1076; State v. Kruttschmidt, 4 Nev. 178; McMurphy v. Garland, 47 N. H. 316; State ex rel. v. Eggers (Nev.) 91 P. 819; Koontz v. Acker, 25 P. 911; State v. Bardelon, 6 La. Ann. 68; Ristine v. State, 20 Ind. 337; People v. Spruance, 8 Colo. 520.

WILLIAMS, J.

¶1 The following questions are involved in this case:

(1) Whether, under the terms of the enabling act, the grant of lands by the federal government for the University of Oklahoma and the University Preparatory School, normal schools, the Agricultural and Mechanical College, and the Colored Agricultural and Normal University, penal institutions, and public buildings, and for the support of the common schools, it is permissible for a part of the proceeds of the sale of such lands or rentals therefrom, to be utilized for paying the expenses of the sale or leasing of the same.

(2) As to whether the provisions of the enabling act prevent the state from using any of the interest derived from the $ 5,000,000 appropriated to the state for the use and benefit of the common schools in lieu of sections 16 and 36 and other lands of the Indian Territory, or the income from the permanent school fund as constituted by virtue of section 2 of article 11 of the Constitution from being used in order to pay the expenses of loaning or investing such fund.

(3) If no such limitations are imposed by the enabling act, are such prescribed by any of the provisions of the State Constitution?

(4) If no such limitations exist by virtue of the Constitution, are such funds available to pay the salaries of the employees of the Commissioners of the Land Office and the official expenses of such employees and of said land office?

(5) Are the Commissioners of the Land Office authorized to determine the number of employees for the leasing department, fix their salaries, and pay them out of the rentals derived therefrom, together with the expenses of said department, without an appropriation made as required by section 55 of article 5 of the Constitution?

(6) Is it permissible to utilize any part of the rentals derived from the leasing of the lands granted by the federal government to the state for the benefit of the common schools, the State University, the University Preparatory School, the normal schools, the Agricultural and Mechanical College and the Colored Agricultural and Normal School in order to pay the expenses of the sale of said lands?

¶2 1. Sections 7, 8 and 9 of the Enabling Act of Nevada (4 Thorp's Fed. Charters, p. 2399; Act March 21, 1864, c. 36, 13 Stat. 32) are substantially the same as sections 8, 9, 10, 11 and 12 of the Enabling Act of Oklahoma. In State of Nevada v. Rhoades, 4 Nev. 312, it was held in a similar case that, except where there was a specific provision binding the state to provide the means from its ordinary sources of revenue to pay the expenses of administering such trust, such expenses might be taken from the trust fund. See, also, to the same effect, Superintendent of Public Instruction v. Auditor of Public Accounts, 97 Ky. 180, 30 S.W. 404. We conclude that there is nothing in the terms of the grant of the enabling act preventing the appropriation of a portion of the proceeds to the payment of the expenses of the sale or leasing of the same. See, also, In re...