Callvert v. Winsor

• Decision Date: 27 November 1901
• Citation: 67 P. 91,26 Wash. 368
• Court: Washington Supreme Court
• Parties: CALLVERT et al., State Land Com'rs, v. WINSOR et al., State University Regents.

67 P. 91

26 Wash. 368

CALLVERT et al., State Land Com'rs, v. WINSOR et al., State University Regents.

Supreme Court of Washington

November 27, 1901

Appeal from superior court, King county; Geo. Meade Emory, Judge.

Bill by B. A. Callvert and others, as the board of state land commissioners, against Richard Winsor and others, as the board of regents of the state university. From a judgment dismissing the bill, the plaintiffs appeal. Affirmed.

W. B. Stratton, E. W. Ross, C. C. Dalton, and R A. Ballinger, for appellants.

Clise &amp King, John P. Hoyt, and Richard Winsor, for respondents.

WHITE J.

This suit was brought by appellants against respondents to restrain and enjoin them from selling, or offering for sale or attempting to sell, a certain 10-acre tract of land in the city of Seattle, known as the 'Old University Site.' The respondents appeared and demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action or to entitle the plaintiffs to the relief demanded.

The court sustained the demurrer, to which ruling plaintiffs excepted. Plaintiffs refused to further plead, and elected to stand on the complaint, and the cause was thereupon dismissed. To the judgment of dismissal the plaintiffs excepted, and appeal from the same.

The issue presented upon this appeal is the question as to whether the authority to dispose of or lease the said 10-acre tract is conferred by law upon the board of state land commissioners or upon the board of regents of the University of Washington. The power of disposition of this land is claimed on the part of the appellants by virtue of an act approved March 16, 1897 (Sess. Laws 1897, p. 229), and the acts theretofore passed which were superseded by said act of 1897, to wit, the act approved March 15, 1893 (Sess. Laws 1893, p. 386), and the act approved March 26, 1895 (Sess. Laws 1895, p. 527). These acts will be referred to hereafter as 'Land Commissioners' Acts.' Respondents claim the right to dispose of the said land under sections 7 and 8 of an act approved March 14, 1893 (Sess. Laws 1893, p. 297). This act will be referred to hereafter as the 'University Act.' On January 11, 1861, the territorial legislature passed an act constituting Daniel Bagley, John Webster, and Edmund Carr a board of commissioners 'to select, locate and receive title for ten acres of land within the vicinity of Seattle, that may be donated to the territory of Washington for a site for the territorial university, and to select and locate the lands donated by congress to the territory of Washington for university purposes.' By this act the board was authorized and directed 'to proceed forthwith to make selection of such ten acre lot of land within the vicinity of Seattle as may be donated to the territory for university purposes, and to receive a title therefor, and the same to have recorded in the records of King county,' etc. Sess. Laws 1860-61, p. 16. On January 23, 1862, the territorial legislature passed an act creating a board of nine regents, who, with their associates and successors in office, were constituted a board of regents, a body corporate and politic, 'with perpetual succession, under the name of the University of the Territory of Washington, by which they may sue and be sued, plead and be impleaded, in all the courts of law and equity,' and by the act the government of the university was vested in said board of regents. Sess. Laws 1862-63, p. 477. By an act approved January 31, 1867 (Sees. Laws 1866-67, p. 114), the territorial legislature changed said board of regents to five, and provided for the reappointment of the board by the legislature every two years. This act repealed all former acts, but provided that the power and authority theretofore vested in the board of commissioners should vest in the board of regents. On April 16, 1861, Arthur Denny and Mary, his wife, conveyed to the territory of Washington 8.32 14/25 acres of said 10 acres, and on the same day Charles C. Terry and Mary J. Terry, his wife, and Edward Lander, conveyed to the said territory 1.67 11/25 acres, the two tracts making the 10-acre tract in controversy. It was provided in the deeds from the Dennys, Terrys, and Lander that, if the territorial university should not be located and built upon the 10-acre lot, then the land should revert to and immediately vest in the town of Seattle for the benefit of and as a site for a university, high school, or college. The consideration, as expressed in said deeds, was that said university should be permanently located and built at Seattle on the said 10 acrs. The territorial university was built upon this tract, and remained there until removed as hereinafter stated. In 1891 the legislature (Sess. Laws 1891, p. 229), under the title 'An act providing for the establishment, location, maintenance and support of the University of Washington,' enacted a law providing for the creation of 'a board of university land and building commissioners.' This act provided that this board should locate the University of Washington on a tract of land, not exceeding 160 acres, within a radius of six miles from the present site of the university in the city of Seattle, in section 16, township 25 N., of range 4 E., in the city of Seattle. This selected tract was a school section belonging to the state. The act provided for the construction by this board of a university building, etc., and that the buildings on the 10-acre tract, and so much of the ground as was absolutely necessary, should continue to be used for university purposes, under the direction of the board of regents, until on or before the 1st of March, 1893, when the university and all its movables should be moved to the new university building. It was also provided that the state treasurer should keep a separate and permanent fund, into which should be paid all moneys received from the sale of university lands, and all appropriations made by the state for the maintenance of the university, and all other moneys paid or received for the use of said university from other sources, and payments out of said university fund should be made only in warrants issued by the state auditor upon accounts certified by said board of university land and building commissioners, or as otherwise provided by law. The act provided that the board of university land and building commissioners might sell at public or private sale as a whole, or might subdivide into lots and sell, the said 10-acre tract. The act further provided that the new site should not be selected and the said 10 acres should not be sold until the original donors of said 10-acre tract, their successors or assigns, and the corporate authorities of the city of Seattle, should have executed and delivered to the board of 'university land and building commissioners' deeds forever quitclaiming and releasing to the state of Washington the said 10-acre tract. The act further provided that as soon as the new site was selected and secured, and the title approved by the attorney general, the board of university land and building commissioners should proceed with the construction on said new site of a university building of such dimensions as might be necessary to meet the wants of the state, and such other buildings as might be necessary for the use of the officers, professors, students, etc. The main university building was to be built of brick or stone. The account certified to the auditor by the board for materials and labor performed under the building contracts entered into as contemplated by the act were to be audited by the auditor, and warrants drawn on the state treasurer; and it was made the duty of the treasurer to pay such warrants out of the money in the university fund not otherwise appropriated. There was no direct appropriation of a specific sum to pay for the work at the seession of the legislature of 1891.

The quitclaim deeds from the original donors, their successors and assigns, and the city of Seattle, required by this act were made and filed for record in the auditor's office of King county, Wash., on the 21st day of April, 1891. The deeds from Lander and Arthur A. Denny and wife contained the following conditions: 'This grant is upon the following conditions to be kept and performed by the said state of Washington, party of the second part, to wit: The said state of Washington, party of the second part, shall cause to be duly passed by the state legislature and approved by its governor proper enactments authorizing the said state, by its proper officers or agents, for the purpose of carrying out the conditions of this grant, to contract for or procure by purchase or otherwise the fee to sufficient lands within a distance of six miles to the present so-called university site in said city of Seattle; said land to be forever used exclusively for state university purposes, and shall be in a compact body of not less than one hundred acres in extent. That said enactment shall further authorize the state of Washington, through its proper officers or agents, to contract for the sale of the lands comprising the present so-called university site in the said city of Seattle, of which the aforesaid described lands are a part and parcel, at such time as the said state of Washington, party of the second part, shall have procured by its proper officer or agents by lawful contracts other lands as aforesaid for state university purposes. That said enactments shall authorize the sale of the land hereinbefore described in such parcels and for such prices as may be most advantageous to the interest of the said state university, and the contracts for the sale of said lands shall be upon such terms and conditions as may be prescribed in said enactment;...