Evans v. Van Deusen

Citation31 Idaho 614,174 P. 122
PartiesEVAN EVANS et al., as State Board of Education and Board of Regents of the University of Idaho, Plaintiffs, v. CLARENCE VAN DEUSEN, Auditor, and JOHN W. EAGLESON, Treasurer, of the State of Idaho, Defendants
Decision Date27 July 1918
CourtUnited States State Supreme Court of Idaho

MANDAMUS-EDUCATIONAL INSTITUTION FUNDS-APPROPRIATIONS.

1. Funds derived from the various land grants by the general government to the state of Idaho, made by the Idaho admission act, are trust funds, and are not, strictly speaking, subject to appropriation by the legislature. It requires legislative action, however, in order that the proceeds of such funds may become available for the purposes designated by the terms of the grant.

2. The perpetual appropriations of the proceeds of the University fund, Agricultural College fund, Scientific School fund Normal School fund, Idaho Industrial Reform School fund, now known as the Idaho Industrial Training School fund, and the Academy of Idaho fund, now known as the Idaho Technical Institute fund, found in Sess. Laws of 1905, 1907 and 1911 are still effective, such perpetual appropriations not having been amended or repealed by the appropriation act of 1917 providing for the support of such institutions.

3 Sess. Laws 1917, chap. 70, does not authorize the transfer of any of the funds properly belonging to the institutions above named to any other funds in the state treasury.

4. Writ of mandate will not issue to compel an officer to perform his duties generally. It must be directed to a specific act or actions.

[As to the duties the performance of which may be compelled by mandamus, see note in 125 Am.St. 495]

Original application for writ of mandate. Denied.

Writ denied. No costs awarded.

J. R. Smead, for Plaintiffs.

Idaho Admission Bill, sec. 5, provides that all grants of land contained in sec. 11 "shall be held, appropriated and disbursed exclusively as herein mentioned, in such a manner as the legislature of the state may provide." (Roach v. Gooding, 11 Idaho 244, 253, 81 P. 642.)

A later holding of the court seems to modify the last cited case, to the extent that sec. 5 is not held to apply to the grants of land discussed in this brief. (Pike v. State Board, 19 Idaho 268, Ann. Cas. 1912B, 1344, 113 P. 447.)

The acceptance of land grants subject to the conditions specified, make the state a trustee and the proceeds a trust fund. (State v. McMillan, 12 N.D. 280, 96 N.W. 310; Roach v. Gooding, supra.)

The legislature cannot appropriate the money in these special funds, using the word "appropriate" in its true legal sense. (Ingram v. Colgan, 106 Cal. 113, 46 Am. St. 221, 38 P. 315, 39 P. 437, 28 L. R. A. 187.)

T. A. Walters, Atty. Genl., A. C. Hindman, Assistant, B. W. Oppenheim, J. M. Parrish and J. M. Lampert, for Defendants.

The legal right of the plaintiff or relator to the performance of the particular act of which performance is sought to be compelled must be clear and complete. (26 Cyc. 151; Burke v. Edgar, 67 Cal. 182, 7 P. 488.)

The writ will be denied if the performance of the act sought to be enforced is not clearly imposed upon the officer as an official duty. (Patty v. Colgan, 97 Cal. 251, 31 P. 1133, 18 L. R. A. 744; State v. Marron, 18 N.M. 426, 137 P. 845, 50 L. R. A., N. S., 274.)

Mandamus is not an appropriate remedy to compel a general course of official conduct or a long series of continuous acts, as it is impossible for the court to oversee the performance of such duties. The proper function of a mandamus is to compel the doing of a specific thing, something which can be neither diminished nor subdivided. (19 Am. & Eng. Ency. of Law, 724.)

The income funds mentioned in the complaint can only be drawn out of state treasury, and applied to the use as provided for in land grants out of which they grew, upon authority of an appropriation made by the legislature. (State v. Stover, 47 Kan. 119, 27 P. 850, 852; State v. Maynard, 31 Wash. 132, 71 P. 775, 778; Proll v. Dunn, 80 Cal. 226, 22 P. 143; State v. Hickman, 9 Mont. 370, 23 P. 740, 8 L. R. A. 403; State v. Burdick, 4 Wyo. 272, 33 P. 125, 24 L. R. A. 266.)

The legislature has a right to amend a general blanket and perpetual bill such as the acts of 1905 appropriating these income moneys. (Evans v. Huston, 27 Idaho 559, 150 P. 14.)

RICE, J. Morgan, J., concurs. Budge, C. J., took no part in the decision.

OPINION

RICE, J.

This is an original proceeding in this court.

By the Idaho admission act, Congress granted to the state 90,000 acres of land as an endowment for an agricultural college or colleges, in accordance with the terms of the act of July 2, 1862, (12 Stats. at L. 503); seventy-two sections of land in accordance with the act of February 18, 1881, (21 Stats. at L. 326), and 50,000 acres in addition thereto as an endowment for a state university; 100,000 acres as an endowment for a scientific school; 100,000 acres as an endowment for the state normal schools; also 150,000 acres for other state, charitable, educational, penal and reformatory institutions.

Art. 9, sec. 8, of the constitution contains the following provision: "The legislature shall, at the earliest practicable period, provide by law that the general grants of land made by Congress to the state shall be judiciously located and carefully preserved and held in trust, subject to disposal at public auction for the use and benefit of the respective objects for which said grants of land were made . . ."

In 1905 the legislature, by a series of acts, created and established a university fund, agricultural college fund, scientific school fund, normal school fund, Idaho Industrial Reform School fund, now known as the Idaho Industrial Training School fund, and the Academy of Idaho fund, now known as the Idaho Technical Institute fund. Each of the two last-mentioned funds were to receive a specified portion of the proceeds from the 150,000 acre grant for state charitable, educational, penal and reformatory institutions.

Each of these various acts creating the funds, with the exception of the scientific school fund and the agricultural college fund, contained a provision to the effect that perpetually from and after the first day of January, 1907, all moneys which might accrue to the several funds should be appropriated and set apart for the support and maintenance of the respective institutions named in the acts, and should be made available for such purpose immediately upon being credited to the various funds. In 1907 a similar perpetual appropriation was made with reference to the moneys which would thereafter accrue to the scientific school fund. In 1911 the legislature again established the agricultural college fund, and made similar perpetual appropriation of the moneys which would thereafter accrue for the support and maintenance of the said college. These various acts creating the several funds mentioned, and providing for the perpetual appropriation of the moneys which should accrue thereto, have never been repealed.

With reference to the deaf and blind school, it does not appear that any fund has been created for this institution. In 1905 an appropriation was made from the state charitable institutions fund for the education of the deaf and blind in the state for the years 1905 and 1906, but no further appropriation appears to have been made from that fund. It would seem, therefore, that the appropriation in the 1917 laws contains the entire appropriation for that institution for this biennium.

Sess. Laws 1917, chap. 70, contain the appropriation for these institutions for the period commencing on the first Monday of January, 1917, and ending on the first Monday in January, 1919. This act contains the following provisos:

"Provided however, that when any moneys or funds, not appropriated herein and which are properly available for the expenses of the current biennium are or have been received subsequent to February 1, 1917, except federal funds, which shall be computed as of January 1, 1917, by the state treasurer, by the treasurer of any institution or institutions herein named or by any agent or employee thereof from endowment or other sources of income for the support and maintenance of any work or operation carried on under the authority control and direction of the state board of education and board of regents of the University of Idaho or any institutions, departments, officers or employees of said board,...

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4 cases
  • State v. Peterson
    • United States
    • United States State Supreme Court of Idaho
    • December 21, 1939
    ...and declared by this court (Roach v. Gooding, 11 Idaho 244, 81 P. 642; Parsons v. Diefendorf, 53 Idaho 219, 23 P.2d 236; Evans v. Van Deusen, 31 Idaho 614, 174 P. 122; State v. County of Minidoka, 50 Idaho 419, 298 366) and other land grant states. (Rowlands v. State Loan Board of Arizona, ......
  • State v. State Board of Education
    • United States
    • United States State Supreme Court of Idaho
    • February 22, 1921
    ...or the conditions imposed by the donors upon the donations. (Melgard v. Eagleson, 31 Idaho 411, 172 P. 655; Evans v. Van Deusen, 31 Idaho 614, 174 P. 122.) If claim against the regents is a claim against the state, it must be presented to the board of examiners for approval. The supreme cou......
  • Ada Investment Co. v. State
    • United States
    • United States State Supreme Court of Idaho
    • January 22, 1925
    ......714;. State v. Cook, 17 Mont. 529, 43 P. 928; State v. Collins, 21 Mont. 448, 53 P. 1114; Melgard v. Eagleson, 31 Idaho 411, 172 P. 655; Evans v. Van. Deusen, 31 Idaho 614, 174 P. 122; State v. Jorgenson, 29 N.D. 173, 150 N.W. 565; State v. McMillan, 36 Nev. 383, 136 P. 108; State v. ......
  • State ex rel. Kinyon v. Enking, 6941
    • United States
    • United States State Supreme Court of Idaho
    • July 2, 1941
    ...Said grants are commonly known as endowments and funds arising from sales are commonly spoken of as endowment funds. ( Evans v. Van Deusen, 31 Idaho 614, 174 P. 122.) 11 of Article 9 of the Constitution as now amended designates the securities in which permanent endowment funds may be inves......

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