Roach v. Gooding

• Decision Date: 01 July 1905
• Citation: 11 Idaho 244,81 P. 642
• Parties: ROACH v. GOODING
• Court: Idaho Supreme Court

81 P. 642

11 Idaho 244

ROACH v. GOODING

Supreme Court of Idaho

July 1, 1905

APPLICATION for a writ of mandate against the governor treasurer, secretary of state, and attorney general of the state of Idaho. Writ denied.

Demurrer sustained and writ denied. No costs awarded.

Wood &amp Wilson and Richards & Haga, for Plaintiffs, cite no authorities not found and commented upon in the opinion upon the points decided.

J. J. Guheen, Attorney General, Edwin A. Snow and F. S. Wettach, for Defendants, cite no authorities not found in the opinion.

SULLIVAN, J. Stockslager, C. J., concurs. Ailshie, J., concurs in the conclusion.

OPINION

SULLIVAN, J.

This is an application for a writ of mandate to compel the governor, secretary of state, treasurer and attorney general, of the state of Idaho to advertise and negotiate the sale of bonds to the amount of $ 12,000, as provided by an act entitled "An act providing for the issuance of state bonds for the erection and equipment of a domestic science building, and prescribing how such bonds shall be issued and how the proceeds of the sale of such bonds shall be expended, and providing for a sinking fund for the redemption of such bonds," approved March 8, 1905 (Sess. Laws 1905, p. 221).

The petitioners, who constitute the board of regents of the University of the state of Idaho recite in their petition their appointment and qualification, the passage and approval of the act above referred to and the several provisions of said act, and the refusal of said state officers to comply with the provisions thereof in the negotiation and sale of said bonds, and pray that an alternative writ of mandate be issued and directed against said officers to compel them to proceed and negotiate and sell said bonds as in said act provided. To said petition the defendants demurred on the ground that the petition did not state facts sufficient to constitute a cause of action.

It is alleged in the petition that said act provides that the payment of said bonds shall be secured by the interest upon moneys accruing from the sale of lands and timber belonging to the University of Idaho and the act itself discloses the fact that no other provision is made for the payment of said bonds and interest. The main question is, Can the income, or any part thereof, of the proceeds of the university lands and timber be appropriated for the payment of said bonds and the interest thereof?

Section 1 of article 18 of the constitution provides, among other things, that the legislature shall not in any manner create any debt or liability unless it provides at the same time for the payment of the interest of said debt or liability as it falls due, and also for the payment and discharge of the principal of such debt or liability within twenty years of the time of contracting the same. Under the provisions of said section, if an indebtedness is created by legislative enactment, the payment of the principal and interest thereof must be provided for in such act.

It is contended by the attorney general on behalf of the defendants that said act is unconstitutional and void, for the reason that no legal provision has been made in said act for the payment of the proposed issue of bonds when they become due and the interest thereon, as the interest and income upon moneys accruing from the sale of lands and timber belonging to the University of Idaho is prohibited from being used for that purpose by the various acts of Congress granting said lands to the state and by the fifth and eighth sections of the Idaho admission act (26 Stats. at Large, p. 216), and the fourth section of article 9 of the state constitution. Under an act of Congress approved February 18, 1881 (21 U.S. Stats. at Large, p. 323), there were granted to the territories of Dakota, Montana, Arizona and Idaho each, seventy-two sections of land for university purposes. Subsequently to the approval of said act, the legislature of Idaho by an act approved January 30, 1889 (Sess. Laws 1889, p. 21), created the University of Idaho and located the same at Moscow. Thereafter, and on the third day of July, 1890, Congress passed an act commonly known as the Idaho admission bill, admitting the territory of Idaho into the Union as a state, which bill provided for certain grants of land to the state for educational and other purposes, and also provided how the proceeds of the sale of such lands should be used, and also how or for what purpose the interest and income on such proceeds must be used. Section 5 of said admission act provides, inter alia, "That all lands herein granted for educational purposes shall be disposed of only at public sale, the proceeds to constitute the permanent school fund, and the interest of which shall only be expended in the support of said schools." Section 8 of said act provides, among other things, that "the act of Congress granting said seventy-two sections of land to the state shall be so amended as to provide that none of said lands shall be sold for less than $ 10 per acre, and that the proceeds shall constitute a permanent fund to be safely invested and held by the state, and that the income thereof shall be used exclusively for university purposes."

Section 4 of article 9 of the state constitution provides that the public school fund of the state shall consist of the proceeds of such lands as have heretofore been granted, or may hereafter be granted, to the state by the general government, and known as school lands, and those granted in lieu thereof, and lands acquired by gift or grant from any person or corporation under any law or grant of the general government, etc.

It is conceded by counsel for both parties that the provisions of said section 5 of the admission bill relate to all grants made by the government to the state for educational purposes, but the court is called upon, in this case, to only pass upon the disposition or use that may be made of the interest and income to accrue from the proceeds of the sales of the lands or timber thereon included in the seventy-two sections granted by Congress to the territory of Idaho under said act approved February 18, 1881, as amended by the admission act; then, what means that provision of section 5 of said admission act, to wit, "the interest of which [permanent school fund] only shall be expended in the support of said schools," and that clause in said section 8 of said admission act, to wit, "the proceeds shall constitute a permanent fund to be safely invested and held by said state, and the income thereof to be used exclusively for university purposes"?

The provisions of said sections 5 and 8 are contained in the admission acts of North Dakota and Washington, and have been, by unanimous opinions of the supreme courts of those states, held to apply to all grants of lands by Congress to those states for educational purposes.

The supreme court of the state of Washington in State v. Maynard, State Treasurer, 31 Wash. 132, 71 P. 775, in construing section 11 of the admission act of that state, which is precisely the same as section 5 of the Idaho admission act, said: "It is contended by the relator that the last sentence of section 17 [which is the same as section 13 of our admission act] contains the only limitations upon the legislature with reference to the disposition of lands granted to the state normal schools, and that the limitations in section 11 [section 5 of our act] have reference only to sections 16 and 36 granted by section 10 [section 4 of our act] of the enabling act for the support of common schools, and a very plausible argument is made to sustain this contention. But this argument necessarily eliminates section 11 of this act as an independent section of the act, and also limits the general words therein used, namely, 'all lands herein granted for educational purposes' to mean all lands granted in section 10 [section 4 of our act] for common school purposes. If Congress intended section 11 to be only a limitation to section 10, and not to apply to the whole act, it was very unfortunate in the use of words to express that intention, even if the making of section 11 an independent section was an inadvertence. But, taking the section as we find it, an independent section, in connection with the general words used, it seems conclusive to our minds that Congress intended to make it refer, not only to the preceding section, but to the whole act, and that the words 'herein,' and 'educational purposes' were used advisedly and refer to all lands granted for such purposes in the whole act."

"The clause in section 17 (section 12 of our act) as follows '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 legislature of the respective states may severally provide,' refers to the manner of holding and appropriating and disposing of the lands, and must be construed with reference to the limitations contained in section 11 as to the lands granted for educational purposes. The manner of disposition or sale of such lands, and the manner of holding or investment of the proceeds and the appropriation of the interest and income, is subject to the limitations contained in section 11 of the act. The states of North Dakota, South Dakota and Montana have all placed the above construction upon the land grants for normal schools by adopting constitutional provisions declaring the proceeds of such lands a permanent fund. (See N. Dak. Const. , art. 9, sec. 159; S. Dak. Const., art. 8, sec. 7; Mont. Const., art. 11, sec. 12.) We think this construction accords with the general policy of the federal government toward educational institutions named in the enabling act. It does no violence to any...