Ross v. Trustees of University

Decision Date08 January 1924
Docket Number1172
Citation222 P. 3,30 Wyo. 433
PartiesROSS v. TRUSTEES OF UNIVERSITY
CourtWyoming Supreme Court

ERROR to District Court, Albany County; VOLNEY J. TIDBALL, Judge.

Action by the Trustees of the University of Wyoming, against William B. Ross and others as and constituting the Board of Land Commissioners of the State of Wyoming, and the Board of County Commissioners of Albany County as defendants, to quiet title and enjoin defendants from establishing a public road across University lands. There was a judgment for plaintiffs and defendants bring error.

Reversed and Remanded with Instructions.

David J. Howell, Atty. General and Ray E. Lee for plaintiffs in error.

The provisions of the Acts of Congress, Constitution of Wyoming and statutory provisions of the State affecting the title control and disposal of university lands are: 1st. --The grant to the Territory, 21 Stat. L. 326; 2nd. --Act of Admission, 26 Stat. L. 223; 3rd. --State Constitution, Art 7, Secs. 15 and 17, Art. 18, Sec. 1, 3 and 4; 4th. --Statutory provisions 696, 700, 746, Comp. Stats.; also S L. 1921 p. 166; Secs. 470, 471 Comp. Stats. The granting Act vested the title of these lands in the Territory; the Act of Admission amending the grant, vested the title in the State with the proviso that they should not be sold for less than $ 10.00 per acre, which provision was accepted by the State Constitution, Art. 8, Sec. 1; the grant was made to the State; State v. Irvine, 206 U.S. 278, 51 L. ed. 1063; Cox v. Board, 161 Ala. 639, 49 So. 814; Black v. C. B. & Q. Ry. Co., 237 Ill. 500, 86 N.E. 1065; The State holds the lands in trust for the University, State v. Brian, 120 N.W. 916; Huckfeldt v. Board, 20 Wyo. 162; Alabama v. Schmidt, 232 U.S. 168, 58 L. ed. 555. The Legislature has authorized the State to grant rights of way for public roads across state lands. The petition below did not state a cause of action.

N.E. Corthell for Defendant in error.

The management of the lands involved is confided by the Constitution,, either to the University Board or the Land Board; Const. Art. 7, Sec. 15, 17, vests the title in the University, Atty. Gen. Repts. 1903 p. 26; Id. 1907-8 p. 63. In Cox v. Board 161 Ala. 639 it was held that the title passed out of the State to the Board of Trustees; the only difference between that case and the case at bar, is that in Alabama, title passed to the University by Statute; while here it was passed by the Constitution itself; Sec. 471 Comp. Stats. provides that the University Board shall have power to hold, manage, lease or dispose of the lands; it is true that Art. 7, Sec. 13 confers power upon the State Land Board to control, lease and dispose of public school lands, and Art. 18, Sec. 3 seems to extend the power to all lands granted to the State. The question cannot be finally set at rest without the decision of this Court. Treating the question as res integra, the Constitution as a whole must be considered in determinnig the scope and import of the several provisions germane to the question, and effect given to every Section if possible. Cooley Const. Lim. 71, 1 Kent's Com. 461, Sutherland Stat. Cons. 241, 8 Cyc. 730; State v. Clay, 3 Wyo. 393; State v. Snyder, (Wyo.) 212 P. 758. The effect of these various Sections seems to be that State land grants in general shall be administered by the State Board; that School lands shall be administered by the Board of School Land Commissioners; that University lands shall be administered by the Trustees of the University; a particular intent incompatible with a general intent will be treated as an exception. 8 Cyc. 743. A duty is imposed by the Constitution upon the University Board, State v. Board, (Ida.) 196 P. 201, 204. The Michigan Court has affirmed the same principle under the Constitution of that state. People v. Regents, 4 Mich. 98; Weinberg v. Regents, 97 Mich. 254, 56 N.W. 605; Bauer v. State Brd. of Agri., 164 Mich. 415, 129 N.W. 713; Sterling v. Regents, 110 Mich. 369; 68 N.W. 253; Brd. of Regents v. Auditor Gen., 167 Mich. 444, 132 N.W. 1037; St. Brd. of Agri. v. Fuller, 180 Mich. 349, 147 N.W. 529, 532. The Supreme Court of Minnesota under a Constitution almost identical, has affirmed the same principle, Gleason v. University, (Minn.) 116 N.W. 650. And also Nebraska. State v. Bartley, (Neb.) 58 N.W. 956, and the Indiana Supreme Court, Trustees of Univ. v. Indiana (U. S.) 14 How. 269. See also State v. Donald, (Wis.) 151 N.W. 331 and California, People v. Kewen, 69 Cal. 215, 10 P. 393; see also Sterling v. Regent 68 N.W. 253 and In re Senate Resolution (Colo.) 21 P. 472; People v. Regents, 24 Colo. 175, 49 P. 286. In view of the above authorities it would seem that the University Board is entitled to the decree restraining the attempted diversion of the land grant from university purposes to highway purposes assumed to be authorized by the Legislative Act invoked.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This action was commenced by the Board of Trustees of the University of Wyoming, as plaintiff, against the State Board of Land Commissioners and the Board of County Commissioners of Albany County, as defendants. It appears from the petition that the first named defendant has granted to the other a right of way for a public road about to be constructed across a section of state land, one of the 72 sections granted to the Territory of Wyoming by the act of congress, approved February 18, 1881 (21 Stat. 326), entitled "An act to grant lands to Dakota, Montana, Arizona, Idaho and Wyoming for university purposes," and confirmed as to Wyoming by section 8 of the act of congress approved July 10, 1890 (26 Stat. 223), known in this jurisdiction as the "Act of Admission." It is not claimed that the land over which the right of way has been granted is used by the university in connection with any of the activities of that institution. However, it is alleged in the petition that the granting and taking of the right of way for the public road will be in violation of the plaintiff's right to manage and control said lands and in deprivation of its use and enjoyment of them for the purposes of said university. The prayer is that plaintiff's "right, title and interest in and to said lands under the acts of congress, and for the use and support of said university, may be quieted and established; that the defendants may be declared to have no interest, right or title in or authority over the said lands; that the defendants and each of them may be perpetually enjoined from assuming or exercising any power of disposition over said lands, and from establishing, laying out, excavating, grading or constructing said public road over said lands, or in any manner altering or adapting said lands for the purposes of such road;" and for costs.

A demurrer to the petition on the ground, among others, that it did not state facts sufficient to constitute a cause of action was overruled, and the defendants declining to plead further, judgment was rendered in substantial conformity to the prayer of the petition, and the defendants bring the case here by proceeding in error.

The grant of the right of way was made pursuant to section 746 Wyo. C. S. 1920, which reads as follows:

"Upon application of the board of county commissioners of any county, the state board of land commissioners and the state board of school land commissioners shall have authority to grant either a temporary or permanent right of way for ditches owned by the county or for county roads over and across any of the state or state school lands, upon such terms as said boards may determine, and to issue to such county a certificate therefor; no charge shall be exacted for the filing of such application or for the issuance of such certificate or for granting and recording right of way."

During the pendency of the action the two state boards mentioned in this section have been consolidated by the eighth amendment to the state constitution which became effective December 20, 1922.

We think there can be no doubt that the lands in question are state lands within the meaning of this statute. They were taken and are held by the state charged with the duty of devoting them to the purpose expressed in the grant. State vs. Irvine, 14 Wyo. 318, 84 P. 90, affirmed 206 U.S. 278; 27 S.Ct. 613; 51 L.Ed. 1063; Alabama vs. Schmidt, 232 U.S. 168, 34 S.Ct. 301; 58 L.Ed. 555; Hjorth Royalty Co. vs. Trustees of University of Wyo., (Wyo.) 222 P. 9, decided this day.

The questions in the case concern the right of the legislature to give to the Board of Land Commissioners the power which it has assumed to exercise under this statute. We think it proper first to consider the contention that the granting of the right of way is prohibited by several provisions of the acts of congress granting the lands to the state and of the state constitution. The act of February 18, 1881, supra provided, among other things, that the lands in question should be "selected and withdrawn from sale and located * * * for the use and support of a university" in the Territory when it should become a State. Section 8 of the Act of Admission (Act of July 10, 1890, supra) provides, among other things, that "none of said lands shall be sold for less than $ 10 per acre, and 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." Section 1 of Article XVIII of the state constitution provides for the acceptance of this grant, among others, "with the conditions and limitations that may be imposed by the act or acts of congress, making such grants," and that: "Such lands shall be disposed of only at public auction to the highest bidder,...

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