State ex rel. Evans v. Stewart

• Citation: 53 Mont. 18
• Decision Date: 13 November 1916
• Docket Number: No. 3940.,3940.
• Parties: STATE EX REL. EVANS v. STEWART, GOVERNOR, ET AL.
• Court: United States State Supreme Court of Montana

53 Mont. 18

STATE EX REL. EVANS
v.
STEWART, GOVERNOR, ET AL.

No. 3940.

Supreme Court of Montana.

Nov. 13, 1916.

Mandamus. by the State of Montana, on the relation of Charles Evert Evans, against Samuel V. Stewart, Governor, and others. Peremptory writ directed to issue.

W. D. Rankin and A. H. Angstman, both of Helena, and C. F. Holt, of Great Falls, for appellant.

J. B. Poindexter, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen., for respondents.

HOLLOWAY, J.

At the general election in 1914 the people of this state, acting under the authority reserved to them in section 1, art. 5, of the Constitution, adopted by the initiative a statute familiarly known as the Farm Loan Act (Laws 1915, p. 486). Because the state board of land commissioners (for brevity designated the board) failed and refused to perform certain duties devolved upon it by the act in question, and failed and refused to receive or consider an application for a loan on improved farm lands within this state, made by Charles Evert Evans, this proceeding in mandamus was instituted. In defense of its action the board insists that the statute is: (1) Unconstitutional and void in whole or in part, and (2) in any event impossible of administration.

No distinction is to be made between a statute enacted by the people directly, and one enacted by the Legislative Assembly with the approval of the Governor. The result is the same in either case. In this instance the people performed the function of the Legislature, and for convenience will be referred to as such.

We enter upon our consideration of the questions involved, with the fundamental principle established that the Legislature of this state possesses plenary legislative power and authority, except in so far as it is limited by the Constitution of the United States, the treaties made and statutes enacted pursuant thereof, and by the Constitution of this state. In re Pomeroy, 51 Mont. 119, 151 Pac. 333.

The act does not transgress any provision of the Constitution of the United States, and no treaty right is involved; but it is insisted that it conflicts with the Enabling Act and with several provisions of the Constitution of this state. Section 1 provides that the permanent common school fund and the other permanent educational, charitable, and penal institution funds shall be invested by the state board of land commissioners in: (a) Certain school district bonds; (b) in bonds of this state; (c) in bonds of the United States; (d) in certain state warrants; (e) in capitol building bonds of this state; (f) in irrigation district bonds; and (g) in first mortgages on good, improved farm lands of this state. Section 2 provides that applications for farm loans shall be filled by the board as rapidly as possible and in the order in which they are received. The same section contains a proviso under the terms of which there may be a distribution of certain of these funds among the several counties and loans upon farm lands, made directly by the counties. It is to this latter portion of the statute that the principal attack is directed.

Counsel for the board assume in the first instance that the act in question provides but a single plan for loaning these funds upon farm lands, and upon that assumption condemn the entire measure. The assumption is unwarranted. The statute in very clear terms provides two distinct plans of procedure, one of which we shall designate the “primary” and the other, the “contingent” plan.

1. The Primary Plan.

Sections 1 and 2 above impose upon the board the duty to invest the specified funds in the securities enumerated therein, including farm mortgages. Section 5 commands the board and the Attorney General to prepare necessary blank forms for applications and for mortgages; each mortgage form to “contain a provision that default in the payment of interest thereon at any time for a period of thirty days after the same shall become due, shall cause the whole principal and interest on said mortgage to become at once due and payable, and said mortgage may be foreclosed in the manner provided by law.” This completes the primary plan, and the statute, in so far as it provides this plan of procedure, is proof against any attack made upon it. It does not conflict in the least with any provision of the Enabling Act. By that act the federal government made generous grants of public lands and other property to this state for the benefit of: (a) The common schools; (b) the state university; (c) the agricultural college; (d) the state normal school; (e) the school of mines; (f) the reform school; (g) the deaf and dumb asylum; (h) the capitol building; and (i) the penitentiary.

With respect to the lands granted for common school purposes, the Enabling Act fixes a minimum sale price and declares that the proceeds from such sales, together with 5 per cent. of the proceeds from the sales of public lands in the state, shall constitute a permanent school fund the interest from which only shall be expended. It also provides that the lands granted may be leased under regulations prescribed by the Legislature of the state, with a limitation upon the term of any such lease and upon the quantity which may be let to any individual, company, or corporation. Sections 11 and 13. Of the lands granted for university purposes, it declares that they shall not be sold for less than $10 per acre, but may be leased in the same manner as provided in section 11. With reference to the grants for capitol building and penitentiary purposes, it prescribes no restrictions or regulations whatever. Sections 12 and 15. The only limitation imposed with reference to the other grants enumerated above is that:

“The lands granted by this section shall be held, appropriated, and disposed of exclusively for the purposes herein mentioned, in such manner as the Legislatures of the respective states may severally provide.”

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