State ex rel. Rusk v. Budge

• Decision Date: 18 November 1905
• Citation: 14 N.D. 532,105 N.W. 724
• Parties: STATE ex rel. RUSK v. BUDGE et al., State Capitol Com'rs.
• Court: North Dakota Supreme Court

14 N.D. 532

105 N.W. 724

STATE ex rel.RUSK

v.BUDGE et al., State Capitol Com'rs.

Supreme Court of North Dakota.

Nov. 18, 1905.

Syllabus by the Court.

The erection of a residence for the Governor at the capital is within the purposes of the grant of land made by Congress to the state for public buildings at the capital, under section 17 of the enabling act (25 Stat. 681, c. 180).

The disposition of such lands is exclusively with the Legislature, and its action in such matters is final, unless violative of some constitutional provision and clearly contrary to the terms of the grant.

It is the province of the Legislature alone to determine the manner in which said lands may be disposed of in furtherance of the purposes of said grant.

All legislative power in this state is vested in the Senate and House of Representatives, and the Legislature cannot delegate such power in relation to purely legislative matters.

The power to determine the manner of the use of the land granted by section 17 of the enabling act (25 Stat. 681, c. 180) is purely legislative, and cannot be delegated to a commission.

The power to limit the sum that shall be used for each public building authorized by section 17 of the enabling act (25 Stat. 681, c. 180) is purely legislative, and cannot be delegated to a commission.

Chapter 166, p. 297, Laws 1905, provided for the appointment of a capitol commission by the Governor. Said commission was thereby given authority to remodel and reconstruct the capitol building of the state, and to erect a Governor's residence at the capital out of the proceeds of the lands donated to the state by Congress. The law did not specify what sum should be used for the capitol building, nor what sum should be used for the Governor's residence, nor specify when the buildings shall be completed. Held, that the law is invalid, as an unwarranted delegation of purely legislative powers.

Application by the state, on the relation of George Rusk, for a writ of injunction against William Budge and others, as members of the board of state capitol commissioners. Writ granted.

George A. Bangs, John A. Sorley, and Spalding & Stambaugh, for relator. C. N. Frich, Atty. Gen., and R. N. Stevens, Asst. Atty. Gen. (Tracy R. Bangs, of counsel), for defendants.

MORGAN, C. J.

The relator seeks a permanent injunction restraining the defendants from further proceeding towards the remodeling and reconstruction of the capitol building of the state of North Dakota, and from all other proceedings by said board provided for by chapter 166, p. 297, Laws 1905. Said chapter provides for the appointment by the Governor of a board of capital commissioners, consisting of three persons. It provides that such board shall have power to make a contract for the remodeling and reconstruction of the capitol of the state of North Dakota, and for the erection of a governor's residence on lots owned by the state in Bismarck. The details as to how funds shall be procured by issuing and selling certificates of indebtedness to be drawn solely against the funds derived from the sale of public lands granted by Congress to the state under sections 12 and 17 of the enabling act (25 Stat. 680, 681, c. 180), are provided for by the act. The members of the board were duly appointed by the Governor and confirmed by the Senate. The members thereof duly qualified under their appointment by taking the oath and giving the bonds required by the act, and duly organized as a board by the election of a president and the appointment of a secretary. Afterwards the board advertised for plans and specifications for remodeling and reconstructing the capitol building, and for bids for doing the work and furnishing the materials under the plans and specifications furnished. While such advertisement was proceeding, a preliminary injunction was issued by this court upon a complaint verified by the relator. An order to show cause was incorporated in said preliminary injunction why the same should not be continued in force permanently. The defendants appeared, and, issues having been joined on the allegations of the complaint, the same were argued before the court on October 23d; the hearing of the order to show cause having been set on that day.

The plaintiff alleges in the complaint that chapter 166, p. 297, Laws 1905, under which the defendants are proceeding, is unconstitutional and void, and that the defendant board is proceeding in direct violation of said chapter, which specifies what their duties shall be and how they shall proceed. In general, the complaint alleges that the board is proceeding to carry out the provisions of said act before it is practicable, and is therefore contrary to the terms of the act, and that the board has violated section 6 (page 299) of said act, which prescribes their duties as to selecting plans and specifications and receiving bids. The claim is made in support of this objection that competitive bids are not asked for, either as to plans or as to doing the work. It is also claimed that the board is contracting a debt against the state which is in excess of the limitation on debts fixed by the Constitution. It is also contended and alleged in the complaint that the board is proceeding to dispose of the lands donated by Congress by the enabling act in a manner contrary to the provisions thereof, and that the board is diverting the fund derived from the sale of said lands by providing for the payment of interest on certificates of indebtedness out of said funds. It is also alleged that the said act is unconstitutional because (1) it contains more than one subject, viz., the reconstruction of a capitol building and the erection of a governor's residence. (2) That it delegates to the board the power of determining what sum shall be expended in a governor's residence, and what sum shall be expended in reconstructing the capitol building. (3) That the law contravenes the provisions of the enabling act by making provisions for the erection of a governor's residence. No objection is urged that this court is without jurisdiction to entertain the action as an original one.

Whether a residence for the Governor of the state at the capital is a public building, within the terms of the enabling act, or not, is a matter of argument between opposing counsel in the case. Section 12 of the enabling act grants 50 sections of land to the state “for the purpose of erecting public buildings at the capital * * * for legislative, executive, and judicial purposes.” Section 17 of said act grants to the state 50,000 acres of land “for public buildings at the capital of said state.” There is no other provision in the enabling act relating to or prescribing what buildings are to be deemed public buildings within the purpose of this act. The Legislature is vested with the power to dispose of said land, and the duty of using the proceeds subject to the terms of said act. The Legislature has enacted that an executivemansion shall be erected out of the proceeds of said land, and thereby declared an executive mansion to be a public building, within the meaning of said act. We deem that a correct and reasonable construction of the enabling act. The custom is general to provide the Governor with a home at the capital. Generally this is owned by the state. The possession is in the state. It is used by the state through its executive. The Governor is present at the capital of the state to discharge public functions. The occupancy of the executive mansion may be correctly said to be for public purposes, and to be a public building, within the meaning of the enabling act. Section 17 does not grant this land solely for capitol building purposes, Other buildings may be erected out of the proceeds. Fleckten v. Lamberton, 69 Minn. 187, 72 N. W. 65. The grant under section 17 and the grant under section 12 of these public lands may be appropriated and disposed of for a capitol building. Whether the grant under section 12 may be used for a governor's residence we need not determine, as section 17 clearly permits the erection of such a residence out of the lands thereby granted. To what extent the lands granted by the two sections of the enabling act may be used for the same purpose or building we need not determine. The Legislature having enacted that a governor's residence shall be one of the public buildings contemplated by said section 17, its action is final on that question, if within the purposes and terms of said section.

It is next contended by the relator that said chapter 166 is void, as an unwarranted delegation of legislative powers to said board. The basis of such contention is that matters of legislative discretion are to be determined by the board, which should have been specifically determined by the Legislature. It is claimed that the sums to be expended on a residence for the Governor involves a matter of legislative discretion, which cannot properly be delegated to the board, but must be limited by the Legislature to an amount certain. Under the Constitution all legislative power is vested in a Senate and House of Representatives (section 25), and all constitutional provisions are mandatory, unless expressly declared to be otherwise (section 21). Whether the power to determine the relative amounts of the fund derived from the sale of the lands granted by Congress that shall be spent for a capitol building and for a governor's residence is a matter of legislative discretion or pertains to administrative questions is the question to be determined. It is...