State v. Barrett
| Decision Date | 04 November 1901 |
| Parties | STATE ex rel. KOCH v. BARRETT, State Treasurer. |
| Court | Montana Supreme Court |
Application for writ of mandamus by the state, on the relation of Peter Koch, as treasurer of the executive board of the State Agricultural College, against A. H. Barrett, state treasurer. An alternative writ was issued, and defendant moved to quash the writ and to dismiss the petition. Writ granted.
Hartman & Hartman, for relator.
Jas Donovan, for respondent.
The relator herein applied to this court on July 24, 1901, for a writ of mandamus to compel the defendant, as the state treasurer, to pay a certain warrant drawn upon him by the vice president and secretary of the executive board of the State Agricultural College, and in favor of the relator as the treasurer of said board, for funds with which to pay a balance of $1,500 of the current expenses of the institution for the scholastic year ending June 30, 1901. The relator alleged in his application that the funds in the hands of the defendant had been derived from rents of lands leased by the state land commission belonging to the grant of lands made by the United States government in aid of the agricultural college; that they were, therefore, properly applicable to the payment of the warrant in question; that the account for which the warrant had been drawn had been approved and ordered paid by the state board of education, but that the defendant wrongfully refused to pay the same, in violation of his legal duty in the premises. An alternative writ was issued, requiring the defendant to pay the warrant, or to show cause on July 29, 1901, why he had not done so. The attorney general appeared in his behalf, and interposed a motion to quash the writ, and dismiss the proceeding, on several grounds, two of which he urged as conclusive against the issuance of the writ, namely: "That the legislature of the state of Montana has not appropriated the sum demanded, or any part thereof, to the maintenance of said agricultural college of the state of Montana;" and "that there is no law authorizing the payment to the relator of moneys derived from the leasing of lands donated to the state of Montana for the use and support of said agricultural college." The questions thus raised were then submitted for final decision, the attorney general conceding that, if they should be decided adversely to his contention, the writ should issue as prayed. After consideration, the court concluded that the contention made by the attorney general could not be sustained, and on August 1st ordered the writ to issue. No written opinion was then handed down, because the court was about to adjourn for the summer vacation. Owing to the importance of the interests involved, however, we deem it proper to state our reasons now for the action then taken. Under the act of congress approved February 22, 1889, commonly known as the "Enabling Act," providing for the admission of Montana into the Union as a state upon equal footing with the original states there were granted to the state, subject to the provisions of the act of congress approved July 2, 1862, certain lands for the use and benefit of state agricultural colleges. The lands so granted were accepted on behalf of the state, subject to the prescribed conditions, both by the constitutional convention (Ordinance No. 1, subd. 7) and by the state legislature (Sess. Laws 1893, pp. 171-173; Pol. Code, § 1628). By reference to the act of congress of July 2, 1862 and particularly section 4 thereof, it will be seen that it was contemplated by congress that the lands granted by the enabling act should be sold; that the proceeds should be profitably invested, so that the principal should be forever preserved as a permanent endowment fund; and that the interest thereof should be devoted to the support of the college or colleges established pursuant to the declared purpose of the grant. Neither of the acts of congress referred to specifically provides that the land granted may be leased by the state authorities pending a sale; but the state constitutional convention, anticipating possible difficulty and delay in converting the lands into money, and with a purpose of making the grant profitable in the meantime, authorized the legislature to provide by law for the leasing of all the agricultural and grazing lands included in the grant until they should be sold. Const. art. 17, § 2. The constitution also created a state land commission, consisting of the governor, secretary of state, superintendent of public instruction, and attorney general, to have the "direction, control, leasing, and sale" of all lands granted to the state for educational purposes (Const. art. 11, § 4), subject to the regulations to be prescribed by law. Another provision was made (Id. § 12) requiring the funds derived from the sale of lands embraced in the several grants to the state for the use and support of state institutions of learning, as well as funds derived from other sources for that purpose, to be preserved inviolate and sacred for the purposes for which they were dedicated, but directing that the interest upon the invested funds, together with the rents from the leased lands, be devoted to the "maintenance and perpetuation" of the various institutions to which they, the respective grants, belonged. Pursuant to these several provisions of the constitution, the legislature has enacted regulations under which, in default of sale, all agricultural and grazing lands may be leased under the direction of the state land commission for terms not exceeding five years, and requiring the revenues derived therefrom to be paid into the hands of the state treasurer. Pol. Code, §§ 3470-3519, 3590-3595; Sess. Laws 1897, pp. 178, 179; Sess. Laws, 1899, pp. 86-93. Under these provisions of law considerable quantities of agricultural and grazing land selected for the use and benefit of the State Agricultural College at Bozeman, have been leased, and the income derived therefrom has been paid into the hands of the defendant, as state treasurer, to the amount of $16,000.
The first contention made by the attorney general was based upon this language contained in section 4 of the act of congress of July 2, 1862: "That the moneys so invested shall constitute a perpetual fund, the capital of which shall remain forever undiminished, *** and the interest of which shall be inviolably appropriated by each state which may take and claim the benefit of this act to the endowment, support and maintenance of at least one college," etc., "in such manner as the legislatures of the states may prescribe." He argued that the legislature of this state has enacted no provision of law under the authority of which any interest or income derived from the grant may be applied to the support of the college. The state board of education was created by the legislature under authority of the constitution (Const. art. 11, § 11). This board consists of the governor, state superintendent of public instruction, and attorney general, ex officio...
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