State v. Candland

• Decision Date: 22 September 1909
• Docket Number: 2057
• Citation: 36 Utah 406,104 P. 285
• Court: Utah Supreme Court
• Parties: STATE ex rel. UNIVERSITY OF UTAH v. CANDLAND et al., State Board of Land Commissioners

104 P. 285

36 Utah 406

STATE ex rel. UNIVERSITY OF UTAH v. CANDLAND et al., State Board of Land Commissioners

No. 2057

Supreme Court of Utah

September 22, 1909

Application for mandamus by the state on the relation of the Utah University against W. G. Candland and others constituting the State Board of Land Commissioners.

WRIT DENIED.

C. S Varian for plaintiff.

A. R Barnes, Attorney-General, for defendants.

FRICK J. McCARTY, J., STRAUP, C. J., Concurring.

OPINION

FRICK, J.

This is an original application to this court by which the University of Utah, hereafter designated plaintiff, prays for a writ of mandate against the State Board of Land Commissioners to compel said board, hereafter styled defendant, to comply with the provisions of a certain act, designated as chapter 124, passed by the legislature of the State of Utah in 1909. (Laws Utah 1909, p. 335.) An alternative writ was duly issued, to which the defendant appeared by filing a general demurrer to the application for a writ. The application for a writ is based upon the provisions of the act aforesaid, which is as follows:

"Sec. 1. The regents of the University of Utah are hereby authorized and directed to expend two hundred and fifty thousand dollars, or so much thereof as may be necessary to erect a central building on the University campus, and to do all acts and things necessary to accomplish such purpose.

"Sec. 2. The State Board of Land Commissioners is hereby authorized and directed to convert sufficient investments of the University of Utah permanent land fund into cash and at once to pay the same, as well as all cash on hand or that may hereafter be received, belonging to such fund as a loan, until such payments shall equal two hundred and fifty thousand dollars: Provided that such loan shall be a debt of the University of Utah, and not of the State of Utah.

"The interest on such land fund shall be paid as heretofore to the University of Utah for its general maintenance.

"Sec. 3. Whenever money is loaned from said University of Utah permanent land fund as herein provided, it is an investment thereof and a loan only, to be repaid as specified in this act.

"Sec. 4. Whenever money is paid to the University of Utah from the University of Utah permanent land fund, as herein provided, then the University of Utah, by its chairman and secretary, shall execute and deliver to the State Board of Land Commissioners, the following obligations, correctly and appropriately filling the blanks, to wit:

"Salt Lake City, Utah, .

"$

"On or before the University of Utah promises to pay to the State Board of Land Commissioners, or its successors, or such officer as may be designated by law, dollars, for the benefit of the University of Utah permanent land fund, together with interest from date until paid, at five per cent. per annum, interest payable January 1st and July 1st of each year.

"University of Utah,

"By .

"Chairman of the Board of Regents of the University of Utah,

"By .

"Secretary of the Board of Regents of the University of Utah.

"Sec. 5. In executing such obligation the sums first aggregating twelve thousand five hundred dollars, with interest thereon, shall be made payable on or before January 1, 1912. The next sums aggregating twelve thousand five hundred dollars, with interest thereon, shall be made payable on or before January 1, 1913, and so on, making each payment for twelve thousand five hundred dollars, with interest payable one year later than the preceding payment.

"Sec. 6. That the Board of Rogents of the University of Utah are authorized and empowered to pay out of the funds appropriated, or otherwise available, for its general maintenance, the principal and interest of the said obligations as they become due.

"Sec. 7. All officers, so far as pertains to their respective official duties, are hereby empowered with the necessary authority to carry out the provisions of this act, and are hereby directed so to do.

"Sec. 8. All laws in conflict herewith shall be construed so as to carry out the provisions of this act."

The general demurrer, among other things, is grounded upon the claim that the aforesaid act "is in conflict with the provisions of section 5 of article 10 of the Constitution and section 1 of article 14 of the Constitution, and, further, that it is in direct conflict and contrary to the provisions of section 8 of the enabling act." In the brief and argument by counsel upon the demurrer other sections of the Constitution are also referred to, which, it is asserted, are violated by the provisions of the act in question.

Before proceeding to a discussion of the constitutional questions raised by the defendant, it becomes necessary to dispose of a preliminary question insisted upon by counsel for the plaintiff, namely, that in the law in question, which imposes certain duties upon the members constituting the defendant, nothing is left to their judgment or discretion; that they "have no interest in the controversy;" and that "the state by its legislature, through and by means of this law regularly enacted, is dealing with its own property;" and hence, it is urged, the defendant will not be permitted to justify nonperformance of the provisions of the law by the mere claim that the law offends against the Constitution. In other words, it is contended that the members composing the defendant, under the law in question, are merely ministerial officers discharging a ministerial duty, and hence have not such an interest in the subject-matter of the proceeding as to entitle them to refuse to comply with the provisions of the law upon the sole ground that it is unconstitutional. This proposition, it is contended by plaintiff's counsel, "has been squarely decided by this court" in the case of Thoreson v. State Board of Examiners, 19 Utah 18, 30, 31, 57 P. 175, and 21 Utah 187, 60 P. 982. It may be said that the question was also referred to in the case of State v. Standford, 24 Utah 148, 66 P. 1061. The Thoreson Case was also mentioned by this court in State v. Cutler, 34 Utah 99, 107, 95 P. 1071, 1074. But it will be observed that in the latter case we carefully avoided expressing an opinion upon the question now raised. While we concede that the court, in the opinion in the Thoreson Case, uses language that supports plaintiff's contention, and that this is likewise true of the language used by Mr. Justice Baskin in the dissenting opinion in the Standard Case, yet, in view of the manner in which the question was presented on the first hearing of the Thoreson Case, we entertain serious doubts upon the proposition whether that case is an authority upon the precise point now raised by counsel for plaintiff. Since the Attorney-General, as counsel for the defendant, strenuously contends that the decision in the Thoreson Case, as construed by plaintiff's counsel, is unsound, and because the question is one of compelling importance, we have concluded to re-examine the question upon both grounds, namely: (1) Whether the question was really involved in the Thoreson Case; and, if this be so, (2) whether that decision should be followed.

We have been unable to find the briefs of counsel filed on the original hearing in the Thoreson Case. We have, however found the briefs of both sides filed in support of and against the petition for a rehearing in that case. From the reporter's statement of the case, which precedes the opinion of the court in 19 Utah 18, 19, 57 P. 175 et seq., and from what is contained in the brief upon the petition for a rehearing, we have been enabled to determine, in a general way at least, the precise questions involved in the Thoreson Case upon which the court was necessarily required to pass judgment in deciding the case. These questions, in substance, were as follows: In 1892 the territorial legislature passed an act (Laws Utah 1892, p. 95, c. 76) authorizing the leasing of the territorial school lands. This act was declared invalid by the territorial Supreme Court in Burrows v. Kimball, 11 Utah 149, 41 P. 719. Pursuant to this decision the legislature of the State of Utah adopted section 963, Revised Statutes 1898. By the provisions of this section, the state board of examiners was directed to audit and allow to all claimants the amounts paid by them upon leases of school land entered into under the law which was held invalid in Burrows v. Kimball, supra. As will be seen by reference to the Thoreson case, the state board of examiners audited and allowed only a part of what it conceded had been paid by Thoreson under the law, which was declared void, and it based its refusal to allow the whole claim upon the ground that only that portion which was allowed had been paid into the state treasury by the county clerk, to whom Thoreson had paid the full amount claimed by him. In this connection it was claimed by the Attorney-General, who represented the state board of examiners in the Thoreson case, that if said board were authorized to pay any money at all, which he denied, that the proper construction of section 963, supra, authorized the board to audit and allow only that portion of the money paid by Thoreson upon the void leases which was received by the state treasury, and, if a construction were placed on said section contrary to said contention, then the section would be unconstitutional. The language of the Attorney-General in his brief clearly is to this effect. He says: "We desire to again say that the board has never contended that section 963 is necessarily unconstitutional, but we do contend that the construction asked for by the respondent (Thoreson) would render it so." The principal defense relied on by the Attorney-General in the Thoreson Case, however, in effect, was...