State v. Clausen

Decision Date30 March 1920
Docket Number15620.
Citation110 Wash. 525,188 P. 538
CourtWashington Supreme Court
PartiesSTATE ex rel. STATE RECLAMATION BOARD et al. v. CLAUSEN, State Auditor.

Original proceedings in mandamus by the State of Washington, on the relation of the State Reclamation Board of the State of Washington and George J. Hurley, to compel C. W. Clausen, as State Auditor of the State of Washington, to issue a warrant against the state reclamation revolving fund. Writ ordered to issue.

McIntosh and Mount, JJ., dissenting.

L. L Thompson, Atty. Gen., and Glenn J. Fairbrook of Seattle, for plaintiffs.

Frank C. Owings, of Olympia, for defendant.


This is an original mandamus proceeding in this court, wherein the relators seek a writ of mandate to compel the state auditor to issue a warrant against the state reclamation revolving fund to the relator George J. Hurley, in payment for 160 acres of land purchased from him by the state reclamation board under the land settlement act, Laws of 1919, c. 188, p 583. The auditor has refused to issue the warrant as demanded of him, basing his refusal upon the sole ground that the land settlement act is unconstitutional.

To the end that we have clearly before us the full purpose and scope of the land settlement act, we deem it desirable at the outset to here quote the larger portion of it, as follows:

'An act relating to the upbuilding of the agricultural resources of the state, establishing a state policy for land settlement, defining the powers and duties of the state reclamation board in reference thereto, and making appropriations therefor.
'Be it enacted by the Legislature of the state of Washington:
'Section 1. This act shall be known and cited as the 'Land Settlement Act.'
'Sec. 2. The state of Washington in the exercise of its sovereign and police powers declares that the settlement of such portions of the undeveloped lands in this state as may be determined to be suitable and economically available therefor is a state purpose and is necessary to the public health, safety and welfare of its people. In the exercise of such power the state, acting for itself and in co-operation with the United States, hereby establishes a definite land policy providing means whereby soldiers, sailors, marines, and others who have served with the armed forces of the United States in the war against Germany and her allies, or other wars of the United States, hereinafter generally referred to as 'soldiers,' and also industrial workers and other American citizens desiring a rural life, may settle upon and become owners of small improved farms and farm laborer's allotments.
'Sec. 3. That the state reclamation board created by the sixteenth Legislature, hereinafter called the 'Board,' shall have power to co-operate with the federal government in the settlement of any undeveloped lands in this state. * * *
'Sec. 4. The board shall have power:
'To investigate and select for settlement suitable areas of undeveloped lands in this state available for settlement;
'To purchase and acquire on behalf of the state such privately owned lands as in its judgment are available for settlement;
'To subdivide any lands owned by the state and found available for settlement, including lands purchased or acquired for that purpose, into tracts suitable for farms and farm laborer's allotments;
'To make on any such farms and farm laborer's allotments such improvements as may be necessary to render the same habitable and productive;
'To accept from private owners deeds or other instruments of trust relating to land and to subdivide, improve, and sell such lands;
'To lease to prospective settlers any land selected by the board for settlement;
'To dedicate to public use appropriate tracts for roads, school houses or other public purposes;
'To purchase and acquire under state laws any state, school or granted lands of the state which the board shall determine are available for settlement under the provisions of this act;
'To purchase and acquire lands in co-operation with the United States under such conditions as may be deemed advisable for the purposes of this act, and to convey the same under such conditions and restrictions as may be approved by the secretary of the interior;
'To arrange with the federal government for sharing in the expense of furnishing agricultural training for settlers so as to render them better qualified for the cultivation of their lands, under appropriate conditions of supervision by the federal government;
'To sell and convey such improved farms and farm laborer's allotments subject to the limitations of this act;
'To make such rules and regulations and perform any and all acts as may be necessary and proper, for the purpose of carrying out the provisions of this act. * * *
'Sec. 5. That the board shall give to soldiers the preference right to purchase or lease such farms and farm laborer's allotments.
'A qualified applicant must be a citizen of the United States and must satisfy the board that he is not the holder of agricultural land or possessory rights therein which, together with the land and improvements to be purchased hereunder, shall exceed a value of $15,000. No purchaser shall at any one time hold more than one farm or farm laborer's allotment. Every purchaser shall satisfy the board as to his fitness, both financial and otherwise, to cultivate and develop the same successfully.
'Each approved applicant shall enter into a contract of purchase which shall provide for the payment of the purchase price of the land, the reclamation costs and the farm improvements and other charges, if any, and shall require the purchaser actually to occupy the land within six months and actually to reside thereon for at least eight months in each calendar year for a period of at least five years, unless prevented by illness or other cause satisfactory to the board; and other absence from the land exceeding four months in any calendar year shall be a breach of the contract.
'The contract shall provide that it shall not be assigned without the consent of the board.
'The purchase price of the land shall be paid in annual installments to be fixed by the board for a total period of not to exceed forty years, with interest on deferred payments from the date of the contract at the rate of four per cent. per annum.
'Title to the land shall not pass until full payment has been made for the land and improvements.
'Sec. 6. The lands disposed of under this act shall be leased or sold, in accordance with regulations adopted by the board, after public notice in at least one newspaper published in the state and of general circulation therein, and one newspaper published in the county where the land is situated, once a week for five consecutive weeks, the first date of publication being at least sixty days prior to the date of lease or sale, setting forth generally the location of the land and the terms of lease or sale and stating that detailed information can be obtained at the office of the board and such other convenient places as are designated in the notice.'
'Sec. 8. For the purpose of carrying out the provisions of this act relating to acquiring lands and improving the lands of the state, and the lands acquired or taken in trust under the provisions of this act, there is herely appropriated out of the state reclamation revolving fund the sum of one hundred and fifty thousand dollars ($150,000.00), or so much thereof as may be necessary; for the administrative expenses of the board in carrying out the provisions of this act there is hereby appropriated out of the general fund the sum of ten thousand dollars ($10,000.00), or so much thereof as may be necessary: Provided, that no warrant shall be drawn upon the state reclamation revolving fund in excess of the amount in the state treasury to the credit of said fund.
'Sec. 9. If any part of this act shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity or constitutionality of the act as a whole, or of the part thereof not adjudged invalid or unconstitutional.'

The state reclamation act, Laws of 1919, c. 158, p. 442, provides for the composition and organization of the state reclamation board mentioned in the above-quoted portion of section 3, of the land settlement act. The state reclamation act also renders it plain that the state reclamation revolving fund from which the appropriation made by the above-quoted section 8 is, and is to become, largely, if not wholly, the product of taxes levied and to be levied upon all property in the state subject to taxation, in the same manner as the state general taxes are levied. In view of the express provisions of section 9 above quoted, we need only concern ourselves in this case with the question of the constitutionality of the act in so far as it authorizes the expenditure of public funds raised by taxation in the purchase by the reclamation board of land to be subdivided, improved, and disposed of as provided by the terms of the act, since we do not understand the contention here made in support of the auditor's refusal to issue the warrant as demanded of him, to be rested upon any other grounds of unconstitutionality than that the act, in so far as it authorizes the expenditure of public funds raised by taxation, is in excess of legislative constitutional power; in that it is, in effect, an exercise of the power to tax and to expend public funds so raised, for a purpose not public, but private--that is, for a purpose not governmental in the sense that such purpose is not a legitimate function of government.

We must, of course, proceed with our inquiry having in view the elementary principle that a tax can be lawfully levied, and the public funds so raised...

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