State v. Collins

• Decision Date: 02 August 1898
• Citation: 53 P. 1114,21 Mont. 448
• Parties: STATE ex rel. DILDINE v. COLLINS, State Treasurer.
• Court: Montana Supreme Court

53 P. 1114

21 Mont. 448

STATE ex rel. DILDINE v. COLLINS, State Treasurer.

Supreme Court of Montana

August 2, 1898

Application by the state, on the relation of George Dildine, for a writ of mandamus to compel Timothy E. Collins, state treasurer, to pay a certain warrant drawn by the building commission of the state university.Writ granted.

The petitioner sets forth that a building commission was created pursuant to the provisions of "An act to provide for the erection, completion, furnishing and equipment of buildings for the University of Montana," and that said commission was duly organized; that bonds were issued to the amount of $100,000, secured by the pledge of the lands granted to the state of Montana for university purposes, and that these bonds were sold, and the proceeds arising therefrom were placed in the hands of the treasurer of the state of Montana as a special fund (Sess. Laws 1897, p. 58); that the commission entered into a contract for the erection completion, and equipment of the buildings, and that a contract was entered into with the petitioner for the construction and completion of two buildings for university purposes; that this contract provided that at least every two weeks the architect should make an estimate of the amount of work done on the buildings, and the amount of materials furnished, and that upon such estimate the building commission should draw its warrant on the state treasurer against said fund; that on the 20th day of April, 1898, the architect made a correct estimate of work and materials furnished, and returned said estimate to the building commission, and the estimate so returned was approved and allowed, and a warrant drawn for 80 per cent, thereof, to wit. $2,817.60; that this warrant was signed by Alfred Cave as vice president of the commission, and attested by Joseph K. Wood, secretary, and was presented to the respondent for payment, but that the respondent refused to pay the same, and still refuses; and that a writ of mandate should issue requiring him to pay this warrant.A general demurrer is interposed to this petition for the reason that the petition does not state facts to entitle the petitioner to the issuance of a writ of mandate.

Congress by an act approved February 18, 1881, granted lands to the territories of Dakota, Montana, Arizona, Idaho, and Wyoming for university purposes.The act in question is as follows: "Be it enacted by the senate and house of representatives of the United States of America, in congress assembled, that there be, and are hereby, granted to the territories of Dakota, Montana, Arizona, Idaho and Wyoming, respectively, seventy-two entire sections of the unappropriated public lands within each of said territories, to be immediately selected and withdrawn from sale and located under the direction of the secretary of the interior, and with the approval of the president of the United States, for the use and support of a university in each of said territories when they shall be admitted as states into the Union: provided, that none of said lands shall be sold except at public auction, and after appraisement by a board of commissioners to be appointed by the secretary of the interior: provided further, that none of said lands shall be sold at less than the appraised value, and in no case at less than two dollars and fifty cents per acre: provided, that the funds derived from the sale of said lands shall be invested in the bonds of the United States and deposited with the treasurer of the United States; that no more than one-tenth of said lands shall be offered for sale in any one year; that the money derived from the sale of said lands invested and deposited as hereinbefore set forth, shall constitute a university fund; that no part of said fund shall be expended for university buildings, or the salary of professors or teachers, until the same shall amount to fifty thousand dollars, and then only shall the interest on such fund be used for either of the foregoing purposes until the said fund shall amount to one hundred thousand dollars, when any excess, and the interest thereof, may be used for the proper establishment and support, respectively, of said university."

Section 14 of the enabling act of 1889 reads as follows: "That the lands granted to the territories of Dakota and Montana by the act of February 18th, eighteen hundred and eighty-one, entitled 'An act to grant lands to Dakota, Montana, Arizona, Idaho and Wyoming for university purposes,' are hereby vested in the states of South Dakota, North Dakota and Montana, respectively, if such states are admitted into the Union, as provided in this act, to the extent of the full quantity of seventy-two sections to each of said states, and any portion of said lands that may not have been selected by either of said territories of Dakota and Montana may be selected by the respective states aforesaid; but said act of February 18th, eighteen hundred and eighty-one, shall be so amended as to provide that none of said lands shall be sold for less than ten dollars per acre, and the proceeds shall constitute a permanent fund to be safely invested and held by said states severally, and the income thereof be used exclusively for university purposes.The schools, colleges and universities provided for in this act shall forever remain under the exclusive control of the said states, respectively."

The legislative assembly of this state, by an act provided March 4, 1897, provided for the issuance of bonds to the amount of...