State v. Maynard

• Citation: 31 Wash. 132,71 P. 775
• Parties: STATE ex rel. HEUSTON v. MAYNARD, State Treasurer.
• Decision Date: 24 February 1903
• Court: United States State Supreme Court of Washington

71 P. 775

31 Wash. 132

STATE ex rel. HEUSTON v. MAYNARD, State Treasurer.

Supreme Court of Washington

February 24, 1903

Original application for a writ of mandate by the state of Washington on the relation of B. F. Heuston, against C. W. Maynard as treasurer of the state of Washington. Writ denied.

W. B Stratton, for respondent.

MOUNT, J.

This is an original application for a writ of mandate to compel the State Treasurer to pay the interest upon a warrant issued by the state through its proper officers upon the state normal school fund, in consideration of work done and expenses incurred in the erection of a state normal school building for the Washington State Normal School at New Whatcom. The warrant was drawn pursuant to an act of the legislature approved March 7, 1895 (Laws 1895, p. 55). The fund upon which it was drawn was created by the first section of the act, which is as follows:

'Section 1. There is hereby created a fund to be known as the 'State Normal School Fund,' into which fund shall be paid all proceeds from the sales of lands granted to the state of Washington by the United States for state normal schools, and that no appropriation for the election of state normal school buildings shall be made from any other fund, except the fund derived from the sale of lands granted by the United States to the state of Washington for state normal schools.'

Sections 2 and 3 of the act appropriate from said funds for the purpose of erecting and equipping a state normal school at Cheney, $60,000, and for another at Whatcom, $40,000. Section 4 authorizes the issuance of bonds to the amount of $100,000, 'payable out of the fund provided for in section one of this act and not otherwise, and no primary or secondary application for the payment of said bonds, except out of the aforesaid fund, is intended to be created by this act. Said bonds shall not be sold for less than par.' The state was never able to sell these bonds, and none were ever issued. Section 5 of the act is as follows:

'Sec. 5. Until the sale of said bonds, the work of erecting said normal school buildings shall proceed and be paid for by warrants drawn upon the fund created by this act which shall draw interest at the rate of seven per cent. per annum, payable annually, and whenever there shall not be sufficient moneys in said fund to pay all outstanding warrants, it shall be the duty of the treasurer to reserve a sufficient amount to pay the interest on all outstanding warrants before paying the principal of any senior outstanding warrants. Whenever there shall not be sufficient moneys in said fund to pay the interest on all outstanding warrants drawn against it, the interest shall be paid on warrants in the order in which they are drawn, and all unpaid interest on junior warrants shall draw interest at the rate of seven per cent. annually. Interest on warrants drawn under the provisions of this act shall be computed from the first day of the month succeeding the date of the warrant.'

Warrants were issued under this act between July 13, 1895, and April 30, 1897, to the amount of $100,000. Warrants numbered 1 to 4, inclusive, for $50 each, were issued on July 13, 1895; No. 5, for $900, on August 6, 1895; and No. 6, the warrant in this action, for $54.90, was issued on August 19, 1895. There has come into the state normal school fund from the sale of lands granted to the state for normal schools since 1895 the sum of $7,000, which is sufficient to pay the interest on warrants 1 to 6, inclusive, although not sufficient to pay the interest on all the warrants issued upon said fund. No part of this money has been paid out as interest or principal on any of the warrants, or otherwise, or invested as a permanent fund; nor has any part of this money been received as interest or income from said land grant or the proceeds thereof. The treasurer refuses to pay the interest upon relator's warrant for two principal reasons: (1) That the proceeds arising from the sale of normal school lands constitute a permanent fund, the interest or income only of which may be appropriated in support of said normal schools, and that the act of 1895, supra, is in contravention of the enabling act, because it undertakes to appropriate the proceeds themselves; (2) that no appropriation has been made for the payment of interest upon the warrants in question, or any of the warrants issued by authority of said act.

A determination of the first question involves the construction of the act of congress admitting the state into the Union, approved Feb. 22, 1889, and commonly known as the 'Enabling Act.' The provisions of that act relative to the question under consideration are as follows:

'Sec. 10. That upon the admission of each of said states into the Union, sections numbered 16 and 36 in every township of said proposed states, and where such sections, or any part thereof, have been sold or otherwise disposed of by or under the authority of any act of Congress, other lands equivalent thereto, in legal subdivisions of not less than one quarter section, and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said states for the support of common schools, such indemnity lands to be selected within said states in such manner as the Legislature may provide, with the approval of the Secretary of the Interior; provided, that the 16th and 36th sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants nor to the indemnity provisions of this act, nor shall any lands embraced in Indian, military, or other reservations of any character, be subject to the grants or to the indemnity provisions of this act until the reservation shall have been extinguished and such lands be restored to, and become a part of the public domain.

'Sec. 11. That all lands herein granted for educational purposes shall be disposed of only at public sale, and at a price not less than $10 per acre, the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools. But said lands may, under such regulations as the legislatures shall prescribe, be leased for periods of not more than five years, in quantities not exceeding one section to any one person or company; and such land shall not be subject to pre-emption, homestead entry, or any other entry under the land laws of the United States, whether surveyed or unsurveyed, but shall be reserved for school purposes only.' Section 12 grants 50 sections of unappropriated public lands for the purpose of erecting public buildings at the capital of each state for legislative, executive, and judicial purposes; and section 13 provides that 5 per centum of the proceeds of sales of public lands within the states, sold subsequent to the admission of the states, shall be paid to the states as a permanent fund for the support of the common schools.

'Sec 14. That the lands granted to the territories of Dakota and Montana by the act of February 18, 1881, 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 land 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 18, 1881, shall be so amended as to provide that none of said lands shall be sold for less than $10 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. And...