State v. Potts

• Decision Date: 24 November 1926
• Docket Number: 20325.
• Citation: 250 P. 1090,141 Wash. 110
• Parties: STATE ex rel. BOOKSTORE v. POTTS, State Treasurer.
• Court: Washington Supreme Court

250 P. 1090

141 Wash. 110

STATE ex rel. BOOKSTORE v. POTTS, State Treasurer.

No. 20325.

Supreme Court of Washington, En Banc.

November 24, 1926

Original application for writ of mandamus by the State, on the relation of the Bookstore, against W. G. Potts, as Treasurer of the State of Washington. Writ issued.

Tolman C.J., and Mackintosh, Bridges, and Holcomb, JJ., dissenting.

Frank C. Owings, of Olympia, and Roberts & Skeel, of Seattle, for relator.

John H Dunbar and R. G. Sharpe, both of Olympia, for respondent.

MAIN J.

This is an original application in this court for a writ of mandamus to compel the state treasurer to pay a warrant drawn upon the capitol building construction fund for the sum of $72.50, the purchase price of an office desk to be used as a part of the furnishings of the administrative and legislative building now nearing completion at the state capital. While the amount involved is small the case really presents the larger question of whether the $600,000 appropriated by the Legislature out of the capitol building construction fund for furniture and furnishings of the administrative and legislative building can be paid out of that fund or whether the furniture and furnishings must be paid out of the general fund which is derived from taxation.

By chapter 27 of the Laws of 1925 the state capitol committee was authorized to issue bonds to the extent of $4,000,000 against the state capitol land grant and to sell the same. It is out of the funds derived from the sale of these bonds that the Legislature appropriated $600,000 for furniture and furnishings for the administrative and legislative building.

The act of Congress generally known as the Enabling Act, approved February 22, 1889 (25 Stat. at L. 676), under which Washington territory become the state of Washington made donations of the public land owned by the federal government to the state for various purposes, one of which was for public buildings at the state capital. Under that act, to the land thus donated the state became the absolute owner of the title, which it holds in trust for the purposes therein specified. State ex rel. Capitol Committee v. Clausen, 134 Wash. 196, 235 P. 364.

The two sections of the Enabling Act which cover the matter of lands set aside for public buildings at the state capital are sections 12 and 17. Section 12 provides:

'That upon the admission of each of said states into the Union, in accordance with the provisions of this act, fifty sections of the unappropriated public lands within said states, to be selected and located in legal subdivisions as provided in section 10 of this act, shall be, and are hereby, granted to said states for the purpose of erecting public buildings at the capital of said states for legislative, executive, and judicial purposes.'

Section 17 provides that in lieu of the grant of lands which had previously been made to other states for certain purposes there was granted:

'To the state of Washington: For the establishment and maintenance of a scientific school, one hundred thousand acres; for state normal schools, one hundred thousand acres; for public buildings at the state capital, in addition to the grant hereinbefore made for that purpose, one hundred thousand acres; for state charitable, educational, penal, and reformatory institutions, two hundred thousand acres.

'That the states provided for in this act shall not be entitled to any further or other grants of land for any purpose than as expressly provided in this act. And the lands granted by this section shall be held, appropriated, and disposed of exclusively for the purposes herein mentioned, in such manner as the Legislatures of the respective states may severally provide.'

Under section 12 there was granted to this state 50 sections or 32,000 acres of land for the purpose of 'erecting public buildings' at the state capital. By section 17 there was granted 100,000 acres 'for public buildings' at the state capital. There has been much discussion as to the meaning and limitations of the word 'erect' as used in section 12, but it seems to us that the Congress did not intend a different meaning when it used the words 'erect public buildings' from that when it said in section 17 'for public buildings.' Using the words 'public buildings' and omitting the word 'erect' in section 17, Congress provided that the 100,000 acres therein granted should be in addition to that before granted. 'For that purpose' indicates that Congress had construed the words of section 12 to mean the same as those of section 17, to wit, 'public buildings.' 'That purpose,' found in section 17, apparently referred to the words 'public buildings' as used in that section and not to 'erect public buildings' as used in section 12. Again, in section 17 it is provided that the lands therein granted shall be used exclusively for the purposes therein mentioned, that is, public buildings, and shall be disposed of in such manner as the Legislature of the state may provide. To arrive at the intent of Congress as it is expressed in the Enabling Act, the conditions then present should be called to mind. At that time the federal government owned vast quantities of land in the territory which was thinly settled. The resources thereof had not been developed, industries had not been established, transportation was limited, and property values were low. It was, undoubtedly, the purpose of Congress by making the grant to give to the new state that should come in under the Enabling Act land for public buildings at the state capital sufficient to enable such buildings to be constructed and equipped as an institution without resort to general taxation for any part of that expense. If resort should be made to general taxation for the purpose of raising the $600,000 necessary for the furniture and furnishings of the administrative and legislative building, a thing would be done which Congress sought to avoid. There is not provision in the act relative to acquiring land upon which the buildings could be erected, but, manifestly, this would be a necessary incident. The buildings and the land alone, without furniture and furnishings, would be useless for the purpose intended. The furniture and furnishings of the administrative and legislative building have an immediate and direct bearing upon the purpose for which the lands were granted.

In United States v. Ervien, 246 F. 277, 159 C. C. A. 7, the federal Circuit Court of Appeals for the Eighth Circuit construed an enabling act that applied to New Mexico. There, as here, public land had been granted by Congress to the state for various purposes which the act provided should be held in trust. During the year 1915 the Legislature of that state passed an act which authorized a portion of the moneys derived from these lands to be used for making known the resources and advantages of the state generally and particularly to home-seekers and investors. The aggregate of the lands granted and confirmed in trust comprised about one twenty-sixth of the area of the state. The question there was whether the object for which the money was to be used had such an immediate and direct bearing upon the purposes for which the lands were granted that the expenditure could be said to be authorized. It was there held that the object for which the money was to be used was too remote and indirectly consequential to authorize the use of trust funds. It was there said:

'The proposed campaign of publicity is for the general advancement of the state. It has no immediate or direct bearing upon the trust lands or purposes, except as they are within and pertain to the state at large. For aught that appears, the lands may or may not be offered for sale at the time. The advantage accruing is too indirectly consequential to authorize the use of the trust funds.'

The reasoning of that case leads directly to the conclusion that, if the object for which the money was to be expended had an immediate and direct bearing upon the purposes for which the land had been set aside, it would have been a proper expenditure. The reason the court gives for not sustaining the act of the Legislature authorizing the use was that the purpose for which the money was to be expended had no 'immediate or direct bearing upon the trust lands or purposes' and that the advantage accruing was too 'indirectly consequential' to authorize the use of trust funds.

It seems to us that it cannot be successfully argued that an expenditure for furniture and furnishings for a new building at the state capital has no immediate or direct bearing upon the purpose for which the capitol lands were granted. The expenditure having a direct and immediate bearing, it is not a violation of the trust to use the fund derived from the bonding of the state capitol lands for such purposes.

From the judgment of the Circuit Court of Appeals in the New Mexico case an appeal was taken to the United States Supreme court. Ervien v. United States, 251 U.S. 41, 40 S.Ct. 75, 64 L.Ed. 128. That court briefly disposed of the matter and in effect adopted the views of the Circuit Court of Appeals. In the course of the opinion it was said that he case 'is not in broad range and does not demand much discussion.' The opinion concludes:

'We need not extend the argument or multiply considerations. The careful opinion of the Circuit Court of Appeals had made it unnecessary. We approve, therefore, its conclusion and affirm its decree.'

One of the conclusions of the Circuit Court of Appeals was that, if the proposed expenditure had no immediate and direct bearing upon the purpose for which the lands had been granted, then it could not be sustained. The corollary of this, as already stated, is that, if the proposed expenditure...