State v. Rice
| Citation | 83 P. 874,33 Mont. 365 |
| Parties | STATE v. RICE, State Treasurer. |
| Decision Date | 09 January 1906 |
| Court | Montana Supreme Court |
Mandamus by the state, on relation of Charles S. Haire, against James H. Rice, as State Treasurer. Writ denied.
M. S Gunn, Carpenter, Day & Carpenter, and W. T. Pigott, for relator.
Albert J. Galen, Atty. Gen., and W. H. Poorman and E. M. Hall, Asst Attys. Gen., for respondent.
The Ninth Legislative Assembly of Montana passed an act entitled "An act to enable the Normal School land grant to be further utilized in providing additional buildings and equipment for the Montana State Normal College," approved February 2, 1905. This act authorizes the state board of land commissioners to issue bonds, sell the same and apply the proceeds to the erection, furnishing, and equipment of an addition to the present State Normal School building at Dillon. It is provided that the funds realized from the sale or leasing of the lands granted by the United States to Montana for state normal school purposes (100,00 acres), and the licenses received from permits to cut timber on any of said lands, are pledged as security for the payment of the principal and interest on such bonds, except such sums as may be necessary to pay other bonds heretofore issued. There is the further provision that the state of Montana shall not be liable for the payment of the bonds or the interest. Pursuant to the provisions of this act, the state board of land commissioners issued coupon bonds to the amount of $75,000, dated May 1, 1905, in denominations of $1,000 each, bearing interest at 4 per cent. per annum, payable semi-annually, and caused the same to be executed as prescribed by such act. Thereafter such bonds were duly advertised for sale by the State Treasurer, and the state board of land commissioners submitted a bid for said bonds at par as an investment for the permanent common school fund, which bid was accepted, and, presumably, the money for the bonds paid over to the credit of the building fund of the Normal School, although this does not appear affirmatively from the petition filed herein. This relator, having performed services in connection with the erection of the addition to the State Normal School building, presented a claim for $1,200 to the executive board of the State Normal School, which was allowed and approved by that board, and allowed and ordered paid by the state board of examiners, a warrant issued for the same by the State Auditor, and this warrant presented by the relator to the State Treasurer, who refused to pay it. Thereupon this proceeding in mandamus was commenced to compel the State Treasurer to pay said warrant. An alternative writ and an order to show cause issued, and upon the return the State Treasurer, represented by the Attorney General, moved to quash the alternative writ and dismiss the proceedings, upon the ground that the petition for the writ does not state facts sufficient to entitle the relator to any relief.
The contention of the respondent is that the act of the legislative assembly above referred to is unconstitutional, first, because the act authorizes the expenditure of funds received from the sale of the normal school lands for the payment of these bonds; second, because the issuance of said bonds increases the indebtedness against the state of Montana to an amount in excess of $100,000; and, third, because the act authorizes the expenditure of the money for the erection of a building for the State Normal School. By the provisions of section 17 of the act of Congress, approved February 22, 1889 (25 Stat. 676, c. 180), commonly known as the "Enabling Act," there was granted to the state of Montana "for state normal schools" 100,000 acres of the public land. Other grants were made for the School of Mines, the Agricultural College, the State Reform School, the Deaf and Dumb Asylum, and the State Capitol buildings; and by other sections of the same act a grant of 72 sections of the public land was made for a university, and grants, additional to those mentioned in section 17, for the State Capitol buildings and Agricultural College. Other like grants of land were made by the same act to the states of North Dakota, South Dakota, and Washington, and of the grants made by section 17 it is said: "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." Section 5 of the act of February 2, 1905 (Laws 1905, p. 5), provides that the State Treasurer shall keep all moneys derived from the sale, leases, or sale of timber from lands granted in aid of the State Normal School, in a separate fund to be known as the "State Normal School Fund," and out of this fund he shall pay the interest on these bonds as it accrues, and the principal at maturity. Section 12 of article 11 of the Constitution of Montana provides:
Beyond question the State Normal School is one of the institutions of learning to which reference is here made, and, as it is the only one with which we are directly concerned in this proceeding, we may paraphrase section 12 above as follows: The funds of the State Normal School, from whatever source secured, shall be invested as prescribed by law, and the interest from such invested funds, together with the rents from leased lands belonging to the normal school grant, shall be devoted to the maintenance of such Normal School. The provisions of this section of the Constitution are mandatory and prohibitory. Section 27, art. 3. The funds referred to mean all funds. They shall be invested to draw interest, and used for no other purpose. The interest from such invested funds, and the rents from lands belonging to this grant which have not been sold, and not the principal sum derived from the sale of such lands or from the sale of timber, shall be used for the maintenance and perpetuation of the Normal School, and for no other purpose. If, then, the principal sum received from the sale of lands belonging to the normal school grant must be invested to draw interest, that principal sum cannot be used to pay off the principal of or interest on the bonds authorized by the act of February 2, 1905, as provided by such act. It is apparent from the most casual reading of section 12 of article 11 of the Constitution, and section 5 of the act of February 2, 1905 (Laws 1905, p. 5), above, that as soon as the Treasurer receives any moneys from the sale of normal school lands or timber therefrom into the "State Normal School Fund" such moneys shall be invested to draw interest, under such regulations as may be prescribed by law, and that only the interest on such invested funds, together with the rents from leased lands, can be devoted to the maintenance and perpetuation of the Normal School. If this section of the Constitution is to be given force and effect, it is apparent that the act in diverting the moneys received from the sale of normal school lands, or the sale of timber therefrom, to the payment of these bonds, is in direct violation of the provisions of this section of the Constitution.
But on behalf of the relator it is contended that by the terms of section 17 of the enabling act the lands granted to the state for normal school purposes are to be held, appropriated, and disposed of for normal school purposes in such manner as the Legislature of Montana may provide, and that this act is sufficiently broad to warrant the Legislature in borrowing money and pledging such lands for the payment of the principal and interest. And it is further contended that, if section 12 of article 11 of the Constitution contravenes the provisions of section 17 of the enabling act, section 12 is invalid and of no force or effect. It is perfectly apparent then, that, in order to hold the act of the Legislature approved February 2, 1905, binding and the bonds issued in pursuance thereof valid, this court must hold section 12 of article 11 of the Constitution inoperative and of no effect. However, as the Constitution of Montana is the supreme law of this state, aside from the provisions of the Constitution of the United States and the treaties made and statutes enacted in pursuance thereof, it becomes incumbent upon this court to reconcile, if possible, the provisions of our Constitution with the enabling act under which the Constitution was adopted and the state admitted into the Union; for, however reluctant a court is to declare unconstitutional and invalid an act of a legislative assembly, it will with even greater hesitation hold inoperative and invalid a provision of a state Constitution. It is to be observed that the lands granted to the state by the enabling act are granted for specific purposes which are clearly defined-100,000 acres are granted for state normal schools, and the only limitation upon the grant is that such lands shall be held, appropriated, and disposed of exclusively for the purposes mentioned, in such manner as the Legislature may provide. Under section 17 above the Legislature might designate the agent to select and classify the lands. It might specify that the lands should be sold at private sale or at public...
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