208 P. 419 | Ariz. | 1922
This is an action of mandamus by the • counties of Pima, Yavapai, Coconino, and Maricopa, against Jesse L. Boyce, auditor, and Harry S. Eoss, • treasurer, of the state, to compel said officers to audit, allow and pay their claims against a certain fund
The facts succinctly and briefly are that the plaintiff counties, at the times and in the amounts hereinafter stated, issued their bonds in the way of subsidies to certain named railroad corporations, in consideration of railroads already built, or promised to be built, in Arizona, to wit: By Pima county, July 1,1883,150 bonds, par value $150,000, to Arizona Narrow Gauge Railroad Company, pursuant to Act No. 35 of the Twelfth Legislative Assembly. By Yavapai county, between August 4, 1886, and December 31, 1886, 292 bonds, par value $292,000, to Prescott and Arizona Central Railway Company, pursuant to Act 81, Thirteenth Legislative Assembly. By Maricopa county, between April 12, 1887, to July 7, 1887, 200 bonds, par value $200,000, to Maricopa and Phoenix Railroad Company, pursuant to Act 47, Thirteenth Legislative Assembly. In May, 1891, Coconino county was created out of Yavapai county and assumed one-third of the subsidy bonds issued by Yavapai county, which amounted, at the time in principal and interest, to $152,975.50, for which Coconino county gave its bonds to Yavapai county, and hence Coconino’s appearance in the suit.
In October, 1894, the Supreme Court, in Lewis v. Pima County, 155 U. S. 55, 39 L. Ed. 67, 15 Sup. Ct. Rep. 22 (see, also, Rose’s U. S. Notes), held that the territorial act, under which Pima county bonds were issued, was void as in contravention of the organic law of the territory, and it was generally conceded the de
In June, 1896, the Congress passed an act (Act Gong. June 6, 1896, c. 339, 29 Stat. 262) that validated all of said bond issues. This act of validation, in subsequent litigation, was upheld by the Supreme Court (Utter v. Franklin, 172 U. S. 416, 43 L. Ed. 498, 19 Sup. Ct. Rep. 183 (see, also, Rose’s U. S. Notes), and the counties could do nothing except recognize and discharge such bonds as binding obligations.
The counties have accordingly paid in the way of interest large sums to the holders of these bonds. Yavapai county has redeemed a few of the original bonds. From time to time, prior to statehood, these bonds were taken up in exchange for territorial refunding bonds, under which arrangement the counties levied and collected taxes to meet the interest thereon, transmitting it to the territorial treasurer, who in turn paid over the interest to the bondholders.
In the enactment of the Act of June 20, 1910 (36 Stat. 557), providing for the admission of Arizona into the Union, the Congress took cognizance of all said bond issues, their original invalidity and the validation thereof, and in section 25 of the Enabling Act granted 1,000,000 acres of land to the state as trustee “ . . . for the payment of the bonds and accrued interest thereon issued by Maricopa, Pima, Yavapai, and Coconino counties, . . . which said bonds were validated, approved, and confirmed by the act of Congress of June 6, 1896 (29 Stat. 262),” and it is provided by said act that if any remainder of land or proceeds is left, “after the payment of said debts,” the same shall become a part of the permanent school fund of the state.
It is to have this money applied, and other money that may be realized from time to time from the said 1,000,000 acre land grant, in the liquidation ‘ ‘ of bonds and accrued interest thereon issued by” said plaintiff counties, that this suit is brought. For the purposes of the further presentation of the case, we shall choose to state the viewpoint of the plaintiffs. The contention of the counties is that this gift of 1,000,000 acres of land was intended as a reimbursement to them of any and all sums that they may have paid on account of said bond issues, or that they become obligated to pay by reason of the congressional validating act. We think we can discover in the language employed by Congress in making the grant, a purpose and intention to make these counties whole as against the original bonds issued by them, including both principal and interest. It is, in the language of the act, “for the payment of bonds and accrued interest thereon, issued by Pima, Yavapai, Coconino and Maricopa counties” that these million acres of land were granted to the state.
The fact that the territory of Arizona had taken up such bonds and issued to the holders thereof territorial bonds did not relieve the counties from the obligation to care for said indebtedness. As a matter of fact the different counties, as they had done before, after the refunding, continued to levy and collect taxes, to discharge the interest. The substitution of bonds of the territory for bonds of the counties did not, in fact, substitute debtors. The counties were still the debtors, obligated to pay the debts. The
The-legislature, in 1915, Second Special Session, in the Land Code, chapter 5, provides generally the manner of selecting, selling, leasing and otherwise disposing of the institutional lands granted to the state upon its admission to the Union. Therein it is provided that moneys realized from these railroad lands shall be a special fund and known as “county bonds land fund,” section 94. By section 101, moneys in this fund are to be devoted:
“First, to the payment of the current interest of said bonds; second, to the reimbursement of the several counties for all interest accruing and paid thereon since date of issuance; third, to retire the said bonds when due.”
Section 102 provides for the payment of current interest on such bonds, and section 103 provides the manner of presenting, by the counties, their claims for reimbursement of interest paid by them, and imposes the duty upon the state auditor and state treasurer, if the claims be found to be correct, to approve the same and make proper credits and allowances for said claim, to the county presenting the same. Thus we have the legislature of the state construing the grant of these lands in accordance with the contention
This suggests some of the contentions of the appellants. The proposition is advanced that because the Congress, in the act granting certain institutional lands to the state, reserved the right to institute suits, through the Attorney General of the United States, in the United States courts, to enforce the provisions of the trust, no action or proceeding can be maintained in the state courts to compel the state’s agents to do and perform the things the state legislature has provided they shall do in the execution of said trust. The mere statement of the contention condemns it. The duty sought to be enforced against the state treasurer and the state auditor is one imposed by a state law. Surely our courts have jurisdiction of questions concerning the duty and power of our state officers as conferred upon them by state legislation.
Besides there is nothing in the language of the act of Congress (section 28, Enabling Act of June 20,
We should not omit to state that the Attorney General of the United States is not objecting to the method provided by the legislature of Arizona for the administration of these railroad lands or the disposition of the funds realized therefrom. If the donor of these lands does not object to the manner of their administration by the state, as trustee thereof, through its legally constituted agent, it would seem that the officers of the state, with merely ministerial functions to perform, should not hesitate to perform them, rather than impose objections in behalf of one who is not complaining, but who seems to be satisfied.
Discovering no reason for reversing the judgment of the lower court, the order is that it be affirmed.