24 Minn. 517 | Minn. | 1877
The case comes here upon appeal from an order sustaining demurrers to the complaint.
The complaint alleges the corporate existence of the plaintiff, and that it is the company mentioned in the joint resolution of the legislature of March 11, 1873, “To facilitate the settlement of the title to swamp-lands heretofore granted by the state of Minnesota to state institutions and railroads. ”
The defendant Davis, when the suit was brought, was governor of the state, and the other defendants, trustees of the Minnesota Hospital for Insane.
The complaint alleges the corporate existence of the St. Paul and Pacific Railroad Company, authorized to construct and operate a branch railroad from St. Paul to Winona, and to acquire, hold and convey lands, and that in 1867 the plaintiff succeeded to all its rights, powers, qu'ivileges, immunities, franchises and property appertaining to the branch from St. Paul to Winona. It then refers to the act of March 6, 1863, entitled “An act granting lands to aid the St. Paul and Pacific Railroad Company in the construction of their branch railroad from St. Paul to Winona, ” and to the acts of March 2, 1865, March 2, 1867, March 4, 1868, March 5, 1869, each extending the time for the original company, or plaintiff, to comply with the conditions of the land grant, and alleges the final completion of the road and the performance of such conditions.
It alleges that within the limits of seven miles on each side of its line from St. Paul to Winona, there were only 3,541 •91-100 acres of swamp-lands, and that it is entitled to swamplands to be selected outside of said limits, to the amount of the deficiency of 919,338 9-100 acres, and that in all there have been certified to it by the governor only 112,032 10-100 acres. It then refers to the act of February 13, 1865, entitled “An act to appropriate swamp-lands to certain educational and charitable institutions therein named, and for the
To this complaint demurrers were interposed on the part of the governor^ on the grounds that the court has not jurisdiction over him, and that the complaint does not state facts sufficient to constitute a cause of action; and on the part of the trustees, on the grounds that the court has no jurisdiction of the persons or of the subject of the action; that plaintiff has not legal capacity to sue; that there is a defect of parties defendant; that the complaint does not state facts sufficient, to constitute a cause of action. The demurrers were sustained.
The demurrer on the part of the governor was properly sustained, on the ground that the court has no jurisdiction over him. The duties of the governor sought to be enforced in this action are duties belonging to him as executive of the' state, and not as an individual. Rice v. Austin, 19 Minn. 103. He is not subject to the control of the judiciary in tha
The same ground of demurrer taken by the trustees is not well founded. The exemption from control by the judiciary, on the part of the governor, does not extend to mere administrative agents, who are created, and their powers and duties defined, by the legislature. The courts may entertain suits against them as against any merely ministerial officers.
The subject-matter of the action is property belonging to the state, and the action, though nominally against the trustees, is virtually against the state, to determine its right in the property involved. The exemption of the state from actions by its citizens is not based on any constitutional provision, but merely on grounds of public policy. A waiver of such exemption does not trench upon the independence of any department of the government. There can be no doubt that the legislature may waive such exemption, nor that its consent to do so may be expressed by joint resolution, passed in the manner prescribed by the constitution, as effectually as in the more formal mode by bill. It is to matters of this character that section 12, article 4 of the constitution relates, The joint resolution of 1873 is an answer to the objection that the action is virtually against the state.
There is nothing in the ground of demurrer stated — that the plaintiff has not legal capacity to sue. Its corporate character and the purposes of its creation fully appear by the complaint. The capacity to sue and be sued, and to protect its rights and enforce its claims by judicial process is an incident to every corporation. That the plaintiff may hold these lands,
The ground of demurrer — that there is a defect of parties defendant — is based on the proposition that the state auditor, because he certified the lands to the trustees, should be made a party defendant. The auditor is not, and never was, in any way connected with the title to the lands, any more than an attorney to convey lands is, by virtue of that relation, connected with the title to lands to which he executes a conveyance for his principal.
The further proposition is made in the argument “that if the legal title to the lands is in the state the governor cannot be required by the court to convey, and no alternative decree will be rendered by the court when the court has no power to direct and insist upon both conditions involved in the alternative.” Section 14-, c. 75, General Statutes, provides, “The district court has power to pass the title to real estate by a judgment, without any other act to be done on the part of the defendant, when such appears to be the proper mode to carry its judgment into effect.” A case in which the court has jurisdiction over the land, but has not, or for any cause cannot enforce, jurisdiction over the person to compel a conveyance, comes within this section, and so far as compelling a conveyance by the governor is concerned, that is this case. The consent of the state and service on the trustees in whom the nominal title is vested gives the court jurisdiction to determine such title.
These grounds of demurrer being disposed of, we come to the merits of the case involved in the ground of demurrer alleged — that the complaint does not state facts sufficient to constitute a cause of action. This ground of demurrer has been discussed by counsel with great ability, the arguments taking a much wider range than we deem it necessary to follow. The arguments are mainly directed to the right of the plaintiff to the swamp-lands certified by the commissioner of the state land-office to the Hospital for Insane.
On this act the defendants make, in substance, the following propositions: (1) That it was not a present grant of the lands involved in the suit, or of any lands whatever; that at most it was a mere executory promise by the state to convey, upon the performance by the company of certain conditions; (2) that this promise does not involve an undertaking by the state to reserve or retain any swamp-lands outside the seven-mile limits for the company to select from when the right to select should accrue, but merely permission to the company to select from the swamp-lands which the state might have after it had, in the meantime, made such disposition of such lands as it pleased, by grant or otherwise; (3) that the state had, before any right of selection accrued to the company, disposed of the lands held by the trustees defendants, by vesting the title in them upon the trusts specified in the act of February 13, 1865, and that when the company made its selection, those lands did not belong to the state within the meaning of the act of March 6, 1863; (4) that if the act of March 6, 1863, was merely an executory promise to convey on the conditions specified, there was no promise or undertaking of the company to perform these conditions; that it lacked the element of mutuality to make it a binding contract, was therefore without consideration until the company should
The terms of the act are those of present grant. “ There is hereby granted to, etc.” * * “All the lands hereby granted appertaining to the unbuilt portion of the said branch road shall be forfeited to the state.” Notwithstanding the difficulty of conceiving a grant which shall at once vest in the grantee the title, when the lands to which it is intended to apply are not known, acts of congress in the terms of this act have been held by the supreme court of the United States in a number of cases, and most distinctly in Schulenberg v. Harriman, 21 Wall. 44, to pass a. present title, which, at first imperfect, acquires precision and becomes attached to specific lands as soon as the land is ascertained. But upon the case presented we do not deem it necessary to decide the point; for the act is, if not a present grant, good as an executory contract to convey, even if it be conceded, that, as an executory promise on the part of the state, it was at first without mutuality of consideration, and for that reason might be withdrawn by the state before the company should do anything toward performing the conditions of the promise. It could not be withdrawn without notice to the company. No such notice appears from the complaint. It appears that the plaintiff performed the conditions, and, so far as the complaint shows, that the state not only gave no notice of an intention to withdraw its promise, but that it never intended to withdraw it.
It is immaterial so far as concerns this controversy whether the act be considered a present grant or an executory contract to convey. In either case it is equally binding upon the state. In the latter case, the state could not rightfully defeat the right of the company, upon its performing the conditions of {he act, to select and receive the lands intended by it. We see no such intention on the part of the legislature. The first section of the act of February 18, 1865, (Laws 1865, e„ 5,) which is claimed to have defeated this right of selec
The construction of the act of March 6, 1863, as to this feature, contended for by the defendants, is entirely inadmissible. On that construction the effectual right of selection would depend entirely upon the will of the state, for the
What would be the respective rights between the plaintiff and other grantees of the state in grants made subsequent to the plaintiff’s, but completed by appropriation of the lands to them before a selection made by the plaintiff, leaving not enough for plaintiff to select from, we need not consider. The trustees do not stand in the position of such grantees. Beyond any question, they are merely agents or officers of the state, appointed to hold for it, and manage, the lands set apart for the hospital. The title is the title of the state, held for it by its agents or officers, as fully so as if the legislature, instead of appointing them for that purpose, had designated to perform the duties imposed on them the state auditor, or treasurer, or attorney-general, and had, for the more convenient performance of such duties, declared that the title to the lands set apart should vest in such officer. No one but the state has any'interest in the lands or control over them, except such as it permits, and as its agents. The control of the state, both over the legal title and the use, is absolute, and it is the control of the owner.
There is no analogy in this respect between the trustees, though they are a corporation, and a city, county, or other corporation created for municipal purposes. Such corporation is, indeed, created by, and its existence depends upon, the will of the state, but it is created for the benefit of, and
Probably the most important question presented in the argument is, as to the amount of lands granted to the plaintiff by the act of 1863. The case might be decided without determining this, but each side wishes it decided, and the preamble to the joint resolution of 1873 seems to contemplate an action in which that question may be determined. We will therefore decide it. The plaintiff claims that the act granted fourteen full sections per mile. The defendants insist that it granted only seven full sections per mile.
The granting part of the act — that part in the section we have quoted — down to the words “governor of the state, ” first occurring, purports to grant to the company all the swamplands, more or less, lying within the limits of seven miles on each side of the line of road when located. The succeeding paragraph provides for giving to the company other swamplands in lieu of those which shall, at the time of such location, have been sold or otherwise disposed of within the limits, by the United States or state. Had the act stopped there, the whole amount of land to which the company was entitled would be measured by the amount of swamp-lands actually lying within those limits, and the amount which it might take outside of the limits by the amount disposed of within the limits, by the United States or state. In the construction of the act it is proper to observe that if it had been the intention to grant fourteen sections per mile, and no more and no less — and that is what plaintiff claims — the most obvious and natural way to have expressed the intention would have been to state that as the amount intended in the
Following the portions of the act referred to, is the language upon which the doubt arises, as follows: “And if, upon the completion of any twenty continuous miles of said road, as aforesaid, it shall be found that within the said seven miles of said line there shall not be an amount of swamp-lands on each side of said line, belonging to the state, equal to at least seven full sections per mile of said road so completed, then the said company shall have the right to and may select, from the swamp-lands belonging to this state outside of said seven-mile limits, other swamp-lands in an amount equal to such deficiency.” This is in the nature of a guaranty or undertaking on the part of the state that the swamp-lands designated in the granting part of the act, to wit, all the swamplands lying within the prescribed limits, shall be at least equal to a certain amount — that is, the state, having made a grant of all the swamp-lands, whatever the amount might be, within those limits, such amount being unknown, in order to induce the company to accept the grant and build the road, undertakes that if the quantities or amounts in the several subdivisions surveyed as swamp-lands, added together, do not equal a given number of full sections, it will make up the deficiency from its-swamp-lands outside of the limits.
The defendants claim that the number of full sections intended for the entire line is seven per mile, or equal to one-half of all the land lying within the strip; the plaintiff claims that it is fourteen, or equal to the whole of the lands within the strip. And it may be remarked again, as to this part of the act, that, had it been the intention to make up fourteen full sections per mile, the easiest, shortest and most obvious mode of expressing the intention would-have been by using the word fourteen instead of the word seven.
The words, “on each side of said line,” certainly indicate that the amount named in this part of the act — to wit, seven full sections per mile — is to apply to the half of the strip on
The order appealed from, so far as it sustains the demurrer of the defendant Davis, -is affirmed. So far as it sustains the demurrer of the other defendants, it is reversed, but without costs.
Cornell, J., did not sit in this case, having, as attorney-general, given an opinion on some of the points involved in it.