17 Mont. 565 | Mont. | 1996
The first point involved is, was relator’s claim one which must have been submitted to the state board of examiners? If the claim upon which the relator’s warrant was issued is not a claim against the state, or is the compensation of an officer fixed by law, then, under the decision of this court in State v. Cook, ante, p. 529, the state board of examiners has no authority to pass upon the same.
Congress, by the act of August 18, 1894, “An act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1895, and for other purposes,” authorized the secretary of the interior, with the approval of the president, to contract and agree to patent to the states of Washington, Montana, or any other states, as provided in the act, in which may be found desert lands, not to exceed 1,000,-000 acres of such lands to each state, under certain conditions. The act provides as follows:
‘ 'Sec. i. That to aid the public land states in the reclamation of the desert lands therein, and the settlement, cultivation and sale thereof in small .tracts to actual settlers, the secretary of the interior with the approval of the president, be, and hereby is, authorized and empowered, upon proper application of the state to contract and agree, from time to time, with each of the states in which there may be situated desert lands as defined by the act entitled ‘An act to provide for the sale of desert land in certain states and territories, ’
The powers of the commission are extensive. It may, inter alia, contract for the entire expenses of reclaiming any por tion of the land donated by congress, at a price not to exceed eight dollars per acre for all land reclaimed, with this express proviso, however: “That no liability or indebtedness is created against the state by, under or through said contracts. ’ ’
Further examination of the law confirms this opinion. Provision is made for the sale of the lands to actual settlers. The money realized from such sales shall go into what the law denominates the “Federal Grant Reclamation Fund. ” No payment can be made from this fund for any purpose whatever, and no part of said fund can be credited to- any other fund. It is especially dedicated to the redemption of warrants and interest accrued and to accrue under the arid land act of the legislature. There is, throughout the entire state law referred to, no mention of any warrants other than those in favor of the commissioners and the employes and contractors, nor is there any mention of any fund except the “Federal Grant Reclamation Fund. ’ ’ It follows, therefore, that the compensation of the commissioners shall be paid by warrants on this fund, and from it exclusively. The law under consideration, like the capitol commission bill, already considered by the court (State v. Cook, supra), has created the special fund named in its provisions for the purpose of enabling the state to accept the beneficial offer of the United States. The fund created by the law is pledged for the payment of all outstanding warrants to be issued against it under the provisions of the act. No holder of any warrant can claim against the state. He may look alone to the fund established, and to the custodians of that fund, and other agents of the state, to do their respective duties under the act.
There are two classes of expenses of the commission — one including the compensation of the commissioners and their employes; another embracing the actual traveling and other expenses of the commission. Relator admits that the latter class ineludés office rent, stationery, and other incidental
The clauses providing for the reimbursement to the state of all payments made out of this $1,000 appropriated are evidently to protect the state for its outlay in inaugurating the public irrigation scheme. And to the extent only of this $1,000 for incidental expenses of the commission in carrying the act into effect may there be any liability on the part of the state. Eventually this sum, when repaid, will belong to the state, entirely subject to state control. (Section 3545.)
2. The attorney general next suggests that, if the treasurer registered the relator’s warrant, he would violate the constitutional provision prohibiting him to pay out of the treasury any money except appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof, except interest on the public debt. (Const. art. V, § 34.)
Eliminating from the case the appropriation of $1,000 heretofore referred to, we regard this Federal Grant Reclamation Fund as impressed with a trust under the act of congress. The state cannot make it a fund of its own, to be dealt with as may be state funds contemplated by the constitution. No control can be exercised over it, beyond such as is consistent with the act of congress in the execution of the trust, which is to aid the state in the reclamation of desert lands, and the settlement, cultivation and sale thereof in small tracts to actual settlers. The power of the state is limited to the acceptance of the. offer of the United States, and the execution of the trust assumed by the acceptance thereof. The officers of the state are but agents designated by the law of the state to carry out the legislative will. They do not (except in the disbursement of the $1,000 in legitimate claims against such appro
It-is to be observed that the United States limits the state in its right of sale or disposal of the quantity of land to any one person, and expressly requires any surplus of money derived by any state from the sale of said lands in excess of their cost of reclamation to be held as a trust fund to be applied to the reclamation of other desert lands. The trust relationship must continue over the funds. The treasurer, therefore, is not prevented by the constitutional clause cited— which has reference to state funds — from registering the relator’s warrants as required by law, without regard to any action being had by the auditor or the state board of examiners.
3. It matters not that the .legislature has made no appropriation for the payment-of claims such as relator’s in this case, and has not levied any taxes to meet the same. Having decided that there can be no state debt created to pay the warrants, there can be neither a levy of taxes, nor an appropriation of state funds made to pay them.
From our opinion upon these several propositions, the relator is entitled to have the warrant issued to him registered by the treasurer, unless the law requiring him to register is in itself unconstitutional. The validity of the statute has been ably discussed by counsel for relator, although it was not seriously questioned by the attorney general.
We are satisfied that the law is valid. The United States had the power to make the offer to the state, to grant it the lands, provided the state would reclaim them. Of this there can be no doubt. Now, if the state could accept the offer of the United States at all, it could only act through its legislature, in the exercise of power requisite to making its acceptance effective. That it has attempted to accept the offer is expressed by the first section of the law of 1895, which recites “that for the purpose of enabling the state to accept the offer of the United States * * * and for the purpose of re
We know of no constitutional limitation forbidding the legislature of the state from receiving the benefits of congress by way of this offer, where it is especially provided in the law of acceptance that no debts and no liabilities, other than for limited incidental expenses of the commission, can ever accrue to the state, under its provisions. We believe the acceptance was valid. The legislature having accepted the offer, its next right, in the premises, Avas to provide a detailed method Avhereby the state could execute that acceptance and make it operative. This they have done. The attitude of the state thereby became that of an agent of the United States, to make effective the offer of the latter to part Avith its desert lands to the state or its assigns, provided the state can reclaim such lands, and induce the actual settlement and cultivation thereof. This the state has undertaken to make possible by legislation. If the state fails, the United States will not issue its patents. If the state succeeds, the United States has agreed to pass the title to the state, or its assigns, upon satisfactory proofs of the fulfillment of the requirements of the act of congress. The very conditions precedent to the right of- the state to obtain patents — reclamation, settlement, cultivation — include -those which will thereafter divest the state of its title. Under any conditions, the state only holds the legal title for the' benefit of real owners, actual settlers upon the land, irrigating and cultivating the same. The benefit to the state lies in the advantages of having such actual farmers.
The provisions of article XYII of the constitution, to the effect that all lands in the state that have been, or may hereafter be, granted to the state by congress, shall be public lands, and shall be held in trust for the people, to be disposed of as hereafter provided for the respective purposes for which they have been or may be granted, are not applicable to the lands Avhich the United States proposes to part with under the act of congress already referred to.
The state has the power to make contracts with individuals or corporations for the placing of water upon the land, and may make contracts to sell, with actual settlers — to cultivate at least 20 acres on each 160-acre tract. The state may thus earn this land for the benefit of its settlers, providing it complies with the requirements of the acts of congress; but until it does so earn it there is no transfer of title, and the state is expressly limited in its control and use of the land. The state can never dispose of the lands in the manner provided by the constitution and laws of the state relative to lands generally.
At the time of the adoption of the constitution, it could scarcely have been contemplated that the United States would ever authorize the state to accept such a trust as that offered by the provisions of this somewhat unusual, but generous law of congress, and accepted by the state. We, therefore, cannot believe that any sections of the constitution which are generally applicable to lands where the title may vest in the state by grant in prwsenti, and which are wholly incompatible with the execution of this trust, apply to this offer, and to such lands as may be reclaimed by settlers under the methods provided for carrying the offer into effect.
It follows that, the respondent having failed to give any sufficient reason for not registering relator’s warrant, the demurrer to his answer is sustained, and the writ will issue.
Writ granted.
