Vincenheller v. Reagan , 69 Ark. 460 ( 1901 )

Battle, J.,

(after stating the facts). By an act of congress, entitled “An act donating public lands to the several states and territories which may provide colleges for the benefit of agriculture and the mechanic arts,” approved July 2, 1862, lands and scrips were donated to the several states, and it was provided that all moneys derived from the sale of such land and scrips “shall be invested in stocks of the United States, or of the states, or in some other safe stocks, yielding not less than five per cent, upon the par value of said stocks; and that the moneys so invested shall constitute a perpetual fund, the capital of which shall remain forever undiminished (except so far as may be provided in section 5 of this act), and the interest of which shall be inviolably appropriated by each state which may take and claim the benefit of this act to the endowment, support and maintenance of at least one college where the leading object shall be, not excluding other scientific and classical studies, and including military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts, in such manner as the legislatures of the states may respectively prescribe, in order to promote the liberal and practical education of the industrial classes in the several pursuits and professions in life.” 12 Stat. 503, 504.

In 1867 the state of Arkansas accepted this donation on the terms and conditions in the act provided. In 1871 the general assembly of this state provided for the location and erection of buildings for a university for the purpose of performing the obligations the state assumed by accepting the donation by congress, and provided that a board of trustees should be elected or appointed for that purpose. The trustees were appointed, and they located the university, and caused the buildings for the same to be erected at the city of Fayetteville, in this state. The means used for that purpose were furnished by the state, assisted by donations secured from the city of Fayetteville and the county of Washington, which were made ip. consideration of the location of the university at Fay-etteville. From this time forward, the university has been an institution of the state, maintained and supported by it. The state, of course, could not control it, except through its agents. .Hence a board of trustees was appointed for that purpose by the governor, and they have been, vested with the power to prescribe all necessary rules and regulations for the government and discipline of the university, and ..to prescribe what professors, with the president, shall constitute the faculty, and to fix their compensation, to select its secretary and treasurer, and to do other acts, unnecessary to mention. The course of study in.the university is prescribed by the statutes, but the board of trustees can add to it. The state has always asserted her right to, and maintained her control over, the university' as a state institution, and biennially its affairs have been investigated by a committee appointed by the general assembly for that purpose; and the board of trustees has been merely an agent of the state.

In furtherance of the object of the act of July 2, 1862, congress, by an act entitled .“An act to establish agricultural, stations in connection with the colleges established in the several states, under the provisions of an act approved July 2, 1862, and the act supplementary thereto,” approved March 2, 188*1', provided:

“Section 1. That in order to aid in acquiring and diffusing among the people of the United States useful and practical information on subjects connected with agriculture, and tp promote scientific investigation and experiment respecting the principles and applications of agricultural science, there shall be established, under direction of the college or colleges or agricultural department of colleges in each state or territory established, or which, may hereafter be established, in accordance with,the provisions of an act approved July 2, 1862, entitled/An act donating public land to the several states and territories which may provide colleges for the benefit of agriculture and the mechanic arts/ or any of the sup-pigments to said act, a department to be known and designated as an ‘agricultural experiment station/ * * *

“Section 2. That it shall he the object and duty of said experiment stations to conduct original researches or verify experiments on the physiology of plants and animals; the diseases to which they’ are severally subject, with the remedies for the same; the ' chemical composition of useful plants at • their different stages of growth; the comparative advantages of rotative cropping as pursued under a varying series of crops; the capacity of new plants and trees for acclimation; the analysis of soils and water; the chemical composition of manures, natural and artificial, with experiments designed to test their comparative effects on crops of different kinds; the adaptation and value of grasses and forage plants; the composition and digestibility of the different kinds of food for domestic animals; the scientific and economic questions involved in the production of butter and cheese; and such other researches or experiments bearing directly 'upon the agricultural industry of the United States as may in each case be deemed advisable,- -having due regard for the varying conditions and- needs of the respective states of territories.

“Section 4. • That bulletins or reports shall be published at said stations at least once in three months, one copy of which shall be sent to each newspaper in the states or territories in which they ar,e respectively located, and to such individuals actually engaged in farming as may request the same, and as far as the means of the station will permit." -***■■

“Section 5. That for the purpose of paying the necessary expenses of conducting investigations and experiments and printing and distributing the results as hereinbefore prescribed, the sum of $15,000 per-annum is hereby appropriated to each 'state, to be specially provided for by congress-in the appropriations from year to year, * * * to be paid in equal quarterly payments, on the first days of January, April, July and October in each year, to the treasurer or other officer duly appointed by the governing board of said colleges to receive -the same, the first payment to be made on the 1st day 'of October, 1887; provided, however, that out of the first annual appropriation so received by any station an amount not exceeding one-fifth may be expended in the erection, enlargement or repair of a building or buildings necessary for carrying on the work-of such station; and thereafter an amount not exceeding five per centum of such annual appropriation may be so expended/5

“Section 9. That the grants of moneys authorized by this act are made subject to the legislative assent of the several states and territories to the purposes of said grants/5 * * *

The $15,000 per annum named in the act were appropriated to the states, that is to say, donated to the several states to be used for the purposes for which they were set apart in the act. The donatiou was not to become effective until the legislatures of the several states assented to the purposes of the grants, that is to say, until the states accepted the trust. The trust was to be executed through colleges established in accordance with the provisions of the act of July 2, 1862, colleges presumably under the control and supervision of the states. Under this construction of the act this state accepted the grant in these words: “The state of Arkansas hereby accepts the appropriation made to her in common with other states by the act of congress, entitled ‘An act to establish agricultural experiment stations in connection with the colleges established in the several states under the provisions of an act approved July 2, 1862, and of the acts supplementary thereto,5 approved March 2, 1887, and said appropriation is accepted and assented to in trust for the uses and purposes expressed in said act of congress, and ail moneys received ly the state under said act of congress shall be and the same are hereby assigned and appropriated for use and disbursement to the Arkansas Industrial University, a college established at Fayetteville in this state, under the provisions of the act of congress approved July 2, 1862/5 Acts 1889, p. 32.

The government of the United States impliedly disclaimed all control over the “experiment stations55 and over the $15,000 after it had been paid. This is indicated by section 3 of the act of March 2, 1887, which provides: “That in order to secure, as far as practicable, uniformity of methods and results in the work of said stations, it shall be the duty of the United States commissioner (now secretary) of agriculture to furnish forms, as far as practicable, for the tabulation of the results of investigations or experiments; to indicate, from time to time, such lines of inquiry as to him shall seem most important; and, in general, 'to furnish such advice and assistance as will best promote the purpose of this act. It shall be the duty of each of said stations, annually, on or before the first day of February, to make to the governor of the state or territory in which it is located a full and detailed report of its operation, including a statement of receipts and'expenditures, a copy of which report shall be sent to each of said stations, to the said commissioner (now secretary) of agriculture and to.the secretary of the treasury of the United States." Under this section the secretary of agriculture is required to furnish friendly aid and advice, but no duty is imposed upon any one to accept it, and the government which is to control is indicated by the requirement of the report to be made to the governor of the state; and this is further indicated by the “experiment station” being subjected to the direction of colleges which axe institutions of the states, and under their control and management.

By accepting the trust created by the act of March 2, 1887, the states assumed the burthen of executing it, and this they could do in part through appropriate acts of the legislature. There was no reason, no necessity, for congress specifically prescribing how the trust shall be executed, the states being competent for that purpose; and it has not done so.

It appears in the petition of appellant that the board of trustees of the Arkansas Industrial University, at a regular meeting held on the 14th day of June, 1889, adopted the following-resolution :

“Resolved, (1) That the office of vice director and pomologist of the agricultural experiment station be, and the same is hereby, created, and that W. G. Yincenheller be, and he is hereby, elected to fill said position for the term of four years, ending June 30, 1903, at a salary of $2,000 per annum.'

“(2) That part of the duties of said officer shall be in the testing of large fruits, for their quality, adaptation to different soils, acclimation, productiveness, periods of ripening, and method of culture.

“(3) He shall also attend and hold agricultural institutes in different parts of the state.”

And that, upon, being notified of the action of the board of trustees, appellant, W. G. Yincenheller, mentioned in the resolution,-at once accepted-in writing the place of vice director and pomologist of the agricultural experiment station upon the terms and for the salary mentioned in the resolution, and entered upon the discharge of his duties. Thereafter, the legislature of this state, by an act entitled “An act to provide for the support and maintenance of the University of Arkansas,” approved May 23, 1901, abolished the office of pomologist, and prohibited the board of trustees from allowing the incumbent of the office any pay for his ¡services. The appellant contends that this act is violative of section 21, article 5, of the constitution of this state, which is as follows: “No' law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house as to change its original purposeand that it is contrary to section 30 of article 5 of the constitution, which is as follows: “The general appropriation bill shall embrace nothing but. appropriations for the ordinary expenses of the executive, legislative and judicial departments of the state; all other appropriations shall be made by separate bills, each embracing but, one subject.” It is insisted that the act in question is unconstitutional because it embraces more than one subject.

We have already stated the title of the act. The first section of it is as follows:

“Section 1. That the following sums are hereby appropriated for the support and maintenance of the Univershy of Arkansas for two years, beginning April 1, 1901, and ending March .31, 1903, to-wit:” Then follow the several sruns appropriated and the objects of the same, and then comes section 6, as follows;. “Section 6. That the office of pomologist is hereby repealed and abolished. Provided, further, that the board of trustees is hereby prohibited from allowing any pay for the same.”

The act of congress of March 2, 1887, provides that a department, to be known and designated as an “agricultural experiment station,” shall be established under the direction of the college designated. A department of what? We think, of the college. This department, according to the terms of the act, can not exist independently of the college, but must be under its direction. It is wholly under the control of the college, and is as much a part of it as any other department of the same..

The resolution of the board of trustees that created the office of vice director and pomologist of the agricultural experiment station made it a duty of the officer to “attend and hold agricultural institutes in different parts of the state.” For this and other services the appellant was to receive $2,p00 per annum, to be paid 'out of the annual appropriation to be made under the act of March 2, 1887. This is in violation of the act, which provides that for the purj>ose of paying the necessary expenses of conducting inves-tigatións'and experiments and printing and distributing the results as .prescribed, in the act, the sum of $15,000 per annum should he 'appropriated, but that one-fifth of the first annual .appropriation, and thereafter.five per centum of .other annual appropriations, may be expended in the erection, enlargement and repair of a-building or buildings-necessary .for,carrying-on the work ofisuch station. With this exception, the whole appropriation was to be expended .in payment of the .-expenses of original researches and experiments, as provided for in section 2 of the act, and .of printing and distributing the results.thereof. We.find no authority in the act for paying the expenses of attending and holding agricultural institutes.

..The.object of the act in question was the maintenance and support of the university, of ..the state.. Anything, which will lessen the illegal or unnecessary expenses of that institution will- tend to its legitimate maintenance. Economy and retrenchment, when the means are limited, are as necessary to the maintenance of -universities as it is of individuals. . The- abolition of the office of pomologist relieved the university of an expense; and in part, of-an unauthorized expense, and left it with- a- larger appropriation to accomplish the legitimate objects of one of .its. departments..- Section 6 of the act in question, by- which this was done, .related to, and tended to aid in,-the general object of the act indicated in its title, and is not therefore .in violation of sections 21 and 30, art. 5, of the constitution,of this state. State v. Sloan, 66 Ark. 575.

. Appellant also insists-that-the sixth section .of the- act of May 23, 19.01, was unconstitutional because it-impairs the obligation of-.a' contract. ....If the. place filled .by the.appellant,-.under the resolution of the. board of trustees, was-an office, it did not impair the obligation of .a contract.. For the duties .and obligations of an officer grow, out of the law, and not out of contract, and this- law is subject to amendment or repeal, and, as -an incident- -to- this power the legislature may increase or diminish the salary, or abolish the-office, unless.prohibited by-'the constitution. , .

.In Untied States v. Maurice, 2 Brock. 96, 102, 103, Chief Justice Marshall said: ; “An office is defined to be a public charge or employment,., and he .who. .performs, the duties of- ,the office is an. officer. * , -Although:.an'office is ‘an employment/ it does -not.follow, that every .employment is.an office. A ,man may-certainly be employed -under, a contract, express or. implied,- to- do ,an actor to..perform.,a-.service, without becoming.an officer.‘.But if the duty .be a .continuing -one, -which is defined- by > rules prescribed by the government, and not by contract, which an individ-nal is appointed by the government to perform, who enters upon the duties appertaining to his station without any contract defining them, if those duties continue, though the person he changed, it seems very difficult to distinguish such a charge or employment from an office, or the .person who performs the duties from an officer/'’

In United States v. Hartwell, 6 Wall. 393, it is said: “An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties. * * * A government office is different from a government contract. The latter from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon -define the rights and obligations of both parties, and neither may depart from them without the assent of the other/’

In Dartmouth College v. Woodward, 4 Wheat. 518, 629, 634, Chief Justice Marshall, in delivering the opinion of the court, said: “If the-act of incorporation be a grant of political power, if it create a civil institution to be employed in the administration of the government, or if the funds of the college be public property, or if the state of Hew Hampshire, as a government, be alone interested in its transactions, the subject is one in which the legislature of the state may act according to its own judgment, unrestrained by any limitation of its power imposed by the constitution of tire United States/’ Again he says: “That education is an object of national concern, and a proper subject for legislation, a LI admit. That there may be. an institution founded by government, and placed entirely under its immediate control, the officers of which would be public officers, amenable exclusively to government, none will deny.”

The Arkansas Industrial University is an institution of the state, as we have alreadjf seen, subject to its control and government, through its- own agents and appointees, — is an instrument of the state in the performance of a governmental work; and this is especially true of the department in which the appellant labored. The board of trustees, vested with the control and management of the university, and with the authority to create professorships and to adopt rules and regulations for the government and discipline of the universffy, created the office of vice director and pomologis.t of the agricultural-experiment station, and prescribed in part the duties of the office, and then elected the appellant to fill the same, and Re accepted and entered upon the discharge of the duties of the office. No agreement was entered into as to what the rights and obligations of the appellant should he, but the office was taken by virtue of an election, with the duties prescribed by law and the board of trustees, by virtue of the authority they believed was vested in them by law, which were annexed to the office, and would have' followed it to the appellant’s successor, if it had not been abolished. Under these circumstances, we think that the act of the legislature is constitutional, especially in view of the fact that the salary of the office was, in part, for the performance of service which involved a misappropriation of public funds.

The act in question is not retrospective in its operation, and does not affect appellant’s right to pay for services rendered before its enactment.

Judgment affirmed.