State ex rel. Nolan v. Marshall , 20 Mont. 510 ( 1898 )

Pemberton, C. J.

—The extent of the powers of the State Arid Land Grant Commission, under the laws of the state enacted to enable the state to secure the benefits to arise from the lands granted by the government of the United States by the Carey act and acts amendatory thereof, is a very important question. The general government has by law made to the state conditionally a magnificent donation of lands. It is of the highest importance that the legislature of the state should make provision by law for performing the conditions upon which the right of the people to acquire the lands thus donated depends. Our legislature, appreciating this important duty to the people, has been prompt in taking the necessary steps and providing the essential means for acquiring title to the arid lands granted, as said above, to the state. In the wisdom of the legislature, the creation of a commission, with full powers to perform and comply with the conditions imposed by congress as prerequisites to acquiring these lands, •seemed the proper instrumentality to be used for this important purpose. The last Legislative Assembly, to effectuate this object, passed an act entitled “An act to amend Sections 3530, 3531, 3532, 3533, 3534, 3535, 3536, 3537, 3538, 3539, 3540, 3541, 3542, 3543, 3544, 3545, 3546, 3547, Article 2, Title 8, of the Political Code of the State of Montana, creating the State Arid Land Grant Commission and defining its powers and duties, and to add thereto Sections 3548, 3549, 3550, 3551, 3552, 3553, 3554, 3555, 3556, 3557, 3558, 3559, 3559a, 3559b, 3559c, 3559d, 8559e, 3559f.

To provide for the reclamation of arid lands granted to the State of Montana by acts of congress and to provide for the issuance of bonds and the appropriation of money for the carrying of this act into effect and the payment of expenses heretofore incurred and warrants heretofore issued by the State Arid Land Grant Commission.” (Sess. Acts 1897, p. 180.) Section 3530 of the act is as follows : “That for the purpose of enabling the state to accept the offer of the United States, made in an act of congress approved August 18, 1894, entitled An act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1895, and for other purposes,’ and as amended by an act of congress approved June 11, 1896; for the purpose of reclaiming the lands therein mentioned in accordance with the terms of said acts, a commission shall be and is hereby created under the name of the State Arid Land Grant Commission, which shall consist of five members, and they and their successors shall remain and continue to be such commission for all the purposes hereinafter provided.” Section 3532 of the act provides, among other things, as follows : “The said commission shall have full power and authority by resolution to enact such rules for its government and the carrying into effect of this act as to them may seem just and reasonable and not inconsistent with law. ’ ’

Section 3533 of the act provides : “That said commission shall have, and it is hereby given full power and authority to take all steps necessary to comply with all and singular the conditions of said act of congress, and of any and all amendment or amendments thereto, or other act or acts of congress pertaining thereto, to the end that the state may receive the full benefit and advantage accruing to it, through or by the terms of any congressional action. ’ ’

It is evident that the Legislative Assembly intended to give, and did give, very extensive powers to the commission by these sections of the law. The question arises, what steps may the commission take, or what contracts may it enter into, “to the end that the state may receive the full benefit and advantage accruing to it, through or by the terms of any congressional action” by which the arid lands were intended to be donated to the state ? It would seem that the only limitation imposed by this legislation on the extent to which the commission' can go in their efforts to reclaim the arid lands donated to the state is that the steps taken, means used, or contracts entered into by the commission shall be for the benefit of the state. Tested by this standard, are the steps contemplated to be taken, and the contracts intended to be entered into, by the commission, as shown by the resolution set out in the statement, and alleged in the affidavit of the Attorney General, for the construction of a ditch to reclaim the lands in district No. 1, the specifying upon the face of the bonds to be issued to what the lien thereof shall attach, or shall not attach, etc., for the benefit of the state? Are these contemplated acts of the commission inconsistent with or prohibited by law ?

It does not appear that the reclamation of the land to which the state might acquire title in District No. 1, under the congressional legislation in question, by a proper contract with the Northern Pacific Railroad Company, will not be to the benefit and advantage of the state. Is, then, the making of such a contract as is contemplated by the commission with the railroad company inconsistent with or prohibited by law ? Let us look at the circumstances and conditions that confront the commission in relation to these lands. The railroad company owns each alternate section of the lands in the district selected by the commission for reclamation. Congress enacted the Carey act and acts amendatory thereof, and our own Legislative Assembly passed the act under which the commission claims power to act, with full knowledge that the state could only acquire title to each alternate section of the arid lands in the state which lie within the limits of the Northern Pacific land grant; anjl, if it was not within the contemplation of these legislative bodies that the state might reclaim and acquire title to such alternate sections of land within the railroad land grant, the right to acquire the same should have been excluded. We are of the opinion that no such exclusion was desired or intended by congress or the legislature of this state. If the right of the state to acquire lands thus situated be denied, it will be difficult, if not impossible, for the state to obtain the full substantial benefits intended to be granted by the Carey act; for we very much doubt if the commission could find any considerable bodies of arid lands in the state, where water and other facilities for reclamation could be found, without encountering the claims of the Northern Pacific Railroad Company, or some other corporation, or the possession and rights of individuals. So we cannot agree with the contention that the state may not by its commission take the necessary steps to reclaim arid lands in localities where the Northern Pacific Railroad Company, or any other corporation or individuals, own alternate sections or other parts of the lands in such localities. To so hold would be to establish a rule that would be detrimental in the highest degree to the interest and welfare of the state.

In their arguments counsel have shown considerable interest and anxiety concerning the question as to what property the lien of the bonds provided for in Section 3541 of the act under consideration shall attach; also as to what powers the commission shall have and exercise under Section 3546, and other sections of the act, in the event it is held it has the power to make the contracts it contemplates making with the railroad company for the reclamation of the lands in District No. 1. But these sections of the law, as does the entire act, contemplate the attaching of liens specified in the bonds to be issued by the commission, and the doing of things by the commission enumerated especially in Section 3546, under circumstances and conditions entirely different from those surrounding the actions of the commission as shown by the record in this case. The entire law, including the sections upon which special emphasis is laid, has reference to ditches already constructed and a district of arid lands already reclaimed by the commission, where no corporation or individual owns any part of the lands included in the district or locality. In such case the lien of the lands attaches to property, and the powers of the commission refer to rights of the state already acquired. In the case at bar we are looking forward to the action which the board contemplates doing in the future,— to a condition or state of facts not covered by the terms of the law as we find it in the statutes. The question is, then, not what the commission may do with reference to the condition and state of affairs provided for by the terms of the law, but what may it do ‘ ‘to the end that the state may receive the full benefit” of the congressional legislation under discussion, in view of the conditions and circumstances confronting and surrounding it, which are not provided for by the terms of the statute ? Are the things which the commission contemplates doing — are the contracts it intends to make, as is charged, in order to reclaim the lands in question — inconsistent with or prohibited by the law ? This is the question we are called upon to answer, as we understand the case. We find nothing-in the letter or spirit of the law to prevent such action on the part of the commission. The Legislative Assembly has given the commission very extensive powers in the premises, as we think for the wise and patriotic purpose of developing and promoting the resources and welfare of the state, and we would hesitate long before we could consent to such restricted construction of the law as would thwart the high purpose of the legislative branch of the state.

The restriction placed upon the action of the commission by the law is that whatever steps it shall take, whatever means it shall employ, and whatever contracts it shall make with any corporation or person, in order to reclaim the arid lands of the state, such steps, such means and such contracts shall be for the benefit of the state. Under this test, then, if the commission shall take any steps, adopt any means, or make any contracts with any one in the premises that shall not be found to be for the benefit of the state, upon proper investigation, then all such acts of the commission would be held to be void, as done without authority of law. This restriction should be strictly enforced. Whatever contracts the commission shall make, under conditions and circumstances preseuted by this record, with any corporation or person, should be in writing, properly acknowledged and certified, and placed of record; and in such contract the right of the state to supervise the construction of canals and ditches, the right of the state to control and maintain the same for all time, and the right to proper liens on such ditches and canals and improvements for the cost of construction and maintenance thereof, should and must be fully provided for and preserved in such contracts, so that the assigns of such corporations and persons shall take any interest that may be acquired in the same subject to the rights of the state. In other words, by the terms of the contracts that the commission shall enter into with any corporation or person, the rights of the state to construct, control and maintain the ditches and canals, and a lien on all the property allowed by law, shall be fully preserved; and, unless so preserved, such contracts could not be held to be for the benefit or best interests of the- state.

The holding that the commission may make the contracts contemplated with the railroad company does away with the objection that the reclamation of the lands to which the state may acquire title will cost an amount in excess of that allowed by law. Under such contract, the commission would not be required to expend over §125,000, the amount it is conceded it may lawfully expend to reclaim the lands in the district to which the state can acquire title.

There has been considerable discussion by counsel as to what importance should be attached to the word “district” as used in the statute. We think it was the intention of the legislature that the commission should designate each locality or section where land is to be reclaimed as a district, giving it a number, thereby distinguishing it from other localities or sections where the work of reclamation is to be prosecuted by the commission, so that the bonds to be issued for each district, as required by law, may show on their face to what district they belong, and upon the property of what particular district they are to be a lien. The State Treasurer is also required to keep an account with each district. The convenience of all concerned can be best subserved and confusion avoided by designating each locality or section to be reclaimed as a “district” by a number, and then let the bonds show on their face that they are liens on the property in the district having the number of the district corresponding with the number on the face of the bonds. (Arid Land Act, §§ 3536, 3541, 3543.) Further than this we are unable to discover that any importance should be attached to the question of districts.

Having fully considered the questions presented in this proceeding, we are of the opinion that it has not been shown that the commission has exceeded, or that it will exceed, the powers conferred upon it by law, by doing the things charged in the affidavit of the plaintiff, which are Lilly set out in the statement; nor has it been shown that the making of the contracts contemplated by the commission, as shown by the resolution in the statement, and allegations contained in plaintiff! s affidavit, are inconsistent with or prohibited by law. We are of the opinion that the commission may make the contem plated contracts for the purpose of reclaiming the arid lands the state may acquire under the Carey act, provided, always, that such contracts are so made and carried out as to preserve all the rights of the state, to the end that the state may receive the full benefit of the congressional legislation granting to it the lands in question. If the contracts come within this rule, they will, we think, be valid as authorized by law; otherwise they will be void. The writ is therefore denied.

Hunt and Pigott, JJ., concur.