State Ex Rel. Davis v. Clausen , 160 Wash. 618 ( 1931 )

There is some difficulty in following the reasoning and the conclusions in the majority opinion. The reasoning lacks somewhat in continuity, and some of the conclusions seem to be purely arbitrary.

The question before this court is whether or not the three Federal funds, and the college fund, require biennial appropriations, in order to conform to our constitutional provisions relating to appropriations.

The college fund is derived from some fifty different sources, and is not, of course, controlled by the terms of the congressional legislation granting money to the state for the benefit purely of the Washington state college. The powers of the board of regents of the Washington state college were conferred by the act of 1889-90, and the supplementary act of 1891 (Laws of 1891, p. 334). These powers of the regents were the same at the time the Johnson case was decided by this court,51 Wn. 548, 99 P. 743. It was there held that moneys received by the treasurer of the board of regents of the state college from students' fees and rents and sources other than the general and state government, are not a part of the state finances to be paid over by him to the state treasurer.

After the decision in the Johnson case, supra, and at the instigation of the board of regents of the state college, the act of 1909 (Rem. Comp. Stat., § 5527) was enacted, which began by saying:

"The state treasurer shall hereafter constitute and be thetreasurer of all funds belonging to the State College, . . . All moneys or funds received from the United States or from any other source whatsoever for the benefit of said State College or from the products or property of said college, or for the use of or belonging to said college shall be paid to and deposited with the state treasurer; when so deposited the same shall be held as special funds for said college, and are hereby appropriated tothe uses and purposes for which the same are received." (Italics mine.)

Under the several statutory provisions relating to the state college, and even under the constitutional provision relied upon by the majority, it is manifest that these things are true: (1) respondent, the state auditor, could not issue a warrant for any part of these college or Federal funds to the state university of Washington, nor to any state normal school, nor to the general state fund of Washington; (2) should respondent, as state auditor, issue any such warrant, it would be illegal, and the state treasurer would be bound to refuse payment.

The act of 1891, still in force, provides that the board of regents shall direct the disposition of any moneys belonging to or appropriated to the agricultural college.

These provisions differ widely from the statutory provisions (Rem. Comp. Stat., § 7703) thought by the majority to control and decide. State ex rel. Shuff v. Clausen, 131 Wn. 119,229 P. 5.

In that case, all funds were required to be paid into the state treasury by each employer, prior to January 15 of each year. Rem. Comp. Stat., § 7676. The industrial compensation act disbursements can be made only upon warrants drawn by the state auditor, upon vouchers therefor transmitted to him by the industrial insurance department, and audited by him. Under the laws relating to the state college of Washington, the board of regents has been clothed with all power over the disbursement and expenditure of all moneys provided for by law.

I am also wholly at variance with the majority in their reasoning and conclusions as to the necessity of appropriations of Federal funds.

All of these funds owe their origin to the endowment of the state agricultural college by the United States by the original Morrill act. The later congressional acts were, each and all, supplementary thereto.

When the state of Washington, by law, created what is now the state college of Washington, naming it as a beneficiary of the Federal grants and subsequent donations, the state, itself, acted thereafter as a trustee for the college. The congressional acts provide that the sum of $50,000 is appropriated for the use and benefit of each state and territory by agricultural and mechanical colleges, the beneficiary institution to be selected by the state. The acts provide that the sum stated shall be paid by the secretary of the treasury of the United States to the state treasurer, who must thereupon, on the order of the trustees of the college, immediately pay over such sums to the treasurers of the respective colleges, or other institutions entitled to receive the same, and such treasurers are required to report to the secretary of agriculture and the secretary of the interior on or before the first day of September of each year, making a detailed statement of the amount so received and of its disbursement.

It is undeniable that the fund in question cannot properly be placed in the state general fund. Melgard v. Eagleson, 31 Idaho 411,172 P. 655; President, etc., of Yale College v. Sanger, 62 Fed. 177.

The exclusive supervision of the fund is vested by the Act of Congress in the treasurer of the institution designated by the state legislature as the beneficiary entitled to receive the fund. State Board of Agriculture v. Auditor General, 180 Mich. 349,147 N.W. 529.

As was said by the supreme court of Idaho in the Melgard case, supra:

"Under the acts of Congress, the state treasurer, to whom the fund is transmitted by the Secretary of the Treasury, has, with reference to this fund, a mere clerical or ministerial duty to perform; that is, to pay over the fund immediately to the treasurer of the board of trustees, in this case the board of regents, upon their order. The acts of the defendants, state treasurer, and state auditor in this instance of placing this fund in the general fund by making appropriate entries upon their books to that end were mere nullities. Blaine County v. Fuld,31 Idaho 358, 171 P. 1138. Under the acts of Congress in question the state auditor has no duty whatever to perform with respect to this fund and no authority over it. It is therefore apparent that the defendant state treasurer has but one duty to perform in the premises, and that is to pay over the sum in controversy immediately to the plaintiff, as treasurer of the board of regents."

Similar cases holding that the funds, being purely trust funds for the institution designated, although granted to the state in the first instance, are to be found in State ex rel. SpencerLens Co. v. Searle, 77 Neb. 155, 109 N.W. 770; State ex rel. Ledwith v. Brian,84 Neb. 30, 120 N.W. 916.

It is conceded by all, and incontrovertible, that the decision of the supreme court of the United States in the Wyoming case,supra, 206 U.S. 278, and the decision of the Wyoming court, itself, State ex rel. Wyoming Agriculture College v. Irvine,14 Wyo. 318, 84 P. 90, were absolutely correct, to the effect that the grant of the Federal funds is, in the first instance, to the state.

But that does not determine that, when the state has designated the beneficiary college to receive the Federal funds, thereafter the state's fiscal officers have anything more to do with the fund than purely ministerial duties.

Nor has this court departed from, or overruled, the principle established in State ex rel. Attorney General v. McGraw,13 Wn. 311, 43 P. 176, which is, in effect, that funds granted by the Federal government to the state for a specific purpose, are granted in trust, and can be used only in the way, and for the purpose, the grant was made by the Federal government.

Moreover, it is difficult to conceive the reason for this late contest over this question. Respondent admits in his answering brief that, since the enactment of Rem. Comp. Stat., § 5527, relating to the deposit of all funds of the state college with the state treasurer, specific biennial appropriations have never been made, on the theory that, by virtue of the language "when so deposited the same shall be held as special funds for said college, and are hereby appropriated to the uses and purposes for which the same are received," requires no legislative appropriation at all, or in itself constitutes a standing or continuing appropriation act.

There can be but little doubt but that construction by the fiscal officers, acquiesced in by the legislature since 1909, was correct. The majority merely dismiss that long-continued executive construction, with a conclusion that it is not binding on the court.

It is a matter of common knowledge that the common school fund, ever since the enactment of the Barefoot School Boy law in 1897 (Laws of 1897, ch. 118, p. 356), has never been appropriated biennially by the legislature, but has always been apportioned by the state school superintendent and state auditor, and paid out by the state treasurer, quarterly.

If these funds have been illegally paid out since 1909, the state auditor and state treasurer have been guilty of misdemeanors under the provisions of Rem. Comp. Stat., §§ 5498 and 5499, and I do not believe they are. And, if biennial appropriations are necessary in such cases, they are necessary, also, as to the common school fund, and the present system should be immediately ended.

The cases relied upon in the majority opinion may be readily distinguished from this, but time and space forbid.

For the foregoing reasons, I am obliged to dissent.

FULLERTON, J., concurs with HOLCOMB, J.