US SUPREME COURT DECISIONS

Although a federal right may not have been specially set up in the original petition or earlier proceedings, if it clearly and unmistakably appears from the opinion of the state court under review that a federal question was assumed by the highest court of the state to be in issue, and was actually decided against the federal claim, and such decision was essential to the judgment rendered, this Court has jurisdiction to reexamine that question on writ of error.

In granting lands for educational purposes to Montana by § 17 of the Enabling Act of February 22, 1889, 25 Stat. 676, to be held, appropriated, etc., in such manner as the legislature of the state should provide, Congress intended to designate, and the act will be so construed, such legislature as should be established by the constitution to be adopted, and which should act as a parliamentary body in subordination to that constitution, and it did not give the management and disposal of such lands to the legislature or its members independently of the methods and limitations prescribed by the constitution of the state.

Whether a state statute relating to the disposition of such lands and their proceeds is or is not repugnant to the state constitution is for the state court to determine, and its decision is conclusive here.

Where the claim that the construction given to a state statute by the highest court of the state impairs the obligation of a contract appears for the first time in the petition for writ of error from this Court, it comes too late to give this Court jurisdiction of that question even though another federal question has been properly raised and brought here by the same writ of error.

By an act approved February 22, 1889, 25 Stat. 676, c. 180, hereafter referred to as the Enabling Act, the State of Montana chanrobles.com-red

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was, with other states, admitted to the Union. By it, grants of public lands were made by the United States to the several states admitted, of which only those made by § 17 need be stated here. By that section, grants were made to the State of Montana in the following terms:

"To the State of Montana: for the establishment and maintenance of a school of mines, one hundred thousand acres; for State Normal Schools, one hundred thousand acres; for agricultural colleges, in addition to the grant hereinbefore made for that purpose, fifty thousand cares; for the establishment of a state reform school, fifty thousand acres; for the establishment of a deaf and dumb asylum, fifty thousand acres; for public buildings at the capital of the state, in addition to the grant hereinbefore made for that purpose, one hundred and fifty thousand acres."

". . . And the lands granted by this section shall be held, appropriated, and disposed of exclusively for the purposes herein mentioned, in such manner as the legislature of the respective states may severally provide."

Provision was made in the act for the selection of the granted lands from the surveyed, unreserved, and unappropriated public lands of the United States, and selections were made by the State of Montana. The constitutional convention of Montana adopted an ordinance designated as Orainance No. 1, entitled "Federal Relations," which ordained that

"the state hereby accepts the several grants of land from the United States to the State of Montana, . . . upon the terms and conditions therein provided."

An act of the Legislative Assembly of the State of Montana, approved February 2, 1905, authorized and directed the State Board of Land Commissioners to sign and issue interest-bearing bonds to the amount of $75,000, for the principal and interest of which the State of Montana should not be liable (section 1), and directed the state treasurer to sell the bonds (section 6). Section 7 directed that --

"The moneys derived from the sale of said bonds shall be used to erect, furnish, and equip an addition to the present

Page 204 U. S. 293

State Normal School building at Dillon, Montana, and shall be paid out for such purpose by the State Treasurer upon vouchers approved by the executive board of the State Normal School, and allowed and ordered paid by the State Board of Examiners."

The law further provided that all sums realized from the sale of, or the leasing of, or from licenses to cut trees on, the lands granted for the State Normal School by section 17 of the Enabling Act should be pledged as security for the payment of the principal and interest of the bonds issued under the act, and should be set apart as a separate fund for that purpose. It was made the duty of the State Treasurer to keep such money in a fund to be designated as the State Normal School fund, and to pay therefrom the principal and interest of the bonds authorized by the act.

Section 12, article XI, of the Constitution of the State of Montana, is as follows:

"The funds of the state university and all other state institutions of learning, from whatever source accruing, shall forever remain inviolate and sacred to the purpose for which they were dedicated. The various funds shall be respectively invested under such regulations as may be prescribed by law, and shall be guaranteed by the state against loss or diversion. The interest of said invested funds, together with the rents from leased lands or properties, shall be devoted to the maintenance and perpetution of these respective institutions."

The bonds authorized by the foregoing law of the State of Montana were duly offered for sale, and purchased by the State Board of Land Commissioners themselves as an investment of the common school fund of the state.

Charles S. Haire performed valuable services as an architect in the erection of an addition to the State Normal School, obtained vouchers approved and allowed in the manner prescribed in section 7 of the state law, and presented the vouchers to the State Treasurer, who declined to pay them, whereupon the State of Montana, on his relation, brought a petition in chanrobles.com-red

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the Supreme Court of the State of Montana against the State Treasurer, praying an alternative writ of mandamus, directing the respondent to pay his claim out of the fund created by the sale of bonds aforesaid, or to show cause for the refusal. The alternative writ issued, and to it the respondent interposed a demurrer and a motion to quash. The only reason alleged by the respondent in support of his pleadings, material here was that the act of the legislature was in violation of the Constitution of Montana. The case was heard by all the judges of the supreme court of the state as an original case, and it was adjudged that the alternative writ of mandamus be quashed and the proceedings dismissed for the reasons that the act authorizing the issue of the bonds, secured by pledge of the proceeds of the lands was a violation of section 12, article XI, of the state constitution, and that this section of the Constitution was not in conflict with section 17 of the Enabling Act. Haire then petitioned the court for a rehearing, alleging the following reasons:

1. Because the opinion is inconsistent and contradictory;

2. Because the court does not give any force or effect to the requirements of section 17 of the Enabling Act, that the lands granted for a State Normal School shall be appropriated for the purpose for which the grant is made, and in other respects misconstrue section 17;

3. Because the court misconstrued section 12, article XI, of the Constitution of Montana.

In the further development and specification, in the petition for rehearing, of the second reason, it appears in substance that among the grounds relied upon to support it were the claims that section 17 of the Enabling Act had directed that the legislature, and not the state, should dispose of the granted lands; that the lands or their proceeds were appropriated by Congress to the establishment as well as the maintenance of the normal school, and that, in acting in pursuance of the authority conferred by Congress, the legislature was not restricted by the Constitution of the state, which in that respect was subordinate chanrobles.com-red

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to the authority of a law of the United States. The supreme court of the state took the petition for rehearing under advisement, modified slightly, but not essentially, its former opinion, which had passed adversely on the claims of the petitioner set forth in the petition for rehearing, denied the rehearing, and entered final judgment for the respondent. Whereupon this writ of error was brought, assigning as errors:

"I. The said court erred in holding and deciding that the act of Congress, approved February 22, 1889, providing, among other things, for the admission of Montana into the Union, and known as the 'Enabling Act,' does not authorize the Legislative Assembly of the State of Montana to appropriate or apply the proceeds derived from the sale or leasing of the lands granted to said state by section 17 of said act for State Normal Schools, or from the sale of the timber thereon, to the establishment of such schools."

"II. The court erred in holding that section 12 of article XI of the Constitution of the state, as construed by said court, is not repugnant to section 17 of said act of Congress, and is valid."

"III. The court erred in holding and deciding that section 12 of article XI of the Constitution of the State of Montana, as construed by said court, does not impair the obligation of the contract resulting from the acceptance of the grant of lands made to the State of Montana by section 17 of said act of Congress."

"IV. The court erred in holding and deciding that the proceeds derived from the sale of said lands and the timber thereon constitute a permanent fund, no part of which can be used to establish a State Normal School, or for any other purpose, except that of investment."

"V. The court erred in holding and deciding that the interest received from the investment of the proceeds of the sale of said lands and the timber thereon, together with the rents derived from leasing said lands, can be used only for the purpose of maintaining and perpetuating a State Normal School. "

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"VI. The court erred in holding and deciding that the act of the legislative assembly of the State of Montana, entitled 'An Act to Enable the Normal School Land Grant to be Further Utilized in Providing Additional Buildings and Equipment for the state Normal School College,' approved February 2, 1905, is invalid, as being in conflict with section 12 of article XI of the Constitution of the State of Montana."

"VII. The court erred in denying the application of plaintiff in error for a writ of mandate. "

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