State ex rel. Dildine v. Collins

Hunt, J. —The case submitted presents the question whether, under the act of the legislature (Session Laws 1897, page 58) referred to in the statement of facts, the claini for the warrant drawn in favor of the petitioner ought to have been passed upon by the state board of examiners before the state treasurer was authorized to pay it. Section 20 of Article 7 of the Constitution is as follows: “The governor, secretary of state and attorney general shall constitute a board of state prison commissioners, which board shall have supervision of all matters connected with the state prisons as may be prescribed by law. They shall constitute a board of examiners, with power to examine all claims against the state, except salaries or compensation of officers fixed by law, and perform such other duties as may be prescribed by law. And no claims against the state, except for salaries and compensation of officers fixed by law, shall be passed upon by the legislative assembly without first having been considered and acted upon by said board. ’ ’ The statute cited, providing for the erection, completion and equipment of buildings for the university of the state, was passed and approved after the decision of this court in State v. Cook, 17 Mont. 529, 43 Pac. 928. The legislature are therefore presumed to have acted with full knowledge of the interpretation placed upon a statute of similar import, and whereby the fund created by the sale of bonds secured by pledge of the lands donated to the state by act of congress approved February 22, 1889, entitled “An act to provide for the division of Dakota into two states, and to enable the people of North Dakota, South Dakota, Montana and Washington to form constitutions and state governments, and to be admitted into the Union on an equal footing with the original states and to make donations of public lands to such states, ’ ’ was held to be a trust fund established by law in pursuance of the act of congress, yet not to be a state fund, in the sense that moneys realized from taxes and in the public treasury are state funds. It was held that the state was to be regarded in the light of an agent for the execution of a trust. No state debt [454] is created, or can be created, under the law, and the people of the state contribute no money to the fund. It is really a donation by the federal government, and is upon a different footing, entirely, from funds arising by taxation, and out of which are built, for instance, reform schools, soldiers’ homes, arsenals, penitentiaries and asylums, not included in the enabling act, all of which are state funds, to be disbursed as expenditures of the state, and which are brought fairly within the meaning of the constitutional limitations and restrictions. So that, upon reconsideration of the views expressed in the Cook case, we feel that they must stand as correct. It is evident, furthermore, that the act of the legislature providing for the erection of the university buildings did not contemplate that claims arising under the term of the contracts for the buildings should be subject to examination or approval by the state board of examiners. Section 7, which created the building commission of five, made it the duty of such commission to contract for the erection and furnishing of suitable buildings, and gave the commission charge and supervision over the construction of such buildings and all things pertaining thereto, with authority from time to time to draw their warrants on the treasurer of the state for moneys due to the contractors or employees, “which warrants shall be paid by the said state treasurer out of any funds in his hands arising from the sale of bonds provided for in this act. ’ ’ In respect to such payments the commission draws its warrants directly, and the treasurer is obliged bylaw to pay it, without requiring, as a prerequisite to the right of payment, action by the state board of examiners. The purposes of this more direct procedure are not important to consider, but doubtless facility and expedition were considerations which led to the mode adopted. The legislature probably thought, too, that a building commission of five persons appointed by the governor, and residents of Missoula, where the buildings are being erected, who would be always on the ground, would be just, as careful in making the donation thoroughly advantageous to the state, and just as vigilant in the execution of the details of [455] the trust, and as cautious in the allowance of claims, as would be the state board of examiners, sitting at the capital. As a check, too, it is provided that it shall report from time, to time to the stated meetings of the state board of education of the progress of the work and the expenditures therefor. Now, in the matter of certain other payments out of the bond fund, there is a requirement that claims therefor must first be approved by the state board of examiners. The expenses of issuing the bonds, the interest on the bonds, the payment of the bonds, and warrants for interest due, can only be paid after approval by the state board. Such is the explicit provision of the law. But those claims and payments are extraneous from the claims and payments arising and due in connection with the erection and furnishing of the buildings themselves, and are a separate part of the legislative scheme, providing (1) for the issuance and sale of bonds, and the subsequent payments of interest thereon; and (2) for the erection and furnishing of the buildings erected, out of funds realized from the sale of the bonds. Over the former, which will be a matter of fiscal regard for from 20 to 30 years, the state board has authority; but with the latter, which involves the execution of duties which may be ended within a comparatively few years, the board has nothing to do, either under the law or the constitution. It follows that relator’s claim is not a claim against the-state, and that the duty of the treasurer is to pay it. The demurrer is overruled. Let the writ issue as prayed for. Writ granted. Pemberton, C. J., absent. Pigott, J., concurs.