Montant Ex Rel. Haire v. Rice

after making the foregoing statement, delivered the opinion, of the court-.

The objection is made that no Federal question is presented .by the record. It must, therefore, be determined whether the controversy turned in the state court upon any Federal question, and if so, whether it was raised and-decided in that court in the manner required to give this court jurisdiction to reexamine the decision upon it. The jurisdiction to do this depends upon whether the case'falls within that part of section 709 of the Revised Statutes, by which this court' is given the authority'upon writ of error to reexamine the final judgment or decree of the highest court of a State, “where any title, right, privilege or immunity is claimed under • the Constitution/ or any treaty or statute of, or commission held or -authority exer-' cised under; the United States; and the decision is against the title, right, privilege, or immunity specially set -up or claimed, by either party, under such Constitution, treaty, statute, commission or authority.”. Our jurisdiction in this case does not exist, unless a right claimed under a law of the United States, or an authority exercised under the United States, was specially set'up in and denied by the .Supreme Court of. Montana. A brief discussion of the facts will determine whether these conditions of jurisdiction are' present. The United States granted to the State of Montana one hundred, thousand acres of the public lands for a normal school, to be held, appropriated and disposed of for such purpose, in such manner as the legislature should provide. The legislature, by a law enacted in due form, did provide that bonds should be issued, secured" by the *298 proceeds of the sale, or leasing of the lands; that the proceeds of the bonds should be used for the:erection of an addition to a normal school' building and paid out for that purpose on approved vouchers. . In'effect, though'by. a circuitous method, this was a devotion of the proceeds of the sale of the land to t'he .erection of an addition to the building. Haire presented to the state .treasurer, the custodian and disbursing officer of. the fund, approved vouchers for his claim for services in the election, and payment of them was refused. The State, on ■relation of Haire, .by proceedings which were deemed appropriate in form; sought to enforce .against thé state treasurer .the payment of the vouchers, claiming, as appears from the opinion of the state court-:

First. That the legislature'had authority; under a statute of the United States, namely, section 17 of the Enabling Act to deal with the lands as it did' by the bond act;

Second. That the bond act was not in violation of the state constitution; and,

Third. That if it wefe in violation of that constitution, the Jaw- enacted- in'pursuance .of an authority granted by the. United -.'States -was yalid arid 'effective notwithstanding. All •three of these claims were denied by the» state court. The first afid- third are clearly claims of á “right tinder an authority cxerciséd-under the-United States,”-and, therefore, raised a .Federal -question. Maguire v. Tyler, 1 Black, 195. But-it is 'not énough that the claim of a Federal- right arose upon The facts. It must-also appear-.affirmatively that the right was “specially set-rip.” No reference was made to'any. Federal right in the petition'' for the writ 'of mandamus, the demurrer, or the motion to quash, and .the petition, for a rehearing, where the Federal question .-viras first brought'forward by-the plaintiff .in .error, so'far.as the record discloses, Was denied by the'court. It is not' enough that the Federal' question wa's-first' presented-■by a: petition for'a-rehearing, unless that question' was. thereupon' considered, , and passed-on adversely by .the corirt. Corkran Oil Company v. Arnaudet, 199 U. S. 182.

*299 .But an' examination of the opinion of the Supreme Court of the State shows clearly that that court decided two, questions: first, that -the bond' act was in violation of section 12 of article XI of the state constitution, which in substance provid,ed that all- funds of the state institutions of learning-should' be invested and only the interest upon them used for the support of those institutions; and, second, a question stated in- the opinion as follows: “ But oh behalf of the relator it is contended that by the terms of section 17 of the Enabling Act' the lands granted to the State for normal school purposes are to be held, -appropriated and disposed of exclusively for normal school purposes, in -such manner as the legislature of Montana may provide, and that this act is sufficiently broad to waprant the legislature in borrowing.money and pledging such lands'for the payment-of the principal and interest. And it is further contended that, if section 12 of article XÍ of the constitution contravenes the provisions of section 17 Of the Enabling Act, section 12 is invalid and of .no force or efféct,” which was decided adversely to the,contentions stated. • The decision of both questions, as the court determined them, was essential to the judgment.rendered, and the decision of the second was a distinct denial of-the Federal right claimed by the plaintiff in error. Where it clearly and unmistakably appears from the opinion o.f the state court under review that a Federal question was assumed by the highest court of the State to be in issue, was actually decided against' the Federal claim, and the decision of the question was essential to the judgment rendered, it is sufficient to give this court authority to reexamine that question on writ of error. San Jose Land & Water Company v. San Jose Ranch Company, 189 U. S. 177. Applying this rule to the case, there -is jurisdiction to reexamine the claim of the plaintiff in error on its merits.

In support of it the plaintiff in error argues that the grant of all the land by the Enabling Act was by an ordinance accepted by the State “ upon the terms and conditions therein provided;” that the legislature of the'Stale was-by the last *300 clause of section 17 appointed as agent of the United States, with full power to dispose, of the lands in any manner which •it deemed fitting, provided only that the lands or their proceeds should be devoted to normal school purposes; and that, therefore, • in the execution of this agency the legislature was not and-could not-be restrained by the provisions of the state constitution.. It is vitally necessary to the conclusion reached by these arguments 'that the Enabling Act should be interpreted as constituting the legislature, as a body of individuals and not as a parliamentary body, the agent of the '-United States. But it is not susceptible of such an interpretation. It granted the lands to the State of Montana-, and the title ’to them, when selected, vested in the' grantee'. In the same act the people of the Territory, about to become a State, were authorized to choose delegates to a convention charged with the duty -of. forming a constitution and state government. It was contemplated by Congress that the convention would create the legislature, determine'its place in- the state government, its relations to the .other governmental agencies, its methods of. procedure, and, in accordance with- the universal practice of- the States, limit its powers. It is not to be; supposed r that Congress untended, that the authority conferred by section. 17 of; the- Enabling Act upon the legislature should be exercised by the mere ascertainment of its will, perhaps when not in stated session, or by a'majority of. the votes of the two house’s, sitting-together, or-without the assent of the-fexecuti-vé, or independently of the methods and liiriita-’. lions.upon its powers prescribed, by its. creator. On the contrary., the natural inference is that Congress, in 'designating the legislature . as the-agency to deal with the lands, intended such a .legislature as would .be established by the - constitution of the State. It was to a legislature yhose powers were certain, to be' limited by the .'organic law,J to1 a legislature as a .parliamentary ..body, ‘ ácti-ng within its lawful powers, and .• by parliamentary methods, and- not to the 'collection of individuals, who for the tinie being might happen to be members *301 of that body that the authority over these lands was given By the Enabling Act. It-'follows, therefore, that in executing' the authority entrusted to it by Congress the legislature must act'in subordination to the state constitution, and we think that in so holdihg the Supreme Court of the State committed no error.

It is further' claimed by the plaintiff in error that the Supreme Court of the State erred in holding' that the law under which bonds were issued and the proceeds of' public lands devoted to their payment was repugnant to the constitution of -the State. Upon this question the decision of that court is conclusive, and plainly *we have no power to "review it.

It is further mrged that the construction given by the state court to its constitution impaired the obligation of a contract, resulting from the acceptance of the granted lands by the State of Montana, and that this impairment was in violation of the Constitution of the United States. Nothing more need'be said of that claim than that it-appears for the first time in the petition for a writ of error from1 this court, and the accompanying assignment of errors. .This is not sufficient to. give this court jurisdiction of any Federal question (Corkran v. Arncmdet, vb\. sup.), even though another Federal question has been properly raised, and brought here by the same writ of error. De^oey v. Des Moines, 173 U. S. 193. . Other questions were argued, but the view , we-have taken of the case renders it unnecessary to consider them.

The judgment off the Supreme Court of Montana is 'therefore

Affirmed.