Argument for Plaintiff in Error.

204 U.S.

"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."

Mr. M. S. Gunn for plaintiff in error:

The Enabling Act authorizes the legislative assembly of the State of Montana to appropriate the proceeds derived from the sale and leasing of the lands granted to said State, by § 17 of said act, for state normal schools, and from the sale of the timber thereon to the establishment of such schools. If, as plaintiff in error contends, § 17 of the Enabling Act authorizes the legislative assembly of the State to appropriate the proceeds derived from the said lands to the establishment of state normal schools, then 17 controls, notwithstanding the provisions of § 12, article XI of the state constitution as construed by the Supreme Court of the State. If a provision of a constitution or a statute of a State is inconsistent with the Constitution of the United States or an act of Congress, it is not law. Art. VI, Const. of the United States. Congress is given power to dispose of the public lands and to make all needful rules and regulations respecting them. Art. IV, § 3, Const. of the United States. Pursuant to this authority the grants in the Enabling Act were made. These grants are laws, and if 12 of article XI of the constitution of Montana is inconsistent therewith, it must yield to the act of Congress making said grants, which is the supreme law of the land.

The acceptance of the grant contained in § 17 of the Enabling Act created a contract, and § 12 of article XI of the Montana constitution, as construed by the Supreme Court of the State, impairs the obligation of such contract. McGehee v. Mathis,

4 Wall. 143; Missouri &c. Ry. Co. v. Railway Co., 97 U. S. 491; Schulenberg v. Harriman, 21 Wall. 44; Gunn v. Barry, 15 Wall. 10.

Mr. Albert J. Galen, with whom Mr. W. H. Poorman and Mr. E. M. Hall were on the brief, for defendant in error.

MR. JUSTICE MOODY, 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 exercised 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 Montaña 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

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 the 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 erection, and payment of them was refused. The State, on relation of Haire, by proceedings which were deemed appropriate in form, sought to enforce against the 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 were in violation of that constitution, the law enacted in pursuance of an authority granted by the United States was valid and effective notwithstanding. All three of these claims were denied by the state court. The first and third are clearly claims of a “right under an authority exercised under the United States," and, therefore, raised a Federal question. Maguire v. Tyler, 1 Black, 195. But it is not enough that the claim of a Federal right arose upon the facts. It must also appear affirmatively that the right was "specially set up." 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 was 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 was first presented by a petition for a rehearing, unless that question was thereupon considered, and passed on adversely by the court. Corkran Oil Company v. Arnaudet, 199 U. S. 182.

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 provided 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 on 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 warrant 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 XI of the constitution contravenes the provisions of section 17 of the Enabling Act, section 12 is invalid and of no force or effect," 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 of 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 reëxamine that question on writ of error. San José Land & Water Company v. San José 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 State was by the last

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 that Congress intended 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 houses, sitting together, or without the assent of the executive, or independently of the methods and limitations upon its powers prescribed by its creator. On the contrary, the natural inference is that Congress, în 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 whose powers were certain to be limited by the organic law, to a legislature as a parliamentary body, acting within its lawful powers, and by parliamentary methods, and not to the collection of individuals, who for the time being might happen to be members