State Ex Rel. Bookstore v. Potts , 141 Wash. 110 ( 1926 )

I cannot bring myself to the view expressed in the majority opinion, much as I have desired and tried so to do. Nor do I agree with quite all that is said in the dissenting opinion of Judge Mackintosh, although I am in accord with most that is there written. Such being my situation, it seems proper for me to briefly express my own views.

I have not been much helped or persuaded by the arguments to the effect that the Congress desired to give assistance to the state, because it was new and would need financial assistance in connection with its capitol buildings. To me, it is just as reasonable to conclude that the Congress intended to give the state money with which to construct capitol buildings and let it furnish them at its own expense, as that it wished to give not only the buildings, but also the furniture for them. We should start out with the knowledge that the national government wished to aid the state, and then determine the extent of that aid by giving the words of the grant their natural meaning.

It was considered by all the attorneys presenting the case to us, and I believe it will be conceded by those signing the majority opinion, that the purpose to be served by the grant of the fifty sections of land, as provided in § 12 of the Enabling Act, was the same purpose that was to be served by the grant of the additional 100,000 acres, provided for in § 17; that is, that the grant of the one tract was not for one purpose and the grant of the other for another, or different purpose. The state legislature has always considered the two grants as one and for identically the same purpose. The very money now in dispute was raised by one mortgage on all the lands in question. Such being the case, the words "for the purpose of erecting public buildings. . .," found in § 12, either mean the same as the words "for public buildings . . .," found in § 17, or the last quoted words mean the same as the first quoted words.

To me, the words "for public buildings" naturally mean for the construction or erection of public buildings, and not for the construction and use of public buildings. However, I concede that it might not be stretching the English language too far to hold that the words "for public buildings" might embrace the idea not only of erecting but also of furnishing them. But, to my mind, the words, "for the purpose of erecting public buildings," are so clear as to their meaning as to make construction of them not only unnecessary, but wholly improper. Since, then, both grants were for the same identical purpose, the majority is forced to hold that the words "erecting public buildings" include furnishing them. In other words, the majority opinion brings that which is certain to the level of that which is uncertain, instead of bringing that which is uncertain to the level of that which is certain. To construe the words, "for public buildings," to mean "for the erecting of public buildings" gives effect to all the words of the grant, but to construe the words, "erecting public buildings," to mean the same as "for public buildings," and the latter as including furniture for the buildings, is to eliminate the important and certain word "erect." Reading the two grants together, I cannot get away from the conviction that the congress had in mind to furnish the state means whereby it might erect its capitol buildings, and for no other purpose. If it had intended to make a gift for not only constructing the buildings, but also for furnishing them, it could easily have used words which would have clearly indicated its desire.

Nor does this construction of the grant work any unfortunate result. Everybody knows that the government grant will be exhausted before all the capitol buildings have been constructed, even though the money be used for construction purposes only. If we now buy furniture with a part of the money, we must later raise funds by taxation to construct the remainder of the capitol buildings. Indeed, there is not much in this case except from which of its two pockets the state will take the money necessary to buy furniture for the capitol buildings.

For the foregoing reasons, I feel impelled to dissent.