If the people

or frittered away by forced construction. think it wise or prudent to authorize a larger debt limit they may easily amend the Constitution, but, if amended, it should be done by those who are responsible for its original design and purpose.

In conclusion we remark that the facts and circumstances which control in the cases cited by counsel, and which have not been referred to in this opinion, are, in our judgment, clearly distinguishable from the facts and circumstances in this case, and hence we have refrained from mentioning them. From what has been said it follows that the writ prayed for should be denied; and it being clear that the application cannot be amended so as to avoid the constitutional clause, the application should be dismissed. It is so ordered.

MCCARTY, J., concurs.

STRAUP, C. J. (Concurring).

When the alleged prescribed legal duties of an officer rest upon the provisions of an unconstitutional enactment, I think he, when commanded to perform such duties, or show cause for not doing so, may justify his refusal or failure to perform on the ground of the invalidity of the statute. If a contrary rule was declared in the Thoreson Case (as I think was intended to be declared), it was overruled in the Standford Case. Since then, the latter, and not the former, case expresses the law on such question in this jurisdiction.

The act in question authorized the regents of the university to expend $250,000 for the erection of a building for the university. The Constitution forbids the incurring of state debts, exceeding in the aggregate at any one time the sum of $200,000, to meet casual deficits, failures in revenue, or necessary expenditures for public purposes, including the erection of public buildings. The moneys and funds appropriated by the legislature for the university were not available, for such funds were all appropriated and needed for general maintenance of the university. The legislature

saw that a state debt could not legally be incurred for the desired purpose in the sum of $250,000. The Constitution further provides, as does also the enabling act, that the proceeds of the sale of lands granted to the state by the United States for the benefit of the university "shall constitute permanent funds to be safely invested and held by said state, and the income thereof to be used exclusively for the purposes of said university." The proceeds derived from the sale of such lands have from time to time been invested by the state land board and the income thereof paid to the university. Such yearly income amounts to something like $22,000. Now, the problem attempted to be solved by the legislature is this: How can it make available the permanent land fund so invested by the land board and give the university $250,000 thereof, and have the state pay it back, without violating the constitutional provisions referred to? I say the state, because, as is well shown by Mr. Justice Frick, the university has no property or funds nor any source of income with which to meet and pay the money, except from the funds appropriated to it by the state. The act in question is the attempted solution. It directs the regents of the university to expend $250,000 to erect a building, and the land board to convert into cash sufficient of the investment of the permanent land fund as shall, together with the cash on hand, amount to the sum of $250,000, and to pay the same at once to the regents. It further provides that the university, by the regents, shall execute promissory notes by the terms of which the university promises and agrees to pay the $250,000 so received by it from the land board, the first $12,500 of which and the interest thereon to be paid in 1912, and the further sum of $12,500 and the interest thereon each year thereafter until the amount of $250,000 and the interest thereon is paid. In order that the university may have funds with which to meet and make such payments, it is further provided that "the board of regents of the University of Utah are authorized and empowered to pay, out of the funds appropriated, or otherwise available for its general maintenance, the principal and in

The

terest of the said obligations as they become due." legislature saw that if the act required or directed the regents to pay "said obligations" out of the funds appropriated for such purpose, the transaction would be recognized as and would be an obligation or debt of the state. So, to avoid such effect, and not offend against the Constitution in that regard, the legislature provided that the regents should pay "said obligations" out of funds appropriated for "general maintenance" of the university. Thus the idea is conceived that if funds are appropriated by the legislature for "general maintenance," and it directs the regents to apply them in payment of "said obligations," a purpose for which the appropriations are not apparently to be made, it has well behaved and not offended against the Constitution, and has made itself believe that by making appropriations under the name of "general maintenance," and by permitting and directing such funds to be taken and applied in payment of "said obligations," no appropriations have been made to pay the obligations. So long as the legislature permits and directs the funds so appropriated to be applied in payment of the obligations, what does it matter in what name the appropriations are made? Furthermore, a very troublesome question arises in case appropriations of funds are made for a certain and specific purpose "general maintenance" of the university-as to whether the regents could lawfully divert and apply them to another purpose, notwithstanding the power and authority attempted by this act to be conferred upon them. The two acts of the legislature, one making an appropriation for a certain and specific purpose and the other directing the funds so appropriated to be applied to another and different purpose, would seem not to be very harmonious. I cannot see wherein the legislature would more have offended against the Constitution had it provided in the act that the obligation should be paid from future funds to be directly and specifically appropriated for such purpose. But in order that the obligation may not be called a debt of the state, the legislature declared that "it shall

36 Utah-28

be a debt of the university and not of the state." It would seem that the legislature, by the course pursued by it, was apprehensive of the charge that it had offended against the Constitution, and desired to put such question at rest by declaring that it had not done so. And the way to do that was to declare that the obligation, no matter what in fact it may be, was a debt of the university and not of the state. So, too, since the Constitution permits only the income of the permanent land. fund to be paid to the university, and since such yearly income was only $22,000, and since the legislature had provided that sufficient of the investment of such land fund should be converted into cash as would, together with the cash on hand, amount to $250,000, and directed the same to be paid at once to the regents of the university, it might also seem that there would be, in such case, something more paid to the university than the mere income, and the charge made that the Constitution was again violated, it further declared that the paying of such moneys by the land board to the university shall be and is called a "loan" and "an investment." I apprehend that a trustee, who was charged with a trust fund and who was required to safely invest it and only pay the income thereof to the bene ficiary, but who, when the had paid the whole fund to the beneficiary, was called to answer a charge of a breach of his trust, might as well assert that the fund was only "loaned" to the beneficiary and "invested" with him, and by such a defense could defeat the very purpose of the trust. If the acts required to be done by the legislature are harmful and incompatible with the Constitution, such effect cannot be avoided by the legislature calling them innocent, or by giving them a particular name. Neither can it be avoided by the requirement in the act that "all laws in conflict herewith shall be so construed as to carry out the provisions of this act." The direction that the laws shall be so construed, whether they bear such a construction or not, encroaches upon the prerogative of the courts. The legislature must content itself with the power of making laws. It cannot also direct the construction that shall be given them. If we

were permitted to follow the direction and make the Constitution and all other laws yield to the act, we, undoubtedly, would be relieved from many difficulties and much responsibility. The Constitution, however, wisely forbids the adoption of such a principle of construction. The legislature's attempt to give the university a much needed building is of course commendable. But I think the manner in which the attempt is made is clearly incompatible with the Constitution. I, therefore, concur in the judgment denying the writ.

WADDELL v. WADDELL et al.

No. 2008. Decided September 22, 1909. On Motion for Modification of Order November 8, 1909. Rehearing Denied November 8, 1909 (104 Pac. 743).

1. TRUSTS-CONSTRUCTIVE TRUSTS-WRONGFUL ACQUISITION OF PROPERTY EVIDENCE. Evidence held to show that a grantor wrongfully obtained possession of the deed and destroyed it to enable him to defraud the estate of the deceased grantee, so that the sum realized by the grantor on a resale of the property was a trust fund. (Page 443.)

2. TRUSTS-FOLLOWING TRUST FUNDS-PRESUMPTION. Where a trustee mingles trust funds with his own and then draws out sums from the common fund, the law presumes that he draws out his own funds in preference to the trust funds. (Page 447.)

3. TRUSTS-FOLLOWING TRUST FUNDS-RIGHT OF CESTUI QUE TRUST. Where a person receives money which equitably belongs to another and then converts it into another species of property, the beneficial owner is entitled to the proceeds whatever be their form provided only he can identify them, and, where they cannot be identified because the trust money has been mingled with that of the trustee, the beneficial owner is entitled to a charge on the new investment to the extent of the trust money traceable into it, and this rule applies to an express trustee or to any one occupying a fiduciary position. (Page