Opinion on Motion for Rehearing.
MR. CHIEF JUSTICE BRANTLTdelivered the opinion of the court.
A motion for a rehearing of this case, heretofore submitted, was denied. The announcement was then made that at a convenient time additional reasons confirming the action of the majority of the court would be prepared and filed.
“In this state there is no common law in any case where the law is declared by the Code or other statute.” (Rev. Codes, see. 6213.) “The Code establishes the law of this state respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice.” (Rev. Codes, sec. 6215.) If these provisions are to be given the meaning which their words clearly import, whenever the legislature has expressed its will upon any subject, the duty is enjoined upon the courts to accept its expression as the law on that subject and determine controversies arising with respect to it accordingly.
It cannot be doubted that section 4723, Revised Codes, if it is to be taken as the law of this state declaring who has legal capacity to make a disposition of property by will, as it must be, cannot be extended by construction so as to include any person other than those mentioned in it. So, also, by the same rule, section 4725 cannot be construed to include any person, natural or artificial, among those who have the capacity to take under a will, other than those mentioned. Therefore, the result reached in the original decision, as to the capacity of the state to take under the Beck will, is the only logical one; otherwise it was incumbent upon this court to say that, although the legislature has declared its will on the subject and has designated by specific mention the persons, both natural and artificial, as the term “person” is defined in the Codes, who may take, section 4725 is only a part of the law on the subject with which it deals and that the court must enact the rest of it. This the majority of the court was disinclined to do. After *581further consideration of the subject we have been confirmed in the conclusion as first announced. Section 4725 is the only provision found in the Codes containing a declaration on the subject. It was brought forward into the Civil Code of 1895 as section 1722, from the Compiled Statutes of 1887 (Second Div., Comp. Stats. 1887, see. 437), which embodied the statute law of the territory and were continued in force by the Constitution (Constitution, Schedule 1); and although the Constitution, in the provisions cited in the original opinion, implies that the convention had in mind the idea that benevolent citizens might make devises and bequests to the state or to some of the state educational institutions, the section, exclusive in its character, has been preserved in force as the expressed will of the legislature. As was there pointed out, these provisions do not declare a capacity, but merely limitations upon the power of disposal by the legislature.
There are also other considerations which sustain our conclusion. The original Act creating the State Orphans’ Home provided that “the funds and revenues for the establishment of said Home # * * shall be appropriated and apportioned in such manner as the legislative assembly shall provide.” (Ses-' sion Laws 1893, p. 189.) In nono of the amendatory legislation do we find any change in its constitution nor any other provision for its maintenance. Taking the other institutions of the state in order, we find the legislation providing for their establishment, control and legal capacity far from uniform. This lack of uniformity is particularly noticeable when we come to examine the Acts of establishment, with reference to the powers conferred upon the various boards intrusted with the immediate control.
The state board of education consists of the governor, the superintendent of public instruction, the attorney general, and eight citizens appointed by the governor, by and with the consent of the senate, each of whom holds his office for four years. (Rev. Codes, sec. 642.) The state treasurer is the treasurer of the board. (Rev. Codes, see. 645.) The control of the State University is vested in this board. (Const., Art. XI, sec. 11; Rev. *582Codes, secs. 667, 670.) While not specifically authorized to accept gifts, devises and bequests for the benefit of the University, the implication is that the board may do so. Any person contributing not less than $15,000 may have the privilege of endowing a professorship, or any department of it, subject to the power of the board to designate the name and object of the gift. (Rev. Codes, sec. 678.) All such contributions to the University as are derived from public or private bounty must be devoted exclusively to the specific object for which they shall have been designated by the donor. (Rev. Codes, see. 679.)
The Act creating the State School of Mines declared it to be a body corporate, with power to sue and be sued, and to take and hold real and personal property by gift, bequest, devise or purchase from the state, and dispose of the same when authorized by law to do so. (Laws 1893, p. 176; Rev. Codes, sec. 691.) The government of it was by the Act vested in a board of trustees, consisting of five members appointed by the state board of education. (Rev. Codes, sec. 693.) By the Act of March 4, 1909 (Laws of 1909, Chap. 73), the control of the institution was vested in the state board of education, the provision for the appointment of the board of trustees being repealed. It may be remarked that all of the state educational institutions are declared by this Act to be under the exclusive control of this board. The control of the funds belonging to them, from whatever source they may have been, or may hereafter be, derived is also vested in the board with power to authorize and regulate all expenditures by any of them. For each is provided a local executive board, which has charge of ■its financial affairs, but it is merely the agent of the state board. Whether this Act destroyed the corporate character of the school of mines is an inquiry which is not pertinent here; but the Act otherwise puts it upon the same footing as the other state institutions.
By the original Act creating the Agricultural College and establishing the Experimental Station at Bozeman, in 1893 (Laws 1893, p. 171), the state board of education was constituted the controlling body. The board was authorized to .accept *583gifts of land and money to aid in the purchase of a site. (Laws 1893, p. 171, sec. 2.) By various Acts since that time the legislature has authorized the establishment of experimental substations for horticultural and agricultural purposes. In one instance the governor and secretary of state were especially authorized to make use of state lands for the use of a substation (Rev. Codes, secs. 757, 759); in others, either the local executive board of the institution was specially authorized to accept lands by donation (Rev. Codes, sec. 756), or the special authority to do so was conferred upon the governor or secretary of state. (Rev. Codes, secs. 763, 765.) In the latter instance the college itself was also specially authorized to accept money and materials to aid the enterprise.
The Act establishing the Normal School at Dillon especially authorized bequests to be made to the state board of education for the benefit and exclusive use of the school. (Laws 1893, p. 180.) By an Act approved February 25, 1903 (Laws 1903, Chap. 29, sec. 2; Rev. Codes, sec. 776), the board was again authorized to accept bequests and donations for the use and benefit of the school.
In the Act establishing the State Deaf and Dumb School at Boulder, it is declared that “all donations, gifts, devises or grants which shall hereafter be made by any person or corporation to said school, shall rest [vest?] in the state of Montana for the use and benefit thereof.” By later legislation the name of the school was changed to Montana School for Deaf and Blind (Session Laws 1903, Chap. 10; Rev. Codes, see. 1155). Originally under the control of the state board of education, its control was by this Act vested in a board of trustees, until by the provisions of the Act of 1909, supra, it was again vested in the state board of education. The provision of the original Act touching devises and bequests has remained in force and unchanged until the present time. (Rev. Codes, sec. 1182.)
The State Reform School, at Miles City, as originally established, was put under the control of a board of trustees appointed by the governor. The board was specially authorized *584“to receive in the name of the state any and all donations, gifts and contributions to the said school whether in money, labor, material or supplies.” (Laws 1893, p. 183.) The Act of 1909,.supra, left this provision undisturbed. (Rev. Codes, sec. 9784.)
The Soldiers’ Home, located at Columbia Falls, was established by an Act approved March 15, 1895. (Rev. Codes, see. 1283.) The general supervision and government of it was vested in a board of managers, consisting of five members appointed by the governor (Rev. Codes, sec. 1283); its government remains as it was first established. The board is expressly empowered to accept, on behalf of the state, “donations of land, money or other valuables by gift, bequest or otherwise.”
The state board of land commissioners, consisting of the governor, superintendent of public instruction, the secretary of state, and the attorney general, is authorized to accept, in the name of the state, by deed of sale, or gift, or by operation of law, any lands of whatsoever nature for -the benefit of the common schools or for any specific purpose which is designated by the “grantor or testator.” (Rev. Codes, see. 2193.)
These, various specific provisions conferring the power to take upon the different agents named indicate one of two conclusions: either that the legislature in enacting them deemed them necessary as enabling provisions, in view of the exclusive character, of section 4725, or that it had no intelligent comprehension of the purposes it was seeking to accomplish. For if, notwithstanding this provision, the state must be presumed, by reason of its sovereignty, to possess the general capacity to take, without any declaration on the subject, all of these special provisions referred to are entirely meaningless. Any devise or bequest to the state, for the use of any of the institutions, would be valid without them. But if we assume, as we have, that the legislature, in enacting section 4725, intended to lay down an exclusive rule, and that the special provisions referred to are to be deemed the exceptions which have been made from time to time, the Act of the legislature is made intelligible and wholly consistent with the idea that the state has so far with*585held its eonsent to be put upon the same footing as other persons who may take under a will. For these additional reasons we thiñk the conclusion reached in the original opinion the correct one.
Mr. Justice Holloway concurs. Mr. Justice Smith:I am still firmly of opinion that an erroneous conclusion has been reached in this case. I believe a majority of the court has adopted a theory that is fundamentally wrong. Precedents can have no application under such circumstances. The fact that the legislature has made so many crude, perhaps unnecessary, .and possibly abortive attempts to create agencies by which the establishment and control of the various educational institutions of the state are to be accomplished, carried forward and maintained, is an additional evidence to me that the law-making body has always recognized that the state of Montana is the source of all power, all property, all capacity; and in the exercise of these attributes of sovereignty it has been deemed wise and expedient from time to time to establish administrative bodies through which its bounty may be exercised. But to hold that certain educational institutions can derive legal capacity from a source which is itself destitute of such capacity; or that power can flow from a fountain-head where no power resides; or that the state can bestow that which it does not itself possess, is, in my judgment, to arrive at an obviously illogical and irreconcilable conclusion.