Plaintiff brings mandamus to compel execution and delivery of a contract for the sale of school lands which defendant commissioner struck off to plaintiff at a sale of school lands in Steele county, at which plaintiff was the highest and only bidder for certain lands. All preliminaries prior to sale were complied with, and, on the sale, payment was made by the purchaser to the county treasurer, pending approval of the sale by the Board of University and School I/ands. After an investigation, and on information before it, said board disapproved the sale, finding fraud and collusion between the plaintiff and other bidders at the sale, and, on plaintiff’s petition for review by the board, the sale was again disapproved for inadequacy of price paid for the land.
Thereafter mandamus proceedings were instituted in district court to compel the issuance and delivery of a contract of sale by the board and commissioner to the plaintiff for the land. After trial the court dismissed the proceeding, holding the decision of the board final and conclusive, and not subject to review by mandamus; from which decision plaintiff appeals, alleging specifications of error sufficient to bring all questions embodied in the record before this court for determination.
The decision of this action involves:
(1) The powers and duties of the board under the facts in this case;
(3) Whether the decision of the board is reviewable by mandamus or ■certiorari.
The Board of University and School Lands is provided for by the 'State Constitution, § 156 thereof providing, “Said board shall have •control of the appraisement, sale, rental, and disposal of all school and university lands,” subject, however, to further constitutional limitations :as to manner .of sale, minimum price, payments, and investment of income derived from the sale of these lands. Under such authority the legislature has, in Articles 1, 2 and 3, chapter 4, of the Political Code, more definitely defined the above powers and duties, their exercise and limitations; and providing for a State land commissioner as the ministerial- agent of the Board of University and School Lands, specifically defining his duties; and providing further that, subject to the provisions of constitutional and statutory restrictions, “such board shall have the •full control of the selecting, appraisement, rental, sale, disposal, and management of all school and public lands of the state,” and “the investment of the permanent funds derived from the sale thereof or from •any other source, and shall have power to appoint a competent person ■to act as the general agent of the board in the performance of all its duties pertaining to the selection, sale, leasing, or contracting in any manner allowed by law, and the general control and management of all-matters relating to the care and disposition of the public lands of the .-state, all of whose official acts shall be subject to the approval and supervision of the board. The title of such agent shall be ‘Commissioner of University and School Lands.’ ” See. 153, Code 1905. The duties of such Commissioner of University and School Lands are as defined in the foregoing, and § 166, Code 1905, as further supplemented by statutory provisions defining or limiting the exercise of such duties imposed, •among which is § 174, Code 1905, reading in part: “The county audh tor shall act as clerk of all land sales and leases, made in his county, and it shall be his duty, within five days after such sale or lease shall have been concluded, to certify to the Board of University and School Lands ■a list of lands sold or leased, as provided in this article, with the price thereof, and the name of the purchaser or lessee of such tract, the amount for which the lands are sold or leased, the amount of money paid by
As to the powers of said board, it is significant that the Constitution (§156 above quoted) gives said board general powers in these words: “Said board shall have control of the appraisement, sale, rental, and' disposal of all school and university lands.” This has been construed' and made even more definite by § 153, Code 1905, providing: “Such-board shall have the full control of the selecting, appraisement, rental, sale, disposal and management of all school and public lands of the-state,” the legislature having, in its construction of the constitutional provision, used the words, “full control,” “selecting,” and “management,” with the other terms used in the constitutional enactment. Then, again, the legislature, construing such constitutional authority, has given-to the commissioner the “general charge and supervision.of all lands: belonging to the state;” and in this connection the office of commissioner was created to carry into effect the will of the board, and by statute (§ 153) designated “the general agent of the board in the performance of all its duties pertaining to the selection, sale, leasing, or contracting-in any manner allowed by law, and the general control and -management of all matters relating to the care and disposition of the public-lands of the state,” and to perform ministerial duties for the board.
The board, then, as construed by legislative enactment on the matter of its powers, has full control of the selecting, appraisement, rental, sale7 disposal, and management of school lands of the state. It acts as a.
Upon an investigation of the above matters, this board approves or disapproves the sale, and on the. approval depends the sale. If this board should have the full control given it by statute, certainly its approval should not be controlled by courts. It is the approval of the board, not of courts, upon which the question of alienation of state’s
If the Constitution intended the decision of the board to be final it cannot be disturbed by mandamus. Wood v. Strother, 76 Cal. 545-554, 9 Am, St. Rep. 249, 18 Pac. 766.
Viewed in the light of the reasons for-these constitutional and statutory enactments, — the importance of the duties conferred upon, the board so created, the necessity for the exercise of a high degree of judgment and discretion by a tribunal competent to do so, and charged with administering as a trustee of the millions in this greatest of all state funds, our school fund, — would it not be most absurd to do otherwise than to give full force to the mandate of the Constitution and statute granting full power to this board in the exercise of discretion and judgment in this the most important part of its duties, approval of sales of state property? We must conclude such duty is wholly discretionary, and its decision as a body is a quasi-judicial determination.
The board has acted, and by resolution disapproved the sale because of fraud and collusion between the buyers, and inadequacy of the price bid. Certain of the evidence upon which its conclusion is based is before the court, and consists of an affidavit, letters, information, and circumstances regarding sale and purchase price of this and other tracts. Possibly the board had further information, the extent of its investigation is not disclosed; it suffices that it had evidence and information, acting thereon in the exercise of discretion, disapproved the sale; pre•sumably the board did its duty. This court will not weigh in this mandamus case the evidence that was before the board, but, instead, recognizes that this board was charged by law with a duty, that of approving nr disapproving this contract of sale, and that it has performed its duty, •inasmuch as it has acted in the matter.
Mandamus has never been regarded as the proper remedy to control the judgment and discretion of an officer in the decision of a matter as to which the law gives him power and imposes upon him the duty to ■decide for himself, where the duty is such as requires the examination
The above authorities cite cases from every jurisdiction, declaring and applying with little variance this now elementary principle.
Plaintiff claims the acts of the board in approving sales are but ministerial and administrative duties involving limited exercise of judgment and discretion in determining the existence of certain facts, after determining which the approval is a ministerial duty, and that an erroneous decision as to such preliminary questions of fact may be reviewed by mandamus. For reasons hereinbefore stated, this contention is contrary to our construction of the statute, and contrary to facts as to the real duties of the board.
That this case does not come within this rule has practically been adjudicated by our court in State ex rel. Wiles v. Albright, 11 N. D. 22, 88 N. W. 729, in which the same counsel urged the same construction in an action in mandamus against a county auditor, in a mandamus; to compel issuance and delivery of a salary warrant to a county superintendent of schools, the only preliminary matters of fact for the auditor’s, determination being the number of schools in the county, the same being the basis for the salary paid the superintendent, and whether on such basis the superintendent was already paid by overpayments previously made, and whether it was the plain duty of the auditor to determine these questions as preliminary questions to a purely ministerial duty of issuing and delivering the salary warrant. Certainly the determination of these matters of general knowledge would be much more simple and easy and embody less discretion and judgment than approval of the sale of school lands from evidence on independent investigation touching fraud, collusion, adequacy of price, and regularity of sale proceedings, as in the case on trial. But in the case cited the writ was denied on the grounds that the act of passing on the county’s liability to the county official by the auditor under those circumstances, in the issuance of the salary warrant, was not a purely ministerial duty, and that “the auditor had a discretion to exercise as to his official actions, and mandamus will not lie to cause him to act when he is vested with such discretion.” See also State ex rel. Marsh v. State Land Comrs. 7
Counsel for plaintiff argues that the writ must lie to review the discretion of the board, and that the discretion and decision of the board is not conclusive, otherwise the board could, by fraud and collusion/preclude the state as against a purchaser of'school lands. In other words, the rule against the review of the discretion of the board by mandamus .should apply to the state as well as the purchaser, and, if so, the state, being unable to review the acts of the board by mandamus, might be injured by the fraud or collusion of the board. While the state cannot try the. matter of fraud by mandamus to review the discretion of the board, any more than can the plaintiff in this action disprove fraud of the bidder against the contrary conclusion of the board in the matter, .yet the state, in case of fraud or collusion by the board in the sale of ■school lands, may amply protect its rights by an action in equity based thereon, to set aside any fraudulent or collusive contract or conveyance •of state property by the board to private individuals. But the state cannot do this in an action in mandamus, as to which the decision of the board is as conclusive against the state as against the purchaser.
Counsel for the state urge that plaintiff has mistaken his remedy, and ¡should have used certiorari instead of mandamus. While this is but indirectly before us, yet in order to fully define plaintiff’s rights under the record in this case, we are satisfied the acts of the board are not reviewable by certiorari on the application of the plaintiff. The tribunal whose acts would be so reviewed by certiorari acted entirely within its jurisdiction, and, so far as the facts in this case are concerned on the record, there is no cause for review, and certiorari will not lie.
The judgment of the District Court dismissing this action is affirmed.