5 Or. 275 | Or. | 1874
By the Court,
The question presented by this appeal is, which of these parties was legally entitled to purchase the land in question from the Board of School Commissioners ? The facts are set out in the bill, and show that the respondent made the first application to the Board of School Commissioners, and if that application was made in accordance with the law in force at that time, then the board did right -in making her a deed and in rejecting the subsequent application of the appellant.
In order to ascertain what the law was under which the title to the premises was obtained' by Mrs. Hawn (respondent herein) it will be necessary to examine the different statutes that have been enacted upon the subject of the sale of lands belonging to the State.
The law of 1864 provided for the sale of certain State lands to actual settlers, not exceeding a half-section to any one settler, for the price of one dollar and a quarter per acre; but it was provided by § 12 of the same law, “that nothing in this act shall be so construed as to include sections sixteen and thirty-six, or the funds heretofore received from the sale of the same.” Then it is clear that the land in question is not within any of the provisions of the act of 1864, and we must next examine the act of 1866, together with that of 1868, to see what the law was at the time these applications were made to purchase the land in question.
The'act of 1866 gave the Board of School Land Commissioners authority to sell sections sixteen and thirty-six, and all lands selected in lieu of such sections, in addition to the
The rights extended to settlers of the class to which appellant claims to belong by act of 1866, v^as materially changed by the act of 1868 in two particulars: Erst. In regard to the time in which application to purchase should be made; and, second, the price that should be paid.
The first section of the act of 1868 provides that all the school and university lands belonging to this State shall be offered for sale and sold upon the terms herein provided for and not otherwise, etc. It further provides that settlers shall have the preference in the purchase of all such lands as may be found to be occupied at the time of the passage of that act, or within six months after taking effect of the same; but after the expiration of six months any person shall be entitled to purchase any of such lands in lots not to exceed one hundred and sixty acres not settled upon, in accordance with the provisions of § 3 of that act. The next section provides that the price of all lands shall be that fixed by the county school superintendent of the county where such lands lie.
This act was approved October 28, 1868, and took effect about the 1st of February, 1869. Under this act the appellant had the preference for six months, and might, at any time prior to the 1st day of August, 1869, have made an application to purchase the land in question, but would have then had to pay, not one dollar and a quarter per acre, but the price put upon it by the county school superintendent of Wasco County. No such application was made, and about October, 1870, more than a year after the preference of the appellant had expired, and when the land was in market, and for sale to any one that would make a proper application to the board of commissioners to purchase it, the respondent made such an application, and we think the
It seems to be the object of the law to convert these lands into money, and place the same at interest, so that some benefit may be derived from these grants to the State for the benefit of the school fund, and not allow persons to remain in the possession and use of them an indefinite length of time, paying nothing therefor and preventing their being sold; hence they were required to make an application to purchase within sis months after their settlement.
The act of 1868 is an independent act, one object of which was to place in market a class of State lands not before that time offered for sale, and to provide the manner and terms of the sale of all the school and university lands belonging to this State; and when that act took effect, it became the rule of action on that subject, and repealed by implication all prior acts that conflict with it. There was a question raised, in the appellant’s brief, as to the effect of § 15, chapter 29, of the act of 1864, which reads as follows:
“ The commissioners may make rules for the transaction of business under this chapter, and shall decide all questions about priority of settlement and other disputes between applicants, and their acts and decisions shall be final.”
The action of the'board is final under this section, so far as the interests of the State are concerned; but when the board has decided a case, and made a deed to one applicant in preference to another, the title is then out of the State, and a party claiming the land under the same law may, by a proper proceeding, show that the deed was obtained illegally, or by fraud or perjury.