23 Mich. 270 | Mich. | 1871
This is an application for a mandamus, to compel the commissioner of the state land office to cause patents to be issued to the county for certain selections of swamp lands, appropriated to the county by the act of March 20, 1863, for the construction of the Mineral Range State Road.
The third section of the act provides “that whenever any ten consecutive miles of said road shall be completed and approved of by the board of supervisors of the county in which said road shall have been built, and such approval certified to by the chairman of such board of supervisors, the clerk thereof shall serve notice of such approval on the commissioner of the state land office, who shall issue patents to .the county in which said work shall have been so completed, conveying to said county twenty sections of said swamp lands to be selected by such board of supervisors.”
Section 4 provides “that there shall be withheld from sale, .not exceeding 1,280 acres of the swamp lands in the Upper Peninsula (not otherwise appropriated), for each mile of said road, from, and after, the time said counties through which said road runs shall notify the commissioner of the state land office of. the selection of the same; and said lands shall be so withheld from sale for the period of four years from the passage of this act.” This act was subsequently extended by the amendment of February 20, 1865 (act No. 65), so as to read “six years from the passage of the act.” This fourth section was evidently intended to give to the respective counties the right to make the selection at any time after its passage, as well before, as after, the work was done. But it withdrew nothing from market until the commissioner should be notified of the
On the 21st April, 1863, the county of Houghton, by unanimous resolution of the board of supervisors, accepted this appropriation. The whole length of the said road through the county of Houghton was forty-two miles, and the whole quantity of land, therefore, which the county was entitled to have reserved from sale, and for which (when the road should be completed) it would be entitled to patents, was fifty-three thousand seven hundred and sixty acres.
On the 20th day of June, 1863, the county of Houghton duly notified the commissioner of the land ofiSce, of the selection of a long list of lands, containing in the aggregate twenty-seven thousand and eighty-three and forty-four one-hundredths acres, fully describing them in said list (which was duly filed in the office) by their proper land-office descriptions, according to the public surveys. And on the 23d day of June, 1863, the county filed in the office of the commissioner another list of lands selected by the county, and thereby notified him of such selections, properly describing the lands, and which amounted in the aggregate to thirty-one thousand four hundred and sixty-nine and ninety-four one-hundredths acres, making with the twenty-seven thousand and eighty-three and forty-four one-hundredths acres, fifty-eight thousand five hundred and fifty-three and thirty-eight one-hundredths acres. But, being entitled in all, to only fifty-three thousand seven hundred and sixty acres, there was an excess of four thousand seven hundred and
These selections were made from plats forwarded to the county of Houghton, from the state land office, purporting to show unentered state swamp lands. And the excess arpón the last list of selections was doubtless intended to make up for any deficiency which might have been caused by sales made in the meantime, and for any errors which might have occurred, etc. But the county had no right to select or keep out of market any more than the fifty-three thousand seven hundred and sixty acres, and, as more was selected, we think the right of selection must be held to attach to each parcel in the order of its selection, or, in other words, in the order in which the several descriptions were mentioned on the lists, beginning at the head of the first list of June 20th, and going through that in consecutive order, and then proceeding with the second list (that of June 23d) in the same order until the quantity selected should, in the aggregate, amount to fifty-three thousand seven hundred and sixty acres. The remainder, not being subject to selection, could not be affected by it. But in pursuing this order, any particular tract or tracts which might have been sold before the commissioner was notified of the selection, and any tract for any cause not liable to be selected (if any such there were) must be entirely omitted, and the list treated, in all respects, as if such tract or tracts had never been included among the descriptions.
An analogous question is raised by the petition and return, as to the order in which the county is entitled to demand patents for the land as the several ten-mile sections of the road were completed. Whether, for instance, upon due proof o f the ■completion of the first ten miles, the county is entitled to
Had the commissioner adhered to this rule, we are inclined to think he would have been justified in that course, not because it was a rule adopted by the office, but because it would have been in harmony with the design and purpose of the act. If upon the completion of the first ten miles, the county were entitled to demand patents for such lands as it might select from the entire list selected for the whole road, it might obtain perhaps, half, or more, in value of the whole appropriation, for only ten miles of the road, which would be out of due proportion for the amount completed, and this would leave less inducement to complete the balance. But the commissioner, when the first demand was made for patents, did not adhere to any such rule. The list of lands, for which patents were demanded, did not follow this order, and the commissioner, in the main, patented the lands according to the list demanded, refusing some on the ground that they were mineral lands, others upon other special grounds, and many others upon no grounds which we have been able to discover, but departing with those he did patent widely from the order of selection as shown by the selection lists. The order being thus broken by the commissioner himself, it became impracticable to observe such order of selection for the future with reference to the selected
The completion of the first ten miles of the road was duly certified, and filed with the commissioner, in September, 1865; and on the fourth day of June, 1869, like proof of the completion of another ten miles; and in each case, a list was presented to the commissioner, of lauds for which patents were demanded, but neither list was in the order in which the lands had been originally selected by the county, in 1863.
The answer of the commissioner insists that some of the lands selected, and for which patents were demanded, were reserved by the state as mineral lands, and not subject to selection under this appropriation, and he refuses to patent them for this reason, and that some of them have, since the selection, been sold by the commissioner to other parties. These parties have been notified, also, to show cause in this proceeding, but have not appeared.
The question whether these lands were reserved as mineral lands, so as not to be liable to selection under this act, is the most important question in the case. The language of the act certainly makes no express reservation or exception of mineral lands. The first section, which is the one expressly making appropriation, makes no exception whatever; but its language applies to all swamp lands belonging to the state, wherever situated. It is in the fourth section only, providing for the selection, that the appropriation is confined to swamp lands in the Upper Peninsula; and here, by way of parenthesis, is inserted the words “ not otherwise appropriated.” There are no other words in the act in any manner limiting the right of selection. I was at first under the impression that the term “appropriated” might
The commissioner, and the attorney general, in support of his views, relies upon the act of April 25, 1846 {Comp. Laws, Chap. 88), passed some years before the grant of these swamp lands to the state, and upon act No. 158 of 1863. Section 3 of the act of 1846, relied upon, is in is in these words: “All lands known to eontain mines or minerals which now are, or may hereafter become, the property of this state, shall be reserved from sale by the authorities thereof, until directed to be sold by, and under, such regulations as the legislature shall hereafter prescribe.”1
This, undoubtedly, declared the policy of the legislature of 1846; but, being a mere legislative provision, not contained in the constitution, it was just as clearly repealable by any subsequent legislation, as any other act passed by that, or any other legislature ; and any aet clearly inconsistent with it, would thus far repeal it. It was just as competent for the legislature of 1863 to appropriate swamp lands which were mineral lands, and even those previously set apart by the state, as such, as to appropriate any other swamp lands.
Section 2 provides that “before any of the lands thus reserved shall be offered for sale, the governor may, under such regulations as he shall prescribe, cause an examination of such lands by such agents, not exceeding two in number, as he may appoint for that purpose, whose duty it shall be to examine the lands designated by the governor, and report the result of such examination to him, and their separate appraisal of the value of each tract.”
Section 3 provides that “upon receiving such report, the governor and state treasurer shall fix a minimum price at which each tract may be sold, and certify the same to the commissioner of the state land office, who shall thereupon offer said land at public sale, in pursuance of the provisions. of existing law.”
This act effectually, repealed the act of 1846, as to all lands except those which the governor should thereafter select and reserve. As to all others, it put an end to the policy indicated by the act of 1846; and this act having been passed the day previous to that of Márch 20 (No. 239), gives some force to the inference that the omission in the latter act of any exception or reservation of mineral lands was intentional, and that they were not intended to
These swamp lands, therefore, were not, after this act No. 145 took effect, any longer reserved as mineral lands; and whether the governor might not, after the selection made by the county, have proceeded to make such selections and reservations, and thus have defeated the selections, to this extent, >we need not decide; as it is not pretended that there is any evidence that this was done. This act No. 145 took effect two days prior to the filing with the commissioner of notice and list of the first selections; and, as already noticed, the right of selection must depend upon the law as it stood when the commissioner was notified of the selection. At this time, then, the lands in question were subject to sale at public auction; and it makes no difference that they were not then subject to private sale-There is nothing in the act of appropriation (No. 239) confining the right of the county to select, to lands subject to private sale at the minimum price; and, to give it this effect, we should be compelled to add to the act a provision or reservation which the legislature did not see fit to insert. This we have no right to do, however unwise we might deem the omission; there being nothing from which such an intent can be inferred,
It is proper to explain here more fully what has already been intimated, that, though the county, while the selections made by it remained in full force, and the selected lands were by the statute reserved from sale, could not of right have demanded patents for lands otherwise than in the order of their selections as shown by the selection lists, this rule, even had the commissioner ever adhered to it, would cease to operate at the expiration of the period for which the lands were required to be withheld from sale. The selections formerly made, being no longer obligatory upon the state, would cease to be obligatory upon the county; and the county would then have the same right to select, and to demand patents (which would be a selection) for, any of the lands still remaining, or any other unsold swamp lands in the Upper Peninsula, as if no former selection had been made; and any sales made by the state to individuals, of previously selected lands, after they ceased to be withheld from sale and prior to a demand by the county for patents, would be valid, and the county would lose its right to the lands thus sold.
These remarks, aside from their general application to the case, are especially applicable to the lands stated by the commissioner’s answer to have been sold to P. J. Avery and H. S. Wells, June 14, 1869, aS well as to all the lands for which patents were demanded on the fourth day of June, 1869, and stated by the commissioner to have been sold to S. P. Seager, June 7, 1869, after such patents were demanded by the county. And the same ' remarks are
As none of the lands were sold by the commissioner between the 20th of March, 1869, and 4th of Jane, 1869, it does not become important to inquire whether the six years (during which the selected lands were to be1 withheld from sale) mentioned in the amendment of 1865 (act No. 65) began to run from the passage of the latter act, or from the passage of the act amended (of March 20, 1863) especially as the demand for the patents, June 4, 1869, was accompanied by proof of the completion of the second ten miles of road prior to the 20th of March, 1869.
The. county is therefore entitled to patents for the lands for which’ patents were demanded, and which the answer states to have been sold to Avery and Wells, June 14, 1869, to Hoppenyan, May 19, 1868, and to-Seager, June 7, 1869, and those stated as applied for by Seager in 1868.
The principles above stated, it is believed, will dispose of all questions- touching any of the particular descriptions in question, upon which, in the present situation of the case, we feel at liberty to decide.
There are several tracts of the selected lands which, it appears from the commissioner’s answer, had been sold to individuals; and as their rights are involved in this proceeding, an order was made for such purchasers to show cause. But one of those parties, Proctor. P. Cowles> has appeared,, who shows that he received a patent for the lands in- question in.
The commissioner’s answer claims that some of the lands were “reserved” to Charles T. Harvey, “contractor,” prior to their selection by the county; but he does not assert the existence of any contracts under which such a reservation can take place; and though we can take judicial notice of the law under which such contracts might have been made, we cannot judicially notice whether any contract has been made. There was an order for Harvey to show cause, but no proof of the service of the order, nor any reason shown why it was not served. We do not, therefore, feel at liberty to take a step in the dark, which might prejudice any rights he may have, before he has had an opportunity to be heard. The case, ■ however, may be retained for further proceedings as to the parties not yet notified, so as to give the relator a further opportunity to bring them in should it be desired, unless the county should elect to select other unsold lands in place of this tract.
The relator is entitled to a mandamus as prayed for, as to all the lands to which, upon the principles above laid down, the county is entitled to patents. But as we suppose the. commissioner was only desirous of obtaining the opinion of this court before issuing the patents, and that .he will at once conform to it, we