93 P. 775 | Idaho | 1908
(After stating the facts.) — The only question presented for our determination in this case is-whether an appeal will lie from the decision of the state board of land commissioners on a land contest had before them. The state board of land commissioners is a constitutional body, organized and existing under and by -virtue of the provisions-of see. 7, art. 9 of the constitution, which is as follows: ‘ ‘ The Governor, Superintendent of Public Instruction, Secretary of State and Attorney General shall constitute the State Board of Land Commissioners, who shall have the direction, control and disposition of the public lands of the state, under such regulations as may be prescribed by law.” To this board the constitution has assigned the “direction; control and disposition of the public lands of the state.” In furtherance of the powers conferred by the constitution, the state-legislature, by see. 2 of the act of March 2, 1899 (Sess. Laws,. 1899, p. 284), conferred upon the same board “the selection^ management and disposal” of all lands received by the state-under the grant from the general government commonly known as the Carey act. The statutes of the state prior to-1905 contained no provision for hearing contests over the-right to purchase or enter state lands, but by act of March 2, 1905 (Sess. Laws, 1905, p. 131), the legislature created the office of register of the state board of land commissioners and provided for hearing contests, and by see. 5 of the act-requires the register to set a time for hearing evidence and taking testimony, and requires that after the hearing the register shall furnish “a full transcript of the proceedings to the state board of land commissioners who shall render a
It must be conceded in the outset that “the right of appeal is statutory and unknown to the common law; it cannot be extended to cases not within the statute.” (General Custer Min. Co. v. Van Camp, 2 Ida. 40, 3 Pac. 22.) In the case at bar, if any right of appeal exists, it must be found in the statute. This latter proposition, we think, narrows itself down to the question as to whether that authority is to be found in see. 24 of the act of March, 1905 (Sess. Laws, 1905, p. 142). Sec. 5 of the act provides that the practice and procedure in contest cases shall be the same as that established by the United States in the district land office, and the whole tenor of the act indicates that the legislature intended to provide a similar mode and method for contests over state land and for state purposes-to that established by the general government for contests over government lands. Under similar’ legislation in other states a like view has been entertained by the courts. (Corpe v. Brooks, 8 Or. 222; Routt v. Greenwood Cemetery Land Co., 18 Colo. 132, 31 Pac. 858.) The United States supreme court has repeatedly held that the decisions of the land department of the government are final and conclusive as to all facts found in a case, and that they would only be reviewed as to errors of law or on account of fraud. (Johnson v. Towsley, 13 Wall. 72, 20 L. ed. 485; Burfenning v. Chicago etc. R. Co., 163 U. S. 321, 16 Sup. Ct. 1018, 41 L. ed. 175; Gonzales v. French, 164 U. S. 342, 17