School District No. 36 v. Gladish
163 S.W. 1194
Ark.
1914
Check Treatment
Hart, J.,

(after stating the facts). In the case of Mayers et al v. Byrne et al., 19 Ark. 308, the court held that the act of Congress of March 3,1843, providing that school lands shall not be sold without the consent of the inhabitants of the townshiр, etc., was not binding upon the State. The court said:

“If this act of Congress is imperative upon the State, and if a sixteenth section can not be legally sold without a compliance with its provisions, it follows that the sale made in this case was irregular, and that the act of the Legislature affirming it is nugatory.
“But we think that by the act of Congress of June 23, 1836, supplemental to the act for the admission of Arkansas into the Union, and by the ordinance passed by the General Assembly, 18th of October, 1836, accepting the provisions of the supplemental act, the legal title to the land in question was granted to, and vested absolutely in, the Stаte. The State accepted the grant, however, charged with the trust, that the land was to be appropriated to the use of the inhabitants of the township in which it was situated, for the use of schools. The State, as a sovereign, not as an individual, took upon ‍​‌​​‌​‌​​​‌‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌​‌​‌​‌​​​​‌‌​‌‌​‌‌‍herself a trust, which she was to execute, and could only execute, by such municipal legislation as her General Assembly might deem necessary and еxpedient to carry into practical effect the objects of the grant. The land was to be appropriated to the support of schools for the benefit of the inhabitants of the township in which it was to be situated, but whether this was to be effected by leasing the land, or selling it, and putting the proceeds upon interest, was not prescribed by the act of Congress making the grant, and of course was left to the discretion and good faith of the State. ’ ’

This holding was reaffirmed in Widner v. State, 49 Ark. 172, where the court said that the State held the legal title to the sixteenth section land in trust for the support of schools for the inhabitants of the township in which the land was situated. In that case the court also held that it was for the Legislature to determine how and by whom these lands shall be managed and sold. So, also, in the first mentioned case the court, in discussing the pоwers of commissioners in making a sale of sixteenth section lands, said:

“It maybe conceded that as the commissioners acted under a special power it was necessary for them to comрly with the terms of the power in order to make a valid sale, and that it was incumbent on the purchaser to take care that there was no departure from the special provisions of the pоwer.”

The lease in the case at bar was made under a spe-cial act applicable to Mississippi County alone, which is as follows:

‘ ‘ Section 1. The county judges of the State of Arkansas are hereby authorized and empowered to lease any tract or parcel of wild and uncleared sixteenth section school lands situated in their respective counties, for a ‍​‌​​‌​‌​​​‌‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌​‌​‌​‌​​​​‌‌​‌‌​‌‌‍term not to еxceed five (5) years, on terms satisfactory to said judges, upon the lessee entering into a good and sufficient bond to be approved by said county (judge) for the faithful performance of this leasе contract.
“Section 2. Whenever the county judge of any county in this State shall desire to lease any lands under the provisions of this act, he shall first cause notice of the time and place of the leasing of said lands, together with a description thereof, to be published in said county, or by posting written or printed notices in ten (10) conspicuous places in such county, one of which shall be at* the courthouse and one on the land to be leased, thirty (30) days before the leasing of the same.
‘ ‘ Section 3. All lands cleared and put in cultivation under the provisions of this act, shall, after the expiration of the lease contract, be by the sheriff of the county rented annually in the same manner as now provided by law for the renting of sixteenth section school lands.
“Section 4. All laws and parts of laws in confliсt herewith are hereby repealed, and this act shall take effect and be in force from and after its passage; provided, that the provisions of this act shall only apply to the county of Mississippi.” See Acts of 1905, page 398.

It will be noticed that section 1 of the act provides that the county judge is empowered to lease for a term of five years any tract or parcel of wild and unсleared sixteenth section school lands situated in their respective counties, and' that section 3 of the act provides ‍​‌​​‌​‌​​​‌‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌​‌​‌​‌​​​​‌‌​‌‌​‌‌‍that all lands cleared and put in cultivation under the provisions of the аct. shall, after the expiration of the lease contract, be rented annually by the sheriff of the county in the same manner as provided by law for the renting of sixteenth section school lands.

It follows from the principles announced in the cases above referred to and quoted from that the county judge had no power in the premises other than that granted by the statute, and that necessarily impliеd, because essential to carry out the power granted. There is nothing in the act which gives the county judge power to sell the timber on the land, and he had no authority to sell the timber on one part оf the land to enable him to clear and put in cultivation another part. The act, in terms, only gave the county judge the power to lease the land for the purpose of clearing it and putting it in cultivation, and one of the implied powers essential to carry out the power expressly granted would be to give the lessee the right to cut and remove the timber from the land to be cleared; for it is оbvious that the land could not be cleared and put in cultivation without cutting and removing the timber from it. See Conway v. Coursey, 110 Ark. 557, 161 S. W. 1030; Reichardt v. Howe, 91 Ark. 280. We think, also, one of the implied powers would he to provide in the lease contract that the lessee should fence the land and build tenant houses on it; for manifestly this would be necessary in order that the land might be profitably rented thereafter, as provided in the act. Therefore, wе are of the opinion that when the act is construed within its four corners, the county judge had only the power to lease the land for the purpose of clearing it and putting it in cultivation, and that as an incident thereto the lessee might cut and remove the timber from the land so cleared. But we are also of the opinion that the county judge had no power whatever to sell the timber on the remaining рart of the land for the purpose of clearing that which was actually leased. The timber was a part of the land itself, and no authority having been given the county judge by the terms of the act to sell either the land or the timber, his act in so doing was without authority and void.

It does not follow, however, that the plaintiffs have a. right to declare the whole contract void. As we have already seen, the county judgе had authority to lease the land for the purpose of clearing it and putting it in cultivation, and did not exceed his power in leasing- the 200 acres of land to the defendants for that purpose. It was also within his authority to provide in the lease that the lessee should erect a fence around the cleared land and build a tenant house on each forty acres thereof. The defendants testified thаt they have already, at considerable expense, cleared and put in cultivation some fifty or sixty acres of this land, and it may be that by. this time they have cleared the remaining part of the 200 acres, or a considerable-portion thereof. Therefore, we hold that if the defendants elect to hold the 200 acres of the land for .the five years, and comply with the terms of the lease by ■clearing the same, fencing it, and building the houses on .it, as provided for in the lease, they will be allowed to do ,so, and plaintiffs will have no just ground of complaint.

Under the authority of Widner v. State, 49 Ark. 172, .a suit would lie in the circuit court to recover the value •of the timber illegally cut on the school land, but it is a •fundamental principle of equity that when a court of • chancery has jurisdiction over a case for any purpose, it may retain the cause for all purposes and proceed to a ■ determination of all the matters at issue. The proof ;shows that.the defendants have sold a considerable portion of the merchantable timber оn the remaining part of the section which is not embraced in the 200 acres leased by them, and that they have cut and removed'a ‍​‌​​‌​‌​​​‌‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌​‌​‌​‌​​​​‌‌​‌‌​‌‌‍consider- . able portion of it. The chancellor is directed to tаke and ; state an account of the amount and stumpage value of the merchantable timber so cut and removed from the re- .. maining portion of the section, and may, if he deems it necessary, appoint a master for that purpose. "When the amount and value of the timber is ascertained, judgment should be rendered against the defendants who cut and removed the timber for the amount so found, and thе money should be ordered to be deposited for the benefit of the school district, as provided by law.

On the question of the authority of the taxpayers of the school district to bring and maintain this suit, but little need bе said. In the case of Mayers v. Byrne, 19 Ark. 308, certain taxpayers of the school district filed a bill to set aside the sale of a sixteenth section on the alleged grounds of fraud and illegality in the sale. No objection was made to their right to maintain the suit, and the case was determined on its merits. That case is, therefore, authority for the plaintiff to maintain the present suit. So, too, in the case of the State v. Bаxter, 38 Ark. 462, the court held that a suit may be prosecuted by any citizen for himself and other citizens and taxpayers of the county to annul and cancel an illegal and fraudulent lease made by the county judgе of the county property.

It follows that the chancellor erred in dismissing the complaint for want of equity, and the decree will be reversed ‍​‌​​‌​‌​​​‌‌‌​‌‌​​​‌​‌‌​‌‌​‌​‌​‌​‌​‌​​​​‌‌​‌‌​‌‌‍and the cause remanded with directions to the chancellor for further proceedings in accordance with this opinion.