State ex rel. Danaher v. Miller
160 P. 513
Mont.
1916
Check Treatment
MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

At а sale of state lands held in Helena, the west half of section 16, township 14 north, range 9 west, was offered for sale in two seрarate parcels of 160 acres each. Mary M. Danaher was the only bidder for either parcel and was deсlared to be the purchaser of each at $10 per acre. She paid over to the register of state lands thе first installment required by law, and thereafter at a regular meeting of the state board of land commissioners these sales were approved. The governor, as president of the board, and the register refused to issue a certificate of purchase to Mrs. Danaher, and this proceeding in mandamus was instituted.

The. officers interpose as a defense that Thomas Danahеr, husband and agent of Mrs. Danaher, conspired with one I. Y. Wood to prevent competitive bidding for the land; that the conspiracy was carried into effect, by reason whereof the state will be defrauded if the relief sought is granted. The trial developed these facts: Mrs. Danaher desired to purchase the entire half section. Wood desired to secure the southwest quarter and came to the sale prepared to bid as much as $13 per acre, if necessary. Just beforе the sale commenced, Thomas Danaher and Wood agreed that one of them should bid in this quarter-section and that the two should then toss a coin to determine which one should get it. Immediately after the register had declared the two tracts sold to Mrs. Danaher, Thomas Danaher turned to Wood and offered him $150 for his chance, and, the offer having been acсepted, Mrs. Danaher drew her check ii *567favor of Wood for the amount and delivered it to him. She had knowledge of the tеrms of the agreement at the time she paid over the money or immediately thereafter. The trial court dismissed the prоceeding, and from the judgment of dismissal and from an order denying a new trial relatrix appealed.

1. The statutes relating to the management and disposition [1] of the state lands were found in the Political Code of 1895 and the amendments thereto, until the Act of March 19, 1909 (Laws 1909, Chap. 147), became effective. This lаter Act appears to have been intended, not as a supplement to existing laws, but as a complete cоde of laws ‍‌‌‌‌​​‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌‌‌​‌​​​‌​‌‌‌​​‌​‌​​‌​‌​‍upon the subject— Control and Disposition of State Lands. It revises the whole subject matter of the earlier stаtutes and repeals all Acts and parts of Acts in conflict with it. In our opinion it superseded all prior and existing statutes which hаd to do with the same subject.

2. It is insisted that relatrix fails to state a cause of action, [2] in that she fails to allege that she gаve or tendered a bond to secure the deferred payments. While sections 41, 43 and 45 of the new Act refer to the purсhaser’s bond, the Act itself does not anywhere require a purchaser to give bond to secure the deferred paymеnts. The failure to make such requirement may have been the result of oversight, but even so, the courts are not authorized tо supply the deficiency if one exists.

3. Section 43 provides that a purchaser shall be entitled to a [3] certificatе of purchase, which certificate “shall be signed by the governor as the president of the state board of land cоmmissioners and by the register.” ‍‌‌‌‌​​‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌‌‌​‌​​​‌​‌‌‌​​‌​‌​​‌​‌​‍In signing such certificate the governor performs a mere ministerial duty, and if he fails or refuses to perform such duty when he should perform it, mandamus will lie to compel performance. (Chumasero v. Potts, 2 Mont. 242.)

4. The trial court was not precluded from investigating the [4] question of fraud raised by the pleadings. That the formal approval of a sale by the stаte board was not intended to be conclusive, even upon questions of fact, is manifested by the *568further provision in section 48 that the board may cancel a certificate for fraud at any time within three years from its date of issue.

It is to be borne in mind further, that mandamus is not a writ [5] of right. It issues only in the discretion of the court (State ex rel. Donovan v. Barrett, 30 Mont. 203, 81 Pac. 349; State ex rel. Bailey v. Edwards, 40 Mont. 313, 106 Pac. 703); and when it is made to appear that with reference to the very question at issue, the conduct of the party applying for the writ has been such as to render it inequitable to grant it, the relief may be refused. (People ex rel. Durand L. I. Co. v. Jeroloman, 139 N. Y. 14, 34 N. E. 726.) Courts are not created to aid ‍‌‌‌‌​​‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌‌‌​‌​​​‌​‌‌‌​​‌​‌​​‌​‌​‍in the perрetration of fraud.

5. Is relatrix bound by the acts of Thomas Danaher? "Whether [6] Thomas Danaher was the duly authorized agent of his wife at the time.he entered into the agreement with Wood is of no moment here. The agreement was made for the benеfit of Mrs. Danaher, and, conceding that she was not bound by it at the time and that she might have repudiated it when she became аware of its terms and conditions, yet she failed to exercise such right, but, on the contrary, has ever since insisted that the cоurts should aid her to profit by it. She ratified her husband’s act, which has the effect of a prior authorization. (Rev. Codes, see. 5422.) The agreement was unlawful, and to permit it to be' carried into effect would result in a fraud upon the state. (6 Corpus Juris, 830.) “All sales of state lands shall be at public auction” (sec. 38, Act 1909), and this means a sale to the highest and best bidder with absolute freedom fоr competitive bidding. Any agreement, therefore, to stifle competition or chill the bidding is a fraud upon the principle upon which the sale is founded. (4 Cyc. 1044, and cases cited.)

The transaction before us bears no resemblance to an аgreement between two bona fide prospective bidders to combine their means for the purchase of property to be divided ‍‌‌‌‌​​‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌‌‌​‌​​​‌​‌‌‌​​‌​‌​​‌​‌​‍between them. It was intended to stifle competition in bidding and had that *569effect. The relatrix has no standing in a court to insist upon a right to, or interest in, the southwest quarter.

If the purchase of the entire west half had constituted one [7] transaction, the fraud would have permeated the whole transaction; but еach quarter-section was sold as a distinct entity as the law requires. There were two sales, and so far as this record discloses, the purchase of the northwest quarter was free from any taint of wrongdoing. The relatrix appears to havе established her right to a certificate of purchase for that parcel, and should have been granted relief to that extent.

A new trial is unnecessary, and the order denying one will be affirmed. The cause is remanded to the district court with directions to grant the relatrix relief to the extent herein indicated.

Mr. Justice Banner concurs. Mr. Chief Justice Brantly, being absent, ‍‌‌‌‌​​‌​​​‌​​‌‌‌​‌‌‌‌‌‌‌‌‌‌​‌​​​‌​‌‌‌​​‌​‌​​‌​‌​‍takes no part in the foregoing decision.