122 P. 94 | Wyo. | 1912
This is an original proceeding in this court for a writ of mandamus to compel the State Board of School Land Commissioners and the Commissioner of Public Lands to grant and issue to the relator a lease in renewal of his former lease covering a. certain section of the school lands of the state. An alternative writ was issued and the cause was heard upon a general demurrer to the petition and alternative writ. The material facts appearing from the petition are as follows:
On May 11, 1907, a lease of the land in question was •executed and issued to one Charles Hansen for the period of five years from May 1, 1906. Said lease was duly assigned to the relator on December 16, 1908. Prior to the expiration of that lease the relator applied for a renewal Tinder the provisions of section 613, Compiled Statutes, 1910, subject to the right of re-appraisement allowed a lessee upon renewal under the provisions of that section and section 609. Prior to the expiration of the lease one White-bead also applied for a lease of the land, claiming a preference right under section 615, Compiled Statutes.. On September 8, 1911, the defendant board, re-appraised the land and fixed the annual rental at seventy-five dollars. On that date also the board denied relator’s application for renewal
The provisions of section 613, under which the right of renewal is claimed were enacted in 1903 (Laws 1903, Ch. 78, sec. 16.); and are as follows :
“The lessee named in any lease of state lands, or his assigns shall, at the expiration of the term of said lease, be entitled to a renewal thereof, not exceeding an area of four sections, and to subsequent renewals thereof every five years, for a total period of twenty years, provided, that at each renewal period said lands may be re-appraised in the manner hereinbefore specified; the said appraisement to be based upon the value of the lands, irrespective of any cultivation or improvements, made or placed thereon by the lessee.”
The Whitehead application and the order granting a lease to him appear to have been made pursuant to the provisions of section 615, Compiled Statutes, enacted in 1909 (Laws 1909, Ch. 70, sec. 1), reading as follows:
“Preference shall in all cases be given to applications for leases of either state or school lands to persons who are resident citizens and taxpayers of the state, and applications made by citizens of the state who hold title to lands upon which they reside nearest to any state or school lands applied for, shall be given a preference right over all other applicants, to lease the same at such rental as the board shall deem equitable and just, and such preference to resident title holders shall extend to an area of lands equal to twice the area of lands to which such resident citizen holds title, not however, to -exceed six hundred and 'forty acres of school or educational institutions’ lands, or a total of two thousand five hundred and sixty acres of state and school lands. Where two or more applicants claim preference by*173 reason of holding title to lands nearest to the lands applied for, the boards shall grant leases upon a basis as nearly equitable as possible. Applicants claiming the preference right accorded by this section must set forth such claims at the time of making their applications, or subsequent thereto, and prior to the expiration of any prior lease on the lands covered by such application.”
Counsel for relator contend that section 613, as the law in force when the relator’s lease was made, constituted the law* of the contract, and that if the provisions of section 615, subsequently enacted, are to be construed so as to deprive the relator, or any other lessee in the same situation, of the right of renewal, the same are to that extent void, as impairing such contractual and vested right; and, to avoid that effect of section 615, that it should be construed to be inapplicable where a prior lessee is entitled to a renewal of his lease under section 613. On the other hand, the Attorney General contends that, as the Act -of 1903, which contained the provisions of section 613, distinguished lands granted for the support and benefit of public schools from other state lands, and vested the control thereof respectively in different boards, school lands are not necessarily included in the term “state lands,” and that the. provision of section 613, declaring that a lessee named in any lease of- “state lands” shall be entitled to a renewal, and to successive renewals covering a period of twenty years, may properly and ought to be construed so as not to apply to school lands. He further contends that a construction of section 613 which would entitled a lessee of school lands, after the expiration of a lease for five years, to have his lease renewed, would render the section void, so far as it applied to school land leases, for the reason that it would in that respect violate the terms and conditions upon which the school lands were granted to the state by the Act of Adjmj§sion, as well as the provision of the Constitution accepting such grant.
The contention that a statute providing .that a lessee ,of school lands shall be entitled to a renewal of his lease,
We take it to be conceded that the school lands were granted to the state by the Act of Admission. Section 5 of that act provides as follows:
“That all lands herein granted for educational purposes, shall be disposed of only at public sale, the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools. But said lands may, under such regulations as the legislature shall prescribe, be leased for periods of not more than five years, in quantities not exceeding one section to any one person or company; and such land shall not be subject to pre-emption, homestead entry, or any other entry under the land laws of the United States, whether surveyed of unsurveyed, but shall be reserved for school purposes.”'
Section 1 of Article XVIII of the State Constitution declares : “The State of Wyoming hereby agrees to accept the grants of land heretofore made, or that may be hereafter made by the United States to the State, for educational purposes, for public buildings and institutions, and for other objects, and donations of money with the conditions and limitations that may be imposed by the Act of Acts of Congress, making such grants or donations.” Whether or not this might properly be held equivalent to a provision expressly declaring the legislature to be restricted in the enactment of laws for the disposal and leasing of the lands granted by the conditions and limitations imposed by the grants, it is at least a solemn engagement on the part of the state that such conditions and limitations shall be observed
“At the time when the act of 1877 (Pub. Acts 1877, No. 132) was passed it is beyond question that the state was bound by the terms of the congressional grant, which were formally accepted by the law of 1857, (Laws 1857, No. 126) to dispose of none of these lands except for the specific purposes named in the Act of Congress. As the United States reserved a right to all lands not legally disposed of under the trust, and under the grant the state itself had no power to divert them, the Act of 1877 was in direct violation of that clause of the Constitution of the United States which declares that no state shall pass any law violating the obligation of contracts.”
In Bradley v. Case, supra, the Supreme Court of Illinois upheld the power of the state to sell the sixteenth section in each township which had been granted for “the use of the inhabitants of such township for the use of schools,” but in the opinion it was said: “If the Act of Congress, which,
In Davis v. Indiana, supra, it seems to have been assumed that the validity of a statute of Indiana, which made provision for a certain disposition of the proceeds of school lands, dep'ended upon whether or not it violated the act of Congress granting the lands to the state, for, although the statute was held to be valid, the court sa)': “We are asked by counsel to decide that the Supreme Court of Indiana, in thus construing the statute, is in error; and to make a construction of it, by which it will conflict with the Act of Congress, and be, therefore, void, merely that one officer may have distribution of the fund instead of another. Our convictions should be very clear before we do this, even if we have a right to do it, which may admit of some question. Fortunately we concur in the view of these laws taken- by that court.”
The Act of Congress under which North Dakota, South Dakota, Montana and Washington were admitted as states contained a section numbered 11 similiar to section 5 of the act admitting this state, providing among other things that the proceeds of the sale of lands granted for educational purposes shall constitute a permanent school fund, the interest of which only shall be expended in the support of said schools. An act was passed by the Legislature in each of the states of Washington, Montana and North- Dakota rvhereby .the proceeds of the sales of the lands granted for the pur
“If we are correct in this construction of the enabling act, it follows that the act of the Legislature of 1895 is void, in so far as it attempts to appropriate the proceeds of the lands granted for normal schools instead of the interest and income thereof.” (State ex rel. Houston v. Maynard, 31 Wash. 132, 71 Pac. 775.)
The act of North Dakota was held void also upon the ground that it violated certain provisions of the Constitution to the same effect as that contained in section 11 of the enabling act, but the court say :
“Perhaps it is not necessary to state that by the acceptance of the grant for educational purposes — and- it is with that grant we are concerned in this case — a trust was created, the character of which was fixed by the terms of the grant. By the mere acceptance of the grant .the honor of .the state was pledged to the observance of the obligation of the trust; that is to maintain the permanency of the trust fund and to.use the interest only for the support of the several schools to which it was dedicated.” (State ex rel. Board &c. v. McMillan, 12 N. D. 280, 96 N. W. 310.)
The Supreme Court of Montana, while not agreeing with 'the Supreme Courts of Washington and North Dakota respecting the meaning and application of section 11 of the enabling act, held the act of that state void on the ground that it was in conflict with a provision of the State Constitution requiring the normal school funds to be invested as prescribed by law, and the interest together with rents from
Referring now to the relevant terms of the grant we observe that, following the provision requiring that all lands “herein” granted for educational purposes shall be disposed of only at public sale, it is provided: “But said lands may, under such regulations as the Legislature shall prescribe, be leased for periods of not more than five years.” There seems to be no uncertainty in this provision, and it is doubtful if any attempt to explain it could make it clearer. It is needless to consider whether, without any provision in the grant expressly permitting the lands to be leased, the state would possess unlimited power to lease them, but it may be assumed that the state would in such case have that power. The provision was, however, inserted authorizing the lands to be leased, but only for periods of not more than five years, thus clearly limiting the power to lease the lands granted for educational purposes, and the grant was accepted with that limitation. That an act of the Legislature requiring or authorizing a contract to be made leasing such lands for a longer period than five years would violate the aforesaid provision of the grant, and therefore exceed the power of the state and its Legislature, is beyond question. And, clearly, without violating the compact completed upon its
It cannot be doubted that the state may lease any of the-school lands repeatedly for a period not exceeding five years,, and successively to the same person, under proper legislative regulations, so that the mere fact that a second or subsequent lease is made to a prior lessee of the same land will not constitute a violation of the terms of the grant. And we are-not prepared to say that' the land board may not lawfully be authorized to consider and act upon reasonable grounds of' preference in passing upon two or more applications for the same land. But that is quite a different matter from a contract or statutory obligation, secure against change by subsequent legislation, to grant and execute a lease covering a period exceeding the limitation upon the power of the state-in that particular, and that upon no other consideration than the agreed rental.
It is argued that the statute in question (section 613) complies strictly with the above mentioned limitation expressed' in the grant by providing for five year leases. If, however,, it confers upon the lessee, as contended, an absolute right, at the expiration of one five year lease, to a renewal thereof, and to subsequent renewals every five years, covering a total period of twenty years, and is to be read into every lease-controlled by its provisions as a part of the contract, then, notwithstanding that a new lease is required to be executed' at the end of ¿ách five year period, the lands covered by such contract of lease would in effect be leased for a period exceeding five years, subject only to the lessee’s option ±0' surrender the lands, either by failure to demand a renewal or otherwise, and the provisions for re-appraisement and fixing-the amount of the future rent. This, we think, would be a clear evasion of the limitation expressed in the Act of Admission and accepted by the Constitution, for the state, by' the original contract, would become obligated, if the conten
The lack of power in the state to enter into a contract leasing school lands for a period more than five years would prevent it also, we think, from accomplishing the same pur-. pose by a covenant of renewal in a lease for five years, allowing no discretion on the part of the state, except to readjust the rent upon the basis of a new appraisement from time to time. (18 Am. & Eng. Ency. L. 685; Moore v. Clench, 1 Ch. Div. (Law Rep.) 447; Watson v. Hemsworth Hospital, 14 Ves. Jr. 324; Hart v. Hart, 22 Barb. 606; Clark v. Barnes, 76 N. Y. 301, 32 Am. Rep. 306; Ranlet v. Cook, 44 N. H. 512, 84 Am. Dec. 92.) It was declared in the Constitution of New York that “no lease or grant of agricultural land for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid.” Under that provision it was held that a lease for twelve years, with a covenant of renewal for twelve years longer if the lessor shall live, and a further covenant to. continue the renewals every twelve years so long as the lessor shall live, was good for the first twelve years, but that the covenants for renewal were void. (Hart v. Hart, supra.) And in Clark v. Barnes, supra, it appeared that two leases were executed between the same parties at the same time, one for eight years, and the other for twelve yars from the date of the expiration of the first. Both leases were held void as violating' the said constitutional provisión. The court said: “But the claim is that, as neither of these leases is for a longer period than twelve years,- the Constitution has not been violated. ' But both leases were executed., in pursuance of a written agreement, at the same
In Watson v. Hemsworth Hospital, supra, where a claim was made for the renewal of a lease which would carry it beyond the period authorized by statute, the court said: “In this case no such contract could legally be made; for the hospital is restrained by its constitution from granting leases-for more than twenty-one years; and it has been determined, that a body under such restraint cannot any more covenant for a renewal of the term, than originally grant a lease, exceeding the prescribed limits,” citing Lidiard v. Foach, 2 Vern. 410; Taylor v. Dulwich College, 1 P. Will. 655.
Our attention is called to the case of Cooper v. McCormick, 10 Wyo. 379, 69 Pac. 301, in which this court considered and sustained the right of a prior lessee of a school section to a renewal of his lease under another section of the statute, which provided that the power of the land board to refuse to renew, or lease, to sell the lands at the expiration of a lease, or again to lease to other parties than the original lessee, shall not apply, whenever the original lessee, or his assigns, shall have, during the period of his lease or prior thereto, reclaimed the same by irrigation, and shall have provided suitable ditches for its- full and complete reclamation, and secured an adequate and perpetual water supply for the
It is further argued that whether a statute or contract of the state relating to the disposition or leasing of the lands granted to the state by the United States violates the provisions of the grant, is a question that can be raised only by the United States. However applicable such a principle might be under other circumstances, it cannot, we think, properly be held to apply where, as in this case, it is sought by mandamus to compel the state, or the board vested with authority to exercise the powers granted, to act in such a way as to violate the terms and conditions of the grant upon which the lands were acquired, and under a statute which the board has'refused to follow on the ground that it is void, so far as it requires such action, because in conflict with the limitation upon the power of the state expressed in the grant and accepted by the provisions of the Constitution of the state. (See Payne v. Staunton, 55 W. Va. 202, 46 S. E. 927, 2 Am. & Eng. Ann. Cas. 74 & Note p. 81; Huntington v. Worthen, 120 U. S. 97, 7 Sup. Ct. 469, 30 L. Ed. 588; Van Horn v. State, 46 Neb. 62, 64 N. W. 365.)
Eor the reasons stated, and without considering any other question that has been suggested, the peremptory writ will be denied.