8 Wash. 610 | Wash. | 1894
Lead Opinion
The opinion of the court was delivered by
— The petitioner, who shows himself to be a qualified person, asks that the respondent, who is the commissioner of public lands, be required to receive §182.16 in full payment for certain tide lands, and issue a certificate of purchase to him therefor, in accordance with the provisions of the second proviso of Gen. Stat., § 2172.
The petition shows that in 1884 petitioner took possession of two separate tracts of tide land in Totten’s Inlet, Mason county, under the provisions of the territorial law to encourage the cultivation of oysters (Code of 1881, §1189, et seg.), the entire area of the two tracts covering 16.18 acres; that the lands thus taken were not natural oyster beds, nor were there beds of natural oysters thereon, or any oysters at all; that he cleaned and cleared the tracts, prepared them for artificial oyster beds, brought thereon large quantities of seed oysters and so planted, cared for and cultivated them that they have become valuable as a source of oyster supply for the markets; that the tracts are within the third class of tide lands as to location; that on the 20th day of August, 1890, he requested of the state board of equalization' and appeal an estimate of the cost of surveying and platting said tracts; that the estimate was made at §60, which amount he paid to the state treasurer, March 17, 1891, with a request for a survey; whereupon the state board directed the local board of tide land appraisers to survey and appraise the tracts, which
The facts above recited would seem to be sufficient, if true, to establish the right of the petitioner to the relief asked; but there is another matter stated which the respondent maintains should defeat the application.
It appears that in December, 1893, three residents of Thurston county and one resident of Mason county filed with the board of state land commissioners a protest against the application of the petitioner to purchase his two tracts, for-the reasons:
2. That such tide lands were not such lands as were contemplated to be sold under the provisions of the act of Mai’ch 26, 1890, providing for the sale of tide lands; but were and always had been natural oyster beds, which under the laws of the state were withdrawn and reserved from sale or lease for the purpose of establishing a natural oyster bed reserve.
These protestants demanded that the application to purchase be denied, and the board, after notice to this petitioner, and over his formal objection, took testimony as to the character of the lands, and found and held them to be ‘ ‘ covered by natural oyster beds, ’ ’ and to be withdrawn and reserved from sale. The respondent’s refusal to accept the tender of the appraised value of the lands, and to issue a certificate of purchase, is based upon this decision of the board.
The point of attack, where the petitioner assails the action of the respondent, is the jurisdiction of the board of state land commissioners to receive and consider the protest and make a decision of the character pronounced, and the consideration of this matter obliges us to review the tide land laws to some extent.
Under the act of March 26, 1890, Gen. Stat., §2165, any person seems to be at liberty to apply for a survey of tide lands of the third class, under the direction of the state board. When an application to purchase has been filed with the commissioner, he must deliver a copy of it to the state board, and the latter must direct the local board of county appraisers to make an appraisement. This appraisement includes an examination, classification and valuation of each parcel applied for, noting improvements, but excluding them from valuation. A plat and a record of their doings must be made in duplicate, one for
The law provides for a “contest” within thirty days after the publication, notice of which must be filed with the state board. This contest we understand as meaning a proceeding to legally ascertain which of two claimants has the better right to purchase, but as not involving an objection to the sufficiency of the appraisement, or a mere protest of some person without interest. An appeal from the appraisement is directly provided for in §2169, but it must be taken through the prosecuting attorney; private persons have nothing to do with the matter. This appeal is to the state board, and relates to the appraisement alone. A further appeal in the matter of the appraisement is provided for from the state board to the superior court of the county where the lands are situated. By some means the authority for this last appeal was detached from §2169, where it properly belonged, and tacked, as a second proviso, to § 2170. As this proviso reads, and in the connection where it occurs, it might be supposed to apply to the matter of contests; but it would be ridiculous to suppose that the prosecuting attorney would be required, upon the demand of private persons, or of any person, to interfere in the dispute between two applicants to purchase, where the state had no possible interest, while there would be some propriety in his appealing from the state board to the court
A contest before the state board, to be commenced within thirty days after the publication by the commissioner, is provided for in §2170, and an appeal lies from the decision of the board to the superior court. In this contest which is to be waged between two rival claimants to the same land, the rights of the contestants alone are to constitute the issues. Neither the character of the land nor the correctness of the appraisement is a subject of inquiry in such proceedings. It is presumed that one or the other of the contestants will be shown to be entitled to purchase, unless it might appear that neither is a qualified person. This theory of the law would, we think, be the natural and undoubted conclusion were it not for a few words in that part of the section which provides for an appeal to the superior court. An appeal is authorized upon “questions of law, fact, or priority of right to purchase, ’ ’ which means, simply, upon the merits of the case between the contestants. But the appeal clause concludes with a most embarrassing non sequitur, thus:
“Which appeal shall bring before the court the question whether the appraisal represents the actual value of the land; and the matter shall be submitted to a jury and tried as other appeal cases are tried, and the jury shall reappraise the lands, with right to appeal, as in other cases. ’ ’
Now, as has been observed, the method pointed out by the statute for raising the appraisement is by the appeal of the prosecuting attorney as the representative of the state; and the method of determining the rights of opposing claimants is by a contest. No method is provided by which an applicant can have the appraisement reduced. Is it to be supposed, then, that,-upon an appeal to the superior- court, either contestant may propose to raise or lower the appraisement? Must the state submit to a re
We have gone into this review for the purpose of ascertaining, if possible, the relative positions of the commissioner and the state board under this law, as it stood before the act of 1893 creating the board. The first section of the act of 1890 declared that the tide and shore lands of the state should be disposed of by the commissioner. The same law provided for local appraisers and a board of equalization and appeal, to each of whom certain specific duties were assigned. Strange to say, although the commissioner was the disposing officer, not a single record concerning tide lands was directed to be deposited with him, and no provision was made for communication between him and the board, except that the commissioner must furnish the board a copy of each application to purchase, and where no appeal has been taken from the decision of the board upon a contest, it must certify its findings to the commissioner. Having, under the statute, nothing to do with the disposition of lands, the board was without jurisdiction to interfere with the matter of determining what lands should or should not be sold. The determination of such matters necessarily lay with the commissioner alone, once a survey and appraisement had been made and the record was clear of contests and appeals. The board bore relations to the commissioner
But it is here urged that the new act creating the board of state land commissioners (Laws 1893, p. 386), has changed all this by certain language therein used. Sec. 5 declares—
“That the said board of state land commissioners shall have full supervision and control, under the law, of all . . . tide lands, . . . and the said board shall, from the date of its assumption of official duties, possess and exercise over all such lands and areas all the authority, power and functions, and shall perform all the duties which the . . . state board of equalization and appeal for the appraisement of tide and shoi’e lands had and exercised, and which by law heretofore devolved upon and were the functions which they [it] performed.”
This court passed upon this same provision in State, ex rel. Morse, v. Forrest, 7 Wash. 54 (33 Pac. 1079), and it was there said:
‘ ‘ Under any known rule of construction of statutes, the conclusion is irresistible that the legislature did not intend to merge the local appraisers into the land commission, or in any manner interfere with their functions or powers. ’ ’
It was also observed that the act of 1893 makes little or no further reference to tide lands, and that the whole code of law therein enacted, with slight exception, applied only to other lands. That decision would seem to close the controversy as to whether the commissioner is still vested with the same authority and charged with the same duties as were specified in the act of 1890. Whatever of supervision or control over tide lands is not necessary to the commissioner under his authority to “dispose” of
Another objection made in argument to the relief, asked is, that the petition does not show that the county board of appraisers have complied with Gen. Stat., §2178, requiring them to investigate and plat all natural oyster beds in their county, and that the lands applied for were not within any reservation thus created. This law, which was passed in 1891, seems to be accompanied by the incompleteness which characterized its predecessor of 1890. The local boards are required to proceed at once, upon the taking effect of the act, without the intervention of the state board. They must investigate and determine the location of the natural oyster beds in their counties, and make a plat of the lands covered by, and necessary to the preservation and growth thereof, and the plat is to be ‘ ‘ noted ’ ’ on the tide and shore land plats of the county, and the lands thus platted are specifically reserved from sale and lease. Their decision is to be open for appeal and review, but to whom or by whom is not declared unless the next clause explains. “This act shall be open to all appeals and supervisions provided now by law under the act entitled ‘An act for the appraising and disposing of the tide and shore lands belonging to the State of Washington’” (the general act of 1890), is the explanatory provision. But the only appeal from the board of appraisers lay with the prosecuting attorney, and the only supervision exercisable by the state board, except through the medium of an appeal, referred alone to technicalities of the plat and the sufficiency of the report accompanying it. The petition avers that these lands have never been in-
Again, under the law, §2166, the local appraisers, when they are directed by the state board to make an appraisement, are required to examine, survey and appraise the lands, classifying the same, noting the improvements thereon, and by whom claimed. Their return goes to the state board, which can require it to be made sufficiently full and explicit as to the facts so that the commissioner can determine therefrom whether the sale ought to be made. Such an appraisement is alleged to have been made in this case, and a return thereof filed with the state board, which, on October 7, 1893, transmitted to the com.missioner a certificate thereof designating the lands described as artificial oyster beds. Oyster planters are classed as improvers of tide lands in the act of 1890, and if it be true that the petitioner, in 1881, cleared off the tracts he claims, and planted and cultivated oysters thereon
Possibly, in view of the act of 1891, the determination of the local appraisers could have been reviewed on appeal taken by the prosecuting attorney; and it is also possible that if these lands are, in fact, covered by natural oyster beds, and the determination made by the appraisers was brought about by any fraud on the part of the petitioner, or any mistake of law on the part of the officers of the state, the state will not be estopped, in a proper action, to set aside' the commissioner’s certificate and annul the sale. But we are satisfied that, as the proceedings stand, the commissioner should not now hesitate to accept the petitioner’s tender and issue the certificate of purchase.
The alternative writ prayed for will therefore issue.
Dunbar, C. J., and Anders and Scott, JJ., concur.
Dissenting Opinion
(dissenting). — I think that the intent of the legislature to protect natural oyster beds from private appropriation is so manifest that a construction of the statute which will accomplish that end should be adopted by the
I am also of the opinion that the public interest will be best subserved by holding that in the state board of land commissioners has been reposed final authority as to the tide lands of the state except as their action is specially made the subject of appeal. And in my opinion it sufficiently appears from the statute that the legislature so intended. To it is given general supervision of these lands under the law, in addition to the authority theretofore vested in the boards of which it was to be the successor, and to my mind the legislation fully warrants the court in holding that it is made the duty of this board to
OPINION ON RETURN TO ALTERNATIVE WRIT.
Stiles, J. — To the alternative writ issued in this proceeding the respondent files his answer, in which he makes a material affirmative defense, viz.: That petitioner has at no time proved, or tendered proof before him, that he, or some person or corporation under whom he claims, did, prior to March 26, 1890, plant oysters upon ground not covered with a natural oyster bed.
In considering this case upon the petition, the attention of the court was directed almost wholly to the alleged fact that the commissioner was refusing to proceed with petitioner’s application on the ground that the board of land commissioners had made a decision which was binding upon him. The fact that there was no showing that any proof had been made before the commissioner himself was not alleged in the petition. Under the act to encourage the cultivation of oysters, passed in 1877 (Code 1881, p. 216), the license granted was for the planting of oysters in any bay or arm of the sea where there were no natural beds of oysters. In the act of 1890, authorizing the pur-' chase of lands covered by artificial oyster beds, the same language was used, and it is clear that, before any person is entitled to receive a certificate of purchase, he must make satisfactory proof to the commissioner of the facts showing his right to purchase. The petitioner in this case seems to have rested upon the idea that his sworn application was sufficient, in the absence of any contest, to authorize proceedings in mandamus against the commissioner, but it is
The law has entrusted the commissioner with the duty and power of determining the facts in each application presented to him, and directed him, upon the proof of those facts, to proceed in a certain way. With the determination of the facts the courts will not interfere, but should he make an erroneous application of the law to the facts it will then be time enough for judicial interference.
The petitioner will be allowed ten days from the filing of this decision to reply to the allegation of the respondent that no proofs of the petitioner’s right to purchase the lands described have been made to him, and if the reply contains a denial of that allegation, the cause will be further heard upon the issue thus made; but should no reply be filed raising such issue, the writ will be discharged.
Hoyt, Scott and Anders, JJ., concur.
Dunbar, C. J., dissents.