4 Nev. 241 | Nev. | 1868
By the Court,
. This is a petition for a writ of mandamus to issue out of this Court for the purpose of compelling- his Excellency H. G. Bias-del, Governor of the State, to sign and issue to relator a patent for a certain piece of land. There appears to be no question as to the character of the land, it being a part of a sixteenth section; no question as to priority of rights, there being no other claimant for the land; but the simple and only question is, has the relator taken the proper steps, or caused the proper proceedings to be had, to enable him' to obtain the State’s right to this land. The proceeding is an amicable one, his Excellency only hesitating to grant the patent because of a doubt in his mind as to whether those steps have been taken which would authorize him to sign and deliver the patent to the relator.
The relator shows, (and these facts are not denied) that as early as 1865 the land in dispute was surveyed by United States authority, and the locality of Section 16 fixed. That no person has ever occupied the land, and the relator has only hitherto claimed it. On the 22d of November, 1867, relator made written application to the Register to purchase it. That the Register found no objection to the sale of the land, and gave a certificate to applicant in due form as to the application, price of lands, etc. This certificate he took to the State Treasurer, paid to him the price of the land, $2.50 per acre, took a triplicate receipt, and. deposited one copy with the Controller of State and another with the Register, who thereupon made out a patent in due form, which the Governor refused to sign.
The question now is: Did the relator do, and cause to be done, all the proper preliminary acts to entitle him to a patent ? This brings us to an examination of the Act, approved 2d .of April, 1867, entitled “ An Act to provide for the selection and sale of
“ Eor the purpose of selecting and disposing- of the lands granted by the United States to the State of Nevada, including the sixteenth and thirty-sixth sections, and those selected in lieu thereof, in accordance with the terms and conditions'of the several grants of lands by the United States to the State of Nevada, a State Land Office is hereby created of which the State Surveyor General shall be ex officio Register.”
As the laws of the United States then stood, the State of Nevada was entitled to all sixteenth, and thirty-sixth sections of the public lands, (unless, perhaps, those which had been previously occupied by settlers or preemptioners and the mineral lands) as fast as they were segregated, by survey, and the surveys affirmed. The State also had the right to select certain other lands, and by selection to acquire a title ; but the sixteenth and ' thirty-sixth sections vested immediately after survey in the State without selection. This first section then clearly shows, when viewed by the light of surrounding circumstances, not only an intention to sell selected lands, but also to sell lands which vested in the State without selection.
Section 8 points- out how applications to purchase the State lands may be made, and what steps, are to follow such application. That section is in these words: “ All applications to purchase shall be made in writing, and be signed by the applicant, or his agent, and shall designate the tracts applied for, the number of acres, and shall be presented to the Register, who, if there is no valid , objection to the sale of the land, shall give to the applicant a certificate, stating the name and residence of the applicant, the designation, the number of acres, and price of the tract; and on presentation of such certificate to the Treasurer he shall receive the purchase money, and receipt for the same in triplicate, one of which shall be filed with the State Controller; and on one of such receipts being filed with the Register, the purchase shall be perfected, and the proper entry as to such sale made upon the books and maps of this office. On the first Monday of each month the Register shall certify to the Secretary of State an abstract, showing the particulars of all the sales during the previous month.
This section, it will be observed, does not prescribe any form of application except so far as it relates to the description of the land. It does not state at what price the offer is to be made, nor for what character of lands. The certificate of the Register is, however, to state the price. From this it would appear that the price of the land id1 considered fixed by law by some act of some board or tribunal connected with the Land Office, or is to be fixed by the arbitrary will of the Register. We cannot conceive that it was.intended to leave the price to the will of the Register. Therefore we presume the Legislature understood the price as fixed by law,' or else that it would be fixed by the Board of Regents provided for in the Constitution of the State, and frequently referred to in this Act. That Board of Regents do not appear to be authorized to fix the price of land in but one instance. That is where the lands have heretofore (that is before the passage of the Act of 2d of April, 1867) been selected in lieu of sixteenth or thirty-sixth sections, and these lands are in possession of occupants. Then we must look to some other part of the law to find the price at which the application to enter or purchase may be made. Section 11 provides substantially that where a sixteenth or thirty-sixth section' shall have been vested for more than six months in the State, and more than six months shall have elapsed after the passage of the law, and no application for its purchase is made by an occupant, then the same shall be subject to entry. Section 6 of the Act declares that1 the minimum price of land within twenty-five miles of the railroad shall not be less than $2.50 per acre. Taking these two sections in connection with Section 8, it appears that the sixteenth and thirty-sixth sections not applied for by actual settlers within the six months prescribed are subject to entry. That the minimum price being fixed and no other, they must be
But it is contended that under the provisions of Section 6 a different mode of purchase or entry is provided for. That under that séction lands are put up to the highest bidder, and that it was the intention of the Legislature that all lands of the State should be disposed of to the person who Avould bid highest for them.
Sections 4 and 5 provide for making selections of land in the name of the State under the several Acts of Congress, alloAving her to select a certain number of sections for different purposes. Section 6 provides for disposing of these selected lands, and reads as follows :
“ The Register shall, on the first Monday of each month, prepare a list containing a brief description of the lands selected during the previous month, in each county, and shall furnish a copy of such list to the .County Surveyor, who shall file the same, and also mark them on the township plat in his office. The Register shall also furnish to the County Surveyor of the county AYherein such lands are situated a sufficient number of notices, stating therein that sealed proposals for the purchase of any such lands Avill be received by the Register at any time within three months from the date of such notice, and that said proposals will be opened upon the .day of the expiration of said three months, at the Register’s office, by the Board of Regents, and Avhen there is no opposing application, the person applying shall be alloAved to enter the same; and it shall be the duty of such County Surveyor to properly post such notices Avithin his county. Every such proposal shall state the name, residence, and post office address of the applicant; the description according to their designation upon the United States township plats of the tracts applied for; the'number of acres, and the price per acre offered, which shall in no case be less than one dollar and a quarter per acre; and when the applicant is the occupant, or in the possession of such lands, the dates when such occupancy or possession commenced shall be stated under oath. An occupant or party in possesion shall have a preferred right to pur*249 chase for six months after the selection by the State of the' lands occupied or possessed by him, and for the same time shall have the right to purchase one hundred and sixty acres at the minimum price, except it be double minimum land, in which case he shall have the right to purchase the same amount at double minimum price. If the Commissioner of the General Land Office shall decide that the State cannot select lands within the limits of the reservation made for the Pacific Railroad, then the Board of Regents may select one-half the amount of land in satisfaction for the grant to the State, and the price of said land shall not be less than double the minimum price.”
Now it appears to us this section only refers to lands selected under the preceding sections, for several reasons. First, it requires the Register to make a list of the land selected within the previous month. The terms do> not include lands which may have vested in the State without selection. Second, those selected lands have to be marked on the ■ township plats of the County Surveyors and notices posted, giving a list of them. This is all necessary in regal’d to selected lands, otherwise no one could know what lands were selected.
But all persons at all familiar with the land laws of the country know that sixteenth and thirty-sixth sections are State lands, and there is no necessity for any such marking or notices. Besides, there is an almost absolute necessity to withhold these selected lands from entry for some definite period after selection. If that was not done, many frauds would be perpetrated on actual settlers. For this reason they are kept out of reach of entry for three months after notice is given of their selection by the State. During that three months, however, they are offered to the highest bidder, with the proviso in effect that if there is a settler on the land, he shall have the preferred right to buy at $1.25 per acre, or if within twenty-five miles of the railroad, at $2.50 per acre, notwithstanding the fact that more may have been bid for the land by one who was not the first occupant. If there is no occupant on the land, and no bid should be made for the same within three months from the time of notice of selection of these lands, they would probably be subject to entry.
■ It'hás been claimed that the Act of Congress making some of the latter grants to the State of Nevada, requires those lands to be sold -to actual settlers, whilst there is no such restriction as to sixteenth and thirty-sixth sections, and that therefore the method of sale prescribed in Section 6 would be in contravention of the Act of Congress if applied to any of these lands selected under these Acts. That for this reason the section should be held to apply only to sixteenth and thirty-sixth sections, and those selected in lieu of sixteenth and thirty-sixth sections. This Court may hold an Act or part of an Act in conflict with a law of Congress null and of no effect. But it cannot repeal such a law and enact another in lieu •thereof not subject to the same objections.
If the law, as passed, is valid, it must be enforced. If invalid, it must be rejected. We cannot interpret a law to mean what it does not express, and what it is evident it was not the intention of the Legislature to express. The Legislature clearly meant that Section 6 should apply to one class of lands; we cannot enact that it shall apply to another class.
The writ of mandamus will issue, in accordance with the prayer of relator; and it is so ordered.