44 La. Ann. 365 | La. | 1892
The opinion of the court was delivered by
Plaintiffs sue to annul the sale of the 16th section of township 7, range 15 east, adjudicated to defendant Taylor, by the parish treasurer of St. Tammany parish, on the 17th day of December, 1887, for the sum of $250 cash. They charge fraud and allege non-compliance with legal requisites.
The school board joins the plaintiffs. The defendant filed an exception of no cause of action, and that petitioners had no right to stand in judgment. He also pleads a want of tender.
These exceptions were overruled.
The defendant Taylor in his answer sets up the validity of the sale.
Judgment was rendered against him, from which he prosecutes this appeal.
No evidence was introduced on the trial of the exceptions.
The District Judge having heard the testimony of the witnesses, on the merits — part of which related to the issues which had been raised by the overruled exceptions, decided that the alleged tax payers reside in said township.
The conclusion of the District Judge on an issue of fact will not be disturbed on appeal, where no error is shown and it appears correct. 37 An. 623. The names of at least two of the petitioners are on the list of voters, and, it is alleged, voted in favor of the said sale.
The illegal disposition of public property can be avoided or annulled at the instance of individual tax payers.
“ The courts may be safely trusted to prevent the abuse of their process in such cases.” Orampton vs. Zabriskie, 101 U. S. 601.
We will not maintain the plea of the want of tender.
The adjudicatee has placed the amount of his bid — less costs — in the treasury of the State.
The title of the land has not passed from the township to the said defendant.
Those applying for a decree annulling the sale have authority to stand in judgment.
They have not the least control over the price received.
The State is a trustee of the lands or of the proceeds of their sale.
When the lands are sold in compliance with law the amount is placed to the credit of the township, and the interest is applied to the maintenance of its schools.
If the title is not such as to divest the owner, the trustee holds the proceeds of the sale illegally; it should be returned to the purchaser.
The State, as an act of justice, should return the amount, and doubtless if application to the legislative department be made, authority for its return would be granted.
In the meantime we can not give sanction, even temporarily, to a sale that is null, by deciding that the defendant shall hold until the plaintiffs tender an amount which they have not received and for which they are not responsible.
On the Merits.
The sixteenth section should be sold in the manner directed by law, and in the apportionment of the interest paid by the State on the proceeds, each township is entitled to the interest on the sums arising from the sale of its school lands.
Act of Congress of the United States approved February 15, 1843, authorized the sales of lands previously reserved and appropriated for the use of schools within this State, and authorized the investment of the money arising from the sale thereof in some productive
These lands are to be sold under this act with the consent of the inhabitants of the township.
This was made one of the conditions of the grant.
The right of the general government to dispose of these lands, as has been done, and of requiring compliance with the condition of the donation has never been denied.
In several decisions of the United States Supreme Court the right to require compliance has been recognized.
In conformity with the requirement by the government the State legislature, also, has adopted laws to govern in the disposition of these lands.
It is made the duty of the parish treasurers to take the sense of the inhabitants of the township whether or not any land donated by Congress for the use of schools shall be sold, and the proceeds invested as authorized.
Polls shall be opened at the most public places in the township after advertisement of thirty days.
The evidence satisfies us, as it did the District Judge, that no polls were opened and no election was held.
Witnesses whose names appear on the list of the names of voters, as having cast their votes at the election for the sale, declare that they did not vote.
Twelve names are on the list as having voted.
The witness at whose residence the election is returned as having been held declares that he saw no box and no ballots. Only two persons came. They did not vote, for no election was held, he says. The return of the justice of the peace that twelve persons voted is not sustained by the testimony of record. Evidence that required notice of the election was given is not satisfactorily shown. The law was not complied with. It was never contemplated that these lands should be disposed of without obtaining the consent of a majority of the voters after a compliance with the legal prerequisites.
Without an election the order to sell was void and the adjudication did not confer any rights.
In selling school lands a sale not authorized by an election is a nullity. The right to sell depends upon compliance with the statute.
Sec. 34 of Act. 321 of 1855 provides that in no case shall the land be adjudicated for less than $1.25 an acre. This act did not require an appraisement of school land before the sale.
Sec. 34 of said act makes provision for an appraisement.
In construing these two acts the court held “ that the meaning of Sec. 34 is, that the land should bring its appraised value, but that in no case it should be appraised or sold for less than $1.25 an acre.” School Directors vs. Coleman, 14 An. 186.
To the same effect is Sec. 2944 of the Revised Statutes.
In the case to which we have just referred the sale was annulled solely on the ground stated.
In the case under consideration, the advertisement was not made as required; the election was not held, and the property was adjudicated for much less than the amount fixed by law.
Judgment affirmed at appellant’s costs.
