140 U.S. 1 (1891), Pennoyer v. Mcconnaughy

Citation:140 U.S. 1, 11 S.Ct. 699, 35 L.Ed. 363
Party Name:PENNOYER et al. v. McCONNAUGHY.
Case Date:April 20, 1891
Court:United States Supreme Court
 
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140 U.S. 1 (1891)

11 S.Ct. 699, 35 L.Ed. 363

PENNOYER et al.

v.

McCONNAUGHY.

United States Supreme Court.

April 20, 1891

Appeal from the circuit court of the United States for the district of Oregon.

This was a suit in equity by the appellee, a citizen of California, against the appellants, who, under the constitution of Oregon, as governor, secretary of state, and treasurer of state, comprised the board of land commissioners of that state, to restrain and enjoin them from selling and conveying a large amount of land in that state to which the appellee asserted title. The lands are a portion of those granted to Oregon under the swamp-land act of March 12, 1860, (12 St. 3,) and are claimed by the appellee to have been sold by the state to one H. C. Owen, in 1881 and 1884, for a valuable consideration, in accordance with the provisions of an act of the state legislature approved October 26, 1870, from whom appellee derived title. There was a demurrer to the bill, on the ground that the suit was practically against the state, and was therefore prohibited by the eleventh amendment to the constitution. The demurrer was overruled by Judge DEADY, July 28, 1890, his opinion being reported in 43 F. 196. On rehearing before the same judge, August 18, 1890, the order overruling the demurrer was confirmed, (Id. 339,) and a decree entered perpetually enjoining the defendants from selling the lands in question, as prayed in the amended bill. An appeal from that decree brings the case here. The material facts in the case, as presented by the amended bill and the demurrer, are as follows: Article 8, § 5, of the constitution of the state of Oregon provides that 'the governor, secretary of state, and state treasurer shall constitute a board of commissioners for the sale of school and university lands, and for the investment of the funds arising therefrom, and their powers and duties are such as may be prescribed by law,' etc. The act of the legislature of the state, approved October 26, 1870, provided a method for the disposal of the swamp and overflowed lands inuring to her under the act of March 12, 1860. By its first section it enacted that the commissioner of lands (who at that time was the governor of the state) should appoint a deputy or deputies to select all the swamp and overflowed lands in the field, describing each tract selected in a clear and distinct manner, either by legal subdivisions or by actual survey, and to make return of the same to the commissioner for examination. The act then provided as follows: 'Sec. 2. So soon as the selection of swamp and overflowed lands in any county has been completed by said commissioner of lands, it shall be the duty of said commissioner to make out maps and descriptions thereof in duplicate, one copy to be kept in suitable books in his office, and the other to be filed in the office of the county clerk of the county in which such swamp lands may be located; and it shall be the duty of such county clerk to forward his official certificate to said commissioner of the date on which said maps and descriptions were so filed. Upon the receipt of such certificate, it shall be the duty of said commissioner to give public notice of said completion, approval, and filing for four weeks successively in some weekly newspaper published in such county; and if no newspaper is published in such county, then in such newspaper as he may select in an adjoining county. Sec. 3. The swamp and overflowed lands of this state shall be sold by said commissioner at a price not less than one dollar per acre in gold coin. Any person over the age of twenty-one years, and being a citizen of the United States, or having filed his declaration to become a citizen, as required by the naturalization laws, may become an applicant for the purchase of any tract or tracts of said swamp and overflowed lands, upon filing his application therefor, (describing the tract or tracts he desires to purchase,) by the actual survey, or, if no survey has been made, then by fences, ditches, monuments, or other artificial or natural land marks, with said commissioner, whose duty it shall be to immediately indorse thereon the actual date of such filing. In case of adverse applicants for the same tract or parcel of swamp land, it shall be the duty of said commissioner to sell the same to the legal applicant therefor whose application is first filed. Within ninety days after the date of the public notice provided in section two of this act, twenty per centum of the purchase money shall be paid by the applicant to said commissioner, whose duty it shall be to issue to the applicant a receipt therefor, and the balance of the purchase money shall be paid on proof of reclamation, as hereinafter provided. Sec. 4. No patent shall be issued to any applicant for any swamp or overflowed lands until the applicant therefor has proved, to the satisfaction of said commissioner, that the land for which he claims a patent has been drained or otherwise made fit for cultivation; but upon such proof being made, and payment of the balance of the purchase money on the amount of land actually reclaimed, the said commissioner shall issue to the applicant making such proof and payment a patent for the land so reclaimed. Said patent shall be approved and signed by the governor, secretary of state, and state treasurer, as provided for by the constitution. At the expiration of ten years from and after his first payment, all swamp lands claimed by an applicant, upon which no such proof of reclamation and payment has been made, shall revert to the state, and the money paid thereon shall be forfeited: provided, that all swamp land which has been successfully cultivated in either grass, the cereals, or vegetables for three years shall be considered as fully reclaimed within the meaning of this act.' 'Sec. 6. * * * Provided that, in case the office of commissioner of lands is not created by law, the provisions of this act shall be executed by the board of commissioners for the sale of school and university lands.' While this act was in force, to-wit, at a date prior to October 18, 1878, Henry C. Owen made an application to purchase a large quantity of swamp lands from the state, including the lands in controversy, agreeably to the provisions of the act; and on the 23d of November, 1881, and the 3d of April, 1884, within 90 days after the date of the public notice of the completion of the maps and description of the lands provided for in the second section of the act, he paid to the board of commissioners, as required by the third section, the 20 per centum of the price of over 43,000 acres of land. Owen sold these lands to one Felton, who sold them to the plaintiff for the sum of $30,000; the latter also assuming to pay to the state the remainder of the purchase price when it became due. After Owen made his application to purchase, as above mentioned, but before he had made the first payment, to-wit, October 18, 1878, the legislature of the state passed an act which went into effect January 17, 1879, (90 days after its date, as provided by the constitution of the state,) expressly repealing the aforesaid act of 1870, and making entirely new regulations for the disposition and sale of the swamp lands belonging to the state. Its ninth section is as follows: 'All applications for the purchase of swamp and overflowed lands * * * made previous to the passage of this act which have not been regularly made in accordance with law, or which were regularly made, and the applicants have not fully complied with all the terms and requirements of the law under which they were made, including the payment of the twenty per centum of the purchase price, are hereby declared void and of no force or effect whatever.' Sess. Laws. 1878, pp. 41, 46. February 16, 1887, the legislature of the state passed an act, the first section of which provided as follows: 'All certificates of sale issued by the board of commissioners for the sale or school and university lands, and for the investment of the funds arising therefrom, for swamp or overflowed lands, on which the twenty per centum of the purchase price was not paid prior to January 17, 1879, are hereby declared void and [of] no force or effect whatever; and said board of commissioners is hereby authorized and directed to cancel said certificates of sale.' Sess. Laws 1887, pp. 9, 10. The certificates of sale herein referred to are the receipts provided for in the third section of the act of 1870. Acting under the provisions of the statute of 1887, the board of land commissioners canceled the certificates of sale issued to Owen, as aforesaid, because the 20 per centum of the price of the land had not been paid prior to January 17, 1879, the date when the act of 1878 went into effect; and claiming that said lands had reverted to the state, had ordered them to be sold, and had actually sold about 1,000 acres of them under the act of 1887.

COUNSEL

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[11 S.Ct. 701] L. L. McArthur and H. H. Northup, for appellants.

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C. A. Dolph and C. B. Bellinger, for appellee.

OPINION

Mr. Justice LAMAR, after stating the facts as above, delivered the opinion of the court.

The contention of the complainant below was that the act of 1887, under which the defendants below assumed to act, in the matter of the cancellation of his certificates of sale, was in violation of section 10, art. 1, of the constitution of the United States, in that it impaired the obligation of the contract made between Owen and the state for the sale of the lands; that the defendants were therefore acting in the premises without authority of law; and that for those reasons it could not be asserted that the suit was against the state. The defendants, on the other hand, insisted that the aforesaid legislation was valid...

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