43 F. 196 (D.Or. 1890), McConnaughy v. Pennoyer

Citation:43 F. 196
Party Name:McCONNAUGHY v. PENNOYER et al.
Case Date:July 28, 1890
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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43 F. 196 (D.Or. 1890)




United States Circuit Court, D. Oregon.

July 28, 1890

         Syllabus by the Court

         A suit by a citizen of California to enjoin the persons constituting the board of land commissioners of the state of Oregon from selling certain swamp lands, claimed by the plaintiff, as forfeited to the state for non-compliance with a condition of a former sale of the same lands by the state to the plaintiff's grantor, is not a suit against the state of Oregon; it appearing that the legislation under which the defendants claim the right to act is unconstitutional and void, because it impairs the obligation of the contract of the state with such grantor.

         An application for the purchase of swamp lands under section 3 of the act of October 26, 1870, for 'the selection and sale' of swamp lands, from the date of its receipt and filing by the land commissioner constitutes a contract between the state and the applicant for the sale to the latter of the tract or tracts therein mentioned, with the right to the immediate possession thereof; and, on the performance of the conditions subsequent, of payment and reclamation, within the terms and requirements of said section, the applicant, or his assigns, is entitled to a patent therefor.

         Section 9 of the act of 1878 does not, when fairly construed, include an application for the purchase of swamp land under the act of 1870, where there is no default in the payment of the 20 per centum of the purchase price, as provided in said act of 1870; but, if it does include such a case, then it is unconstitutional and void, as impairing the obligation of the contract of the state with the applicant, which gave him until 90 days after the publication of the notice of the filing of the map of such lands in the office of the clerk of the county in which they lie, to make such payment; and section 1 of the act of 1887, which declares all certificates of sale of swamp lands void on which the 20 per centum of the purchase price was not paid prior to January 17, 1879, is, in the case where the 20 per centum was paid when due, according to the contract of sale, whether before or after said day in 1879, unconstitutional and void for the same reason.

         Charles B. Bellinger, for plaintiff.

         Lewis L. McArthur, for defendants.

         DEADY, J.

         By the act of March 12, 1860, congress granted to the state of Oregon the swamp and overflowed lands within its border.

         On October 26, 1870, the legislature passed an act 'providing for the selection and sale' of such lands. Sess. Laws, 54.

         By this act it was made the duty of the governor, as land commissioner, to select such lands by means of deputies, who were required to return their selections to the commissioner for examination. Upon the selections being made in any county, the commissioner was required to make out, in duplicate, maps thereof, one copy of which was to be filed in the office of the clerk of such county, the date of which filing was to be certified by said clerk to the commissioner, and thereupon the latter was required to give notice of such selection and filing by publication

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in a weekly paper, published in the county, for four successive weeks.

         The act also directed the commissioner to sell such lands at a price not less than one dollar per acre in gold coin. Any citizen of the United States over 21 years of age might apply 'for the purchase of any tract or tracts' of such lands by filing his application therefor with the commissioner, who shall indorse thereon the date of such filing, describing the same by the 'survey,' or, if no survey is made, then by fences, ditches, monuments, or other artificial or natural landmarks; and, in case of adverse applicants for the same parcel of land, the commissioner shall sell the same to the person whose application is first filed.

         Within 90 days from the date of the notice aforesaid, 20 per centum of the purchase money must be paid to the commissioner, who shall 'issue to the applicant a receipt therefor. ' The balance of said purchase money shall be paid, and proof of reclamation made, within 10 years from said date, when a patent shall issue to the applicant; but, in default of such proof and payment, the land 'shall revert to the state, and the money paid thereon shall be forfeited.'

         On October 18, 1878, the legislature passed 'an act providing for the selection, location, and sale of state lands, and the management and disposition of the proceeds arising therefrom,' including swamp and overflowed lands, and the express repeal of sundry acts relating thereto, not including the act of 1870. Sess. Laws, 41.

         By this act the governor was 'appointed' land commissioner for the state, as he had been since 1862, by the act of October 15, of that year, (Comp. 1874, p. 629,) with power 'to locate all the lands to which the state is entitled under the laws of the United States;' and the board of commissioners for the sale of school and university lands were authorized to sell the swamp and overflowed lands theretofore or thereafter 'selected,' not exceeding 320 acres to any one person at not less than one dollar per acre.

         After providing at some length for the manner of applying for the purchase of swamp lands, the purchase and conveyance of the same, the act (section 9) declares 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.'

         On February 16, 1887, the legislature passed an act, entitled, in part, 'to declare void certain certificates of sale, and to forfeit certain lands,' (Sess. Laws, 9,) the first section of which declares as follows:

         'That all certificates of sale issued by the board of commissioners for the sale of 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.'

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These certificates of sale are the receipts provided for in the act of 1870.

         The date, January 17, 1879, mentioned in this section,...

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