Baker v. Brown

• Citation: 74 P. 94,12 Wyo. 198
• Parties: BAKER v. BROWN
• Decision Date: 03 November 1903
• Court: United States State Supreme Court of Wyoming

74 P. 94

12 Wyo. 198

BAKER v. BROWN

Supreme Court of Wyoming

November 3, 1903

ERROR to the District Court, Albany County, HON. CHARLES W. BRAMEL Judge.

Etherton P. Baker and Charles W. Brown, Jr., were contesting applicants for the lease of certain state lands. The State Board awarded the lease to Brown, and Baker appealed to the District Court, where the decision of the board was affirmed. Baker prosecuted error. The facts are stated in the opinion.

Affirmed.

N. E Corthell, for plaintiff in error.

The original lease offered in evidence by the plaintiff in error should have been received. Its only purpose was to inform the court as to its terms, which would have been important in case a renewal should be ordered.

The original lessee of state lands has a right to renewal under the provisions of Section 812, Revised Statutes, conditioned only upon the agreement between the lessee and the board as to the valuation of the land. With any other construction of the section, it would seem to be without meaning and unnecessary. If the language of the section is to be considered as merely permissive, it would fall under the rule that permissive words in respect to the duties of courts or officers are imperative where the public or individuals have a right that the power conferred be exercised. (Suth. Stat Const., 462; Galma v. Amy, 5 Wall., 505; Supervisors v. U.S. 4 id., 435; Tarver v. Commissioners' Court, 17 Ala. 527; Mitchell v. Duncan, 7 Fla., 13.) The proposition contended for finds abundant support in the general policy of the law declared in other parts of the statutes; and is supported by the cases of Cooper v. McCormick, 10 Wyo. 379, and State ex rel. v. Board, id., 413. Where the statute prescribes the rule, there is no room for the exercise of official discretion contrary to its spirit and letter. Where a settler has a preferential right to buy, the Land Board cannot deprive him of such right, and a sale to another is void, and may be questioned collaterally. (Bennett v. Winburn (Tex.), 25 S. W., 969; Watts v. Wheeler, 30 id., 297; Carrington v. Harris, 50 id., 197.) In Nebraska it is held that the right to continued lease under new appraisals from time to time cannot be impaired by subsequent legislation. (State v. Brown, 47 N. W., 691; State v. Thayer, 46 Neb. 137; State v. Commissioners, 4 Wis. 432.)

H. V. S. Groesbeck, for defendant in error.

There is nothing in the record to show that the plaintiff in error applied to renew a former lease. He did not agree to pay the rental fixed by the board, nor did he notify the board of his desire to renew within the time required by the statute. Section 812 undoubtedly gives the option of renewing the lease with the permission of the board, but compels neither party to renew. The whole matter is within the discretion of the board, which will not be interfered with unless it has been grossly abused. (State v. Harrison, 10 Wyo. 413.) The board proceeded according to law, and leased the lands in such manner as to secure the greatest revenue to the State. (R. S., Sec. 813.) As to the discretion in such matters, see Robertson v. Geer (Or.), 70 P. 614. And as to laches in applying for renewal, Colo. F. & I. Co. v. Adams (Colo.), 60 P. 367.

Section 812, on which the plaintiff in error relies, was repealed before the proceedings in error herein were instituted, without any saving clause, and hence as to past transactions only is to be considered as effectual. (Suth. Stat. Const., 162.) If plaintiff in error desired the original lease included in the papers sent up, he should have asked an order to that effect. Its exclusion as evidence was not error. (R. S., Sec. 845.)

POTTER, JUSTICE. CORN, C. J., and KNIGHT, J., concur.

OPINION

POTTER, JUSTICE.

Plaintiff in error appealed to the District Court from a decision of the State Board of Land Commissioners awarding a lease for certain state lands to the defendant in error, and rejecting the application of plaintiff in error for the same tract. The trial in the District Court resulted in a judgment affirming in all respects the determination of the board. From that judgment the cause comes to this court on error.

It appears that on July 9, 1901, there was filed with the Register of the State Board of Land Commissioners an application by the defendant in error to lease the land in question for the term of five years, and the applicant agreed to pay as rental a sum not less than five per centum of the valuation as fixed by the board. The valuation placed thereon by such applicant in his application in a blank provided for that purpose was one dollar and fifty cents per acre. On October 1, 1901, the plaintiff in error filed a similar application except that his proposed agreement as to rental was to pay a sum not less than five per centum of the valuation stated in the application, which was given as fifty cents per acre. There was nothing on the face of the latter application to show that plaintiff in error then held a lease of the land, nor to indicate that the application was for a renewal of such a lease. Indeed, if anything, the indications were to the contrary, since it was stated that the land was not occupied or improved. However, there appears a pencil memorandum endorsed upon the back of the application as follows: "Renewal L. --1014, Exp. Oct. 6, 1901, 50c--$ 16." But the record does not disclose the writer of that endorsement, although it would seem probable that it was placed on the document by some person in the office of the Register.

At a meeting of the board held October 7, 1901, as shown by its records, it appearing that there were two applications for the land, the Register was directed to call upon each applicant to file a sealed bid. The defendant in error submitted a written offer to pay an annual rental of forty-eight dollars. Before complying with the direction of the board the plaintiff in error, on October 30, 1901, sent a written communication to the Register stating that he had endeavored to adjust the conflicting claim without success; and that he preferred to have the board fix a reasonable valuation, so as to enable him to exercise his preference right of renewal without a competitive bid. Subsequently, on November 5, 1901, the plaintiff in error submitted a written proposition to lease the land for a further term of five years on the basis of five per centum annual rental on the valuation of $ 800, thus proposing to pay annually the sum of forty dollars.

The records of the board disclose that at a meeting held November 19, 1901, it was decided to award a lease to defendant in error at the annual rental of $ 48, and the application of plaintiff in error was refused. It is recited in the order in substance that, as the board had called for sealed bids, and both parties had submitted such bids, the offer of the plaintiff in error to pay annually five per centum on a valuation fixed by the board could not be considered.

This constituted the entire evidence. However, at the trial in the District Court plaintiff in error offered in evidence his original lease. Objection was interposed on the grounds that it formed no part of the evidence before the board, and no notice had been given of its proposed introduction as new evidence, as required in such cases; and that the application to renew was not made within the time required by law. The lease was excluded. While it is claimed that the exclusion of the lease was error, it seems to be regarded by counsel for plaintiff in error as unimportant, in view of the judgment of affirmance. It is said in the brief that the only purpose of the lease would have been to show its conditions in case the judgment had been that plaintiff in error was entitled to a renewal. But it appears to us that it would have shown the date of its expiration, which is of some importance, since the claim of plaintiff in error is based altogether upon an alleged preferential right of renewal, and such date is not otherwise disclosed except by the rather abbreviated and unexplained endorsement upon plaintiff's last application, above...