Balderston v. Brady
| Decision Date | 22 January 1910 |
| Citation | 107 P. 493,17 Idaho 567 |
| Parties | WILIAM BALDERSTON, Plaintiff, v. JAMES H. BRADY et al., Defendants |
| Court | Idaho Supreme Court |
STATE LANDS-POWER OF STATE LAND BOARD-DISCRETION OF BOARD-TITLE TO SCHOOL LANDS-POWER OF BOARD TO RELINQUISH SCHOOL LANDS.
1. The state board of land commissioners is vested under the constitution (secs. 7 and 8, art. 9) with the "direction, control and disposition of the public lands of the state under such regulations as may be prescribed by law."
2. Under the provisions of secs. 7 and 8 of art. 9 of the constitution, the direction, control and disposition of the public lands of the state must be in pursuance and under the direction of the constitution and statutes of the state, and not otherwise.
3. Where the proposed or contemplated action of the state land board involves the exercise of judgment and discretion vested in the board, the courts will not attempt to control or direct such discretion, or in any manner interfere with their action so long as it is exercised within the scope of their authority. Where, on the other hand, the proposed or contemplated action is without the authority of law, or has no legal sanction, the courts may interfere and interrupt their action and declare the law on the subject and point out to them the legal scope within which their judgment and discretion is to be exercised.
4. House joint resolution No. 10, adopted March 10, 1909 (1909 Sess. Laws, p. 451), has no force or effect as a law of the state, and can furnish no authority or justification for the state board of land commissioners either acting or refusing to act on any matter coming before them. They cannot rest or justify their action in any matter upon the authority or direction of such resolution or any action taken by the commission created by that resolution.
5. The state's title to sections 16 and 36 in every township in the state discussed and considered.
6. The state board of land commissioners has no power or authority conferred upon it, either by the constitution or statute of this state, to relinquish the state's right or title to sections 16 and 36, granted by the general government for common school purposes, and any action taken by the board or under its direction or authority attempting to relinquish or waive the state's right to such lands is void.
(Syllabus by the court.)
Original action by the plaintiff to procure a writ of prohibition, restraining and prohibiting the state board of land commissioners from relinquishing the state's right and title to certain indemnity school lands. The defendant board demurred to the petition. Demurrer overruled.
Demurrer overruled.
B. S Crow, and Wyman & Wyman, for Plaintiff.
Plaintiff brings this application on the theory that the threatened action of the state land board is of quasi-judicial nature. The board can and does exercise quasi-judicial functions. ( Pierson v. Board, 14 Idaho 159, 93 P. 775, and statutes there cited.) But nowhere in the constitution, in the statutes, or in the decision is there given it the power to adjudicate a controversy such as exists between the settlers and the state.
Under the constitution, the board is a trustee for the purpose of locating, managing and disposing of the grants of land made to the state by the national government. The right of a state or a state board to act as trustee with the duties and liabilities of such trusteeship is clearly recognized by the authorities. (1 Perry on Trusts, secs. 30, 41, 47.)
The state land board cannot make a gift of these lands after patent (or clear-list) is acquired by the state. Indeed after the clear-list is issued to the lands, it cannot sell them for less than $ 10 an acre. (Art. 9, sec. 8, State Constitution; sec. 8, Admission Act.)
A trustee must show the utmost good faith in the management of his estate. (28 Am. & Eng. Ency. of Law, 2d ed., 1045; Savings Bank v. Davidson, 97 F. 696, 38 C. C. A. 365; Chesley v. Chesley, 49 Mo. 540.)
Courts of equity will enjoin trustees from proceeding in disregard of the conditions necessary to the proper exercise of their authority, or from an improper use of such authority. (10 Am. & Eng. Ency. of Law, 1st ed., 914, 915; 2 Perry on Trusts, sec. 816.)
What the state land board is really attempting in the present instance is to do indirectly what the constitution forbids it to do directly. The defendant will not be thus allowed to circumvent the intention of the framers of the constitution. (McDonald v. Doust, 11 Idaho 14, 81 P. 60, 69 L. R. A. 220.)
The officers of the state or other public officers can be enjoined in cases of fraud or where they are acting in bad faith.
In the case of Pyke v. Steunenberg, 5 Idaho 614, 51 P. 614, this court held that a writ of mandate would lie against the state board of examiners, of which the governor is a member, to compel such board to act. (See, also, Pierson v. Board, 14 Idaho 164, 93 P. 775.)
D. C. McDougall, Attorney General, J. H. Peterson, Assistant, and Edwin Snow, for Defendants.
The demurrer should be sustained because a writ of prohibition will not lie against the governor or an executive body of which the governor is a member.
Even though the courts might interfere with purely ministerial acts of an officer belonging to a co-ordinate branch of the government, the courts cannot in any wise control the acts of an officer where such acts involve discretion in matters of administration. (Pierson v. Board, 14 Idaho 159, 93 P. 775; Corpe v. Brooks, 8 Ore. 222; 26 Am. & Eng. Ency. of Law, 2d ed., 385; Vantongeren v. Heffernan, 5 Dak. 180, 38 N.W. 58.)
Title to the land in controversy in this case has not vested in the state. That being the case, the acts of the land board with respect to these lands, until they are clear-listed and title vests in the state, are part of the process of "selection." The "selection" of the granted lands is vested in the state land board by the state constitution, without qualification or without restraint. The legislature is equally powerless with the courts to control the discretion of the land board with reference to the selection of these lands.
Edwin McBee, and Gray & Knight, Amici Curiae.
The writ of prohibition will lie to restrain encroachment of jurisdiction, but not to control the exercise of a discretion legally invested. (Hill v. Morgan, 9 Idaho 718, 76 P. 323; Pierson v. Board of Land Commrs., 14 Idaho 159, 93 P. 775.)
This court has no legal jurisdiction to control, either by prohibition, mandamus or injunction, the discretionary powers of the state land board. (Gaines v. Thompson, 7 Wall. 347, 19 L. ed. 62; United States v. Seaman, 17 How. 225, 15 L. ed. 226; United States v. Guthrie, 17 How. 284, 15 L. ed. 102; United States v. Com. of Land Office, 5 Wall. 563, 18 L. ed. 692; Craig v. Leitensdorfer, 123 U.S. 189, 8 S.Ct. 85, 31 L. ed. 114; Litchfield v. Register and Receiver, 9 Wall. 575, 19 L. ed. 681; Marquez v. Frisbie, 101 U.S. 473, 25 L. ed. 800; Carrick v. Lamar, 116 U.S. 423, 6 S.Ct. 424, 29 L. ed. 677.)
This is an original action commenced in this court by the plaintiff, as a citizen and taxpayer, praying for a writ of prohibition against the threatened action of the state board of land commissioners, prohibiting and restraining them from relinquishing the right and title of the state of Idaho to certain lands situated in Shoshone county and heretofore selected by the board under the land grants made by the general government to the state of Idaho. The board has filed a demurrer to the complaint, raising the sufficiency of the allegations of the complaint to entitle the plaintiff to the relief demanded. The facts pleaded and on the sufficiency of which we must pass are substantially as follows:
On July 6, 1901, the governor of the state applied to the commissioner of the general land office for the survey of a portion of the public domain in Shoshone county and described as township 44 north of ranges 2 and 3 east, Boise meridian. This application was made under the provisions of the act of Congress of August 18, 1894 (28 Stat. at Large, 372 and 394). Notice of the application was thereupon published in the "Idaho State Tribune" of Wallace, as required by the act of Congress. Official survey was thereafter made by the government, and its approved plats were filed in the United States land office at Coeur d'Alene on July 5 1905. It seems that the commissioner of the land office neglected to give notice to the local land office at Coeur d'Alene city of the application made by the state. Between the date of the application made by the governor for the survey and the filing of the approved plats in the land office, a number of settlers went upon the lands and appear to have established their residence thereon. Under the act of Congress, the state was given a priority of sixty days from the filing of the approved plats in the land office in which to select and make filing on any of the lands included in the survey. Accordingly, the state board of land commissioners on July 9, 1905, offered filing lists at the Coeur d'Alene land office for a large portion of the survey, and the applications were refused on the ground that that office had no notice of the preference right of the state and that filings by settlers had previously been...
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