Fuller v. Bd. of Univ. & Sch. Lands

• Decision Date: 30 January 1911
• Citation: 129 N.W. 1029,21 N.D. 212
• Parties: FULLER v. BOARD OF UNIVERSITY AND SCHOOL LANDS et al.
• Court: North Dakota Supreme Court

21 N.D. 212

129 N.W. 1029

FULLER

v.BOARD OF UNIVERSITY AND SCHOOL LANDS et al.

Supreme Court of North Dakota.

Jan. 30, 1911.

Syllabus by the Court.

Section 156 of the state Constitution providing for the Board of University and School Lands, construed with statutory enactment carrying the same into effect, gives said board general and full powers in the sale of school lands except as otherwise limited by constitutional and statutory enactment.

Such grant of power carries with it the duty by the board of using judgment and discretion in such matters, commensurate with the importance of its duties as the trustee of the school fund of the state.

Under section 174 of the Revised Codes of 1905, providing for the approval and consummation of school sales by the board, the disapproval of the board of a sale of school lands, and refusal to cause contract of sale to be executed, of land struck off at a school sale to a bidder, cannot be reviewed or controlled by the courts, the board's conclusion being final.

Held, further, that such decision of the board is a quasi judicial determination, as distinguished from ministerial acts, and mandamus will not lie to review the same or the evidence or information upon which such decision was based.

Under the facts disclosed by the record in this case, certiorari will not lie to review such action of the board.

Additional Syllabus by Editorial Staff.

The very act of “approval” imports the act of passing judgment, the use of discretion, and the determination as a deduction therefrom unless limited by the context of the statute (citing Words & Phrases, vol. 1, p. 474).

Appeal from District Court, Burleigh County; Winchester, Judge.

Mandamus by E. H. Fuller against the Board of University and School Lands and another. Judgment of dismissal, and plaintiff appeals. Affirmed.

Engerud, Holt & Frame, for appellant. Andrew Miller, Atty. Gen., Alfred Zuger and C. L. Young, Assts. Atty. Gen., for respondents.

GOSS, J.

Plaintiff brings mandamus to compel execution and delivery of a contract for the sale of school lands which defendant commissioner struck off to plaintiff at a sale of school lands in Steele county, at which plaintiff was the highest and only bidder for certain lands. All preliminaries prior to sale were complied with, and on the sale payment was made by the purchaser to the county treasurer pending approval of the sale by the Board of University and School Lands. After an investigation and on information before it, said board disapproved the sale, finding fraud and collusion between the plaintiff and other bidders at the sale, and on plaintiff's petition for review by the board the sale was again disapproved for inadequacy of price paid for the land. Thereafter mandamus proceedings were instituted in district court to compel the issuance and delivery of a contract of sale by the board and commissioner to the plaintiff for the land. After trial, the court dismissed the proceeding, holding the decision of the board final and conclusive, and not subject to review by mandamus, from which decision plaintiff appeals, alleging specifications of error sufficient to bring all questions embodied in the record before this court for determination.

The decision of this action involves: (1) The powers and duties of the board under the facts in this case; (2) whether such duties are judicial, quasi judicial, or merely ministerial; (3) whether the decision of the board is reviewable by mandamus or certiorari.

The Board of University and School Lands is provided for by the state Constitution, section 156 thereof providing, “said board shall have control of the appraisment, sale, rental and disposal of all school and university lands,” subject, however, to further constitutional limitations as to manner of sale, minimum price, payments, and investment of income derived from the sale of these lands. Under such authority the Legislature has, in articles 1, 2, and 3 of chapter 4 of the Political Code, more definitely defined the above powers and duties, their exercise and limitations; and providing for a state land commissioner as the ministerial agent of the Board of University and School Lands, specifically defining his duties; and providing, further, that, subject to the provisions of constitutional and statutory restrictions, “such board shall have the full control of the selecting, appraisment, rental, sale, disposal and management of all school and public lands of the state,” and “the investment of the permanent funds derived from the sale thereof or from other sources, and shall have power to appoint a competent person to act as the general agent of the board in the performance of all its duties pertaining to the selection, sale, leasing, or contracting in any manner allowed by law, and the general control and management of all matters relating to the care and disposition of the public lands of the state, all of whose official acts shall be subject to the approval and supervision of the board. The title of such agent shall be Commissioner of University and School Lands.” Section 153, Rev. Codes 1905. The duties of such commissioner of University and School Lands are as defined in the foregoing, and section 166, Code 1905, as furthersupplemented by statutory provisions defining or limiting the exercise of such duties imposed, among which is section 174, Code 1905, reading in part: “The county auditor shall act as clerk of all land sales and leases made in his county, and it shall be his duty, within five (5) days after such sale or lease shall have been concluded, to certify to the Board of University and School Lands a list of lands sold or leased as provided in this article, with the price thereof and the name of the purchaser or lessee of such tract, the amount for which the lands are sold or leased, the amount of money paid by such purchaser and the amount of principal remaining unpaid, and the Board of University and School Lands shall approve and confirm the sale or lease of each such tract as upon examination of such certified lists and such further information and investigation as shall be deemed necessary, shall be found to have been sold or leased in accordance with the law and without fraud or collusion.” The statute further provides that “immediately upon the approval of the sales by the Board of University and School Lands the secretary of such board shall prepare and certify a list of said approved sales to the commissioner who shall without delay execute duplicate contracts in the form prescribed by the board and forward the same to the county auditor of the county where the land was sold,” who, upon execution of said contracts by the purchaser at the sale, and his payment of moneys and fees required, shall deliver a duplicate contract to the purchaser. This consummates the sale between the state and the purchaser.

As to the powers of said board it is significant that the Constitution, section 156 above quoted, gives said board general powers in these words: “Said board shall have control of the appraisment, sale, rental and disposal of all school and university lands.” This has been construed and made even more definite by section 153, Rev. Codes 1905, providing, “Such board shall have the full control of the selecting, appraisement, rental, sale, disposal and management of all school and public lands of the state,” the Legislature having in its construction of the constitutional provision used the words, “full control,” “selecting” and “management”, with the other terms used in the constitutional enactment. Then again, the Legislature, construing such constitutional authority, has given to the commissioner the “ general charge and supervision of all lands belonging to the state,” and in this connection the office of commissioner was created to carry into effect the will of the board, and by statute (section 153), designated “ the general agent of the board in the performance of all its duties pertaining to the selection, sale, leasing and contracting in any manner allowed by law, and the general control and management of all matters relating to the care and disposal of the public lands of the state,” and perform ministerial duties for the board.

The board then, as construed by legislative enactment on the matter of its powers, has full control of the selecting, appraisement, rental, sale, disposal and management of school lands of the state. It acts as a body for and on behalf of the state. With this grant of general power is expressly and impliedly conferred the duty of using judgment and discretion in such matters, commensurate with the importance of the trust reposed in it. This is the plain intent of the Constitution and statute creating the board and defining its duties. It is then a board vested with discretion in the performance of its duties generally, except...