Hamblin v. State Board of Land Com'rs

• Decision Date: 20 December 1919
• Docket Number: 3420
• Citation: 187 P. 178,55 Utah 402
• Parties: HAMBLIN v. STATE BOARD OF LAND COM'RS et al
• Court: Utah Supreme Court

187 P. 178

55 Utah 402

HAMBLIN v. STATE BOARD OF LAND COM'RS et al

No. 3420

Supreme Court of Utah

December 20, 1919

Original mandamus proceeding by Neaf Hamblin against State Board of Land Commissioners and others.

PEREMPTORY WRIT DENIED.

F. B Scott, of Salt Lake City, for plaintiff.

Dan B Shields, Atty. Gen., and O. C. Dalby, James H. Wolfe, and Herbert Van Dam, Jr., Asst. Attys. Gen., for defendants.

THURMAN, J. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

The plaintiff by this proceeding requests the court to issue a peremptory writ of mandate requiring the defendant board, its president and secretary, to issue to plaintiff a certificate of sale for certain school land described in the application. The application is supported by the affidavit of plaintiff's attorney and shows the following facts: That one of plaintiff's predecessors in interest settled upon said land about forty years ago, built a house thereon, lived there, cultivated the land, and raised valuable crops of corn, hay, and pasturage; that another predecessor of plaintiff lived upon and cultivated said land and finally conveyed his interest to plaintiff, who thereafter lived upon the land, cultivated the same, and still continues to live upon and occupy the premises; that a plat of the survey of said land was filed in the local land office February 26, 1918, and in April next following plaintiff instructed his attorney to prepare for him a preference right application and mail it to plaintiff at Kanab, Utah, for his signature; that said application was prepared, according to instructions, by said attorney, and instead of reaching Kanab as expected by plaintiff it was held and retained in the post office at Kanosh, Utah, from May 14 until August 17, 1918; that on failure to receive said application from his said attorney plaintiff caused said attorney to prepare another application, and the same was prepared, signed by plaintiff, and filed in said land office July 9, 1918. Plaintiff's affidavit further shows that in the ordinary course of mail the first application prepared by his attorney would have reached Kanab in time to be signed by plaintiff, returned, and filed in the office of the defendant board, within the time required by law. The affidavit also shows that plaintiff, at the time of filing his preference right application as above stated, deposited with the defendant board the sum required by law as a first payment, and that at said time there was no other application pending for the purchase of the land.

Defendant board, answering said affidavit, admits substantially all the facts alleged, but denies the power of defendant to comply with the demand. It also denies that it owes any duty to plaintiff in respect to the land, inasmuch as plaintiff failed to file his preference right application in time as provided in Comp. Laws Utah 1917, section 5588. The answer is, in effect, a general demurrer, and we are disposed to treat it as such in order that the case may be finally disposed of as far as this form of action is concerned.

The section of the statute above referred to reads as follows:

"Actual and bona fide settlers or occupants who have improved unsurveyed state school lands, and were for two years prior to the extension of the United States survey over said lands actual settlers or occupants thereof, or who hold the same, or the possession thereof, by purchase from the original settlers or their assigns, said original settlers having resided upon, occupied, or cultivated said lands for two years prior to the extension of the surveys of the United States over the same, may be permitted to purchase such lands at private sale at the appraised valuation thereof. Applications to make such purchase by said preferred claimants must be made within ninety days after the plats of said surveys have been filed in the United States land office."

In support of its contention that it is without power to grant plaintiff's application for a certificate of sale, defendant insists that the word "must," in the last sentence of the section quoted, is mandatory in substance and meaning as well as in form; that plaintiff, having failed to file his preference right application within the time required by law, thereby lost his preference right and now has no better right than any other citizen. On the other hand, the plaintiff contends that the word "must," in the section quoted, is directory merely, and, inasmuch as there was no other application to purchase said land pending at the time he filed his application, the board had power to recognize his preference right and should have done so by accepting his money and issuing to him a certificate of sale.

Both parties display considerable learning in discussing the question as to whether the word "must," as used in the language referred to, is mandatory or directory. We deem it unnecessary in this case to enter upon a metaphysical disquisition concerning the class to which the word belongs. A far more satisfactory solution of the question may be found by resorting to cases wherein the controlling facts and principles are substantially the same, or closely analogous.

United States Revised Statutes 1878, section 2266, relating to pre-emption rights of settlers of the unsurveyed public domain, reads:

"In regard to settlements which are authorized upon unsurveyed lands, the pre-emption claimant shall be in all cases required to file his declaratory statement within three months from the date of the receipt at the district land office of the approved plat of the township embracing such pre-emption settlement."

It will hardly be contended that there is any material difference in principle in the meaning and effect of the language employed in the section last quoted and that employed in section 5588 of our statute, upon which defendant relies. Indeed, it is fair to presume that our Legislature in the enactment of section 5588 had in mind the congressional enactment above quoted and used it as a model for the accomplishment of a purpose substantially similar. The words "shall be," in the section last quoted, are just as mandatory in form, and apparently just as peremptory in their meaning, as is the word "must" in the Utah statute.

In construing the section of the act of Congress above quoted, as far as we have been able to ascertain, the courts have uniformly held it to be directory only. The cases in mind have all arisen between conflicting claimants, and where there were no intervening rights as in the case at bar.

In Lansdale v. Daniels, 100 U.S. 113, 25 L.Ed 587, the contest arose between two preemption claimants, both of whom settled upon the land before it was surveyed. The defendant filed his declaratory statement in the land office about two months before the plat of the survey was filed. The plaintiff did not file his declaration until more than two years after. One paragraph of the court's opinion, illustrating its views upon this question, is of sufficient importance to quote at length. ...