Matthews v. Linn

• Decision Date: 22 December 1959
• Docket Number: No. 9775,9775
• Citation: 99 N.W.2d 885,78 S.D. 203
• Parties: Acie W. MATTHEWS, Plaintiff and Respondent, v. Bernard LINN, as Commissioner of School and Public Lands of the State of South Dakota, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 885

99 N.W.2d 885

78 S.D. 203

Acie W. MATTHEWS, Plaintiff and Respondent, v. Bernard LINN, as Commissioner of School and Public Lands of the State of South Dakota, Defendant and Appellant.

No. 9775.

Supreme Court of South Dakota.

Dec. 22, 1959.

Parnell J. Donohue, Atty. Gen., Wallace G. Dunker, Asst. Atty. Gen., for defendant-appellant.

Simons, Beasom & Gibbs, by Blaine Simons, Sioux Falls, for plaintiff-respondent.

SMITH, Judge.

Whether the last two paragraphs of Chapter 42, Laws 1957, are repugnant to the provisions of Article VIII of the constitution requiring sales of school lands to be made at 'public auction' is the sole question presented by this appeal of the Commissioner of School and Public Lands from a judgment declaring said paragraphs to be void, as in conflict with the constitution, and enjoining him from making sales in conformity therewith.

Article VIII of the constitution, entitled 'Education and School Lands' contains provisions dealing with the sale of such lands in part as follows:

Section 4. '* * * and the legislature shall, subject to the provisions of this article, provide for the sale of the same.

'* * * shall appraise all school lands within the several counties which they may from time to time select and designate for sale, at their actual value under the terms of sale. * * *'

Section 5. 'No land shall be sold for less than the appraised value, and in no case for less than ten dollars ($10.00) per acre. * * * No land shall be sold until appraised and advertised and offered for sale at public auction after sixty (60) days advertisement of the same. * * * No land can be sold except at public sale.' (Emphasis supplied.)

The statutes implementing the cited article of the constitution are contained in SDC 15.03. The assailed Ch. 42, Laws 1957, amends SDC 15.0306. The amended statute retains the provision of that section reading: 'Such lands shall be sold at public auction to the highest bidder * * *' but adds two final paragraphs reading as follows:

'A lessee, or assignee, of such land, or a lessee, or an assignee, holding an expiring lease at the time of sale, shall have the right to purchase such land for the amount of the highest bid made as provided by statute, upon giving notice of his election to exercise his right at the conclusion of the sale, and having bid at least once on such land at said sale, of the particular tract being offered, and making the payment required by law provided, however, nothing herein contained shall prevent the high bidder from raising his own bid.

'Fifteen days before the date of sale of any land, the Commissioner of School and Public Lands shall give notice by registered mail, addressed to the record lessee at his record address, of the day, hour, and place of the sale.'

It is axiomatic that every presumption favors the validity of legislative action and that no statute should be held unconstitutional by a court unless its infringement of organic restrictions is so plain and palpable as to admit of no reasonable doubt. State ex rel. Botkin v. Welsh, 61 S.D. 593, 251 N.W. 189. And it is also a cardinal rule that whenever, within the bounds of reasonable and legitimate construction, an act of the legislature can be so construed and applied as to avoid conflict with the constitution, such construction should be adopted. Brookings County v. Murphy, 23 S.D. 311, 121 N.W. 793; Clark Implement Co. v. Wadden, 34 S.D. 550, 149 N.W. 424, L.R.A.1915C, 414; and Peterson Oil Co. v. Frary, 46 S.D. 258, 192 N.W. 366. As indicated, this rule has its limitations. It has been written: 'Where the language used in a statute is plain, the court cannot read words into it that are not found therein either expressly or by fair implication, even to save its constitutionality, because this would be legislation, and not construction.' 11 Am.Jur., Constitutional Law, Sec. 99, p. 733. And see 16 C.J.S. Constitutional Law Sec. 98, p. 385, and Fremont, E. & M. V. R. Co. v. County of Pennington, 22 S.D. 202, 116 N.W. 75.

Our attention has been directed to the definition of the term 'public sale' formulated by the annotator in 4 A.L.R.2d 575 as a sale in which the public, upon proper notice, is invited to...