Newton v. State Board of Land Com'rs of State

• Decision Date: 03 March 1923
• Citation: 219 P. 1053,37 Idaho 58
• Parties: A. M. NEWTON, Plaintiff and Petitioner, v. THE STATE BOARD OF LAND COMMISSIONERS OF THE STATE OF IDAHO, and C. C. MOORE, Governor and Chairman; A. H. CONNER, Attorney General; E. G. GALLET, State Auditor; F. A. JETER, Secretary of State; and ELIZABETH RUSSUM, Superintendent of Public Instruction, as Members of the State Board of Land Commissioners of the State of Idaho, Defendants
• Court: Idaho Supreme Court

219 P. 1053

37 Idaho 58

A. M. NEWTON, Plaintiff and Petitioner, v. THE STATE BOARD OF LAND COMMISSIONERS OF THE STATE OF IDAHO, and C. C. MOORE, Governor and Chairman; A. H. CONNER, Attorney General; E. G. GALLET, State Auditor; F. A. JETER, Secretary of State; and ELIZABETH RUSSUM, Superintendent of Public Instruction, as Members of the State Board of Land Commissioners of the State of Idaho, Defendants

Supreme Court of Idaho

March 3, 1923

IDAHO ADMISSION BILL-EFFECT WHICH IT GIVES TO STATE CONSTITUTION-SCHOOL LAND GRANTS-WHEN ABSOLUTE TITLE VESTS IN STATE-HOW SUCH LANDS MAY BE DISPOSED OF-POWER OF STATE BOARD OF LAND COMMISSIONERS.

1. Where Congress admits a state into the Union under a constitution which its people have adopted, the provisions of such constitution, in so far as they contain any compacts between the state and the government, are invested with all the authority conferred by any act of Congress.

2. By sec. 4 of the Idaho Admission Bill, approved July 3, 1890 (26 Stat. L. 215; Idaho Comp. Stats., pp. 2655-2659), Congress granted to the state of Idaho for the support of common schools an absolute and indefeasible title to surveyed sections numbered 16 and 36 in every township of said state where such sections or any part thereof had not been sold or otherwise disposed of by authority of any act of Congress prior to the admission of the state into the Union.

3. These grants to the state also included unsurveyed sections 16 and 36 in every township, to which absolute and indefeasible title attached immediately upon the government survey of the same.

4. Sec 5 of the Idaho Admission Bill requires that all lands granted to the state for educational purposes shall be disposed of only at public sale, the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools. Sec. 8 of art. 9 of the constitution, approved by the Admission Bill, provides that these lands shall be disposed of in a manner that will secure the maximum amount to the state, no lands to be sold for less than ten dollars per acre.

5. While the location, selection, direction, management control, sale, rental or disposition of the state's lands is given to the state board of land commissioners, the power to finally dispose of granted lands, where title is completely vested in the state, is limited to such manner and upon such terms as are imposed by the grant and the constitution.

6. Secs. 4 and 5 of the Idaho Admission Bill, together with the acceptance by Congress of the constitutional provisions regulating the manner of locating granted lands and the disposition thereof, constitute a pact between the government and the state, which neither may abrogate or modify without the consent of the other party to the pact.

7. Secs. 2275 and 2276 of the Revised Statutes of the United States, as amended by the act of Feb. 28, 1891, providing that a state may surrender its title to sections 16 and 36 to the government, where the same are within a military, Indian or other reservation, and select lieu lands therefor by relinquishing its title to said school lands, are permissive and not mandatory.

8. Sec. 5 of the Idaho Admission Bill, which provides that "all lands herein granted for educational purposes shall be disposed of only at public sale," and sec. 8, art. 9 of the constitution, which provides that "no school lands shall be sold for less than ten dollars per acre," are mandatory and prohibitive, and the state board of land commissioners is without authority to effect an exchange of state school lands after the same have been surveyed for other lands with the government of the United States.

Original application for Writ of Prohibition. Writ granted.

Writ of prohibition issued. No costs awarded.

Peterson & Coffin, for Plaintiff.

The language of the Idaho Admission Act implies a grant in praesenti. The grantee was in existence at the time of the passage of the act and the lands were identified with definiteness and certainty. (Northern P. R. Co. v. Hussey, 61 F. 231, 9 C. C. A. 463; Northern P. R. Co. v. Myer, 172 U.S. 589, 19 S.Ct. 276, 43 L.Ed. 564; Central P. R. Co. v. Nevada, 162 U.S. 512, 16 S.Ct. 885, 40 L.Ed. 1057; Balderston v. Brady, 17 Idaho 567, 107 P. 493.)

Whatever authority is herein cited in favor of the view that a grant of unsurveyed land is a present grant is applicable with double force to the case of surveyed lands. (Beecher v. David Wethereby, 95 U.S. 517, 24 L.Ed. 440; Rice v. Minn. & N.E. R. R. Co., 1 Black, 358, 17 L.Ed. 147.)

We believe it to be in the interest of sound public policy that the state land board shall not be permitted to exchange surveyed school sections for any other lands whatsoever, no matter what profit the state may derive from the transaction. Sec. 8, art. 9 of the constitution, clearly indicates the fixed and established policy of the state that the state should not divest itself of title to its school sections except at public auction at not less than ten dollars per acre.

A. H. Conner, Attorney General, and Herbert Wing, Asst. Atty. General, for Defendants.

The defendants assert that they and their predecessors in office, acting as the state board of land commissioners, are and have been proceeding in the matter complained of here, in strict accord with the state constitution and the state and federal legislation germane to the question here raised. (Secs. 4 and 5 of 26 Stat. L., Sess. 1, 215, chap. 656, commonly known as the Idaho Admission Bill; secs. 7 and 8 of art. 9 of the State Constitution; secs. 2896, 2899, C. S.; secs. 2275 and 2276, U.S. Rev. Stats., as amended by Act Feb. 28, 1891 (26 Stat. L. 796); Rogers v. Hawley, 19 Idaho 751, 115 P. 687; California v. Deseret Water etc. Co., 243 U.S. 415, 37 S.Ct. 394, 61 L.Ed. 821.)

WILLIAM A. LEE, J. McCarthy and Dunn, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--This is an original action commenced in this court by a citizen and taxpayer of the state, praying for a writ of prohibition against the state board of land commissioners to prohibit a proposed exchange of state lands granted by the United States to the state for educational purposes, for other government lands. The petition alleges that the individual defendants and their predecessors in office, constituting said board, have entered into negotiations with the Forestry Bureau of the Department of Agriculture of the United States, for the purpose of trading certain surveyed school sections 16 and 36, located in various forest reserves in the state, for a compact body of land located in the Cache National Forest, District No. 10, of a like area of approximately 70,000 acres, in townships six, seven, eight and nine south, ranges thirty-six and thirty-seven east, Boise meridian, Bannock county, Idaho, and that said defendants are attempting to relinquish the title of the state to said surveyed school sections 16 and 36 in exchange for said forest reserve lands. Petitioner also alleges that said proposed relinquishment and exchange of surveyed school sections 16 and 36 is in violation of sections 4 and 5 of the Idaho Admission Bill (26 Stats. L. 215), found in the Idaho Compiled Statutes at page 2655, and also of section 8, article 9 of the constitution of the state.

An alternative writ was issued, and upon a return thereof, defendants filed a general demurrer thereto, and the cause presents to this court for final determination the issues of law thus tendered by the petition and demurrer thereto, the single question being: Has the state board of land commissioners authority to relinquish surveyed sections 16 and 36, granted by the United States to the state by the Idaho Admission Bill for school purposes, for other unappropriated surveyed government lands?

Sections 4 and 5 of said Idaho Admission Bill read:

"Sec. 4. That sections numbered 16 and 36 in every township of said State, and where such sections or any parts thereof, have been sold or otherwise disposed of by or under the authority of any Act of Congress, other lands equivalent thereto, in legal subdivisions of not less than one quarter section, and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said State for the support of common schools, such indemnity lands to be selected within said State in such manner as the Legislature may provide, with the approval of the Secretary of the Interior.

"Sec. 5. That all lands herein granted for educational purposes shall be disposed of only at public sale, the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools. But said lands may, under such regulations as the Legislature shall prescribe, be leased for periods of not more than five years, and such lands shall not be subject to preemption, homestead entry, or any other entry under the land laws of the United States, whether surveyed or unsurveyed, but shall be reserved for school purposes only."

Section 8 of article 9 of the constitution is as follows:

"Sec 8. Location and disposition of public lands. It shall be the duty of the state board of land commissioners to provide for the location, protection, sale or rental of all the lands heretofore, or which may hereafter be granted to the state by the general government, under such regulations as may be prescribed by law, and in such manner as will secure the maximum possible amount therefor: Provided, that no school lands shall be sold for less than ten dollars per acre. No law shall ever be passed by the legislature granting any privileges to persons who may have settled upon any such public lands, subsequent to the survey thereof by the general government, by which the amount to be...