Pike v. State Board of Land Com'rs

• Decision Date: 02 February 1911
• Citation: 113 P. 447,19 Idaho 268
• Parties: CURTIS F. PIKE, Plaintiff, v. STATE BOARD OF LAND COMMISSIONERS, Defendant
• Court: Idaho Supreme Court

113 P. 447

19 Idaho 268

CURTIS F. PIKE, Plaintiff, v. STATE BOARD OF LAND COMMISSIONERS, Defendant

Supreme Court of Idaho

February 2, 1911

CONSTITUTIONAL CONSTRUCTION-PUBLIC SCHOOLS-SCHOOL LANDS-TIMBER LANDS-LEASE OF STATE LANDS-SALE OF STATE LANDS-PUBLIC POLICY.

(Syllabus by the court.)

1. The words "school lands" as used in sec. 8 of art. 9 of the constitution, wherein it is provided, "that not to exceed twenty-five sections of school lands shall be sold in any one year, and to be sold in subdivisions of not to exceed one hundred and sixty acres to any one individual, company or corporation," has reference only to secs. 16 and 36 in each township, and does not include or embrace lands granted by Congress to the state for specific educational purposes such as university, normal school, agricultural college, and scientific and other institutions of higher learning. And the constitution, sec. 8, art. 9, does not limit the amount of state lands that may be sold within any year, except as the foregoing prohibition applies to secs. 16 and 36 in every township commonly known and designated as "school lands" and which were granted to the state for the use of the public, free common schools of the state.

2. The word "school" as used in secs. 5 and 8 of art. 9 of the constitution, has reference to the public, free common schools, and clearly means the free school system which has been generally adopted in this country, and has specific reference to the district schools throughout the state established for the training and instruction of the youth of the state in the primary and elementary branches of learning below the grade or rank of "academy seminary, college, university, or other literary or scientific institution."

3. State land covered with timber, which has been previously sold by the state and the purchaser has been granted a fixed period in which to enter upon the land and remove the timber is timber land within the meaning of secs. 1580 and 1599 of the Rev. Codes, and when sold must be sold subject to the provisions of sec. 1599.

4. Where the state sells the timber standing and growing on a tract of land and grants to the purchaser the right of possession for the period of twenty years from the date of sale for the purpose of cutting and removing the timber, and provides that all timbers that remain standing on the land at the expiration of the twenty years shall belong to the state a subsequent sale of the land and grant of the fee by the state conveys to the purchaser all the timber that may remain standing upon the land at the expiration of the twenty-year period, and the purchaser of the timber has no further right after the expiration of that period to enter upon the land or remove timber, and has no further right in any timber on such land.

5. The public policy of a state is to be gathered from its public history, the trend of its laws, and the conduct and practice of its public officials, executive, legislative and judicial in the administration, construction and execution of its laws and the transaction of its public business.

6. No public policy of this state has been disclosed to the court which is contrary or runs counter to the proposed action of the state board of land commissioners to sell state lands which have been leased for a period of twenty years, and of which lease there is still eleven years to run.

7. The question as to whether or not it is expedient, wise or the best business policy for the state board of land commissioners to sell lands in fee while there is an outstanding lease on the same, and which lands cannot be occupied by the purchaser for a number of years after the sale and purchase, is a matter solely addressed to the judgment and discretion of the land board, and is vested in them by the constitution and statute, and is not a question that can be considered, reviewed or controlled by the courts.

8. It is within the power and authority of the state land board to require a person, company or corporation that may apply to purchase state lands to enter into an agreement to bid a given price upon such lands in the event they are offered for sale as a condition precedent to advertising such lands for sale.

9. Resolution adopted by the state land board in this case and agreement required of the company applying to purchase the lands in question examined, and held, that it was within the power and authority of the board to pass such resolution and require such agreement, and that these were matters addressed solely to the judgment and discretion of the board.

Original action in this court by Curtis F. Pike for a writ of prohibition against the state board of land commissioners. Alternative writ was issued, and a hearing was had. Writ quashed and the action is dismissed. Costs awarded in favor of the defendant.

Alternative writ quashed and the proceeding dismissed, with costs in favor of the board.

Jno. F. Nugent, Frank Martin, T. L. Martin, J. T. Pence, W. B. Davidson, F. B. Kinyon and J. R. Smead, for Plaintiff, file brief on points decided in this case as amici curiae in case of State v. Hoover.

D. C. McDougall, Attorney General, J. H. Peterson and O. M. Van Duyn, Assistants to the Attorney General, for the State Land Board, file brief covering points in this case in State v. Hoover.

James H. Forney, John P. Gray and James E. Babb, as Amici Curiae.

The word "school," without something to indicate that a wider meaning was intended to be given to the word, will not be taken to indicate such higher institutions of learning as colleges or universities or institutions for the teaching of trades, professions or business. (Citing authorities cited in opinion.)

The sale of the timber under the act of 1899 carried the title to the same in fee subject to termination at the end of twenty years as to so much of the timber as might not theretofore have been removed. (Midyette v. Grubbs, 145 N.C. 85, 58 S.E. 795, 13 L. R. A., N. S., 278; Warren v. Ash, 129 Ga. 329, 58 S.E. 858; French v. Sparrow-Kroll Lbr. Co., 135 Mich. 424, 97 N.W. 961.)

Any deed made by the state in pursuance to the sales now attempted to be made of the land will carry to the purchaser the timber that may be remaining on the land after the expiration of the twenty-year period for removal under the sales of the timber heretofore made. (French v. Sparrow-Kroll Lbr. Co., supra; Strasson v. Montgomery, 32 Wis. 52.)

There is a vested right and a right coupled with an interest where the person who is to take is ascertained, though the property to be taken may be uncertain (24 Am. & Eng. Ency. of Law, 2d ed., 388, 389), and same may be transferred. (Id., pp. 390, 391.)

Where there has been a settled course of procedure in the land department based on a certain construction of the statutes, it becomes the duty of the court of accept that construction, even though it might have originally placed a different construction upon the statutes. (Holt v. Murphy, 207 U.S. 407, 28 S.Ct. 212, 52 L.Ed. 271; McMichael v. Murphy, 197 U.S. 304, 25 S.Ct. 460, 49 L.Ed. 766; Hastings etc. R. R. Co. v. Whitney, 132 U.S. 357, 10 S.Ct. 112, 33 L.Ed. 363; United States v. Moore, 95 U.S. 760, 24 L.Ed. 588; United States v. Burlington etc. Ry. Co., 98 U.S. 341, 25 L.Ed. 198; Heath v. Wallace, 138 U.S. 573, 582, 11 S.Ct. 380, 34 L.Ed. 1063; United States v. Alabama etc. Ry. Co., 142 U.S. 615-631, 12 S.Ct. 306, 35 L.Ed. 1134; Orchard v. Alexander, 157 U.S. 383, 15 S.Ct. 635, 39 L.Ed. 737; Hewitt v. Schultz, 180 U.S. 139, 156, 163, 21 S.Ct. 309, 45 L.Ed. 463; Louisiana v. Garfield, 211 U.S. 70, 29 S.Ct. 31, 53 L.Ed. 92.)

AILSHIE, J. Sullivan, J., concurs, Stewart, C. J., concurs in conclusion.

OPINION

AILSHIE, J.

This is an original application filed in this court for a writ of prohibition against the state board of land commissioners, whereby the plaintiff seeks to restrain and prohibit the board from selling a large body of state lands situated in Latah and Nez Perce counties comprising an aggregate area of 23,938.18 acres. These lands are a part of the several land grants made by the general government to this state on its admission into the Union. The specific grants, parts of which go to make up the total area of the tracts to be sold, are as follows: Scientific schools, state penitentiary, state normal school, charitable institutions, agricultural college, and insane asylum.

The lands proposed to be sold are timber lands, and it appears that in 1902 the state sold to the Potlatch Lumber Company, or rather to its predecessors in interest, all the timber standing and growing on this entire body of land, and issued state certificates to the purchaser therefor, conditioned that the purchaser, or his successor in interest, should have a period of twenty years from the date of the sale in which to remove the timber, and that all the timber which might remain on the lands at the expiration of that period should revert to the state. In June, 1910, the Potlatch Lumber Company made application to the state board of land commissioners to purchase these lands and asked the board to have the land appraised. On the 30th of June the board, after considering the matter, passed and adopted the following resolution:

"Whereas the Potlatch Lumber Company is the owner of the timber on several thousand acres of land, the fee to which still remains in the state of Idaho; and,

"Whereas all of said timber was heretofore sold to said Potlatch Lumber Company or its predecessors in interest, on condition that said timber should be removed within certain specified terms of years, and that all timber remaining on the land after the expiration of said term should revert to and become the property of the State of Idaho; and,

"Whereas said ...