Rogers v. Hawley

• Decision Date: 10 May 1911
• Parties: G. B. ROGERS, Plaintiff, v. JAMES H. HAWLEY et al., Defendants
• Court: Idaho Supreme Court

115 P. 687

19 Idaho 751

G. B. ROGERS, Plaintiff, v. JAMES H. HAWLEY et al., Defendants

Supreme Court of Idaho

May 10, 1911

SCHOOL LANDS-RELINQUISHMENT OF SCHOOL LANDS-POWERS OF LAND BOARD-EXCHANGE OF LANDS-CONSTITUTIONALITY OF SENATE BILLS 47 AND 133-LEGISLATIVE RATIFICATION OF ACTS OF LAND BOARD.

(Syllabus by the court.)

1. Senate Bill No. 47, approved February 8, 1911, entitled "An act prescribing certain powers and duties of the state board of land commissioners in relation to the location, protection, relinquishment, selection and exchange with the national government of certain lands granted to the state by the general government and filling the quantity of the grant, and adopting, ratifying and approving the action of the state board of land commissioners in relinquishing certain state lands and in selecting indemnity lands in lieu thereof," is not in violation of either section 7 or 8 of article 9 of the constitution, but is a valid and constitutional exercise of the authority conferred on the legislature to regulate and prescribe by law the manner and method by which the land board may exercise the constitutional powers conferred on such board, whereby it is given the "direction, control and disposition of the public lands of the state," and is commanded "to provide for the location, protection, sale or rental of all the lands heretofore or which may hereafter be granted to the state."

2. Senate Bill No. 47, approved February 8, 1911, which authorizes the state land board to relinquish to the general government unsurveyed school sections in exchange for surveyed, unreserved and unappropriated public lands within the limits of the state "equivalent thereto in area and value, in legal subdivisions and as contiguous as may be to the section in lieu of which the same is taken," is not in contemplation of the constitution, a sale of school lands which would subject the transfer to the constitutional limitation that such lands must be sold for not less than $10 per acre, and that a sale or disposal of the land must be made at public auction, but is rather a simple exchange of lands whereby the state would be enabled to procure an equivalent area of land to which it could obtain immediate possession.

3. Section 2 of Senate Bill No. 133, approved March 4, 1911, and the similar section contained in Senate Bill No. 47, are not in conflict with section 12, article 11, of the state constitution, which prohibits the legislature from passing any law "for the benefit of a railroad, or other corporation, or any individual or association of individuals retroactive in its operation."

4. The legislature, acting for and on behalf of the state as the representatives of the people, has the right to approve and ratify the action of the state land board in a transaction wherein the legislature would have had, in the first place the power to authorize the doing of the thing which the land board has done and which it is proposed to ratify, adopt and confirm, even though the act when performed by the land board was without and in excess of the powers then conferred on such board.

5. The location, selection, direction, management, control, sale rental or disposition of state lands involves the exercise of the business and proprietary powers of the state, and the legislature is given the authority to regulate the exercise of that power.

Original action praying for a writ prohibiting and restraining the state land board from the commission of certain alleged and threatened acts. Writ denied and proceeding dismissed.

Writ denied and action dismissed. No costs awarded.

E. G. Davis, for Plaintiff.

The grant of secs. 16 and 36 was in praesenti, and the title to these sections passed eo instanti from the government to the state without further action on the part of either the government or the state to perfect such title. No selection was necessary, because the act designated the land by recognizing subdivisions. As soon as surveyed, the title acquired precision and became attached to the land. (Schulenberg v. Harriman, 21 Wall. (U.S.) 44, 22 L.Ed. 551.)

Even if we concede that the general government is not bound by the terms of the Idaho Admission Bill, and that it still exercises sufficient control over sections 16 and 36 to permit it to hold title to these lands and to grant others in lieu thereof, the state land board has not been given sufficient authority to warrant it in the steps it has taken, or is now taking, to relinquish the state lands and to accept other lands in lieu thereof. (Secs. 7 and 8 of art. 9, Idaho Constitution.)

It is not material, for the purposes of this discussion, to consider the question as to whether or not the title to sections 16 and 36 which passed to the state by the Idaho Admission Bill was a fee simple title or only a floating, equitable title which must await official survey to be made definite and certain and to vest absolutely in the state. It was the only title which the state had and it was to certain specific sections. If such sections had been previously disposed of or were determined to be mineral in character, no title whatever passed, and the state was authorized and empowered to select other lands in lieu thereof. But, in all other cases, some title at least would pass, and if we are to look for the authority of the land board or of the legislature to dispose of this title, we shall find such authority, if at all, in the state constitution. (Balderston v. Brady, 18 Idaho 240, 108 P. 742.)

Lands included within forest reserves are not "lost" to the state. These lands are withdrawn from all kinds of entry or appropriation, and it is evident that the inclusion of these lands in forest reserves neither deprives the state of present title or makes probable the ultimate loss of title, by the mere inclusions of some of these sections in forest reserves. No cause has arisen, therefore, which could possibly justify the state land board in presuming to relinquish whatever title the state has to any of these lands or to select and accept others in lieu thereof. Neither has it changed, nor could it ever change, the duties and powers of the legislature in reference thereto.

James E. Babb, Amicus Curiae.

Where the person of the grantee is ascertained and there is a present grant, the title vests in interest, even though the precise quantity and boundaries or description of the property granted is to be ascertained by means presently provided but at a later date. (24 Am. & Eng. Ency. Law, 2d ed., pp. 368, 389; sec. 3061, Rev. Codes; Northern P. Ry. Co. v. Hussey, 61 F. 231, 9 C. C. A. 463; Northern P. Ry. Co. v. Meyers, 172 U.S. 589, 19 S.Ct. 276, 43 L.Ed. 564, and cases cited; Central P. Ry. Co. v. Nevada, 162 U.S. 512, 16 S.Ct. 885, 40 L.Ed. 1057.)

"With this identification of the section, the title of the state . . . . became complete, unless there had been a sale . . . . previous to the compact with the state. No subsequent sale or other disposition . . . . could defeat the appropriation." (Beecher v. Wetherby, 95 U.S. 517, 24 L.Ed. 440.)

The emergency laws of the eleventh session, Senate Bills Nos. 47 and 133, assumed to ratify all relinquishments theretofore made by the state and all selections attempted to be made in lieu thereof, and are void as to any such relinquishments or selections theretofore made for the following reasons: (a) Because the acts, in so far as retrospective, violate sec. 12 of art. 11, constitution of Idaho. (b) Because in so far as the legislature attempts to construe the provisions of the constitution and statutes of Idaho and to declare the validity of acts done thereunder, either by way of ratification or confirmation of said acts or otherwise, it is exercising judicial and not a legislative province, and its action is therefore a nullity. (2 Lewis' Sutherland, Stat. Const., 2d ed., sec. 358.)

D. C. McDougall, Atty. Gen., and J. H. Peterson and O. M. Van Duyn, Assistants, and D. A. Dunning, for Defendants.

A careful analysis of sec. 4 of the Idaho Admission Bill, coupled with a review of the decisions of the supreme court of the United States and the decisions of the land department, justified the state land board of the state of Idaho, in the first instance, in the conclusion that a perfect legal title was not vested by said act, but that only a floating and equitable title passed to the state under the terms of the Admission Act; and this conclusion has been adopted by every land board since that time, and the policy of the state land board has become in a great measure fixed.

The exact question has never arisen in any case before the supreme court of the United States. The nearest case we have been able to find is that of Nelson v. Northern P. Ry. Co., 188 U.S. 108, 23 S.Ct. 302, 47 L.Ed. 406.

The case of Heydenfelt v. Daney etc. Mining Co., 93 U.S. 634, 23 L.Ed. 995, is another case that comes very near the case at bar.

The real intention of Congress was to grant to the state in praesenti a quantity of land equal in amount to the 16th and 36th sections, the grant to take effect when the status of the lands was fixed by survey and they were capable of identification. (Minnesota v. Hitchcock, 185 U.S. 370, 22 S.Ct. 650, 46 L.Ed. 954; Hibberd v. Slack, 84 F. 571; State of S. Dak. v. Riley, 34 L. D. 657; Oregon R. Co. v. U. S. 189 U.S. 103, 23 S.Ct. 615, 47 L.Ed. 726.)

AILSHIE, Presiding J. Sullivan, J., concurs.

OPINION

AILSHIE, Presiding J.

This is an original action instituted in this court, praying a writ asking, prohibiting and restraining the state board of land commissioners from the performance of certain threatened acts. By the plaintiff's first cause of action, he seeks to prohibit and restrain the board from relinquishing or...