Spaugh v. Ross

• Decision Date: 31 January 1928
• Docket Number: 1346
• Citation: 263 P. 613,37 Wyo. 396
• Parties: SPAUGH v. ROSS, GOVERNOR, ET AL. [*]
• Court: Wyoming Supreme Court

263 P. 613

37 Wyo. 396

SPAUGH v. ROSS, GOVERNOR, ET AL. ^[*]

No. 1346

Supreme Court of Wyoming

January 31, 1928

APPEAL from District Court, Niobrara County, CYRUS O. BROWN, Judge.

Application by A. A. Spaugh, filed with the Commissioner of Public Lands for certain relief under Laws 1923, ch. 96. From a denial of the application the applicant appealed to the district court in which Hon. William B. Ross, Governor, and others, members of and constituting the Board of Land Commissioners, were made parties defendant. From a judgment for defendants, the applicant appeals.

Appeal Dismissed.

Mentzer & Pickett, for appellant.

The denial of relief under Chap. 96 L. 1923, by the Land Board was based upon the assumption that the Act was in violation of Section 40, Art. 3 of the State Constitution; in appeals from the Land Board to the District Court only such matters as were presented to the Board, are considered; Bucknum v. Johnson, 21 Wyo. 26; an Act must be upheld unless it is clearly shown to be in conflict with the Constitution State v. Snyder, 29 Wyo. 163; Colo. Power Co. v Halderman, 295 F. 178; Kansas City v. U.S., 293 F. 8; Martin v. Bennett, 291 F. 626; Morrison v. Pettigreu, 14 F.2d 453; Baldwin v. State, 141 N.E. 343; People v. Morgan, 246 P. 1024; South Utah Mines v. County, 262 U.S. 325, 67 L.Ed. 1004. State Constitutions are not grants of power and the Legislature possesses all authority not restricted by the State or Federal Constitutions, State v. Snyder, 29 Wyo. 100; State v. Hecker, 221 P. 808; Whittenberg v. Craven, 258 S.W. 152; State v. Waldram, 231 P. 431; Budge v. Comm'rs. 30 Wyo. 35. It is true that Art. III, Sec. 40 of the Constitution, prohibits the destruction of obligations or liabilities to the State by the Legislature; it is also true that Art. XVIII, Sec. 3 of the Constitution, created the Land Board, other statutes relate to the method of leasing or disposing of state lands. Forfeiture of amounts paid in the purchase of state land, in case of default, is the only penalty prescribed, Olds v. Co., 22 Wyo. 336; People v. Claugh (Colo.) 63 P. 1066. If there is no liability or obligation other than a forfeiture of amounts paid in case of default, Art. III, Sec. 40 of the Constitution would not apply. A legal obligation to the State means a debt to the State. The Constitution authorizes the State, through its Legislature, to provide for the control and disposition of public lands, Art. XVIII, Sec. 3; Ross v. Trustees, 31 Wyo. 464; Brown v. City, 211 N.Y.S. 306; State v. Zimmerman, (Wisc.) 204 N.W. 803. The purpose of the constitutional provisions referred to was to confer upon the Land Board power to carry out the terms of land grants; no obligation or liability to the State was terminated by the Act in question, since the only penalty for non-payment was the cancelation of the certificate of purchase.

William O. Wilson, Attorney General, and J. A. Greenwood, Deputy Attorney General, for appellees.

Appellant failed to comply with the provisions of Chap. 96, L. 1923, and the District Court has nothing before it to decide on appeal; it is not shown that the State Board was governed by the opinion of the attorney general as to the constitutionality of Ch. 96 L. 1923; Bucknum v. Johnson, 21 Wyo. 35; McNamara v. O'Brien, 2 Wyo. 451; Schmidt v. Bank, 29 Wyo. 260. The disposition of federal grant lands is controlled by Sec. 5, Act of Admission; Art. XVIII, Secs. 1 and 3, Constitution; Secs. 724, 726, 728 C. S. A certificate of purchase is something more than an option, it is a contract, enforceable at law; state lands must be sold at auction which means a public sale to the highest bidder, 2 R. C. L. 1115; Rowley v. D'Arcy, 69 N.E. 326; Pike v. Board, 113 P. 447; 6 C. J. 827; Art. XVIII, Secs. 1-3 Constitution; Ross v. Trustees, 30 Wyo. 438; Olds v. Co., 22 Wyo. 342; State v. Board, 20 Wyo. 174. To grant appellant relief prayed for would be in effect an attempt to sell state lands at private sale in violation of the Constitution.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This is a proceeding by direct appeal from a judgment of the District Court of Niobrara County, which "approved and sustained" the action of the State Board of Land Commissioners of this state denying the application of appellant Spaugh for relief under chapter 96, Laws of Wyoming 1923, and dismissed his appeal from the decision of said board in this matter.

Under the title "an act for the relief of contracts for the purchase of state and school lands," the Wyoming legislature passed the law already mentioned. It provided, among other things, in substance, that any person who contracted for the purchase of state or school land, prior to January 1, 1923, or who was, prior to said date, assignee in good faith of any such contract, where no arrears existed relative to said contract in payments of principal or interest on January 1, 1919, should have the right to apply the aggregate of the payments of principal made to the state by himself or his assignors to the purchase of any subdivision of the lands described in said contract or any of them designated by him, subject to appraisal and approval by the State Land Board, and also subject to its determination whether or not the designated land could be sold separate from the other lands in said contract without detriment to the state. A person desirous of obtaining relief was required to make application in accordance with the provisions of section 3 of the Act, which directed notice to be given the Commissioner of Public Lands, and specified what such notice should contain. Section 4 provided for a hearing on the application and required notice to be given applicant of the date of such hearing. Section 5 gave further relief in cases where there had been a default in payment both of principal and interest on contracts for the purchase of state lands. Section 6 ordained that in certain instances forfeitures of such contracts might be set aside; and section 7 dealt with the rights of parties or their assignees, under certain conditions, to surrender their contracts and to lease the land for not exceeding five years.

On June 19, 1923, appellant filed an application in the form of a letter with the Commissioner of Public Lands, wherein he asked certain relief under the terms of the Act above mentioned on behalf of himself, as alleged owner of certain certificates of purchase, and also as alleged assignee of others. Under date of June 5, 1924, the board considered appellant's application and denied it. Thereafter, appellant undertook an appeal from this ruling to the District Court of Niobrara County by making the filings in that court and also with the Commissioner of Public Lands, which are outlined in sections 752-757 inclusive, of chapter 60, W. C. S. 1920. The notice of appeal filed recites that "said appeal prosecuted under the provisions of chapter 60, of Compiled Statutes of 1920." Hon. William B. Ross, Governor, Frank E. Lucas, Secretary of State, J. M. Snyder, Treasurer, and Katherine A. Morton, Superintendent of Public Instruction, "as members and constituting the Board of Land Commissioners," were designated in said notice as "appellee."

It appears that the appeal was heard in the District Court on the 12th day of November, 1924, and was taken under advisement until the 22nd day of December, 1924, when a judgment was entered as already indicated. A stipulation appears in the record dated January 21, 1925, signed both by attorney for appellant and the Attorney General of the State of Wyoming for appellee, which recites the fact of the court's taking the matter under advisement, that appellant's counsel was not present, "when the decision was rendered, owing to illness," that "no copy of the judgment" was "served upon the said counsel for appellant," and that appellant did not learn "of the said decision until the 9th day of January, 1925." The stipulation consents that "the court may set aside the said judgment and upon the presentation of this stipulation enter another as of the date signed, of the same effect."

Under date of January 21, 1925, the stipulation was presented to the court and an order made thereon that "the judgment made, rendered and entered herein on the 23rd day of December, A. D. 1924, be, and the same hereby is, set aside and held for naught." The order recites no reason for setting aside the judgment other than the presentation of the stipulation, nor does any other reason appear in the record. On the next day, another judgment was made and entered by the court, the same being identical in every way with that of December 22, 1924, except the date thereof. On January 29, 1925, appellant's counsel filed in the clerk's office of the District Court of Niobrara County a notice of appeal to this court from the judgment dated January 22, 1925. Endorsed thereon was an acceptance of service by the Attorney General under date of January 27, 1925.

This appeal cannot succeed. The stipulation upon which the court acted in undertaking to set aside its judgment of December 22, 1924, merely recited the absence of appellant's counsel on the day the judgment was rendered, that no copy was served on him, and that he did not learn of the decision until January 9, 1925. The order purporting to set aside this judgment (and it may be here noted that the order refers to and deals with a judgment "made, rendered and entered" on the 23rd day of December, 1924), recited no mistake, casualty, misfortune or other reason why the date of the judgment should be changed. That is actually all that was done by the entry of the judgment of January 22, 1925.

In Boulter v. Cook, 32 Wyo. 461, 234 P. 1101, 236 P. 245 where this court had under...