State ex rel. Brown v. McPeak

• Decision Date: 06 January 1891
• Citation: 47 N.W. 691,31 Neb. 139
• Parties: STATE EX REL. BROWN ET AL. v. MCPEAK, TREASURER, ET AL.
• Court: Nebraska Supreme Court

31 Neb. 139

47 N.W. 691

STATE EX REL. BROWN ET AL.

v.MCPEAK, TREASURER, ET AL.

Supreme Court of Nebraska.

Jan. 6, 1891.

Syllabus by the Court.

1. Under the act of 1879, the statute and leases made in pursuance thereof declared that the lessee will pay for the use of said lands the annual rental of not less than 6 per cent. per annum upon the appraised value thereof; that, at the expiration of five years from the date of the lease, and every five years thereafter, the land shall be appraised by three persons, one of whom shall be appointed by the county clerk, one by the lessee, and the third by the other two, and that the valuation made by such appraisers shall, provided it be not less than the former appraisement, be the basis for the rental for the five years succeeding the next 1st day of January. Held that, this being the contract authorized by statute, the legislature could not deprive the lessee of the right to select an arbitrator to act in conjunction with one selected by the state to appraise the rental value of the land for the succeeding five years.

2. While the legislature may change or modify the remedy, it cannot, by a direct act, deprive the party of a substantial contract right.

Mandamus.

Robert Ryan, for relators.

Wm. Leese, Atty. Gen., for respondent.

MAXWELL, J.

The relators are the owners and assignees of a certain school-land lease made September 12, 1882, and thereunder are in possession and occupancy of the E. 1/2 and S. W. 1/4 and N. E. 1/4 of N. W. 1/4 of section 36, township 4 N., range 25 W. sixth P. M., said land being situate in Furnas county, Neb. By the terms of this lease, the following provisions were made: “The said lessee shall and will pay promptly semi-annually, in advance, on the first day of January and July in each year, to the county treasurer of said county of Furnas, for the use of said lands, the full annual rate of 6% upon the aforesaid appraised value of said lands, and that he shall, in like manner, pay semi-annually, in advance, the annual rate of 6% upon the appraised value of said land, and that he shall, in like manner, pay semi-annually, in advance, the annual rate of 6% upon the appraised value of said lands, which shall hereafter be made; that he will not commit any waste or spoil in or upon said lands; that, at the expiration of five years from the date hereof, and every five years thereafter, the said lands shall be appraised by three persons, one thereof to be appointed by the county clerk of said county aforesaid, one by the lessee, and the other to be appointed by the appraisers, who shall be appointed as aforesaid; and that the valuation made by the said appraisers, at the respective times aforesaid, shall, provided it be not less than the appraisement first above stated, be the basis of the rental for the next succeeding five years after each such appraisement,” etc. The above provisions were in strict accordance with those of the statute in force at the time said lease was made, as contained in section 2, p. 111, of the act of 1879, being section 19, c. 80, Comp. St. 1881, as follows: “That the lessee will pay for the use of said lands the annual rate of not less than 6% per annum upon the appraised value thereof; that, at the expiration of five years from the date of the lease, and every five years thereafter, the land shall be appraised by three persons, one of whom shall be appointed by the county clerk, one by the lessee, and the third by the other two, and that the valuation made by such appraisers shall, provided it be not less than the former appraisement, be the basis for the rental for the five years succeeding the next first day of January.” There has been no appraisement at the end of the first five years (1887) as provided above, and the state authorities refuse to permit the appraisers to be chosen as prescribed in the lease and statute above set forth. The relators insist that the above provisions are binding, and are not subject to modification or revocation by the state authorities in the absence of default upon their part. The commissioner of public lands and buildings on July 1, 1890, notified the relators that the board of public lands and funds of the state, unless payments were made within six months from that date, would declare forfeited the said lease as to the E. 1/2 of section 36, township 4, range 25. The relators, thereupon, as to said E. 1/2 of section 36, township 4, range 25, made a tender as follows: “I, A. J. McPeak, treasurer of Furnas county,...