State ex rel. Marsh v. State Board of Land Commissioners

• Decision Date: 08 June 1898
• Citation: 7 Wyo. 478,53 P. 292
• Parties: STATE EX REL. MARSH v. STATE BOARD OF LAND COMMISSIONERS
• Court: Wyoming Supreme Court

53 P. 292

7 Wyo. 478

STATE EX REL. MARSH v. STATE BOARD OF LAND COMMISSIONERS

Supreme Court of Wyoming

June 8, 1898

Original proceeding in mandamus by which France Marsh, the relator, sought the order of the court requiring the State Board of Land Commissioners to enter into a lease with relator for certain school lands, and to cancel a lease issued to another person for said lands. The facts are stated in the opinion.

W. R Stoll, for the relator.

J. A Van Orsdel, Attorney-General, for the respondent.

State boards can be directed to act, but not how to act in a manner as to which they have the right to exercise their judgment and where they are vested with power to determine a question of fact, the duty is judicial, and however erroneous their decision may be, they can not be compelled by mandamus to alter their determination. (Hoole v. Kincaid, 16 Nev. 217; State v. Scott, 17 Nev. 686; Shober v. Cochrane, 53 Md. 544; State v. Gregory, 83 Mo. 123.) To justify the issuance of the writ of mandamus to enforce the performance of an act by a public officer, two things must concur; the act must be one the performance of which the law specially enjoins as a duty resulting from the office, and an actual omission on the part of the respondent to perform it. It is incumbent on the relator to show not only that the respondent has failed to perform the duty required, but that the performance thereof is actually due from him at the time of the application. (State v. Gracey, 11 Nev. 233; State v. Carney, 3 Kan. 88; State v. Dubuclet, 24 La. Ann., 16; State v. Burback, 22 La. Ann., 298; Commissioners v. Co. Commis'r, 20 Md. 449.) Where the duties imposed upon State boards are deliberative and discretionary, mandamus will not lie. (People v. Dental Examiners, 110 Ill. 180; State v. Gregory, 83 Mo. 123; Shober v. Cochrane, 53 Md. 544; People v. State Prison, 4 Mich. 187; People v. Canal Board, 113 Barb. (N. Y.), 432; State v. Verner, 30 S. C., 713.) If an inferior tribunal has a discretion and proceeds to exercise it, then its discretion should not be controlled by mandamus. (Union Colony v. Elliott, 5 Colo. 371; Freeman v. New Haven, 34 Conn. 406; Ex parte Black, 1 O. St., 30; Ex parte Davenport, 6 Peters, 661; Poltney v. La Fayette, 12 id., 472; Postmaster-General v. Trigg, 11 id., 173; Ex parte Railway Co., 101 U.S. 711; Ex parte Burtis, 103 U.S. 238.)

POTTER, CHIEF JUSTICE. CORN, J., and KNIGHT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

This cause was heard upon a demurrer to the petition for a writ of mandamus. The relator, France Marsh, filed his petition praying that a writ of mandamus issue commanding the State Board of Land Commissioners to execute and deliver to the relator a lease for Section 16, in Township 19, North of Range 65, West of the Sixth Principal Meridian, situated in the county of Laramie, for the period of five years, and to cancel the lease executed by the respondent to one George S. Raynes for said land.

When the attention of the court was called to the petition by counsel for relator, a time was fixed by request of such counsel for a hearing upon the application, without the issuance of an alternative writ, and notice was, by order of the court, directed to be given to the respondent. At the time appointed for the hearing the attorney-general, representing respondent, interposed a demurrer to the petition, which challenged the right of the relator to the writ upon the facts alleged in the petition. The point urged in opposition to the application is that the board, in respect to the matters in controversy, was vested with a judicial discretion, and with power to determine the facts, and that such discretion will not be interfered with by mandamus.

Stated as briefly as seems desirable, the petition alleges in substance the following, which, for the purposes of the demurrer, must, so far as the facts are concerned, be taken as true.

That relator is, and was at the time of his application to lease, the owner and occupant of a homestead in the county of Laramie immediately adjoining the land in question, having resided upon such homestead for the past six years; that it is his intention to inclose said Section 16 with a fence, and to use and occupy it for agricultural and grazing purposes in connection with his homestead, and in the event of a sale of said section to purchase the same. That the governor, secretary of state, and superintendent of public instruction constitute and compose the State Board of Land Commissioners, the officer last named being the register of the board, whose duty it is, among other things, to make out and countersign all leases issued by the board of State lands, and to keep a suitable record of the same. Certain provisions of the constitution and laws relating to the leasing of State lands are then set out by general averment, and that on the 10th day of July, 1890, the Congress of the United States duly granted to the State sections numbered 16 and 36 in every township, which are commonly called school lands, which grant was made with the proviso that such lands might be leased for periods of not more than five years, in quantities not exceeding one section to any one person or company.

That on the 12th day of June, 1897, the relator applied, in accordance with the rules, regulations, and forms adopted by the board, for a lease for five years for said Section 16, the application being accompanied with an affidavit as to the value of the land as required by the rules of the board; and that on the 30th day of July the board officially notified the relator that his application had been allowed at an annual rental of sixteen dollars, and directed him to execute the required bond, and have the same duly approved, and return it to the board with an amount sufficient to cover the first year's rental, and the lease would be issued and forwarded to him. That, within the time prescribed by the regulations of the board, viz., three months, the relator did tender the bond duly executed and approved, together with the first year's rental, and demanded a lease, but the same was refused. The manner in which the land had been previously leased is alleged to have been as follows: In December, 1891, it was leased for five years from January 10, 1891, to one Dennis H. Harrington; on January 17, 1896, a lease was executed to one George S. Raynes. It is alleged that Harrington was an employee of the Warren Live Stock Company, a corporation, and was not a bona fide applicant, but that he procured his lease through fraud, deceit, and misrepresentations in this, that he was not the owner of any improvements on the land, and did not contemplate using or occupying the same for any purpose of his own; and it is averred that during the continuance of his lease he did not, in fact, occupy it, nor personally use it; that he was a man without property, and made his application in the interest of the company by whom he was employed; and that said company had already leased and continued to lease a full section of school lands. The lease executed to Raynes, it is alleged, is null and void, for the following reasons: 1. Because it was executed previous to the filing of any application by him, the same not being filed until January 23, 1896. 2. Because the annual rental had not been paid by him until after relator had filed a protest against such lease. 3. Because no bond was filed by said lessee previous to said protest. 4. Because his application was made and procured by fraud, deceit, and misrepresentation on his part, in this, that he was not the owner of the alleged improvements on the section, and did not lease it for any purpose of his own, but for the benefit of the Warren Live Stock Company, the said applicant being an employee of that concern.

It further appears by the petition that on September 22, 1897, the relator was informed in a communication from the board that it had received information to the effect that his application had misstated the improvements upon the land, and that until he should file a bill of sale for the improvements the lease to him could not be executed, and on the 25th day of September, 1897, the board, by letter of the register, informed the relator that he would be allowed until October 5, 1897, to comply with the law as to procuring title to the improvements, and that the action of the board allowing his application would be revoked until he could show such title. On the 3d day of November, 1897, the following order was made by the board, and entered upon its records:

"In the case of the application of France Marsh to lease Section 16, Township 19 N., Range 65 W., the following resolution was offered: 'Whereas, The State board, acting under misapprehension as to the improvements located on Section 16 Twp. 19 N., Range 65 W., did on the 24th day of July, 1897, grant to one France Marsh a lease of said section; and Whereas, It now appearing that there are located on said section certain improvements not the property of said France Marsh: Now, therefore, under the authority granted the board by Section 26, Chapter 79, Session Laws of 1890, 1891, be it resolved that the action granting a lease to France Marsh is hereby revoked and rescinded.'" "Resolution Adopted." Previous thereto a hearing had been had upon a protest against the threatened action of the board refusing to execute his lease, which protest is set out in the petition, and covered substantially all the facts now alleged as ground for mandamus. In that protest and in the petition herein, the claim is made that the improvements are not of a permanent character, but consist of a small cabin not built upon any foundation, but capable of easy removal by wagon, and of some posts set in the ground which...