State v. Hewitt Land Co.

• Citation: 134 P. 474,74 Wash. 573
• Parties: STATE v. HEWITT LAND CO. et al.
• Decision Date: 06 August 1913
• Court: United States State Supreme Court of Washington

134 P. 474

74 Wash. 573

STATE v. HEWITT LAND CO. et al.

Supreme Court of Washington, En Banc.

August 6, 1913

Appeal from Superior Court, Pierce County; E. M. Card, Judge.

Action by the State of Washington against the Hewitt Land Company and others. Judgment for the plaintiff, and defendants appeal. Reversed, with instructions to dismiss.

E. R York, T. W. Hammond, Gordon & Easterday, Geo. T. Reid, J. W Quick, and L. B. da Ponte, all of Tacoma, for appellants.

W. V Tanner and R. E. Campbell, both of Olympia (H. G. Cosgrove, of Seattle, of counsel) for the State.

GOSE J.

The italicized words in this opinion are our own, unless otherwise indicated.

On July 16, 1866, Thomas Chambers and wife deeded to the 'regents of the University of the Territory of Washington' a part of their donation land claim, 315 acres situate in Pierce county, Wash. The deed was in form a common-law deed of quitclaim, with habendum and tenendum to the regents, 'and to their successors in office and assigns.' By an act of the Territorial Legislature (Laws 1862-63, p. 477) a board of regents therein named was created 'a body corporate and politic, with perpetual succession, under the name of the University of the Territory of Washington with power to sue and to be sued.' It was also provided that the government of the university should be vested in the board of regents, and that the regents 'may hold all kinds of estate, real, personal, or mixed, which they may acquire by purchase, donation, devise, or otherwise, necessary to accomplish the object of the corporation.' On March 4, 1903, the state land commission sold the land thus acquired upon the application of one Henry Bucey, and this action has been begun by the state to eject his successors, and to quiet title.

The Constitution (article 16, § 1) provides that: 'All the public lands granted to the state are held in trust for all the people, and none of such lands, nor any estate or interest therein, shall ever be disposed of unless the full market value of the estate or interest disposed of, to be ascertained in such manner as may be provided by law, be paid * * *; nor shall any lands which the state holds by grant from the United States * * * be disposed of except in the manner * * * prescribed in the grant * * *.' Section 2 of the same article refers to lands granted for educational purposes, and provides that all sales of school and university land theretofore made might be confirmed by the Legislature. The first state Legislature passed an act creating a state land commission and defined its duties. It was provided that 'said commission shall have general supervision and control of all public lands now owned by, or the title to which may hereafter vest in the state, to be registered, leased and sold.' The commissioner of public lands was directed to abstract and survey all of the lands ' now owned by the state.' Laws 1890, p. 251. In 1893 the Legislature passed 'an act to provide for the state board of land commissioners, and for the management and disposition of the public lands of the state,' etc. Laws 1893, p. 336. It is provided: 'That the said board of state land commissioners shall have full supervision and control, under the law, of all public lands granted to the state of Washington for common school, university and all other educational purposes; also including lands granted for charitable, reformatory and penal institutions, public buildings; and also all tide lands and harbor line areas, and all other public lands that are now or shall hereafter be owned by the state of Washington, so far as the same shall not have been disposed of, and not appropriated by law to any specific public use.' State lands were classified in section 7: '(2) University lands and lieu and indemnity lands therefor; * * * (5) all other lands belonging to the state.' At the same session (Laws 1893, p. 293) 'An act providing for the location, construction and maintenance of the University of Washington,' was passed. The object of this act was to relocate the university. By it the Governor of the state was authorized and directed to buy certain land, the title ' to vest in the state of Washington for the use of the University of Washington.' The duties of the regents of the university were defined, and they were empowered, 'after the purchase of other lands by the Governor,' to sell 10 acres in the city of Seattle, known as the university grounds; the lands granted by the enabling act were assigned for the support of the university of Washington; a provision was made for the selection and sale of the lands 'in the manner prescribed by law for selecting and selling other lands granted by the state.' The board of regents were further directed to demand and receive from the board of University and land building commissioners all books, papers, records, and other property in their possession belonging to the University of Washington. There is nothing to indicate an intention on the part of the Legislature to leave any real property to the disposition and control of the regents, other than the 10 acres then appropriated to a specific use.

In 1895, Laws, p. 527, the law relating to the public lands of the state was rewritten. The classification, so far as the university lands are concerned, is the same as in the former act. Granted lands are defined as follows: '(a) Common school lands and lieu and indemnity lands therefor. (b) University lands and lieu and indemnity lands therefor. (c) Other educational land grants. (d) Lands granted to the state of Washington for other than educational purposes, and lieu and indemnity lands therefor. (e) All other lands, including lands acquired or to be hereafter acquired by grant, deed of sale, or gift, or operation of law.' The board of state land commissioners is given 'full supervision and control under the law of all public lands granted to the state of Washington, as defined in section 1, this act,' and authority to manage, lease, and dispose of the same. The Legislature of 1897 again rewrote the public land law (Laws 1897, p. 229). In so far as questions arising in this case are concerned the act of 1897 does not differ from that of 1895.

Laws affecting the university and its government have been passed at several legislative sessions. The law as it now is may be found in Rem. & Bal. Code, 4316-4330. Section 4321 defines the powers and duties of the regents. There is nothing said in the seven subsections contained in section 4321 to indicate that the Legislature had in mind the fact that the board of regents was now holding or had power to dispose of any land. This section was passed in 1909.

The concrete question presented by the record is whether, considering the course and tenor of our legislation, the land acquired by the board of regents in 1866 has become public land, and as such subject to the control and disposition of the state land officials, or whether the board of regents still have title in virtue of their corporate being.

It will be noticed that the act of 1893 makes the board of state land commissioners the successor of the state land commissioner, state school land commissioner, and the state board of equalization and appeal. The law provides that: 'From the date of its [the board of state land commissioners] assumption of official duty it shall possess and exercise over all such lands and areas all the authority, power and functions, and shall perform all the duties which the state land commissioner and state school land commission, * * * etc., had and exercised.' The Attorney General argues that the authority of the present board of state land commissioners and of the state land commissioner can be and is no greater than was conferred upon the original officers and boards by the act of 1890. Taking all the laws to which we have referred, and considering them as enactments directed toward the accomplishment of a certain thing--that is, a unified system of control of all public lands--we think the argument of counsel is not well founded. If the act of 1893 stood alone, there might be some merit in his contention.

The Attorney General insists that the act of 1862-63 is a special act, and that a special act will not be repealed by a general law, 'unless there is an irreconcilable repugnancy between them, or unless the new law is effectively intended to supersede all prior acts on the matter in hand and to comprise in itself a sole and complete system of legislation on that subject.' Callvert v Winsor, 26 Wash. 368, 67 P. 91. He also cites State v. Whitney, 66 Wash. 473, 120 P. 116; Tacoma Land Co. v. Pierce Co., 1 Wash. 482, 25 P. 904; State ex rel. Arnold v. Mitchell, 55 Wash. 513, 104 P. 791; 26 Am. & Eng. Ency. Law (2d Ed.) 739-741; 36 Cyc. 1151; Lewis' Sutherland Stat. Constr. §§ 268-274; Endlich, Int. Statutes, 152; Blank, Interpretation of Law, 116. There can be no doubt as to the correctness of this rule, but it seems to us that there is a repugnancy between the act of 1862-63 and the later acts. It was evidently the purpose of the Legislature to give the commissioner of public lands an office created by the Constitution (article 3, § 1), and the board of state land commissioners general supervision over all public lands. In evident recognition of the fact that such duties must of necessity be varied and manifold, as well as changing from time to time, the duties of the commissioner of public lands were not defined in the Constitution. It is there provided that: 'The commissioner of public lands shall perform such duties and receive such compensation as the Legislature may direct.' Article 3, § 23. The fact that the act of 1893 (Laws, p. 293) put the duty upon the Governor of receiving a deed to the new university site would further...