State v. Ross

• Decision Date: 30 October 1906
• Citation: 44 Wash. 246,87 P. 262
• Court: Washington Supreme Court
• Parties: STATE ex rel. SHORES et ux. v. ROSS, Public Lands Com'r.

87 P. 262

44 Wash. 246

STATE ex rel. SHORES et ux. v. ROSS, Public Lands Com'r.

Supreme Court of Washington

October 30, 1906

Application by the state, on relation of E. A. Shores and wife, against E. W. Ross, as Commissioner of Public Lands of the state. Case remanded to the superior court of Pierce county for trial of an issue of fact.

Rudkin J., dissenting.

Am. H Pratt, for plaintiffs.

A. J Falknor, for respondent.

ROOT J.

This is an application for an original mandamus on the part of the relators to require respondent to deliver to relators a deed to certain tide lands near the city of Tacoma. The relator, E. A. Shores, made an application for the purchase of these tide lands on the 9th day of January, 1906, making the necessary legal deposit. Said application stated that said lands were not occupied, and that there were no improvements thereon. Thereafter, a certificate of appraisal of the land was made out and filed, and the land ordered sold. The usual notice of sale was given, as required by law, and the land sold to the relator, E. A. Shores, at public auction, on the 30th day of June, 1906, for a little more than the appraised valuation. The auditor of Pierce county made his report on the sale, and said relator paid the purchase price, and the Board of State Land Commissioners confirmed the sale. On the 29th day of August, 1906, a deed was regularly made out and signed by the Governor, and attested by the Secretary of State, with the seal of the state attached thereto. Before said deed was delivered to relators, affidavits were filed in the office of the Commissioner of Public Lands, alleging that there were valuable improvements upon said tide lands, and it was charged that said relator had entered into a collusion with other parties to stifle bidding at the time said lands were sold at public auction. Thereupon the said Land Commissioner, this respondent, referred said affidavit and the application, and all the records and matters thereto appertaining, to the Board of State Land Commissioners, which board on the 17th day of September, 1906, entered an order disapproving of said sale, and directing the Commissioner of Public Lands to cause a reinspection of said lands to be made.

In answer to the application for the writ, respondent sets up all of these transactions, and maintains that it is his duty, in order to protect the state from fraud and imposition, to decline to deliver said deed, and that, under the circumstances, he or the state board should withhold said deed until an investigation can be made as to the charges of fraud and misrepresentation preferred against the relator who made the application. Relators insist that neither the respondent, nor the Board of State Land Commissioners, has any jurisdiction to make such an investigation, that their power over the subject-matter ceased when the deed was signed and attested by the Governor and Secretary of State. They insist that the power of these officials is thus limited by section 2198 of 1 Ballinger's Ann. Codes & St., which reads as follows: 'The Board of Appraisers or Commissioners, or Commissioner of Public Lands, shall have the right to review and to reconsider any of its official acts relating to lands of the state until such time as a lease or contract for purchase of any of said lands shall have been made, executed and signed by the Commissioner of Public Lands or by the board itself.'

Respondent contends that the expression 'made, executed, and signed,' is equivalent to the words 'made, executed and delivered,' which are commonly found in deeds of conveyance, and urges that the deed is not 'made and executed' until it is drafted, signed, acknowledged, and delivered,' and that it was not the intention of the Legislature...