State v. Stewart

• Decision Date: 29 December 1913
• Citation: 137 P. 854,48 Mont. 347
• Parties: STATE EX REL. GRAVELY v. STEWART ET AL.
• Court: Montana Supreme Court

137 P. 854

48 Mont. 347

STATE EX REL. GRAVELY v. STEWART ET AL.

Supreme Court of Montana

December 29, 1913

Petition by the State, on the relation of C. A. Gravely, for writ of mandate against S. V. Stewart and others. Dismissed.

S. P Wilson, of Deer Lodge, for relator.

D. M Kelly, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen., for respondents.

SANNER J.

On or about July 1, 1913, the state board of land commissioners made an order directing the sale of certain school lands, to be held at Deer Lodge, Powell county, on August 15, 1913. The sale was duly advertised, and included within the lands directed to be sold were three tracts of 160 acres each, in section 10, Tp. 10 N., R. 8 W. At the time and place set, the register of state lands appeared, and at public auction offered these tracts for sale in separate parcels. For them the relator herein made the highest and best bids, offering $10 per acre for one of said tracts, and $10.25 per acre for each of the others; and the said tracts were struck off to him by the register, acting as auctioneer. The relator paid to the register 15 per cent. of the purchase price, together with the fees for issuing the certificate of sale, which moneys were received by the register, who in turn delivered a receipt to the relator. Subsequently the relator made demand that a certificate of purchase be issued and delivered to him, but this was refused; thereupon he tendered and offered to the state board of land commissioners the full purchase price as bid by him, with interest, and offered to pay the appraised value of all surface improvements owned by former lessees, and at the same time demanded the issuance and delivery to him of deeds or patents to said tracts. But the state board, refusing to confirm the sale, canceled and disapproved it, rejected the relator's tender, and denied his demand. It is alleged in the petition that the sale was fair, the sums bid were equal to the value of the land, and that the actions of the board and of the respondents, as members thereof, were arbitrary, malicious, capricious, and unjust. In their reply the respondents state their position as follows: "That subsequent to the time when said land was offered for sale, and the said bid so made by said plaintiff, the said register made due report thereof to the state board of land commissioners, and that at a hearing subsequently had thereon, at which hearing said plaintiff was represented, the said state board of land commissioners was informed and believed, and still believes, that the price so bid for said land by said plaintiff was inadequate, and was less than the real value of said land; that the same at a subsequent sale could be sold at a much greater price; that in fact at said hearing said board received offers in writing for said land at a price of $3 per acre in excess of the amount so bid at said sale, and, deeming it to the best interests of the state of Montana that said sale be not confirmed and in and by virtue of the authority so vested in said board by the provisions of section 40, chapter 147 of the Session Laws of 1909, refused to confirm or approve the sale of said lands and refused and still refuses, to issue any deed of conveyance to said plaintiff for said land." Upon the hearing it was established by evidence that the action of the board was prompted by the views set forth in the reply. No reason, however, was assigned for the entertainment of these views, except that the board had received a letter from one McGilvray offering $3 per acre, or $1,440 more for the land, and believed that under the special circumstances it might, on a resale, secure as much as $30 per acre.

The question, then, is whether, under the circumstances stated the peremptory writ of this court should issue as prayed by the relator, directing that the board confirm the sale to him and cause to be issued a certificate of purchase accordingly, directing that the board accept his tender of the balance of the purchase price and cause to be issued and delivered to him a deed or patent to the lands, and directing the Governor to sign, the register to countersign, and the Secretary to seal, such deed or patent. To this but one answer can be given--an unhesitating negative. The grant of lands for school purposes by the federal government to this state constitutes a trust (State ex rel. Bickford v. Cook, 17 Mont. 529, 43 P. 928; State ex rel. Dildine v. Collins, 21 Mont. 448, 53 P. 1114; State ex rel. Koch v. Barret, 26 Mont. 62, 66 P. 504); and the state board of land commissioners, as the instrumentality created to administer that trust, is bound, upon principles that are elementary, to so administer it as to secure the largest measure of legitimate advantage to the beneficiary of it. To that end, and of...