Tubbs v. Linn, 9463

• Decision Date: 19 May 1955
• Docket Number: No. 9463,9463
• Citation: 75 S.D. 566,70 N.W.2d 372
• Parties: C. A. TUBBS and W. H. Martinson, Plaintiffs and Appellants, v. Bernard LINN, as Commissioner of School and Public Lands of South Dakota, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 372

70 N.W.2d 372

75 S.D. 566

C. A. TUBBS and W. H. Martinson, Plaintiffs and Appellants, v. Bernard LINN, as Commissioner of School and Public Lands of

South Dakota, Defendant and Respondent.

No. 9463.

Supreme Court of South Dakota.

May 19, 1955.

Rehearing Denied June 22, 1955.

Charles R. Hayes, Deadwood, for plaintiffs and appellants.

Ralph A. Dunham, Atty. Gen., and Phil W. Saunders, Asst. Atty. Gen., for defendant and respondent.

SMITH, Judge.

The plaintiff applied to the trial court for a writ of mandamus commanding the Commissioner of School and Public Lands to issue permits to them to prospect for minerals on described school lands of the state. On the ground that the facts stated in the application were insufficient to justify the relief for which the plaintiffs prayed, the trial court granted the motion of the commissioner for a judgment of dismissal. The appeal of the plaintiffs is from the judgment of dismissal.

In broad outline, the application reveals these facts. In May and April 1952 the plaintiffs applied under SDC 15.05 to the commissioner for permits to prospect for minerals on nine described sections of school land in Fall River County. On or about August 1, 1952, the commissioner informed one of the plaintiffs that the requested permits would be granted. Thereafter the commissioner advised plaintiffs he thought permits to prospect for minerals should be upon bids as in the case of oil and gas lands and he expected to seek such a change in the controlling statutes. The commissioner did not issue the permits. In August 1953 the commissioner informed plaintiffs they had acquired no rights by virtue of their applications and he would issue prospecting permits under Chapter 43, Session Laws of 1953. The applications further state 'That deponent is advised and believes and therefore states the facts to be that the delay and subsequent refusal of said commissioner to issue prospecting permits to deponent and said C. A. Tubbs were arbitrary, were an abuse of discretion, if any discretion he had in the premises, were in disregard of his word that permits would be issued to deponent and said C. A. Tubbs upon their applications therefor and were in violation of his duty and of the rights of deponent and said C. A. Tubbs under the law applicable and in force when they sought said permits, and for many months thereafter.'

The controlling provisions of statute in effect when the applications for prospecting permits were made read, with emphasis supplied, in part as follows:

'All coal, ores, asphaltum, metals, minerals, and other metallic or mineral products in or upon lands belonging to the state or in lands which subsequent to July 1, 1919, were or may hereafter be sold, granted, conveyed, or leased for agricultural, meadow, pasturage, or other purposes, or in any way transferred by the state, shall be subject to license or contract by the state, except as hereinafter provided. * * *

'All coal, ores, asphaltum, metals, minerals, and other metallic and mineral products in such lands may be removed by the state or may be disposed of by the Commissioner under such rules and regulations as the Board of School and Public Lands may establish to properly carry into effect the provisions of this section and succeeding sections, and not inconsistent herewith.

'The provisions of this section shall not apply to oil and gas, and shall not apply to lands sold prior to the reservation of such coal, ores, * * *.' SDC 15.0501.

'The Commissioner may execute and deliver a permit granting the right to prospect for coal, ores, asphaltum metals, and minerals on any state land described therein for the period of one year from the date thereof, and the consideration for such permit shall be determined by the Board of School and Public Lands, but no coal, ores, asphaltum, metals and minerals shall be removed from the land described in such permit until a license has been secured.

'At any time prior to the expiration of any such prospecting permit the original holder, or any assignee thereof, shall have the right to receive from the Commissioner a license as hereinafter provided for, which shall bind the state and the person to whom it shall issue to the mutual observance of the obligations and conditions thereof. No license or permit shall be assignable or transferable except on the written consent of the Commissioner.' SDC 15.0503.

Other provisions for the protection of agricultural lessees of the same property, and dealing with the terms of a license to remove minerals are contained in SDC 15.0504, 15.0505 and 15.0506.

Ch. 43, Laws 1953 amended SDC 15.0503, supra. The changes need not be described. It is sufficient for our purposes to state that the applications for prospecting permits filed by plaintiffs in 1952 do not comply with the requirements of that section as amended.

The fundamental contention of the plaintiffs, advanced under alternative theories, is that through their described applications and the pleaded circumstances, such an interest had vested in them or such an obligation to them had arisen, as the legislature, for constitutional reasons, could not destroy or impair by subsequent legislation such as Ch. 43, Laws 1953, and hence that the commissioner was under a duty to issue the permits sought in their applications. We reproduce lucid discussions of the principles under which the foregoing fundamental contention is made.

In Lytle v. State of Arkansas, 9 How. 314, 50 U.S. 314, 13 L.Ed. 153, it was written:

'It is a well-established principle, that where an individual in the prosecution of a right does every thing which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the law will protect him. In this case, the preemptive right of Cloyes having been proved, and an offer to pay the money for the land claimed by him, under the act of 1830, nothing more could be done by him, and nothing more could be required of him under that act. And subsequently, when he paid the money to the receiver, under subsequent acts, the surveys being returned, he could do nothing more than offer to enter the fractions, which the register would not permit him to do. This claim of preemption stands before us in a light not less favorable than it would have stood if Cloyes or his representatives had been permitted by the land officers to do what, in this respect, was offered to be done.'

In The Yosemite Valley Case (Hutchings v. Low), 15 Wall. 77, 82 U.S. 77, 21 L.Ed. 82, in writing of the principle exemplified in the foregoing Lytle case, Mr. Justice Field observed: 'There is no question about the correctness of the doctrine here announced; it is only a familiar principle which is stated, that where one offers to do everything upon which the acquisition of a right depends, and is prevented by fault of the other side, his right shall not be lost by his failure.' But he further wrote, 'The principle only applies where, by law or contract, the acquisition of a right is made dependent upon the performance of certain specified acts.'

In State v. Robison, 119 Tex. 302, 30 S.W.2d 292, 297, this appears: "When there is an offer made by an act of the legislature which is accepted by an individual, there is a contract which is not within the power of the state to impair. After an acceptance, a repeal of the law cannot affect the contract; but, until an acceptance, a repeal of the act withdraws the offer, and no contract can be made."

It will be observed that these authorities deal with the failure or refusal of a public officer to perform a ministerial duty. The acquisition of a right by the petitioner did not depend upon the exercise of a legal discretion by that officer.

The first alternate theory advanced by plaintiffs in urging that the foregoing principle is invoked by the admitted facts is that the statute does not clothe the commissioner with a discretion, and therefore upon receiving plaintiffs' applications and fees the duty to issue permits arose, and the rights of the plaintiffs vested.

This assertion of plaintiffs that the commissioner was without discretion in the premises rests upon a reading of the word 'may' we have emphasized in SDC 15.0503, supra, to mean 'shall'. In presenting this view counsel recognizes that the word 'may' when used in a statute is always construed in a permissive sense unless the context and subject matter indicates a different legislative intention. Rowenhorst v. Johnson, 48 S.D....