State ex rel. Pelton v. Ross

Crow, J. Relator, in his brief, says: “This is an application for a mandatory injunction, by which it is sought to have the respondent restrained from executing a certain contract to certain described lands, and requiring him to submit the lease of said lands to public auction, and dispose of the lease to the highest bidder therefor.” Erom this statement it will be observed that, by this application, the primary relief sought, is to prevent the state land commissioner from performing certain threatened acts, and thereafter to command him to do or perform certain other acts alleged to appertain to his office or duty. On June 1, 1901, the State of "Washington leased one hundred and twenty acres of school land in Kitsap county to one Robert J. Eisher, for five years, at an annual rental of $12. By subsequent assignments said lease was transferred to J. M. Coleman, intervener herein. On January 13, 1905, said J. M. Coleman, as such assignee, applied in writing for a re-lease of said land for five years from June 1, 1905, at $12 per annum rental, stating that he desired said lands for camping purposes. Although said application was made in the name of J. M. Coleman, it was signed by one L. J. Coleman, his son. L. J. Coleman claims to be the attorney in fact of said J. M. Coleman, and says that all acts performed by him, whether in his own name or in that of J. M. Coleman, in reference to said land, were performed as such attorney in fact. After said application for re-lease by said J. M. Coleman, the land commissioner’s office caused said land to be appraised by one Charles A. Billings, who reported its annual rental value to be $30. On May 25, 1905, after the return of said appraisement, said L. J. Coleman made a second ap — 404 — plication for a re-lease for five years, claiming improvements to the value of $120. With reference to said second application, respondent shows that, at the time of the filing of the same, an offer of $30 annual rent was made by said L. J. Coleman to meet tbe appraised valuation, and tbe first year’s rental was deposited. On May 31, 1905, tbe relator made written application to tbe state land commissioner to lease said land for five years, offering to pay a rental of one dollar per acre, or $120 per annum. At tbe time of making tbis application, be also deposited with tbe state land commissioner $130, of wbicb $120 was for tbe first year’s rental and $10 to cover tbe expense of advertising, etc. At the time of making said written application, relator also filed a written protest or statement, alleging tbat tbe improvements mentioned in tbe L. J. Coleman application bad not been made in good faith; tbat their erection bad been commenced by bim on Sunday, May 28, 1905, just prior to tbe expiration of tbe existing lease, for tbe sole purpose of enabling bim, as prior lessee, to claim ownership of improvements upon said land and avail himself of tbe benefits of 3 Bal. Code, § 2160, Laws 1899, p. rr. Respondent by letter promptly notified said L. J. Coleman of said application and protest, and in so doing, said: “It will be necessary for you to meet this bid, under tbe interpretation of tbe law and tbe practice of tbis office. Upon receipt of an additional $90, wbicb together with $30 now on deposit in this office', covers tbe amount of tbe bid of Mr. Pelton, also tbe reply to tbe protest, tbe matter will be given consideration, and you will be notified of tbe result.” Respondent also took tbe precaution of seeking and acting upon tbe advice of tbe attorney general. Said L. J. Coleman immediately remitted to tbe state land commissioner tbe additional $90, and also filed his affidavit relative to tbe improvements, controverting the statements of relator, without stating, however, when said improvements were made. — 405 — Thereupon, after examination' and consideration of the affidavits and applications, and having satisfied himself that said improvements were bona fide and such as entitled Mr. Coleman as a prior lessee to a preference right to re-lease, and deeming said annual rental of $120 sufficient and for the best interests of the state, respondent accepted said offer of $120, notified the attorney of said J. M. Coleman, and also the attorneys of said relator of his action, and caused to be recorded in volume 2 of the lease records of his office the following: “Kitsap County. Lots 1 and 2, Sec. 36, Tp. 21, 2 East, area 120 acres, name of lessee, J. M. Coleman, postoffice address Seattle, Washington, date June 1, 1905, amount p:er annum $120;” and indicated the lease as No. 1144, and caused original and duplicate leases to be prepared ready for signature. Thereafter, but prior to the signing or delivery of said lease, on June 1, 1905, respondent received from one W. P. Trimble, not a party to this proceeding, the following telegram:- “For five-year lease upon lots 1 and 2, Sec. 36, Tp. 24, north of range 2 east, I will give $1,200 per year rent, and am prepared to raise this if it is met.” On June 10, 1905, said W. P. Trimble presented a written application to lease said property for five years at $1,200 per annum, accompanying the same by a check for $1,200 for the first year’s rental. In response to said telegram and application, respondent by letter notified said Trimble of his previous action in the premises and, inter alia, said: “The state feels that, since it has gone so far as it has in re-leasing, it cannot honorably recede from its position. We therefore respectfully return your check and reject your application. The office, however, will defer action for a reasonable time so that you may take such action as you wish.” As the merits of this case will not be discussed, it is only justice for us to state that no suggestion of improper or fraudulent conduct on the part of the state land commissioner has been made by any of the parties; nor does anything appear which would sub — 406 — ject him to criticism, the entire record showing that he has constantly endeavored to act honestly and in good faith. The state land commissioner having given to said W. P. Trimble the notice above mentioned, and having temporarily preserved the status so that the parties might take any action they deemed proper, the relator, on June 23, 1905, filed this application and, on the hearing, said J. M. Coleman was, by consent, permitted to intervene. Eespondent and the intervener have each 'submitted a demurrer and answer to the affidavit of relator. The demurrers present several questions, of which we will consider two: (1) That this court has no original jurisdiction of this proceeding; (2) that the relator has no right or authority to institute this proceeding. (1) While the relator seeks to invoke the original jurisdiction of this court, and in so doing has ostensibly applied for a writ of mandate, we will first consider the objects sought to be obtained by said writ, in order that its true character may be determined. It is evident that the primary relief sought by relator would, if granted, in substance amount to an order either prohibiting or enjoining respondent from delivering the proposed re-lease to the intervener Coleman. In other words, it is sought by an original application here to secure some writ by which the re-leasing of said land to the intervener may be -prevented. Unless some steps are taken to prevent such re-leasing, it would be idle to entertain the idea that this court could be called upon to issue a writ of mandamus directing the state land commissioner to advertise a lease of said land for sale at public auction to the highest bidder. Before any such order could be made, the re-lease or pretended re-lease to Coleman should most certainly be disposed of or prevented. We therefore think, from the primary relief sought by relator herein, that the writ he asks is not one of mandamus, but is in the nature of a writ of prohibition directed to the state land commissioner, forbidding him to do an act which is not judicial in its character. While it is true that this court has original — 407 — jurisdiction to issue writs of prohibition in ceifain cases, it has been repeatedly held by us that the only function of such a writ is the restraint of unauthorized judicial and quasi-judicial power. State ex rel. White v. Board of State Land Com'rs, 23 Wash. 700, 63 Pac. 532; Winsor v. Bridges, 24 Wash. 540, 64 Pac. 780. The acts of respondent which relator seeks to prevent are not judicial or quasi-judicial, as in re-leasing to Coleman, he acts only in a ministerial or executive capacity. If the relator desires to prohibit or enjoin respondent from re-leasing to Coleman, and is entitled to do so, he should proceed in the superior court, as we are without original jurisdiction to grant such relief by a writ which in its effect would be a writ of prohibition, although relator undertakes to give it some other title. It is suggested by relator, however, that the original injunctive relief sought here is merely a necessary accompaniment of the main relief which can be granted by a writ of mandamus. We do not think this contention can be sustained. If we eliminate all idea of prohibitive or injunctive relief herein, it would be absurd for this court to issue a writ of mandamus against the state land commissioner, compelling him to lease lands which have already been released or the title to which would be, at least, clouded by an existing pretended re-lease. As above suggested, relator primarily seeks to prohibit or enjoin respondent from doing certain acts. This he cannot do by a writ of mandamus. “Mandamus will not lie to undo what has already been done. Mandamus is a writ to compel and not to restrain action.” 19 Am. & Eng. Ency. Law (2d ed.), 743. See, Legg v. Mayor etc. of Annapolis, 42 Md. 203; Dunklin County v. District County Court, 23 Mo. 449. In the case last mentioned, which is quite similar in principle to this, the supreme court of Missouri says: “The writ of mandamus is in form a command in the name of the state, directed to some tribunal, corporation, or public officer, requiring them to do some particular thing — 408 — therein specified, and which the court has previously determined that it is the duty of such tribunals or other person to perform. ... It does not lie ix> correct the errors of inferior tribunals by annulling what they have done erroneously, nor to guide their discretion, nor to restrain them from exercising power not delegated to them; but it is emphatically a writ requiring the tribunal or person to whom it is directed, to do some particular act appertaining to their public duty, and which the prosecutor has a legal right to have done.” “The writ of mandamus is the counterpart of the writ of prohibition, and is so designated in some states by statute. Mandamus is a legal remedy to compel action in accordance with legal duty, while prohibition is a legal remedy to restrain action in excess of legal authority.” 19 Am. & Eng. Ency. Law (2d ed.), 721, 722. See, also, 23 Am. & Eng. Ency. Law (2d ed.), 196; Bal. Code, § 5769; State ex rel. Rochford v. Superior Court, 4 Wash. 30, 29 Pac. 764. Belator claims the action of respondent in re-leasing to the intervener is an act in excess of legal authority, and he seeks to prohibit such action. If it be conceded that he also seeks a writ to compel action by respondent in accordance with an alleged legal duty, then in one and the same proceeding he is demanding from this court an original writ having two functions, one of which is the counterpart or converse of the other. We think this cannot be done. (2) It is contended by the respondent and the intervener, we think properly, that the relator has not a sufficient special interest in the land in controversy to authorize him to apply to this court for a writ of mandamus compelling' respondent to offer a lease of said land for sale to the highest bidder at public auction. It is true, he has filed an application which has been rejected, and that respondent has in effect refused to offer a lease of said land for sale at public auction; but the mere filing of a written application for a lease of public lands does not confer upon the applicant any interest in the — 409 — land other than that of the general public. Allen v. Forrest, 8 Wash. 700, 36 Pac. 971, 24 L. R. A. 606; Frisbie v. Whitney, 9 Wall. 187; Campbell v. Wade, 132 U. S. 34, 10 Sup. Ct. 9; State ex rel. Mariner v. Gray, 4 Wis. 380. Relator contends that, under the constitution and laws of this state as applied to the facts herein, the intervener Coleman has no' preference right to a re-lease. While we now express no opinion as to Coleman’s rights in that regard, still were we to concede the relator’s position to be correct, what would be the result ? The land would be then subject to original lease only. Pal. Code, §§ 2149-2156. These sections impose upon respondent no immediate official obligation or duty to offer such land for lease even after applications are made. He exercises his own judgment in the premises, acting as he deems advisable. Bal. Code, § 2150. When such lands have been actually offered, he may reject any or all bids. Bal. Code, § 2156. We fail to see, therefore, how the relator has secured any special right or interest in the land in question entitling him to a writ of mandamus, even though it be conceded that he is seeking relief by mandamus and not by prohibition. A writ of mandamus can be issued only on affidavit on the application of the party beneficially interested. Bal. Code, § 5756; Spelling, Injunctions etc. (2d ed.), §§ 1369, 1370. It is ordered that the relator’s application be dismissed. Mount, C. I., Root, Hadley, Rudkin, and Dunbar, JJ., concur. Fullerton, J., took no part.