Bushey v. Hardin

The opinion of the court was delivered by Graves, J.: No adequate reason has been presented ■ by the defendants for refusing to concur in the appointment of the appraisers designated by the superinten-. dent of public instruction. The lease expired January 3, 1905, nearly nine months before this application was made to have the land sold to an actual settler. The law which provides for the sale of leased land clearly, contemplates that such sales shall be made during the life of the lease, and “subject to existing leases.” Such is the language of the statute. Notice of the sale of leased land must be published at least one year prior to the sale. It was not intended that notice of such sales should be given immediately before the expiration of a lease, and thereby withdraw the land from occupancy and sale to actual settlers for a year. Such a proceeding tends to subvert the policy of the state, [289] which has always been to encourage the sale of its land to actual settlers. The plaintiff acquired possession of this land under a lease. He erected improvements thereon worth more than $1000. When the lease expired there was nothing to prevent a sale of the land to an actual settler. Public officers may not manipulate proceedings under, the laws committed to them for administration so as to frustrate the purposes for which they were enacted. The law providing for the sale of school-land to actual settlers and the procedure for the sale of land which has been leased must be construed together, so that they will harmonize with each other and so that neither will prevent the other from accomplishing the objects for which it was designed. The sale of leased land should always occur during the life of the lease. When any lease expires the land may then be sold to actual settlers. ' It is admitted that the appraisers appointed by the superintendent of public instruction are in all respects competent and unobjectionable. No question of official discretion, therefore, can arise. The whole case turns upon the proposition whether or not the land was then subject to sale to an actual settler. We think it was. The proceedings in the district court and the appeal from the board of county commissioners, which are here plead in bar of this action, are unavailing. They lack the essential elements of res judicata. The original petition for the sale of the land, the appointment of the appraisers, the persons appointed, the act of the county commissioners in refusing to consent to the appointment, the condition of the land, and all the material considerations involved in the decision of those cases are essentially different here. It was clearly the duty of the defendants, upon their own answer and showing, to give their consent to the appointment in question. A peremptory writ is allowed. All the Justices concurring.