Olds v. Commissioner of State Land Office

Montgomery, C. J. The relator asks a writ of mandamus to compel the commissioner of the State land office to permit the location of certain lands on the “St. Clair Flats,” so called, with certain scrip which he holds as assignee of the estate of William M. Ferry. Act No. 338, Laws 1865, provided for the laying out and establishing of a State road from Ferrysburg, in Ottawa county, to the mouth of Black creek, in Muskegon county. Under the provisions of the act, the improvement was to be paid for by an appropriation of swamp lands, the provision being that for that portion of the work in Ottawa county the selection should be made from swamp lands in Ottawa county. William M. Ferry became the contractor. Before the road was completed, all the swamp lands in Ottawa county had been disposed of. In 1887 the legislature, by joint resolution, provided that the executor of William M. Ferry, or his assigns, “be and they are hereby authorized to selfeet the said amount of 799.10 acres from any State swamp land in the Lower Peninsula not otherwise appropriated, and that, upon filing the lists of lands so selected with the commissioner of the State land office, he cause patents to be issued therefor.” Pub. Acts 1887, Joint Res. No. 18. The petition alleges that the lands in question are swamp lands, granted to the State of Michigan under the act of Congress of September 28, 1850, commonly known as the “Swamp-Land Act,” which the answer admits. It appears that the State has never received a patent for these lands from the federal government. In 1885 the State applied for a survey of the swamp and overflowed lands in the township where these lands are located, which was refused in 1886. In 1887 the State caused a — 445 — survey to be made, and requested the United States authorities to issue patents for the lands, but this request was refused. The Michigan Land & Lumber Company, Limited, has intervened in this proceeding, it having made application to locate the same lands under other scrip. The case is of great importance, it being stated that the lands involved are worth hundreds of thousands of dollars, and it being also stated that many of the lands are in occupation of settlers, who have made valuable improvements thereon, and that the application of relator is in their interest. It is apparent that, if either the relator or the intervener is entitled to have these lands patented, the State will part with a valuable property for but a fraction of its value. This consideration cannot control our decision in determining the rights of the parties, but will call for a careful consideration of the case. It is contended that the resolution is invalid for various reasons, and that, if valid, it is not open to a construction which confers a right upon the representatives of Mr. Ferry to select the lands in question. It is contended that the resolution attempted what only can be accomplished by a bill enacted into a law. Numerous cases are cited to sustain this contention. The case of Collier, etc., Lithographing Co. v. Henderson, 18 Colo. 259 (32 Pac. 417), involves a construction of the constitutional provision that “no law shall be passed except by bill.” Mullan v. State, 114 Cal. 578 (46 Pac. 670 34 L. R. A. 262), construed a constitutional provision couched in the same language. This is also true of the case of May v. Rice, 91 Ind. 546. The case of Burritt v. Commissioners of State Contracts, 120 Ill. 322 (11 N. E. 180), holds that, under a constitutional provision that “no money shall be drawn from the treasury except in pursuance of an appropriation made by law, * * * and no money shall be diverted from any appropriation made for any purpose, or taken from any fund whatever, either by joint or separate resolution,” it was incompetent for the legislature, by joint resolution, to provide for the expendi — 446 — ture of $10,000 for “Township Organization Laws,” to be paid out of an appropriation made by law for printing and binding. It will be seen that each of the above cases rests upon restrictive provisions not contained in our Constitution. The case of State v. Kinney, 56 Ohio St. 721 (47 N. E. 569), is distinguishable from the case under discussion. The constitution of the State of Ohio does- not recognize action by joint resolution, as ours does, as will be seen later on. State v. Rogers, 10 Nev. 250 (21 Am. Rep. 738), is not in point, as the question there involved is whether the omission of the enacting-clause in a statute is fatal. The decision is in line with People v. Dettenthaler, 118 Mich. 595 (77 N. W. 450). The case of Boyers v. Crane, 1 W. Va. 176, appears to be a case of first impression, and tends to sustain the contention of respondent’s counsel, but falls short in this: That the constitution of West Virginia contains no such provision as that found in section 19, art. 4, of our Constitution. We do not read the case of State v. Dahl, 6 N. Dak. 81 (68 N. W. 418), as supporting respondent’s contention; while Barry v. Viall, 12 R. I. 18, is, so far as it is authority, support for relator’s claim. A joint resolution is described to be “a form of legislation which is in frequent use in this country, chiefly for administrative purposes of a local or temporary character.” Cush. Law & Prac. Leg. Assem. § 2403. The relator’s counsel have referred us to a large number of instances in which the legislature, prior to 1850, proceeded by joint resolution, in form corresponding to the one here involved, where the measure adopted was limited to a single occasion, and not designed to be a permanent law. Under joint resolutions, the State released its interest in certain real estate (No. 22, Laws 1842); authorized the payment of certain claims from the general fund (No. 23, Laws 1843); authorized the issue of certificates of purchase without full payment for lands (No. 21, Laws 1844); authorized the conveyance of lands (No. 17, Laws 1845); authorized the selection by a canal contractor of certain internal improvement lands, instead of those — 447 — which could he located under warrants which he had received for his work. For this last provision, see No. 36, Laws 1849. In the light of this legislative practice, the Constitution of 1850 should be construed. Section 19, art. 4, provides: “Every bill and joint resolution shall be read three times in each house before the final passage thereof. No bill or joint resolution shall become a law without the concurrence of a majority of all the members elected to each house.” , This provision is a clear recognition of the custom prevailing under the Constitution of 1835. The same practice of adopting resolutions which are given the force of law has prevailed under the present Constitution, where the effect of the resolution is to authorize a single act. The instances are numerous. It is contended by respondent that the resolution is an attempt to audit and allow a private claim, within the meaning of section 31, art. 4, of the Constitution, and is invalid for this reason. We do not think the resolution open to this objection. The claim of relator was fully established. The resolution simply made provision for meeting an admitted obligation of the State. It is further contended that to give the resolution the effect contended for by relator makes it invalid under section 21, art. 4, which prohibits the legislature from granting or authorizing extra compensation to any public officer, agent, or contractor after the service has been rendered or the contract entered into. The legislature of 1869 (by Act No¡ 97) caused the.swamp lands then remaining to be graduated in price. It is claimed the relator’s scrip could be thereafter used in the purchase of these lands only at the price of $1.25 per acre, and therefore the resolution of 1887, if construed as giving the right to select any lands in the Lower Peninsula in lieu of those in Ottawa county, gave enlarged compensation to the contractor. The force of this contention is lost if the premise is not well taken. If the contractor had the right to select any — 448 — swamp lands in Ottawa county without regard to the gradation of price for sales to purchasers for cash, the only-effect of the resolution was to permit the selection of lands-in other counties instead of in Ottawa county. This would not be an enlargement of compensation, but the substitution of lands in other counties to make payment in kind in accordance with the contract already executed. At the date of the act in question there was no gradation as to price. All patented swamp lands were subject to entry, and subject to selection by the contractor. The language was, “the swamp lands now subject to entry.” The subsequent gradation of price could not affect this right. The remaining question is, What construction should be placed on the joint resolution ? It is contended by the-respondent that the resolution is to be construed in connection with Act No. 338, Laws 1865, and that, although the language of the resolution is broad enough to include all swamp lands, it should be limited to lands of the class, named in Act No. 338, viz., lands subject to entry. A similar contention was made in State v. Sparrow, 89 Mich. 263 (50 N. W. 1088). It was there held that the-grant to the State of swamp lands by the act of Congress-was a grant in prcesenti; that a grant by the State of any swamp lands not otherwise appropriated included lands which had not been patented to the State by the United States, but which had been duly selected, so that the title had vested in the State, and the lands had been identified. The language of the resolution is not materially different, and we must hold that the question is ruled by State v. Sparrow. See, also, People, ex rel. County of Houghton, v. Commissioner of State Land Office, 23 Mich. 270. This opinion is based upon the record as made. It is not intended to pass upon the question whether these lands-are a part of the bed of St. Clair Lake in a manner to conclude the parties. The writ will issue as prayed. — 449 — Moore, J., concurred with Montgomery, C. J.' Long and Grant, JJ., did not sit.