THE PEOPLE OF THE STATE OF CALIFORNIA ex. rel. JO HAMILTON, Attorney-General, Petitioner, v. B. F. WASHINGTON, L. L. BULLOCK, AND RODMOND GIBBONS, Tide Land Commissioners, Respondents, 40 Cal. 173

"WALLACE, J., delivered tbe opinion of tbe Court, Cboce-ett, J., Temple, J., and Bhodes, C. J., concurring: Tbis is an application made by tbe People against tbe Board of Tide Land Commissioners, created under tbe Act of March 30, 1868, praying a writ of mandamus to be directed to tbe Board, commanding them to proceed with tbe resale of a portion of tbe salt marsh and tide lands mentioned in said Act, pursuant to certain provisions in tbe Act contained. It appears that portions of these lands have been sold to certain persons at public auction, as directed by the fifth

section of the Act, and that upon the day of sale the twenty-five per cent, cash payment required by the statute was duly made. It is claimed; upon the part of the People, that an installment of another twenty-five per cent, of the purchase money became due to the State upon the 9th day of June last, and has not been paid, and that, consequently, it has become the duty of the Board to treat the lands, upon the purchase of which the last mentioned installment remains unpaid, as “lands unsold by the State,” and to proceed to re-sell the same-.

It is admitted by the Board, in their answer filed here, that they do so refuse to re-sell these lands because, they say, they have doubt as to their power and duty in the premises.

An argument has been filed here on behalf of certain purchasers of portions of these lands, who are alleged to have made default in the payment of the first deferred installment of purchase money, in which it is claimed that, under a proper construction of the Act, these lands cannot be considered as “unsold by the State,” except upon the failure of the purchaser to pay the entire remaining seventy-five per cent.- of the purchase money for the space of three whole years next after mating the purchase. The sixth

section of the Act declares that the terms of sale shall be twenty-five per cent, payable on the day of sale, “ and seventy-five per cent, payable in one', two and three years thereafter, to the State Treasurer, at Sacramento.” We think that there cannot be much difficulty in determining the meaning of this provision.

It much resembles the usual terms of the ordinary contracts of sale of land between private persons, in which deferred installments of the purchase money are provided for, and whether occurring in a statute or private contract, the obvious intent is to provide for the payment of twenty-five per cent, of the whole purchase price within the first year, and a like amount in each of the two following years.

Stress is, however, laid upon the circumstance that tbe Act further provides that, upon receiving the cash payment of twenty-five per cent., the Board shall give to the purchaser a receipt, in which a stipulation is to be inserted, ‘‘ that if, within one, two or three years thereafter, he pays the additional seventy-five per cent, he shall receive a deed from the State,” etc. We think, however, that there is not even an apparent conflict between these provisions.

The portion of the Act first recited had exacted from the purchaser the annual payment of not less than thirty-three and one third per cent, of the amount of purchase money deferred, and, standing alone, there would have been no privilege given to the purchaser to pay the whole balance of the purchase money in a shorter period of time than three years, should he even desire to do so.

It seems to have occurred to the Legislature that a purchaser might desire (for the purpose of stopping the accumulation of interest, or because it might, in his opinion, be of advantage to him to immediately obtain a deed) to pay the whole amount of the purchase money in a less period of time than three years; and we think that the provision last recited accomplishes that purpose.

We are of opinion, therefore, that the purchaser may, at his option, delay the payments, provided he annually pay not less than one third of the entire unpaid balance with interest, or he may, if he choose, pay the whole balance at anytime within three years; and, thereupon, if he comply with the other requirements of the Act, he may rightfully demand that the Treasurer immediately deliver him the deed of the Commissioners. We think that the Board have no discretion to refuse to make the re-sale, and it results that the writ must issue as prayed for, and it is so ordered. Speague, J., expressed no opinion.