Coleman & Nelson v. Fred. S. Lord, 72 Tex. 288

GrAiHES, Associate Justice.—There is no controversy about the facts of this case. In April, 1884, the appellants presented to the Land Board a bid for the lease of the forty-eight sections of public school lands described in the petition, their bid being four cents per acre for the dry and five cents per acre for the watered sections, which was the lowest bid allowed by the Act of April 12, 1883, under which the lease was attempted to be secured.

It was admitted that the bid was previously filed in the proper time with the surveyor of the land district and that the proceedings taken under it were in all respects regular. Prior to this time, however, the Land Board had passed a resolution fixing eight cents per acre for dry and twenty cents per acre for watered sections as the minimum price for the lease of the lands under the act. They accordingly rejected appellants’ bid for the reason that it was below the limit fixed by themselves.

The appellee subsequently filed with the surveyor a bid of eight and twenty cents per acre for the dry and watered sections respectively, which was duly presented to the board at one of its stated meetings for •this purpose. The latter offer was accepted, and the lands were thereupon leased to appellee. The appellants having taken possession of the premises, appellee brought this suit to recover possession and obtained a judgment.

The sole question presented in the briefs of counsel is whether or not the Land Board had authority under the law to raise the minimum named in the Act of April 12, 1883, for the lease of the university, asylum, and school lands. In Smissen v. The State, 71 Texas, 222, we decided that question in the negative. But the further question presents itself whether appellants have acquired such a right under their bid as will enable them to hold the land as lessees from the State.

The regulations of the board made previous to appellants’ bid reserved “the right to refuse to consummate” a lease “for any reason they might deem sufficient.” The statute under which they were acting provided that “their regulations shall provide for competition” (Laws 18th Leg., p. 89, sec. 16), and we are of opinion that it was competent for the board to make a regulation reserving the right to reject bids in order to secure fair competition and thereby protect the rights of the State. To make a lease under this law there must be a contract with the board who are made the State’s agents for this purpose.

Admitting that it was the duty of the board to accept the bid made in this case and to consummate the lease, can it be said that any contract has been concluded when they have rejected it? "We think not. It required the assent of both parties to complete the transaction, and the board having reserved the right to reject any bid and having rejected this we can not hold that any lease was effected. In the case of Leavy v. Pendergrass, 2 Beav., 415, trustees were empowered under

an act of Parliament to let certain turnpike tolls by auction. In order to prevent fraud the act directed that they were to provide a minute glass and that immediately after each bidding it should be turned, and when it had run •out it should be turned again, until it had run out three times, when if there were no intervening bids the last bidder should be the farmer or renter of the tolls. It does not appear that the act provided any other regulations of the manner of conducting the auction.

But the trustees announced that unless there were as many as three bids they reserved the right of rejection •or of putting in a bid themselves. The plaintiff was the only bidder, and before the bidding was closed he was told that if there were not more bids they would be obliged to make a reserve bidding. This, how•ever, was not done, and the glass ran out the third time. The trustees leased to another, and upon suit brought against them and the lessee it was held there was no contract and that the plaintiff could not recover.

There was no question made in the case as to the right to reject the bid, and the principle upon which the case was decided seems to he that the right of rejection having been reserved and the bid having been in effect rejected the plaintiff acquired no right although he was the highest bidder under the special provisions of the act. In Blossom v. R. R.

Co., 3 Wall., 196, the complainant was the highest bidder at two successive sales of the same property made by the marshal under a decree of court, and sought to have the latter confirmed, although after his bid the officer adjourned the sale to a later day; but the court held that he acquired no-right by his bid and that the officer had the power to refuse to accept and to'adjourn the sale. In the transaction under consideration in the present case the Land Board were the agents of the State to lease the land at auction, and in our opinion the State could only be bound by their acceptance of a bid.

They may have misconceived their duty in rejecting the bid, yet the fact remains that they did reject and no contract was made.

If an individual had appointed an agent to lease a tract of land and had given positive instructions to let the premises at auction, provided they brought a minimum price and the agent had notified the bidders that he reserved the right to reject any bid and that he would accept no bid which was not-for a greater sum than that fixed by his principal, and if a bidder had bid a less sum than that named by the agent and the latter had declined the bid, could it be seriously contended that this consummated a lease? The principle in the case supposed and in that before us seems to be the same.

The agents in both cases have not obeyed instructions—have not performed their duty—but they have made no contract and their principals are not bound. This is not like the case of acquiring land by the location of certificates or under the pre-emption and homestead acts. There the law provides that upon certain conditions being complied with the party seeking the benefits of the law acquires a right either absolute or conditional to the land. Here the statute appoints a board to act as agents of the State in leasing certain of its lands, and prescribes in a general way the manner in which the lease shall be made.

Until the board acts, and until it gives its final assent to a contract of lease, no one can claim to be the lessee of the State under the act. Whether the board can be proceeded against by mandamus, and if so whether they could have been compelled to make a lease in this case, are questions we are not called upon to determine. In Campbell v. Blanchford, 5 Texas Law Rev., 69, and in State v.

West, 63 Texas, 148, it was held that an application to the surveyor to buy land under the Act of 1879 and the payment of his fees did not invest the applicant with a right which could not be taken away by a repeal of the law under which the application to purchase was made. We are of the opinion that the judgment of the court below is the only proper judgment that could have been rendered in the case, and it is therefore affirmed. Affirmed. Opinion December 14, 1888. Motion for rehearing was argued and overruled.