J. T. West v. J. J. Terrell, Commissioner, 96 Tex. 548

WILLIAMS, Associate Justice. Relator has applied to this court for a mandamus to compel the Commissioner to accept his applications to purchase foúr sections of school land in Andrews County, which applications the Commissioner has rejected as conflicting with the rights of his corespondent, Nelson Morris, as lessee from the State of the same lands. Relator contends that the lease is void for certain alleged reasons; and further, that, if it be not void, the land included in it is held subject to the right of the State to sell to actual settlers.

Prior to 1902 the land was a portion of a large tract of unsurveyed public domain. In accordance with the act of the Legislature of 1900 (Acts 26th Leg., 1st Called Sess., p. 29) the tract was duly surveyed, sectionized and incorporated in the school fund, and, in 1902, relator made his applications to purchase, as to the regularity and sufficiency of which no questions are raised except those discussed. On the 15th day of August, 1890, the then Commissioner executed to one Wiggins a lease, No. 3301, for this public land, for a term of ten years from July 18, 1890, which was assigned to Nelson Morris.

The rent was paid upon this lease until July 18, 1896, after which there was an attempted cancellation, the facts affecting which are in dispute and will be stated later. A-new lease, No. 15445, for the same land, was executed to Nelson Morris, bearing date October 10, 1896, for a term of ten years from July 18, 1896. The rent was paid upon this lease until July 18, 1899, when the rent for the year 1899-1900 became due and was unpaid. After the expiration of the sixty days from the maturity of this installment, the Commissioner duly declared the lease canceled in accordance with the statute.

On the 7th day of October, 1899, that officer executed to Morris another lease, No. 28841%, including the land, for a term of ten years from the 14th day of September, 1899. Morris had filed his application for a new lease before the expiration of the sixty days allowed in. which to make payment. This lease was the one under which Morris held when relator applied to purchase. 1. We take up first, for convenience, relator’s contention that, even if the lease in question is valid the land is nevertheless gubject to sale.

The proposition advanced is that the provisions of the statute of 1897, protecting from sale lands under lease, apply only to lands which were at that time surveyed school and asylum lands, and not to the public domain, not then incorporated into the school fund, and that, when the latter class of land was, under the Act of 1900, before referred to, and the proceedings under it, made a part of the school fund, they were by that statute made subject to sale without regard to pre-existing leases.

We think that it is true that the laws previous to 1900 provided for the sale of those lands only which belonged to the named funds and did not contemplate any such disposition of unsurveyed public land; and that from this, as well as from the language of the Act of 1897 creating the absolute lease district, it follows that it was only those lands which were protected from sale, when leased, during the terms of the leases. But the other provisions of the statute, making leased lands, other than those thus protected, subject to sale during leases, seem likewise to apply only to such as belonged to the named funds.

Now the Act of 1895, by its title and provisions (sec. 17, art. 4318r, Rev. Stats.), plainly did authorize leases of the public domain, and those provisions were not affected by the amendatory Act of 1897. So that, following relator’s argument to its legitimate conclusion, we have leases of public domain authorized by the Act of 1895, with rió' •applicable provision of the law subjecting them to sale pending the lease.

Were we to assume that the Legislature attempted by the Act of 1900 to make subject to sale lands held under such leases, regardless of the rights of the lessees, we would be confronted with a constitutional question of considerable difficulty and importance. This contention of relator would also suggest a serious question as to the applicability to such leases of the principles announced in the decision in the case of Ketner v. Bogan, 95 Texas, 559, so much relied on by him to sustain other contentions, but which rests mainly upon the provisions of the statutes regulating^sales and lease's of school lands.

But we are relieved ofjtkrinecessity of entering the wide field of discussion thus openedffip by our conclusion that the Act of 1900 does not undertake, ■ in bringing into the school fund such lands as those in question, when situated in the territory defined as the absolute lease district and under lease, to make them subject to sale without regard to the lease.

Section 3 of the act provides that the lands mentioned “shall be subject to sale in the manner now provided by law for the sale of surveyed school lands, except where otherwise provided by law,” and “that said lands when leased or sold shall be leased and sold on the same terms, • conditions and limitations as now provided by law for the sale and lease of other school land.” It seems plain to us that the purpose of these provisions was to have these lands, thus brought into the school fund, treated as other school lands were to be treated under all existing and applicable laws providing for the sale and lease of such lands.

Applying the words used to the particular question under discussion, we find no doubt as to their sufficiency to control it. Among the rules “provided by law for the sale and lease of other school land” was one that, when situated in a defined territory and under lease, it was not subject to sale during the term of the lease. This was one of the “limitations” under which sales of the land newly added to the fund were to be made. General language could scarcely have been made more decisive of the question. It is argued that

section 7, which prescribes the order in which the claims of conflicting applicants to purchase are to be preferred, and which mentions, as second in order, those who were actual settlers on January 1, 1900, holding under lease, has the effect of restricting the rights of the lessee to that thus defined. But this

section does not deal with the question as to when or how the land is to becoirie subject to sale, at all. Assuming that a sale is to be made, it determines rights of priority among applicants, and fixes the right of a lessee when, the land being on the market, he seeks to become a purchaser. This is not an attempt to determine what his leasehold interest is under an undetermined lease. We conclude that, assuming the lease in question to have been valid, the land was not subject to sale against the lessee’s consent. 2.

The next contention is that all the leases were void because the Commissioner had not, prior to their execution, prescribed rules and regulations under which, they were to be made. If this contention were upheld it would be hard to sustain any sale or lease made since 1887; for all the laws since the one of that year have contained the provision on which the. contention is based; and if the making of rules was a condition precedent to the power to lease, it would seem to be equally so as to the power to sell.

The -truth is that the power to sell and lease has never been made to depend upon the previous establishment of rules. The statutes prescribed certain preliminaries the arrangement of which invested the officer with power and made it his duty, by - the express commands of the statute, to sell and lease. The statutes so abound with evidences of this that it would be tedious as well as useless to copy them. The adoption of regulations was not among the things that had to be done before sales and leases could be made. 3.

Another objection to the validity of the leases executed since 1895 is that no advertisement was made by the Commissioner of his purpose to let the land. The statute of 1895, as originally passed, provided: “And all leases under the provisions of this act shall be advertised by the Commissioner in such manner as he may think best and let to the highest responsible bidder in such quantities and under such regulations as he may think to the best interest of the State.” Within a few days after its enactment the Legislature, by amendment, substituted for the

section containing the quoted provision another which made several alterations, one of which was from “shall be advertised” to “may be advertised.” The purpose of this change is too obvious to require comment. The fact that the other changes were made by the amendment does not affect this one. The language, as finally settled, plainly left it discretionary with the Commissioner to advertise or not as he deemed best, and this discretion the courts have no power to control. 4.

It is further urged that there was no legal cancellation of lease No. 3301, which by its terms ran until 1900; that it was in force-when the two subsequent leases were executed, and that the latter were therefore void. The fact alleged in the petition to support this position is that the Commissioner, in attempting to cancel lease No. 3301, did not do so by a “writing under his hand and seal of office” filed among the papers relating to the lease as provided by the statute (art. 4218v, Rev. Stats.).

The fact that such an instrument was not executed and filed is averred in the petition, but is not admitted in the answers.

By the latter it is stated that no such paper is now among those relating to the lease in the Land Office, but whether or not it was ever executed and filed is not known to respondents: in substance, that the affiant who verified the petition had no other means of knowledge upon the subject than the fact that the instrument is not now among the papers; that the lease and some of the other papers are missing; that upon the file wrapper inclosing the papers appeared the notation, “Canceled July 18, 1896, see lease No. 15445;" that respondent Morris was at the time in possession of the leased lands and took out the new lease and has ever since been in possession under the subsequent leases; and that he, the Commissioner and Wiggins have treated the first lease as canceled and abandoned.

Upon this state of the pleading, the most that can be claimed in favor of relator is that a question of fact is presented as to whether or not the paper in question was in fact executed and filed at the proper time. The record, taken together, makes it evident that the negative is asserted upon the fact alone that the paper is not found where it should be.

Against this are the presumption that the officer required to act duly performed his duty, and the facts that he and all persons concerned have acted as if the cancellation had been effectually made, and that other papers which should be in the Land Office are missing. We can not say that, if the fact were in issue before a jury, the evidence stated would not warrant a finding that the proper declaration of cancellation was made.

It follows that this court, whose jurisdiction is limited to the decision of questions of law arising upon facts admitted or conclusively established, can not render a judgment based upon a fact thus in dispute. Teat v. McGaughey, 85 Texas, 478; Wooten v. Rogan, recently decided by this court.

But aside from this view, we are of the opinion that even if it be conceded that, in order to put an end to the rights of a lessee under hEs lease by the mere action of the Commissioner, this formal declaration of cancellation is essential, it is also true that such rights may be terminated by an informal cancellation when the power to cancel exists and all parties concerned agree to or acquiesce in it.

It is certainly not the law that a lease must continue in existence notwithstanding facts have arisen authorizing its cancellation and all parties consent and submit to an informal cancellation and a letting or sale of the property as subject to sale or lease. The facts show that such was the character of this transaction if the formal cancellation was not made, and it is not permissible for a third party, if it would be for the lessee, after this lapse of time to reopen the subject. Insurance Co. v. Sears, 178 U. S., 327. The decision in Ketner v. Rogan in no way affects this question.

In that case no power existed in the Commissioner and the lessee to cancel the existing lease, when the rent had been paid up and the contract was in full force, and, by another, virtually extend the term of letting to the exclusion of applications to purchase. It was, indeed, contended in the argument of the present case that the cancellation took place before the expiration of the sixty days after the annual interest became due, which must elapse before a cancellation is authorized, and that, hence, there was no power to cancel.

This is not assigned in the petition as a ground for holding this cancellation ineffectual. The argument was based wholly upon an exhibit to the petition upon which no affirmative allegation in the body of the petition was based, and this exhibit, even if sufficient to sustain relator’s case, could hardly be looked to by the court for such a purpose.

But it consists merely of a certificate of the State Treasurer showing when the last annual payment of rent had been'made (July 18, 1895), and stating that the records of his office showed that the lease was canceled July 18, 1896, which date was within, the sixty days which the statute allowed for the payment of rent due in that year. But the answers explain that the cancellation and the new lease in fact took pla'ce after the time had expired, and that the date, July 18th, was given merely to make the new lease cover the whole time from July 18th until the date fixed for its expiration.

This we must accept as true because we can not act upon disputed facts. It was urged that this was a mere evasion of the decision in the Ketner case, but this court has no power to inquire into this when the fact is disputed. As the facts upon which we must act appear, the rent was past due and the Commissioner had the power to cancel. He also had the power expressly given to relet to the same lessee upon a condition which there is no contention that the latter did not comply with. Bev. Stats., art. 4218v.

The courts have nothing to do with the policy or wisdom of such provisions or the administration of .them by the officer to whom it is committed. The power is given to the Commissioner to do these things and is one the exercise of which the courts can not prevent or undo. 5. What we have said is sufficient to dispose of the contention that lease Ho. 28841% was void because made while Ho. 15445 was in force.

The facts answer the contention, showing that the rent upon the last named lease, due in 1899, was not paid within sixty days after its maturity and that the cancellation was then regularly made and the new lease executed. The fact that Morris made application for the new lease before the time for the cancellation of the old had arrived did not affect the power of the Commissioner, when the proper time came, to cancel and relet as authorized by the statute. Writ refused.