Shively v. Pennoyer

Opinion by

Mr. Justice Wolverton.

1. The alternative writ is deemed the complaint in mandamus proceedings, and by it their sufficiency must be tested, and not by the petition. We have here, then, for our determination the sufficiency of the alternative writ, challenged by the demurrer thereto.

2. For the purpose of a reexamination of the questions considered by the court below, we will treat the alternative writ as though it contained all the allegations of the amended petition. These allegations are in substance as follows, omitting formal matters: That prior to the twentieth day of December, eighteen hundred and ninety, the petitioner, Charles W. Shively, made written application to the commissioners for the sale of school and university lands in the manner and form prescribed by law and the rules of the board for the purchase from the State of Oregon of certain tide lands upon the Columbia River, in Clatsop County, Oregon, consisting of two *35 tracts, one containing something over four acres, and the other nearly two acres; that prior thereto one John M. Shively had made written application in like manner to purchase from the state certain other tide lands on said river, in the same county, consisting of six small tracts ranging -from a quarter of an acre to six and three quarters acres, and sold and conveyed all his rights therein to plaintiff; that all said tide lands were surveyed by the county surveyor of Clatsop County, and certified as being of the value of five dollars per acre; that on the sixth day of January, eighteen hundred and ninety-one, the board made an order accepting the applications of plaintiff and the said John M. Shively to purchase said tide lands, but raised the price thereof to twenty dollars per acre, and by a like order offered to sell the same to said applicants at said price, and to convey the same by a deed to contain the provision that said tide land was “quitclaimed without prejudice to the rights of any person,” which orders were duly entered of record in the minutes of the board. It is further stated that the plaintiff accepted the offer, and paid the full amount of said purchase price to the board, and took its receipt therefor, of date January twelfth, eighteen hundred and ninety-one, wherein it agreed to prepare the deeds and forward the same as soon as possible; that on said sixth day of January, eighteen hundred and ninety-one, and prior thereto, the state was the owner of the legal title of said land, except as the same may have been conveyed by an act of the state legislature passed October eleventh, eighteen hundred and sixty-two; that thereafter, on the thirteenth day of January, eighteen hundred and ninety-one, without previous notice to the plaintiff, the board' made an order and caused the same to be entered in its minutes suspending the issuance of said deeds until such time as he should show to the board that the lands so *36 purchased were actually tide lands, and that no previous deed therefor had beenQissued by the State of Oregon. That a demand had been made for the issuance of said deeds, and by the board refused.

Counsel for defendants make the point that the alternative writ does not show that plaintiff has made written application for the purchase of said lands, according to law, nor does it appear therefrom that he is legally capacitated as such applicant under the provisions of law regulating the sale of tide lands. Section 3600, Hill’s Code, provides, among other things, that all applications to purchase any lands of this state shall be accompanied by the affidavit of the applicant taken before some notary public or county clerk, to the effect that he is eighteen years of age; is a citizen of the United States, or has declared his intention to become such; that he is a citizen of this state; that he has not directly or indirectly made any previous purchase of lands from the state, which, together with the lands described in the application, exceed three hundred and twenty acres; that the purchase is for the actual use of the applicant, and not for the purpose of speculation; and that no contract or agreement, express or implied, has been made for the sale or other disposition of such lands in case such applicant is permitted to purchase the same. The alternative writ recites that plaintiff made a written application “in the manner prescribed by law.” This is but a conclusion of law, and not a statement of facts from which the court can determine its sufficiency. The manner prescribed is that he shall make application, accompanied by -an affidavit showing that he is eighteen years old, is a citizen of the United States or has declared his intention to become such; that he is a citizen of the state, etc., as pointed out by said section 3600. These are the facts without which the board is prohibited from acting, and, if they existed, *37 should have been shown by appropriate allegations. And the court, even if the proceeding was otherwise proper and sufficient, will not compel the board to act upon any less showing. The alternative writ is clearly insufficient in this respect: Hildebrand v. Stewart, 41 Cal. 387; Woods v. Sawtelle, 46 Cal. 389. So far as the court is advised, he may be neither a citizen of the United States, or of this state, or may be a minor under the age of eighteen years, and hence totally incapacitated to take the lands described by purchase from the state. The plaintiff must show that he is a qualified claimant before he can become a purchaser from the state, that is, one of the persons entitled to the benefit of the laws under which he claims the right to purchase: Page v. Hobbs, 27 Cal. 483; Quinn v. Kenyon, 38 Cal. 499; Schiefferly v. Tapie, 68 Cal. 184 (8 Pac. 878); Stewart v. Altstock, 22 Or. 182 (29 Pac. 553).

3. Counsel for appellant, however, stoutly contends that a full compliance with the laws regulating the purchase of tide lands was conceded by the board, and that, having entered an order upon its minutes accepting the application of plaintiff, and by a like order offering to sell the lands to him at the price fixed, and to convey the same by a quitclaim deed “without prejudice to the rights of any person, ” it is estopped from demanding the performance of the conditions precedent; and, further, that by these acts it had exercised its discretion, and the execution of the deed being a duty in its nature merely ministerial, it ought now to be required by the court to execute the same. This contention is not tenable because the sale was incomplete until the deed was made and delivered; and hence, if the board saw fit to recede from its acts on account of the plaintiff not having complied with some of the statutory requirements, it is believed there exists no reason why it should not exercise such power, and withhold the deed until such requirements *38 were observed. The board suspended the execution of the deeds until the applicant should show that the lands were actually tide lands, and that no previous deed therefor had been issued by the state. Such an act was undoubtedly within its discretion, for if the lands were not tide lands, or the state had formerly executed deeds to the same lands, it was the duty of the board to withhold the deeds required by plaintiff. The inquiry is judicial in its nature, and one which the board had a perfect right to make. Nor did it waive the right to make such inquiry or a further investigation by the acceptance of plaintiff’s offer, and the entry of an order in its minutes directing the execution of a deed. These acts of the board being discretionary, its directions and decisions will not be reviewed by the courts: Corpe v. Brooks, 8 Or. 222. These considerations sustain the conclusions of the court below and the judgment is therefore affirmed.

Affirmed.