Bessey v. Board of Educational Lands and Funds ( 1970 )

White, C. J.

In this prophetic sequel to State ex rel. Belker v. Board of Educational Lands & Funds, 184 Neb. 621, 171 N. W. 2d 156, on rehearing, ante p. 270, 175 N. W. 2d 63, we are now asked by the State to exercise a supervisory trust jurisdiction over the school lands trust to set aside a successful bid and order a new sale of school lands sold under the new statute directing their mandatory sale.

The statute, section 72-258, R. S. Supp., 1967, now adamantly and unequivocally held constitutional by the controlling minority opinion of the court, says in pertinent part as follows: “Such land shall be sold, at public auction, by a representative of the Board of Educational Lands and Funds or by the county treasurer of the county in which the land is located, to the highest bidder (Emphasis supplied.) Following this is the lone and only provision authorizing the board to resell the property which is only in case of the highest bidder’s failure to pay the balance of the purchase price.

The essential facts of this case presenting the problem are very simple. The land was appraised under the statute (section 72-204, R. S. Supp., 1967) by the board at a value of $35,840. It sold to Bessey and Simmons, the appellees, for $66,560, the highest bid. Upon receipt of a new bid in the sum of $73,225, over twice the board appraisal, the board attempted to resell the property and this action of the district court enjoined a new sale. We affirm the judgment of the district court.

The State does not contend that the sale was not conducted “in the manner required by law.” The statute was strictly complied with and the minority declaration to that effect was fully complied with. See controlling minority opinion, State ex rel. Belker v. Board of Educational Lands & Funds, on rehearing, ante p. 270, 175 N. W. 2d 63, at page 271.

With a strange and paradoxical ambivalence, illustrative of the historic duality and conflict of interest between the beneficiary school children and the political pressures of private ownership, the State now reverses its position in Belker and asks the court to modify the language of the statute and step in and supervise this individual sale. It now contends that the Board of Educational Lands and Funds has the right and power to reject a sale and submit the same to further bidding, and that this court is either the creator or protector of this power and right.

But judicial restraint and a proper regard for the principle of separation of powers in our government forbids this charitable usurpation, because the very contention of the majority of this court that ultimate supervisory power over the sale of these lands was curtly and almost summarily rejected by the controlling minority in Belker. We will not burden this opinion with a quoting review of the Belker opinions. Could it be clearer that the majority contention of statutory invalidity because of legislative emasculation of the board’s and this court’s constitutional trust powers was rejected out of hand? The declaration is that the statute is constitutional and wholly valid. It means what it says, and says what it means. No one suggests any ambiguity or vagueness in its language. History alone dictates that its design was to remove all interfering impediments to mandatory sale. It says, “* * * shall be sold at the expiration of the present leases, * * * at public auction, * * * to the highest bidder.” (Emphasis supplied.) A new sale can only be held by the board when the bidder fails to pay. §§ 72-257 and 72-258, R. S. Supp,, 1967.

The now asserted contention that we can hybridize the statute and write in some saving clause has already been passed upon and disposed of by a majority of this court. As later discussed in this opinion, the now revealed offer of an amendment to accomplish such an objective was defeated. In State ex rel. Belker v. Board of Educational Lands & Funds, on rehearing, ante p. 270, 175 N. W. 2d 63, at page 273, the majority of this court said: “The history of the act shows conclusively that the Legislature intended that the appraisal, sale, and payment were to constitute the sole basis for the passing of ownership. The right of the trustee to perform its duty was intended to be cut off. Its duty to protect, conserve, and safeguard the assets of the trust for the benefit of all its beneficiaries and its liability for loss thereof resulting from its failure to exercise reasonable care, prudence, and diligence were cast aside in favor of a summary binding sale for the very purpose of subverting the duty of the trustee and the rights of beneficiaries.”

Now that the statute is declared constitutional we adopt and declare the above holding herein as the proper and only interpretation the statute could and should be given. A court cannot, under the guise of its powers of construction, rewrite a statute, supply omissions, or make other changes and this is particularly true where it appears, as here, that the matter was intentionally omitted. State ex rel. Belker v. Board of Educational Lands & Funds (dissenting opinion by Carter, J., supported by a majority of the court), on rehearing, ante p. 270, 175 N. W. 2d 63; Long v. Poulos, 234 Ala. 149, 174 So. 230; Seattle Assn. of Credit Men v. General Motors Acceptance Corp., 188 Wash. 635, 63 P. 2d 359; Appeal of Infants Welfare League Camp, 169 Pa. Super. 81, 82 A. 2d 296; Mitchell v. Mitchell, 312 Mass. 154, 43 N. E. 2d 783.

In Armstrong v. Board of Supervisors, 153 Neb. 858, 46 N. W. 2d 602, we said: “If the language of a statute is clear and unambiguous, courts will not by interpretation or construction usurp the function of the lawmaking body and give it a meaning not intended or expressed by the Legislature.” (Emphasis supplied.)

The statute is constitutional. Nothing could be clearer than its meaning and its mandatory requirement of sale at or above appraised value. All conditions of the statute have been complied with. As we see it, there is nothing left to argue about, and that is the way the Legislature intended it. The Legislature, and not this court (as the majority unsuccessfully opposed), specifies the protections to the trust. They were by: (1) An opening bid at full appraised value and (2) required sale of a 6-year lease on failure of bidding. §§ 72-257 and 72-258, R. S. Supp., 1967.

But even if we were driven by some procrusteari (ruthless stretching or cutting to fit) frenzy to create an ambiguity or save the situation we could not, short of outright usurpation. An amendment was offered to the statute in question on the floor of the Legislature to give the Board of Educational Lands and Funds the right to order a new sale and reject bids. Senator Harsh, in explaining his amendment, said: “* * * sometimes you do get a sale of land that is not to the best interests of all the people concerned and I think that we ought to have a provision in here that the Board have the right to reject some bids.” (Emphasis supplied.) (1965 Legislative floor debate, page 2902.)

The amendment was defeated 27 to 10. The discussion on the floor was about as revealing as the vote, indicating an absolute intention not to give the board any discretion in the matter. (See Legislative floor debate, page 2902 et seq.)

We point out further that this is not a judicial sale and the rules applicable thereto are not relevant. Again the statute provides no procedure for confirmation or review by the board. Again the Legislature specifically rejected such a procedure. The protections, such as they are, are before the sale, not after. The statute, section 72-258, R. S. Supp., 1967, says: “Such land shall be sold, at public auction, * * * to the highest bidder. * * * Settlement shall be made by paying cash of not less than twenty per cent of the purchase price at the time of sale and the balance shall be payable in cash within ninety days of the date of sale.” (Emphasis supplied.)

The only thing to be done is for the buyer to pay “ninety days after the sale” and not “ninety days after confirmation.” It therefore is indisputably clear that a completed sale took place on the fall of the hammer, and the statute being complied with, the appellees were entitled to a deed on payment and any further attempt to sell or review subsequent bids were not authorized bylaw, are void, and may be enjoined.

The judgment of the district court enjoining the Board of Educational Lands and Funds from conducting a new sale is correct and is affirmed.

Affirmed.