Citation Numbers： 183 Ala. 554, 63 So. 76
Judges： Dowdell, Ervin, Hon, Mayfield, McClellan, Sayre
Filed Date： 6/30/1913
Status： Precedential
Modified Date： 7/27/2022
— This is a bill in equity by the state against the board of school commissioners of Mobile county, as a corporation, against each present and each ex-member, individually, and against scores of persons to whom the present board and past boards have made leases of the sixteenth section school lands of Mobile county for the purpose of turpentining and removing timber therefrom. The theory of the bill is that these leases are void because unauthorized by law, and that the lessees, acting under the leases, have committed, are committing, and will continue to commit waste as to these school lands by denuding them of their valuable pine timber and taking the turpentine therefrom. The bill seeks to cancel the lease contracts and to enjoin the alleged waste, and seeks a decree against members of the board and the lessees for damages suffered on account of such waste already committed. The respondents, as a board, and various individuals, as defendants, demurred to the bill for want of equity and for various other grounds, such as multifariousness, as for misjoinder of parties and of suits, and for failure to allege facts sufficient to authorize the bill as one for an accounting or one to prevent a multiplicity of actions at law. The special chancellor sustained the demurrer as for want of- equity and on several special grounds mentioned above, as shown by his opinion on file, Avhich the
The fundamental question for decision on this appeal is whether the leases in question are valid or void. If valid, and the board is authorized to make other similar leases, then it is conceded that there is and can be no equity in the bill, and there is no necessity to' pass upon other questions raised and insisted upon. If, however, the leases are unauthorized and void, then it will be necessary to pass upon the other questions.
No one of the many leases is set out in full or in part, and no particular irregularity or insufficiency is set out or relied upon; no bad faith is alleged on the part of the board as a unit, or on the part of any individual member in general, nor as to any particular lease. The allegation and insistence is that the board had no authority of law to make the leases, that their acts in the matter were on account of mistake of the power and authority conferred by the Legislature.
The position of the state’s counsel is that the lands in question were granted by act of Congress to the state in trust for the use and benefit of the inhabitants of the respective townships, and that, by the condition of that trust, the trustees could not sell the lands except by the consent of the majority of the inhabitants of the respective townships, and that the trustee, the state, had not authorized, and could not by an act authorize,, a sale in violation of the trust imposed by the act of Congress granting the lands, and that the leases in question were, in law and in fact, sales of such lands, or of estates or interests in them, without the consent of the inhabitants, and in violation of the trust imposed upon the lands.
In the early case of Long & Long v. Brown et al., 4 Ala. 622, wherein the history of these grants in this state is given, it was said by this court (and it is now applicable to the instant case) that: “In relation to the sixteenth section, which constitutes a considerable portion of the land purchased, it is supposed that the vendor never can make a good title, because, first, there was no power to sell the land existing either in the Legislature or in the township, and that the sale was therefore a nullity, and, secondly, if such power existed it was improperly exercised, as the act of the Legislature did not require the assent of all the inhabitants of the township.’ From the vast number of sales which have been made under the sanction of this law, this question is invested with great interest, and has received our deliberate consideration.
The propriety of reserving a portion of the public land out of the extensive domain from which new states were in future to be created, as the means of providing a perpetual fund for the purpose of education, early received the attention of our wisest statesmen. The first time they were called to legislate upon the lands ceded by the states was in the establishment of the “Ordinance for the Government of the Territory of the United States Nortwest of the River Ohio in 1787.” They declared by the third article of that celebrated instrument that “religion, morality, and knowledge being
By the fifth clause of the first article of “the Articles, of Agreement and Cession between the United States and Georgia” in 1802, by which the United States acquired the right to the territory now composing the states of Alabama and Mississippi, it was declared that the territory thus ceded should, when sufficiently populous, form a state,. and be admitted into the Union “with the same privileges and in the same manner as is provided in the ordinance of Congress of 13th July, 1787, which ordinance shall in all its parts extend to the territory contained in the present act of cession, that article only excepted which forbids slavery.”
The act of Congress of March 2, 1819 (chapter 47, 3 Stat. 491, §6), for the admission of Alabama into the Union declares: “That the section numbered 16 in every township, and when such section has been sold,' granted, or disposed of, other lands equivalent thereto, and most contiguous to the same, shall be granted to the inhabitants of such township for the use of schools.”' This grant by Congress cannot properly be called a donation ; it was the performance merely of a solemn obligation created by the compact with Georgia, and was intended as a grant to the state to be held in perpetuity for the use and benefit of the inhabitants of the township.
The legal title to these lands, could not vest in the inhabitants of the township, as they had no corporate existence, nor could such a capacity be conferred on them
As the land in its wild state was of no benefit to the people of the township, and as a revenue could only be derived from it by cultivation, the lands were leased under suitable provisions to preserve them from waste. It was soon, however, discovered that this process-would end in the destruction of the land; everywhere the sixteenth section was in a state of ruinous dilapidation. In this condition of things, application was-made to Congress by the Legislature of this state for leave to authorize the sale of the sixteenth section by the assent of the township, which was granted — the proceeds of the salé to be invested in some productive-fund.
We agree entirely with the counsel for the plaintiff' in error, that this act conferred no power; nor had Congress any right whatever to interfere in the matter. It. is, however, evidence of the strong desire of the Legislature to act in good faith, and to keep within the pale-of the law. Having thus obtained the assent of Congress, the Legislature passed an act authorizing the-
It is very clear that power must exist somewhere to control the subject of the grant, so as to inalíe it sub-serve the purpose it was designed for. The state very properly supposed that this power was lodged with the inhabitants of the respective townships; a majority therefore were authorized to act, and, if in their opinion a sale of the land was advisable, to make sale thereof. The whole scope and design of the law is merely to give the assent of the state to such sale, and by providing the necessary machinery to carry out in action the wishes of the township, and at the same time afford the inhabitants a guaranty that the principal of the proceeds of such sale should be forever kept inviolate for the benefit of posterity, and the annual interest only be consumed by the existing generation. The act authorizing these sales, passed in 1828 (Laws 1827, 1828, p. 81) requires the assent of the inhabitants of the township to such sale to be ascertained by taking the vote of the qualified electors resident in the township, a majority of whom voting in the affirmative was necessary to a sale.
This doctrine was quoted and re-affirmed in Hardy v. Br. Bank at Montgomery, 15 Ala. 722, in which a certain part of an act authorizing the cancellation of sales of sixteenth section lands was held void for reasons stated in the opinion. These two cases were again referred to, in the case of State v. Mills, 52 Ala. 487, where it was said: “The state is a trustee of the sixteenth section granted by Congress for the use of
In the case of Miller v. State, 38 Ala. 600, the question first arose as to whether or not these lands could be acquired by adverse possession. Therein the authorities were reviewed, and the grants and the statutes-were construed, and it was decided that title to such lands could be acquired by adverse possession, and that the statute of limitations of 10 years was availing as a defense to an action, brought in the name of the state, to recover such lands. In that case it was said: “By the act of Congress of 2d March, 1819, for the admission of Alabama into the Union, the sixteenth section in every township was granted To the inhabitants of such township, for the use of schools.’ This court has held that the legal title to these lands could not vest in the inhabitants of the township, as they had no corporate existence; nor could such a capacity be conferred on them by the act of Congress. And the construction placed upon this act has been that the grant is in perpetuity to the inhabitants of the respective townships,, and that the legal title to the land is in the state, in. trust for the inhabitants of the respective townships in which the lands is situated. Long v. Brown, 4 Ala. 629, 631; Code 1852, § 501. This trust the state has executed. As early as 1819 agents were appointed to take-care of the lands, and subsequently school commission
Though the state is a party to this suit, it has no real interest in the litigation. If there be a .right of recovery, the property sued for belongs not to the state but to the township, so that, in point of fact, the suit is substantially between the township and the defendant. The Code expressly provides that, in all cases where suits are brought in the name of the person having the legal right for the use of another, the beneficiary must be considered as the sole party on the record. Code, §§ 2130, 2383. In our opinion, the rule that the statute of limitations does not run against the state has no application to a case like the present, where the state, though a nominal party on the record, has no real interest in the litigation, but its name is used as a means of enforcing the rights of a third person, who alone will enjoy the benefits of a recovery. Miller v. State, Use, etc., 38 Ala. 602, 603, 604.
It is true that the acts of Congress above referred to and some of our statutes require that the sale or lease shall be made by and with the consent of the inhabitants of the township. The act, however, does not require that the sale or lease shall be made by the inhabitants individually or as a corporation, nor how their consent shall be ascertained or evidenced so as to authorize the sale; nor does it appear that the leases in question were made without the consent of the inhabitants. It does appear, however, that the leases were made by the state, the trustees, acting by and through the boards — bodies constituted by the state as its agents and officers in the premises. It is insisted, however, that this authority to the agent is void because in violation of the trusts imposed by the grants. It was certainly contemplated by Congress, in making the grants, that the lands should be both sold and leased, and that the sales and leases should be by the state for
The state, of course, can make these sales and leases, only by and through its agents and officers, and it certainly can constitute, appoint, and authorize its agent s by acts of the Legislature (which it has done in this case). The only thing not affirmatively shown in this' case is that the leases in question were made without the consent of the inhabitants acting either individually or as a corporation, and, construing the bill most strongly against the pleader, we must presume that the leases were made with the consent of' the inhabitants, if their consent be required.
To hold that these lands cannot be sold or leased would be, in effect, to defeat the object of the grant. The lands would be of little use to the “inhabitants of the township for the use of the schools” if they could not be sold or leased. And as the acts of Congress and the statute's both provide that the leases and sales shall be made by the state for the use of the inhabitants of the respective townships, the sales and leases can, of course, be made only by the state, and by and through some of its constituted and authorized agencies and officers. This, we think, is conceded by the appellant. Counsel for the state insist, however, that the sale or lease must be in pursuance of the original act of the Legislature, and with the consent of the inhabitants, and not in accordance with the local act of February 15, 1876 (Acts 1875, 1876, p. 363), for Mobile county.
It is to be observed that the acts of Congress do not require the sales to be made by the township or the inhabitants, but by the Legislature, by and with the consent of the inhabitants. The consent of the inhabitants was not required by Congress or by the Legislature as to leases of the lands. The original and subsequent acts
An examination of the statutes, general and local, since the beginning of the government shows conclusively, we think, that the entire management and control of these lands, so far as the sales and leases of the same are concerned, has been by the Legislature committed to its agents and officers appointed or elected as provided. If the land is to be leased for agricultural purposes, it must be cleared of its timber, and, if it must be cleared of its timebr, it would be strange if the school trustees, commissioners, or boards could authorize the clearing of the lands for agricultural purposes, yet could not sell, or authorize the sale of, the timber, or, if the lands were covered with long leaf pine timber and suitable for turpentine purposes, could not lease or authorize their lease for such purposes.
It is a matter of common knowledge that some of the best farming lands in the state were covered originally with heavy, virgin forest, and where the timber was long leaf pine the trees Avere first turpentined, then felled, and sawed into lumber. It would be strange logic and law that would authorize the destruction of this timber by felling it and burning it; but that would not authorize the sale or other use of it. On the other hand, if the land is valuable chiefly for the turpentine it will produce, why should it not be leased for this purpose? If extracting the turpentine from the trees renders their preservation difficult and uncertain, and
We are unable to see the reason why such use of the land and of the timber was not contemplated by the act of Congress and by the statutes of the state. If the land contained coal, as much of it did, would it be said that the law never contemplated leasing the land for the purpose of talcing the coal therefrom?
Lands should be devoted to the use for which nature and commerce have made them most valuable. We are not informed as to the particular nature or character of the scores of different tracts of land involved in this suit; but, if one falls under any one of the classes we have mentioned above, we see nothing wrong or unwarranted in the leases or uses complained of in this bill, The bill shows, and we judicially know, that sixteenth section lands and others like them have for a long time been devoted to the use to which the lands in question are being devoted. As a matter of history, this is true in other states, as to which there were similar grants of similar lands for similar purposes. The books of many states are full of statutes and decisions of the courts as to the sales and leases of these sixteenth section and indemnity lands, and in no instance have we been able to find a statute or decision which would condemn a use of the lands described in this bill, if the lands were by the laws of nature and commerce suited for such use. It is true that statutes may be found in this and other states, prohibiting the destruction of the timber on certain of these lands which had been set apart for particular purposes; but the classification of the lands, and the uses to which each class should be devoted, are matters usually vested by law in the discretion and judgment of the school boards, trustees or superintendents,
If we were in doubt about the proper construction to be placed upon our statutes and the acts of Congress as to these sixteenth section lands, the contemporaneous construction, placed upon these various statutes by the courts and by the officers whose duty it was to construe them, should he looked to in reaching our conclusion in this case.
The Supreme Court of the United States has spoken as follows upon the subject: “It is an acknowledged principle of law that, if rights have been acquired under a judicial interpretation of a statute which has been acquiesced in by the public, such rights ought not to be impaired or disturbed by a different construction, and, if, notwithstanding Treasury Regulation No. 384, requiring protests to be special in each case, a practice has grown up in the different ports of entry of receiving prospective protests, the annulment of such practice might entail serious consequences upon importers who had acted upon the faith of its validity. As early as 1803 it was held by this court, in Stuart v. Laird, 1 Cranch, 299, 309, 2 L. Ed. 115, that a practical construction of the Constitution that the justices of the Supreme Court had a right to sit as circuit judges, although not appointed as such, was not open to objection. ‘It is sufficient to observe,’ says the court, ‘that practice, and acquiescence under it, for a period of several years, commencing with the organization of the judicial system, affords an irresistable answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or
There cannot at this late date be any question that the title to these sixteenth section lands passed out of the United States by the Congressional grants, and that the title thereto passed thereby into the state or the inhabitants of the township, one or both. This being true, the lands passed into the control of the state, subject to the conditions of the grant, and to the rights of the inhabitants of the respective townships for whose benefit the grant was made. It is very true that there is a difference in the decisions of the courts, which has been heretofore pointed out by this court, as to whether these grants vested the legal title in the state or in the inhabitants of the respective townships; but all agree that all title did pass out of the United States by virtue of these grants.
In the case of Vincennes University v. Indiana, 14 How. 268, 273, 274, 14 L. Ed. 416, it is said: “The reservations for the seminaries of learning and for schools are made in the same terms, and in some respects must rest on the same principles. In all the western states, north of the Ohio, similar reserves for schools and semi
In the case of Wilcox v. Jackson, 13 Pet. 498, 517, 10 L. Ed. 264, this is made certain. It is said: “We hold the true principle to be this, that whenever the question in any court, state or federal, is whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to state legislation, so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.”
We have treated this case as the lower court and counsel have treated it — as if the lands in question were a part of those grants by Congress above referred to by our courts and by the Supreme Court of the United States. We have also treated the case as if the provision of our Constitution (section 270) excepting Mobile county from the operation of that particular article of the Constitution, or any act of the Legislature passed in pursuance thereof, had no effect upon the case. If, however, there should have been error in this respect, the result of this suit must be the same, as the bill evidently proceeded upon the theories, and the state of facts, and the laws, which we have considered.
It follows from what we have said that there is no equity in the bill, and that the special chancellor was correct in sustaining the demurrer to the bill. It also follows that it is unnecessary for us to consider or treat
Affirmed.