Pierson v. State Board of Land Commissioners

AILSHEG C. J.

(After stating the facts.) — The only question presented for our determination in this case is-whether an appeal will lie from the decision of the state board of land commissioners on a land contest had before them. The state board of land commissioners is a constitutional body, organized and existing under and by -virtue of the provisions-of see. 7, art. 9 of the constitution, which is as follows: ‘ ‘ The Governor, Superintendent of Public Instruction, Secretary of State and Attorney General shall constitute the State Board of Land Commissioners, who shall have the direction, control and disposition of the public lands of the state, under such regulations as may be prescribed by law.” To this board the constitution has assigned the “direction; control and disposition of the public lands of the state.” In furtherance of the powers conferred by the constitution, the state-legislature, by see. 2 of the act of March 2, 1899 (Sess. Laws,. 1899, p. 284), conferred upon the same board “the selection^ management and disposal” of all lands received by the state-under the grant from the general government commonly known as the Carey act. The statutes of the state prior to-1905 contained no provision for hearing contests over the-right to purchase or enter state lands, but by act of March 2, 1905 (Sess. Laws, 1905, p. 131), the legislature created the office of register of the state board of land commissioners and provided for hearing contests, and by see. 5 of the act-requires the register to set a time for hearing evidence and taking testimony, and requires that after the hearing the register shall furnish “a full transcript of the proceedings to the state board of land commissioners who shall render a decision in accordance therewith.” Sec. 24 of the same act is as follows: “The state board of land commissioners may hear and determine the claims of all persons who may claim to be entitled, in whole or in part, to any lands owned by this state, and the decision of said board shall be final until set aside by a court of competent jurisdiction, and the board shall have power to establish such rules and regulations as in their opinion may be proper or necessary to prevent fraudulent applications.” Appellant rests his contention for the right of appeal upon the grounds: 1. That it is the duty of the board to hear and determine the contest upon the evidence submitted; and, 2. That “the decision of said board shall be final until.set aside by a court of competent jurisdiction.”

It must be conceded in the outset that “the right of appeal is statutory and unknown to the common law; it cannot be extended to cases not within the statute.” (General Custer Min. Co. v. Van Camp, 2 Ida. 40, 3 Pac. 22.) In the case at bar, if any right of appeal exists, it must be found in the statute. This latter proposition, we think, narrows itself down to the question as to whether that authority is to be found in see. 24 of the act of March, 1905 (Sess. Laws, 1905, p. 142). Sec. 5 of the act provides that the practice and procedure in contest cases shall be the same as that established by the United States in the district land office, and the whole tenor of the act indicates that the legislature intended to provide a similar mode and method for contests over state land and for state purposes-to that established by the general government for contests over government lands. Under similar’ legislation in other states a like view has been entertained by the courts. (Corpe v. Brooks, 8 Or. 222; Routt v. Greenwood Cemetery Land Co., 18 Colo. 132, 31 Pac. 858.) The United States supreme court has repeatedly held that the decisions of the land department of the government are final and conclusive as to all facts found in a case, and that they would only be reviewed as to errors of law or on account of fraud. (Johnson v. Towsley, 13 Wall. 72, 20 L. ed. 485; Burfenning v. Chicago etc. R. Co., 163 U. S. 321, 16 Sup. Ct. 1018, 41 L. ed. 175; Gonzales v. French, 164 U. S. 342, 17 Sup. Ct. 102, 41 L. ed. 460; 7 Notes on U. S. Reports, 618.) In other words, that where the land department had misapplied the law to the facts found, or in eases of fraud, the court would furnish relief. We think the legislature had a similar purpose in view when they said, “The decision of said board shall be final until set aside by a court of competent jurisdiction.” This language indicates the idea of a review of questions of law rather than questions of fact. If the board should refuse to act, a contestant has an adequate remedy to compel them to act. If they should act in a matter without jurisdiction, there is a remedy; if they misapply the law to the facts found, or in case of fraud, there is a remedy; but those remedies are not by appeal. The fact that the legislature never provided any procedure to be followed or designated any court to which the appeal could be taken, is further indicative of an absence of intention to grant the right of appeal. Of course, if the legislature had in direct terms authorized an appeal, and designated the court to which such appeal might be taken, the court would assume jurisdiction and prescribe the procedure to be followed. Such, however, is not the case here. We are satisfied that the order and judgment of the trial court was correct and it is hereby affirmed. Costs awarded in favor of respondent.

Sullivan, J., and Stewart, 'J., concur.