State ex rel. Board of Education v. County Court

Babulay, j.

— By this suit plaintiff seeks to set aside a contract made in 1882 between the county court of Wayne county and the Cape Girardeau and Southwestern Railway Company in relation to a tract of swamp land.

The substance of the transaction is that the lands in dispute were to be sold to the company in consideration of the execution by it of a plan for reclaiming them ( at an expense equal to $1.25 per acre of the lands) by the erection of a levee and drains across Mungo swamp to the St. Francois river in Wayne county. The form by which this result was reached embraced a sale of the lands to the company for the price of $1.25 per acre and an application of the proceeds to the reclamation of the lands in the mode indicated. The deed to the company was not to be‘delivered until the completion of the contemplated works by the latter under the direction of a commissioner representing the county.

The performance of this agreement plaintiff desires by this suit to prevent.

The circuit court upon final hearing found for defendants and dismissed the petition.

Plaintiff, after the usual motions and exceptions, appealed.

Assuming (without deciding), for the purposes of the case, the right of plaintiff to sue in the manner here adopted, we consider the substantial merits of the controversy. .

Both parties concede that the tract in dispute forms part of the swamp lands granted to this state by virtue of the act of congress of September 28, 1850. The purpose of the grant, as expressed in it, -was to enable the state to construct the necessary levees and drains to reclaim the swamps. It was provided expressly “that the proceeds of said lands, whether from sale or by direct appropriation in Mn'l, shall be applied, exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid.”

Without undertaking a review of the state legislation which followed this grant, it will be sufficient for present purposes to remark that the “full title” to the lands here in litigation was ultimately vested by the state in Wayne county by an act approved November 4, 1857 (Session Acts 1857, adj. sess., p. 32). This act referred to the original grant by the United States and . thereby clearly indicated that such value as these lands possessed was primarly applicable to restoring them to cultivation or other beneficial use. The county was clothed with the legal title as the public agency best adapted to fairly and intelligently execute the powers necessary to accomplish the object of the grant, the reclamation of the iands.

After the title thus vested in the county, the constitution of 1865 was adopted declaring that “the proceeds of all lands that have been, or hereafter may be granted by the United States to this state and not otherwise appropriated by this state or the United States,’’ etc., should become part of the public school fund. Const. 1865, art. 9, sec. 5. This declaration is repeated in the present constitution. Const. 1875, art. 11, sec. 6.

As early as 1868 (if not at an earlier date, Sess. Acts, 1852, p. 108, Sess. Acts, 1855, p. 160) a provision of law, which had long governed many other counties (Sess. Acts, 1850, p. 239,'sec. 6), became applicable to Wayne and other counties in southeastern Missouri, to the effect that the net proceeds of the sale of all such lands, after defraying the expenses of draining, reclaiming, surveying and selling the same, should become part of the school fund of the county. Sess. Acts, 1868, p. 70, sec. 8. That section has been continued in force and constitutes part of the existing law. R. S. 1879, sec. 6155. It recognizes the principle that the proceeds of those lands are first applicable to their reclamation, and that any surplus then remaining shall become part of the school fund. It effectuates the intention expressed in the act of Congress appropriating them for that purpose. The constitutional provision above quoted does not purport to make such lands or their proceeds a part of the school fund in disregard of all expense of their betterment. By its terms it does not apply to lands previously appropriated to a specific purpose, as these have been both by the United States and this state. It certainly would not be intended that our state designed to ignore the trust upon which the •original grant was made, unless such intent was clearly apparent. We assume, in the absence of a definite expression of opposite purpose, that the state respects, not repudiates the trust on which it received the lands. The same principle of construction leads us to consider the term “ money,” used in a later section of the law, (R. S. 1879, sec. 6166) as referring to the net proceeds mentioned in the earlier section above discussed. If construed to mean gross proceeds it would nullify the force of the former section. That would be contrary to the maxim of interpretation that effect should be given to all parts of a law rather than that part should perish by construction. W e hence conclude that it is within the power of the county court, as the administrative representative of the county, to contract for the sale of ■swamp land in consideration of its reclamation upon terms conforming to the other provisions of the law, and that the school fund is entitled to the surplus remaining after the necessary expenses of reclamation have been met.

In the present instance the company was required by the county court to expend, in building a levee and draining Mungo swamp, a sum amounting to the full price of the land at $1.25 per acre. This conformed to the requirement forbidding any sale of these lands at a less price than the rate just mentioned. R. S. 1879, sec. 6153.

There is no evidence in this record suggesting that the levee and plan of drainage projected by the company are other than honest and efficient means for the reclamation of these lands. There is nothing before us tending to show that the arrangement was a fraudulent device to, donate the lands to the company under the forms of law. That assertion appears in appellant’s argument but we discover no testimony supporting it.

In the absence of evidence it will be assumed tliat public officers have proceeded in obedience to, not in disregard of their duties and obligations as such. The case of appellant in the trial court proceeded on the supposed want of power in the county court to sell the lands in question as was done and apply the proceeds cotemporaneously to draining and reclaiming them.

That is the only question presented for review. We resolve it as did the circuit court, whose judgment we all agree to affirm.