Opinion
No. 32361.
November 16, 1936.
PUBLIC LANDS.
Where land commissioner requested that suit to cancel patents issued by himself to purchasers of state land should be dismissed, court erred in denying request, since commissioner has absolute control of suits insofar as interest of state is concerned and may dismiss suit whenever he sees fit to do so (Code 1930, secs. 6019, 6020).
APPEAL from the chancery court of Quitman county. HON. R.E. JACKSON, Chancellor.
W. Harold Cox, of Jackson, for appellants.
The lower court erred in refusing to dismiss the suit on the evidence offered in support of appellants' plea, and erred in refusing to dismiss said suit on request of the state land commissioner.
Sections 6011, 6012, 6019, 6020 and 6039, Code of 1930.
The uncontradicted testimony of the state land commissioner in support of the appellants' plea showed that the state had received full value for the lands in suit. The state land commissioner therefore concluded that the state had no further interest in such lands. It was and is the duty of the land commissioner to have maintained the suit, if for the best interest of the state. It is presumed that the land commissioner fully discharged that duty, and that if there were any merit in the supposed charge of fraud, that the land commissioner would desire to prosecute any meritorious suit of this nature.
Bousquet v. Brown, 119 So. 166, 152 Miss. 171; Slay v. Lowery, 119 So. 819, 152 Miss. 356; Brotherhood of Railroad Trainmen v. Agnew, 155 So. 205, 170 Miss. 604.
The state of Mississippi was therefore shown to have no interest whatever in the suit, and such suit should have been dismissed.
22 R.C.L. 312, sec. 64.
The land commissioner was and is the only public official authorized to have instituted this suit. The land commissioner, after a thorough investigation, concluded that the suit was without merit, and that it should be dismissed. He therefore expressly requested the lower court to dismiss the suit. The lower court declined his request.
The land commissioner was privileged to have dismissed this suit and the lower court was in error in not permitting him to do so.
State ex rel. Brown, Land Commissioner, v. Poplarville Sawmill Co., 81 So. 124, 119 Miss. 432.
It is elementary law that where a statute delegates to a public official a certain duty, power or authority, that such public official may not delegate away such duty, power or authority so as to divest him of his official discretion therein.
Planters Bank v. Yazoo Coldwater Drainage District, 126 So. 9, 156 Miss. 297.
As to the right of a litigant to dismiss his action at any time, even over the protest of his attorney, see Zerkowsky v. Zerkowsky, 131 So. 647, 160 Miss. 278.
Since the decision of the Supreme Court in the case of State ex rel. Brown, Land Commissioner v. Poplarville Sawmill Company, supra, the Legislature of the state of Mississippi has re-enacted and readopted section 6019, Mississippi Code of 1930, and annotated that case thereunder, as the proper construction placed thereon by the Legislature. It is familiar learning that the Legislature is presumed to know of all such judicial declarations, and it is further presumed that when the Legislature re-enacts a statute after it has been construed by the court, that the Legislature intended to adopt such construction of such statute.
White v. Williams, 132 So. 573, 159 Miss. 732; White v. Miller, 133 So. 146, 160 Miss. 734; Gully v. Jackson International Co., 145 So. 905, 165 Miss. 103; Hughes v. Gully, 153 So. 528, 170 Miss. 425; Griffin v. Jones, 154 So. 551, 170 Miss. 230.
The situation in this case is that the lower court had before it only the testimony of R.D. Moore, state land commissioner, whose testimony was uncontradicted. The witness was unimpeached. He stated that he did not authorize the institution of the suit, and that after a full official investigation, he had found that the suit was without merit in point of fact, and that he desired the same dismissed. It is most earnestly urged and submitted that it was therefore the duty of the lower court to have dismissed this suit under such circumstances. It was the responsibility of the state land commissioner, and not of the court, to see to it that the state was not defrauded of its public lands. This state official had fully discharged that duty, and he was not accountable to the chancery court of Quitman county, Mississippi, for the faithful discharge thereof. The lower court had no right or duty to supervise the discharge by the land commissioner of this duty imposed upon him. He had determined that this suit should be dismissed, and that should have been the end of this litigation, inasmuch as he appeared as the complainant therein. It was therefore the judicial duty of the court below to act on this undisputed reasonable testimony and to have dismissed this suit.
Stevens v. Stanley, 122 So. 755, 153 Miss. 809, 154 Miss. 627; Crichton v. Halliburton Moore, 122 So. 200, 154 Miss. 265; Holmes v. Holmes, 123 So. 865, 154 Miss. 713; Tarver v. Lindsey, 137 So. 93, 161 Miss. 379.
It did not lie within the province of the lower court to have suspicioned from the vague charges in the bill of complaint that some fraud might have been perpetrated on the state. Suspicion will not sustain a decree.
Universal Truck Loading Co. v. Taylor, 164 So. 3; Dr. Pepper Bottling Co. v. Gordy, 164 So. 236.
Nor will speculation support a decree.
Shell Petroleum Corp. v. Eagle Lbr. Co., 158 So. 331, 171 Miss. 539.
Nor may a decree be rendered on conjecture.
Hercules Powder Co. v. Calcote, 138 So. 583, 161 Miss. 860; Y. M.V.R. Co. v. Green, 147 So. 333, 167 Miss. 137; Burnside v. Gulf Refining Co., 148 So. 219, 166 Miss. 460; New Orleans N.E.R.R. Co. v. Holsomback, 151 So. 720, 168 Miss. 493; Williams v. Lumpkin, 152 So. 842, 169 Miss. 146.
Indeed, the veiled charge of fraud contained in this bill of complaint was even insufficient to have aroused the suspicion of the lower court.
Willoughby v. Pope, 58 So. 705, 101 Miss. 808.
Herbert Holmes, of Senatobia, for the state.
This suit was begun when it was brought to the attention of the land commissioner that a valuable piece of property had been bought for a comparatively trivial sum as compared to its actual value, and when this was brought to the attention of the land commissioner, he directed that the attorney general should cause an action to be brought to cancel the patents, and later when appellants raised the question that no written authority had been obtained, it was then that the land commissioner addressed his letter of July 15, 1935, to the attorney general stating: "From information that I have received it seems that there has been a misrepresentation to the state in regard to the owner of the above described land which was sold by this Department. The affidavit filed with this Department, by parties purchasing this land, shows that Fithian Brothers were the owners at the time the land sold to the state, and Mr. Ware advises me that Mrs. Alice Garrett was the owner. Mr. Ware wants to test this out in Court. With your approval I will give him authority, from this office to bring suit. Yours very truly, R.D. Moore, Land Commissioner."
Long before this suit was brought, it was called to Mr. Moore's attention that Mrs. Garrett held a mortgage on the land, had foreclosed on the mortgage, was the owner of the land, and it was then that he authorized the suit to be brought, but after the question was raised, he then gave the written authority. The attorney general then instructed and authorized the suit, and stated further: "That any legal procedure heretofore taken or had by you in this regard is hereby ratified and confirmed by this office."
The reasons for the attorney general giving this authority is self-evident, for he well knew that authority had been given previously to bring this suit, and he wanted to be fair with all parties. Counsel seem to think that the land commissioner can change his mind as often as it becomes necessary, and regardless of how it may affect the rights of the state that he is at liberty to do so. The state of Mississippi had acquired a title to this land, and there is no law that can compel the land commissioner to dispose of land below what he thinks is a fair price to the state.
The land commissioner has never denied but that he gave authority for this suit to be brought, and we take it that even the land commissioner of the great state of Mississippi would not be allowed to trifle with the courts in any such way, and that under the pleadings and record in this case that he would not be permitted where the interest of the whole people are involved without excuse or reason to ask for the dismissal of this suit. This suit is in behalf of the state, and the law provides the methods how such suits may be brought, and they are in behalf of all the people, and we take it that no land commissioner, regardless of what the reasons may be, would have a right to deprive the state of Mississippi of its day in court.
This is a suit in equity to cancel two patents issued by the land commissioner to purchasers of land from the state. The bill of complaint alleges "Now comes your complainant, State of Mississippi, by Greek L. Rice, Attorney General, and R.D. Moore, Land Commissioner of the State of Mississippi, and on behalf of the State of Mississippi," etc. The bill is not signed by the attorney general, but by an attorney not connected with his office.
The answer of the appellants includes a plea alleging that the suit was filed and is being prosecuted without the consent of the land commissioner and the attorney general. This plea, which is simply a challenge of the authority of the attorney conducting the litigation for the complainant to so do, was separately heard and overruled.
The land commissioner testified in support of the plea saying, in substance, that a complaint had been made to him of the execution of the patents sought to be canceled; that he referred the complaining persons to the attorney general, but had not intended to authorize the institution of the suit; that he has investigated the matter here sought to be litigated, arrived at the conclusion that no fraud has been perpetrated upon the state, and that he wanted the suit dismissed.
Sections 6019 and 6020 are as follows:
"6019. The land commissioner may prosecute suits, in the name of the state, concerning the public lands, through the attorney-general, a district attorney, or some attorney at law employed by him for that purpose, with the consent of the governor."
"6020. The land commissioner shall institute and prosecute, and prosecute where already instituted, all necessary suits to cancel patents to lands fraudulently obtained or issued, and to recover the possession of the land; and may, when ordered by the court, make any tender in any suit as well after as before suit is begun."
Under these sections, the institution and prosecution of suits of the character here under consideration are for the determination of the land commissioner, and whether he authorized the institution of the suit here in question is of no consequence, for he has the absolute control thereof in so far as the interest of the state therein is concerned. State ex rel. Brown v. Poplarville Sawmill Company, 119 Miss. 432, 81 So. 124, and may dismiss it whenever he sees fit to do so. The attorney general, the district attorney, and private counsel employed with the consent of the governor, are simply attorneys designated by the statute to represent the land commissioner in the suit.
The court below should have complied with the request of the land commissioner to dismiss the suit. Its decree will, therefore, be reversed, and the suit will be here dismissed.
So ordered.