Opinion
No. 33448.
March 6, 1939.
PUBLIC LANDS.
Statute providing for exchange of land for school lands is contrary to constitutional provision that school lands shall not be "sold," as against contention that only sales for cash were prohibited and that exchange of school land for land on which applicant had unexpired 99-year lease would not be a "sale" but only an "irrevocable license" or "easement" (Code 1930, secs. 6778-6782; Const. 1890, sec. 211).
APPEAL from the chancery court of Yazoo county; HON. M.B. MONTGOMERY, Chancellor.
Bridgforth Love, of Yazoo City, for appellant.
The fundamental question, it seems to us, is: What interest in rural sixteenth section lands could a lessee acquire under the sections noted, by substitution of agricultural lands adjoining the section for the use of the sixteenth section lands?
Section 6778 provides to the holder of a lease on sixteenth section lands extending over a term of fifty years or more the right to "the further use and occupation of such sixteenth section land" by substitution of adjoining land of equal value under regulations set out in the succeeding sections.
Sections 6779 provides the procedural details to be taken to make a substitution of rural lands — the manner of identification of the sixteenth section lands the further use and occupation of which is desired, and of the lands to be substituted therefor, the court proceeding to be taken in making the substitution, including the method of determining the valuation of the respective tracts.
Section 6780 provides the procedural details where substitution of urban lands for further use and occupation is desired.
Section 6781 provides for the entry of a decree by the court, when equal valuation, as prescribed by the statute, has been found in the respective tracts, vesting title in the state to the lands offered in substitution just as title is held by the state to sixteenth section lands, and "the use, occupation, possession and full control of the sixteenth section lands in the person seeking the substitution for and during such time as title to lands tendered to . . . the state in . . . substitution of sixteenth section land remains vested in the state."
Section 6782 provides such person shall pay all costs of the proceedings.
The court will note the title to the lands offered in substitution vests in the state, while use and occupancy of the sixteenth section land remains in the lessee, offering the substitutionary lands, only so long as title to the substituted lands remained vested in the state. This use terminates when the state's title to the substituted land fails, thus protecting the state against any loss in the transaction and precluding the lessee, substituting lands under the statutes cited for the use of sixteenth section lands, by the termination of the right to the use thereof on the failure of the state's title to the substituted lands, from any ownership in or final right to the property itself. The state's title in the sixteenth section lands whose use and occupancy by the lessee acting under the statutory privilege is never divested and is not to be compared with a reversion, much less a mere possibility of reverter, for no title whatever to the sixteenth section lands has passed, and the "further use and occupancy" thereof is a mere privilege — irrevocable, it is true, so long as title remains in the state to the substituted lands, but still, as to the quality or quantity of right, no more than an irrevocable license to use and occupy the land during the time the state holds the title to the adjoining tract — which presumptively fully compensates for its use.
Our court has aptly construed just such a right, as more than a license revocable by the owner.
Frederic v. Mayers, 89 Miss. 127, 43 So. 677.
Where a license to use property for specific purposes is not specifically restricted, and is coupled with a grant or interest necessary to the possession and enjoyment of the rights acquired, the license is irrevocable so long as the interest continues.
37 C.J. 296.
Such a license or right to the use and occupancy of lands could not be a sale, nor could it be a lease within the condemnation of section 211 of the Constitution, if the words sale and lease be taken in their ordinarily accepted legal meaning; and to so include it within either word requires a construction of the section so as to embrace within its prohibition more than was prohibited by the words alone.
It might well be said here, bear in mind that the Legislature had unlimited power, before the Constitution, to do with sixteenth sections as it saw fit. This was the effect of the holding in Jones v. Madison County, 72 Miss. 777, 18 So. 87, where it was finally determined that title to sixteenth sections passed to the state by reason of the survey and designation of the land and that no title or control thereof remained in the United States after the state, in which the lands were located, was organized. All leases and sales made in conformity with the state law then existing prior to the Constitution of 1890 were therefore valid; and no case subsequent to Jones v. Madison County has ever questioned that right.
Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1.
Just so far then as the Legislature is not prohibited by the terms of section 211 of the Constitution and by the necessary implications therefrom, it still may enact laws governing sixteenth sections. Laws passed for the selling of timber, gravel and acid iron earth from sixteenth section lands and for the unrestricted lease of such lands for oil, gas, and mineral purposes have been enacted by the Legislature and have been held constitutional or remain upon the statute books unquestioned. Sections 6761 and 6762-3 of the Code of 1930. The right has been delegated to railroads organized under the laws of the state to acquire and enjoy rights of way over lands belonging to the state (which under Jones v. Madison County, supra, includes sixteenth section lands). Section 6085 of the Code of 1930. No reason can exist why rights to other uses of the soil than those above listed may be condemned while they are permitted.
The Chancellor's opinion grounds his decision to the contrary upon the construction placed on the prohibitions of Section 211 by the cases of Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1; and J.J. Newman Lbr. Co. v. Robertson, 131 Miss. 739, 95 So. 244.
The statements contained in both the Dantzler case and the Newman case, on which the chancellor based his decision in the instant case, that Section 211 precludes the enactment of a statute permitting the state to part with the use and occupation of sixteenth section lands so long as title to lands substituted therefor remains in the state, are not a part of the opinions in those cases, necessary to the actual decisions there involved. Not only then is the decision below on the ground noted based upon dicta, but it is directly in conflict with the actual decision of this court in Gulf Refining Co. of La. v. Terry, 163 Miss. 869, 142 So. 457.
There is no authority for the holding of the lower court that a statute may not constitutionally grant the right to use and occupy sixteenth section lands over an indeterminite period of time, in a manner not amounting to a sale, because of the terms of Section 211 of the Constitution; and there is direct authority that it may in the Terry case.
When the Legislature had powers precedent to the Constitution it will continue to enjoy them to the full extent as before, up to the point of restriction thereby.
State v. Henry, 87 Miss. 125, 40 So. 152, 5 L.R.A. (N.S.) 340.
The appellant contends that Sections 6778 to 6782 (and the scheme therein provided to substitute the full title to adjoining lands for the use and occupation of sixteenth section lands, constituting the homestead of the holder of an unexpired lease to the sixteenth section lands, during so long a time as title to the adjoining lands remain in the state) in no wise infringe upon Section 211 of the Constitution, because the rights of use and occupation provided for do not constitute a sale of the sixteenth section lands and amount to only an irrevocable license to use the lands, at most an easement of use, during the period the title to the adjoining land remains in the state, and that the license to use, or even the easement of use so inuring to the holder of the unexpiring lease, is not within the terms of the constitutional prohibition.
That the rights conferred by the statutes do not constitute a sale of the land, is axiomatic, if title thereto be not passed by the proceedings it provides for; and no title could pass in the proceedings contemplated.
Jones v. Madison County, 72 Miss. 777, 18 So. 87; Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1.
The rights in sixteenth section lands which the statutes permit are irrevocable licenses, at most easements, continuing during that period of time in which title remains in the state to the adjoining lands offered in substitution and accepted for the state by a decree of the chancery court.
Frederic v. Mayers, 89 Miss. 127, 43 So. 677; Gulf Refining Co. v. Terry, 163 Miss. 869, 142 So. 457; Minor, Real Property, Sections 132 and 133, 93, 96 and 27.
Constitutions prior to that of 1890 left with the Legislature the full and complete dominion over sixteenth section lands. As shown in the Dantzler case the Legislature abused this power by leasing the lands for ninety-nine years for a small gross sum. At the time such leases were made, the lands were generally wild and uncleared, and of small value, but by 1890 they had been largely cleared and had acquired a value which rendered them an object of real concern, and, too, public interest in education had grown with the years, all just as the immortal Jefferson had forseen. It was to remedy that abuse and to preclude its future occurrence, that Section 211 was included in the Constitution.
There had been no abuse growing out of laws granting licenses or easements affecting the use of sixteenth section lands, and the Convention did not have licenses and easements, but long-time leases for gross sums or annual rental in mind, just as the words of the section purport, actually demonstrate. If the Constitution had intended to prohibit the Legislature from granting rights to use sixteenth section lands not amounting to a sale or such long-time lease, it would have so stated, for "where the Constitution schedules powers, giving or taking away, it must be presumed to have scheduled all, and it only must be looked to, with its necessary implications for the limit of authority or restriction. And this is true because up to the restrictive words and the necessary implications therefrom, the Legislature is still sovereign.
It is submitted that every canon of construction requires a determination that these statutes are constitutional; and that the Legislature was within its rights in giving, by these statutes, just consideration to lesses of sixteenth sections under leases antedating the Constitution, at the same time protecting the state and the state's school system from any unfair advantage. Green, Green Jackson, of Jackson, for appellant.
Admitting Section 211 to be self-executing, estate created pursuant to Section 6778, et seq., is not violative thereof.
Sec. 6778, et seq., Code of 130; Chapter 118, Laws of 1930; Section 211, Constitution; Sections 4144, 4145, Code 1892, sec. 4149; Lbr. Co. v. Harrison County, 89 Miss. 540; Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1; State v. Blodgett, 110 Miss. 768, 70 So. 710; State v. Dunnam, 67 So. 461; Newman Lbr. Co. v. Robertson, 131 Miss. 739, 95 So. 244; Stokely v. Knox, 149 Miss. 437, 115 So. 568; Gulf Refining Co. v. Terry, 163 Miss. 869, 142 So. 457; Sections 6762-6763, Code of 1930; Washington County v. Bd. of Levee Comrs., 171 Miss. 80, 156 So. 872; Section 1508, 6085, Code 1930; Section 95, Constitution; State v. Henry, 40 So. 152, 87 Miss. 125, 5 L.R.A. (N.S.) 340; Fernwood Lbr. Co. v. Rowley, 110 Miss. 821, 71 So. 3; 2 Minor's Inst., 213; Leigh v. Harrison, 69 Miss. 923, 11 So. 604; Jordan v. Roach, 32 Miss. 616; Sessions v. Reynolds, 7 S. M. 132; Boarman v. Catlett, 13 S. M. 150; Banking Co. v. Field, 84 Miss. 664; Mathiston v. Brister, 166 Miss. 67, 145 So. 358; State v. Austin, 23 So. 34; 23 R.C.L. 1186; 55 C.J. 36; Newton v. Comrs., 37 Idaho 71, 219 P. 1053; Rogers v. Hawley, 19 Idaho, 751, 115 P. 690; Duff v. Snyder, 54 Miss. 245; Jackson v. Railroad, 76 Miss. 607, 24 So. 874; Steen v. Kirkpatrick, 84 Miss. 63, 36 So. 440; Green v. Hartford Fire Ins. Co., 157 Miss. 316, 128 So. 107, 69 A.L.R. 554; Moore v. Smart, 171 Miss. 248, 157 So. 467; Gerachi v. Sherwin-Williams Co., 156 Miss. 36, 125 So. 410; 27 C.J. 178; Hunt v. Wright, 70 Miss. 298, 11 So. 608; City of Jackson v. Fire Ins. Co., 132 Miss. 415, 95 So. 845.
Section 211 of the Constitution, the homestead estate created by Code Sections 6778, et seq., is not self-executing.
State v. Henry, 40 So. 152, 87 Miss. 125, 5 L.R.A. (N. S.) 340; Natchez, etc., Co. v. Crawford, 55 So. 596, 99 Miss. 697; State v. L. N.R. Co., 53 So. 454, 97 Miss. 35; Lawrence v. State Tax Commission, 286 U.S. 276, 76 L.Ed. 1102, 87 A.L.R. 374; Hart v. State, 39 So. 523, 87 Miss. 171; Ethridge, Mississippi Constitutions, 382; Street v. Columbus, 75 Miss. 822; Washington County v. Miss. Levee Comrs., 171 Miss. 80, 156 So. 873; Turner v. City of Hattiesburg, 98 Miss. 337, 53 So. 681; Turner v. County of Forrest, 53 So. 684; Schulheer v. Bordeaux, 64 Miss. 59, 8 So. 201; Dantzler Lbr. Co. v. State, 53 So. 1, 97 Miss. 355; Gulf Refining Co. v. Terry, 163 Miss. 869, 142 So. 457; Newman Lbr. Co. v. Robertson, 131 Miss. 739, 95 So. 244; Henry v. State, 87 Miss. 144; Laws 1898, Chapter 41; Laws 1904, Chapter 124; Code 1906, sec. 4702; Code of 1930, sections 6761, 6762, 6763 and 6778; Lbr. Co. v. Harrison County, 89 Miss. 540; State v. Blodgett, 110 Miss. 768, 70 So. 10; State v. Dunnam, 67 So. 461; Stokley v. State, 149 Miss. 435, 115 So. 563; Gulf Refining Co. v. Terry, 163 Miss. 869, 142 So. 457; Chrisman v. Brookhaven, 70 Miss. 477, 12 So. 458; Ellis v. Greaves, 82 Miss. 36, 34 So. 81; State Teachers College v. Morris, 165 Miss. 758, 144 So. 377; Wyatt v. Harrison-Stone-Jackson, etc., College, 170 So. 526; Railroad Co. v. Adams, 77 Miss. 282; I.C. C. Case, 80 Miss. 174.
Campbell Campbell, of Yazoo City, for appellees.
Appellant urges the court that the right given the lessee cannot be a sale within the meaning of the constitution and that a strict construction of the word should be adopted. That there can be no sale unless the title passed, and that the Legislature was careful to see that the title did not pass, although it did provide that every beneficial right in the land should pass. As to this we quote from the opinion of the Chancellor, "The whole proceeding contemplated in Chapter 118 of the Laws of 1930 is but a poorly disguised subterfuge to circumvent and render impotent the provisions of Section 211 of the Constitution. It is an attempt, by refined distinctions and subtleties, to evade the clear intendment of Section 211 of the Constitution. Even a casual reading of Section 211 discloses the intention and purposes in the minds of the Constitutional Convention, and this act shocks the mind with its poor disguise in its attempt to evade the clear intent as definitely and positively expressed by the language of the Constitution itself. The exchange is a sale for all practical purposes, as well as within the clear intent and meaning of the inhibitions of Section 211 of the Constitution."
Can it be contended that the framers of our Constitution intended that so long as the state retained the bare legal title, the husk without the grain, that the interests of the school children of Mississippi had been preserved? That an exchange of lands is nothing more than several sales cannot be doubted. See 25 R.C.L. 574, and cases cited thereunder. Our Mississippi court has held in the case of Conner v. Tippett, 57 Miss. 594, that an agreement to exchange lands is within the statute of frauds under paragraph "c" Section 3343, Code 1930, which forbids contracts for the sale of lands, tenements and heriditaments not in writing.
Shivers v. Simmons, 54 Miss. 520.
Under the substitution proposed by appellant under Chapter 118, Laws 1930, Sections 6778-6782, Code 1930, the net result is that such substitution, exchange, sale or lease, for it amounts to that and nothing less, by whatever name it is denominated, is a parting with the possession and control of 16th section lands, either in perpetuity, or for an indefinite period. In perpetuity, so long as there is no failure of title to the lands substituted for the school lands, and indefinite in that there might be a failure of the title to the lands substituted for the school lands.
If the substitutionary scheme is in perpetuity or results in perpetual parting with the possession and control of the school lands then it violates section 211; on the other hand, whether the substitutionary period is perpetual or not, if it is indefinite or for a comparatively long period of time, it is also condemned by the constitutional provision.
Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1.
Appellant in his brief asserts and contends that the transformation of the 16th section lands is not a sale, is not a lease for a gross sum, nor for a ground rental, nor is it a lease in consideration of clearing and placing improvements on uncleared lands but it is an "irrevocable license", or "easement".
But Section 211 does not authorize or permit the enjoyment of an irrevocable license or easement in 16th section lands.
Newman Lbr. Co. v. Robertson, 131 Miss. 739, 95 So. 244.
In the case at bar, Bridgforth would enjoy perpetually the use, possession and full control of the 16th section lands, substituted for, and the right to cut and remove the timber growing thereon, and these rights and privileges denote his interest as a lease pure and simple. If the right is revocable it is a license, otherwise it is a lease. If a lease, it must be obedient to the provisions of Section 211 of the Constitution, or fail.
State v. Henry, 87 Miss. 125.
It is our contention that section 211 deals with the subject of 16th section lands and provides to what extent the Legislature can enact laws as to the leasing of the same and beyond these limitations the Legislature has no power, and since Section 211 does not give the Legislature power to grant "easements" or "licenses" of the character sought here, for more than a reasonable time at most, that Sections 6778-6782 of the Code of 1930, are unconstitutional and void.
Argued orally by Allen Bridgforth and Garner Green for appellant and by Geo. H. Campbell, T.H. Campbell and T.H. Campbell, Jr., for appellee.
Appellant is the owner of the unexpired ninety-nine year lease upon approximately 39 acres of land located in Section 16, Township 12, north, Range 3, east, in Yazoo County, this lease having been made on July 12, 1856. On the land above mentioned appellant has his homestead and has there resided for more than twenty years. Appellant is also the owner in fee simple of forty acres of land in Section 21 of said township and range adjacent to said sixteenth section, and having complied with all the requirements of Chapter 118, Laws of 1930, inserted in the Code of 1930 as Sections 6778-6782, he exhibited his bill in the chancery court praying that he be permitted to exchange his forty acres in Section 21 for the 39 acres in Section 16 as authorized and provided in said legislative act.
There was a demurrer to the bill, and the demurrer was sustained, on the ground that the legislation aforesaid is invalid and inoperative because in violation of Section 211, Constitution 1890, which section, so far as pertinent to the question before us, reads as follows: "The legislature . . . shall provide that the sixteenth section lands reserved for the support of township schools shall not be sold, nor shall they be leased for a longer term than ten years for a gross sum; but the legislature may provide for the lease of any of said lands for a term not exceeding twenty-five years for a ground rental, payable annually. . . ."
The cited sections of the legislative act are too lengthy to be set out in full herein; and, so far as material to a decision, it is only necessary to quote that part of Section 6781, Code 1930, which prescribes and declares the effect of the decree of exchange, when the decree is made under the challenged act. That provision is as follows: "The said decree shall also provide that the use, occupation, possession and full control of the said 16th section land, to be fully set forth and described in the decree, from thenceforth shall vest in the petitioner, for and during such time as title to the lands tendered to, received and accepted for the state in lieu or substitution of said 16th section land, remains vested in the state, in trust, for the benefit of the said public schools, a true and correct description of which land shall likewise be set out in said decree."
It is at once seen that under this scheme for the exchange of 16th section lands, when the petitioner tenders land to which he has an absolute, unencumbered fee simple title, which is of course one good forever, and the tender is accepted and put into force by the decree authorized by the statute, there would be vested in the petitioner the use, occupation, possession, and full control of the 16th section land so exchanged, forever and irrevocably. Appellant argues, nevertheless, that the title or right which would thereby be held in the sixteenth section land by the petitioner would be neither by sale nor by lease, but would be only by an irrevocable license or easement. The fact would be, however, and whatever may be the name to be applied, that everything of substance, which either a sale in fee simple or a full lease forever would confer, would be vested in the petitioner in the 16th section land.
Appellant contends also that the constitutional provision against the sale of the 16th section lands should be construed as prohibiting a sale for a cash consideration, but not an exchange of lands. With equal or even more reason it could have been said in Connor v. Tippett, 57 Miss. 594, that an exchange of lands is not within the statute of frauds, which requires that contracts for the sale of lands shall be in writing, but the court held such an exchange to be a sale within the statute. See also 27 C.J. p. 205.
The proposition before us is reduced simply to this: May the substance of a constitutional provision be extracted therefrom by the mechanics of mere legal nomenclature? If the legislature, abetted by the courts, may drain an ordinance of the constitution of all, or even of a material part, of its substance by such a simple device as an ingenious resort to names, there would no longer be any real object in having a constitution. The legislative scheme here under consideration is plainly obnoxious to Section 211 of the Constitution, and so far as this particular legislation is concerned, we simply adopt and repeat what was said by this Court in Dantzler Lumber Company v. State, 97 Miss. 355, 384, 53 So. 1, 3, "that section 211 of the Constitution prohibits the state from parting with the possession and control of sixteenth section lands except for a definite and comparatively short period of time". This conclusion renders it unnecessary to discuss the other points raised in the arguments.
There are certain situations in the state in respect to which it would perhaps be the part of wisdom if the legislation here involved, and the provisions thereof were more carefully guarded and constructed, could be effectuated; but this must first be allowed by a vote of the electorate in approval of a proper constitutional amendment.
Affirmed.