The argument for the respondent, upon the second submission of this case, has placed the matter in a new light and has led us to the conclusion that our former judgment was erroneous and that the writ of mandamus should be denied. *Page 68
Our opinion is, that even if it be held that article 4218y applies to all lands alike, and if it takes away the discretion of the Commissioner of the General Land Office to refuse a bid of $1 per acre, yet the relator can not have a judgment in this case as to the timbered section. That article prescribes that the lands therein designated shall be sold "upon the same terms as other public lands are sold under the provisions of this chapter." There are no provisions in the chapter mentioned which are applicable to all lands alike. Timbered lands are to be sold for cash, and agricultural and pasture lands upon a long credit. So that, if the timbered sections be included in the article under consideration, the provision quoted admits of no reasonable construction save that the timbered sections are required to be sold as other timbered lands are authorized to be sold under the provisions of the chapter, and the agricultural and pasture lands are to be sold as is provided in other articles for the sale of such lands; that is to say, the former for cash and the latter in equal annual installments, extending over many years. This seems to us to be fatal in any event to the claim of the relator to the timbered section. If he had the absolute right to purchase the timbered section at $1 per acre, he could in no event have perfected his right to that land except by tendering the purchase money in full. This he did not do.
But as to the half section of pasture land, the case is different. Under the statute, the pasture lands are salable upon the same general terms as agricultural lands; and the relator having tendered one-fortieth of the purchase money and his obligations for the payment of the thirty-nine additional annual installments, as required by the statute for the sale of such lands, was entitled to have the land awarded to him, provided the respondent was absolutely required to sell the land at $1 per acre. Therefore, our conclusion as to the timbered section does not relieve us from the duty of reviewing our opinion upon the more important question and of determining whether or not the Commissioner, under article 4218y, had a discretion to refuse an offer of $1 per acre for sections of land which were isolated and detached.
In our former opinion, we held in effect, that the fact that the article under construction omitted the words "not less than" from section 22 of Act of April 1, 1887, of which such article was an amendment and for which it was a substitute, led to the conclusion that the purpose was to take from the Commissioner of the General Land Office the discretion, with which he was previously invested, to refuse the minimum price. The majority of the court are now of opinion that we erred in that conclusion. The rule is recognized that in the construction of statutes the history of previous legislation upon the subject should be considered, and that a change of language of a statute, by the omission or addition of one or more words, should ordinarily be presumed to have been made for a purpose. But the one controlling and effective rule of construction is that the intent of the Legislature *Page 69 must govern. Every other recognized rule is subsidiary to this fundamental canon of construction and must yield when it is believed that its application would lead to a result contrary to that which the Legislature actually intended. While the omission of the words "not less than" in the article we are considering tends to show that it was the intention of the Legislature to deprive the Commissioner of the power of fixing the price of isolated sections, it is not necessarily conclusive of that question. As indicated in our former opinion, if article 4218y of the Act of 1887 had been the first provision upon the subject of the sale of isolated sections of the free school lands, we should have felt constrained to hold that the word "may," as there used, was employed in the sense of permission and not of command, and this notwithstanding the well recognized rule announced in the case of Smisson v. State, there cited. Though it is a matter "in which the public have an interest to be * * * promoted by the exercise of a power * * * by a public officer," and though in such a case it is the ordinary rule to construe "may" as meaning "shall," yet we thought that the context indicated that such was not the purpose. Such being the case, it is not unreasonable to presume that the Legislature may have intended to use the word "may" in the ordinary sense of permission and have deemed it unnecessary to retain the words which were omitted in the former act. In that act, the word in question could not have been employed as a word of command, for the reason that by other terms employed the officer was empowered to reject any offer, in the event he deemed the price offered less than the value of the land.
Now it is to be noted that in every statute that has been passed which provides for the sale of the school lands, from the year 1883 down to the passage of the article under consideration, especial provision has been made for the sale of those which are chiefly valuable for the timber upon them. The Act of April 12, 1883, provided that such lands should not be sold at less than $5 per acre, while other lands without water upon them were salable at a minimum price of $2, and those with water at $3 per acre. Laws of 1883, p. 85. Substantially the same provision is found in section 7 of the Act of April 1, 1887. Laws of 1887, p. 85. That act also provides in substance that timbered lands shall be paid for in cash. The sections which contained these provisions were not amended by the Act of April 8, 1889 (Laws 1889, page 50); nor by that of April 29, 1891 (Laws 1891, page 180). By the Act of April, 1895, the minimum price of agricultural lands was reduced to $2 and that of pasture lands to $1 per acre; but the minimum price of timbered land was left at $5, as previously fixed. This act also retained the provision that such lands should be sold for cash only. Laws 1895, p. 61. It also added the following section: "Sec. 16. The Commissioner of the General Land Office shall adopt such regulations for the sale of the timber on the timbered lands as may be deemed necessary and judicious. Such timber shall not be sold for *Page 70 less than five dollars per acre, cash, except in such cases as the Commissioner may ascertain by definite examinations by an approved agent appointed by him for that purpose, to be paid by the purchaser, to be sparsely timbered or containing timber of but little value, in which case he may sell the timber on such sections or part of sections at its proper value; provided, such timber is sold at not less than two dollars per acre. The purchaser shall have five years from the date of his purchase within which to remove the timber therefrom, and in case of failure to do so, such timber shall thereby be forfeited to the State without judicial ascertainment; provided, that all timbered lands from which the timber has been cut and taken off may be placed on the market and sold as agricultural or grazing lands, according to classifications to be made by the Land Commissioner; provided, that the purchaser or his vendees of any such timber shall have the right to purchase the land upon which such timber so purchased is situated at two dollars per acre, cash, at any time before the expiration of five years from date of purchase of timber under the provisions of this act." All these provisions, in relation to the sale of timbered lands and of the timber thereon, were retained in the Act of May, 1897, of which article 4218y constitutes a part. Now, conceding, for the purposes of the argument, that the previous laws in regard to the sale of the detached sections applied to pasture and timbered lands as well as agricultural lands, — such provisions are not inconsistent with the previous policy of the law in relation to timbered land as shown by our legislation upon the subject, for the reason that before the Act of 1897 the Commissioner was not bound to sell at a fixed sum, but had the liberty to refuse any offer which, in his opinion, was less than the value of the land. Rare instances might exist in which a tract might not be worth more than the minimum fixed by the act. In such cases, he was empowered to sell at that price; but it was not to be presumed that he would sell any land at less than its actual value. But to say that it was the intention of the Legislature in making the amendment not only to reduce the minimum price of the isolated sections to one-half of what it had been under the previous law, but also to deprive the Commissioner of all discretion and to make it his absolute duty to sell at that price, is to attribute to them a purpose to make a radical departure from the previous course of legislation upon the subject and to attach a value to detached sections of timbered land in no degree consistent with the value fixed by them and by other Legislatures upon timbered lands, when not detached. What may be the actual value of these detached lands, we do not know; nor have we the means of ascertaining their value. It appears, however, in this case, that the timbered section in controversy had been lawfully appraised at $8 per acre; and from this the presumption may be indulged that there were other sections which had been appraised at more and which were worth much more than $1 per acre. Under these circumstances, to hold that the Legislature intended to force the sale of these detached sections, *Page 71 merely because they were detached, at 20 per cent of the price put upon timbered lands generally, is to attribute to them a degree of improvidence which ought not to be imputed when the language of the statute admits of any other reasonable construction.
For these reasons, the majority of the court are of opinion that the word "may" in article 4218y of the Revised Statutes ought to be construed in its literal sense, — that is to say, as a word merely conferring a power upon the Commissioner to sell the lands therein specified at $1 per acre, and not as making it obligatory upon him to do so. I incline to our former opinion, but am also inclined to concur in the result, but upon a different ground. But since my views are not those of the majority of the court, it would serve no useful purpose to express them here.
The writ of mandamus is denied.