This is a petition for the writ of mandamus to compel the Commissioner of the General Land Office to cancel an award of a section of school land to the co-respondent, W.W. Bogel, Jr., and to award the land to relator.
The land in controversy came on the market April 22, 1907. On that day the relator and the co-respondent each had on file in the General Land Office bids for the land — the relator's being $7.07 for the whole section; those of the co-respondent being $25.04 per acre for the W. 1/2 of the N.W. 1/4 of the section, $10.04 for the E. 1/2 of the N.W. 1/4 of same, and another bid for the E. 1/2 and for the S.W. 1/4 of the section at $3.50 per acre. Each of these bids was in a separate application to purchase. The aggregate of the co-respondent's bid was $4486.40, while that of the relator amounted to $4524.80. Upon passing upon the bids the Commissioner first awarded to the co-respondent the W. 1/2 and the E. 1/2 of the N.W. 1/4 of the section and offered to accept the bid of the relator for the remainder of the tract, which the relator declined. Thereupon the Commissioner awarded the remainder to the co-respondent under his bid. It is distinctly alleged in the petition that at the time of making his applications and executing his obligation the co-respondent "did not have on deposit with the State Treasurer 1-40 of the purchase price so offered for said land and did not deposit said sum with the Treasurer until April 24, 1907," which was one day after they were opened.
The relator assails the award upon three grounds: 1. That since the co-respondent did not have on deposit with the Treasurer the cash payment required by law to be deposited with that officer on the day the bidding was closed nor on the day the bids were opened, the award is illegal.
2. That the whole section having been offered for sale the Commissioner was without power to accept bids for a part or parts of the section and to award the land in accordance with such bids.
3. That the co-respondent having purchased these five sections previously, could only purchase three additional sections to make up the complement of eight sections, to which the law entitled him. *Page 160
Being of the opinion that the first objection to the award is well taken, we deem it unnecessary to pass upon the other two. The part of the statute applicable to this matter is as follows: "Sec. 4. When the applications and obligations aforesaid have been filed in the General Land Office, and upon inspection they are found correct and the land is found to be classified and valued and on the market for sale the day the application was filed, or on any prior date and still unsold, and the first payment is in the State Treasury, it shall be the duty of the Commissioner to award the land to the one offering the highest price therefor." (Laws 1905, p. 161.) Section 3 (the preceding section of the act) provides, in effect, that "the application, affidavit and obligation" shall be filed on or before the day the land comes on the market — which means, of course, that the application, etc., shall be on file on that day. The provision of section 4 quoted above in stating the conditions upon which the Commissioner is authorized to consider a bid and award the land, states one of them as being "when the applications and obligations aforesaid have been filed in the General Land Office, and upon inspection they are found correct" — it also provides another, to-wit: when "the first payment is in the State Treasury." The statute makes it the duty of the Commissioner of the General Land Office to announce a day on which the land is to be open to competitive bidding and contemplates that on that day anyone desiring to bid, shall have done everything required of him to become a purchaser — that is to say, his application and accompanying documents shall be on file, and his first payment shall be in the State Treasury. If we could absolve him from the latter requirement and permit him to make his first payment on the day his bid is accepted, why not allow him to take the land upon a bid not filed on or before the land came on the market, but brought forward after the other bids were opened. The requirements seem to be as peremptory on the one case as on the other. It may be the Legislature in making the provisions thought only of laying down a fixed rule — but if so, "they builded better than they knew." For if an applicant be permitted to make his first payment after the award is made, it would be in his power in case he was the only bidder to decline the payment and make application for the land at its appraised value and thereby acquire it at a less price than he had previously offered.
We conclude that since the co-respondent did not have his first payment in the Treasury at the time the bids were opened, he was not in the eye of the law a bidder, and the Commissioner was without power to award him the land.
We think the mandamus as prayed for should be awarded, and it is accordingly so ordered. *Page 161