The pleadings show that prior to May 16, 1898, the land in controversy was included in lease to H.J. Runge. At that date the rent for the year 1898-99, payable in advance, became due and was not paid within the sixty days allowed by the statute for that purpose. The Commissioner, on July 20, 1898, regularly canceled the lease, because of the default. On the 23d of July, 1898, after the cancellation had taken place and notice thereof had been duly given by the Commissioner to the State Treasurer, Runge tendered to the latter officer the rent for the year named, which the officer declined to receive for the reason that the lease had been canceled. On the 25th of July, 1898, the Commissioner executed to Runge a new lease for the land, without exacting payment of the rent in arrears. At that time the rent, at least for the period from the 16th day of May until the 25th day of July, was in arrears. The Act of 1895, upon which the case depends, contained this provision: "If any lessee shall fail to pay the annual rent due in advance for any year within sixty days after such rents shall become due, the Commissioner of the General Land Office may declare such lease canceled by a writing under his hand and seal of office, which writing shall be filed with the other papers relating to such lease, and thereupon such lease shall immediately terminate, and the lands so leased shall become subject to purchase or lease under the provisions of this act. Such lease shall not be made to original lessees until all arrears are fully paid." The position of the relator is that the new lease executed to Runge was void, because it was made in violation of this provision. The respondent Runge contends, that the tender of the rent *Page 531 for the year 1898-99 was a sufficient compliance with the law; and further, that, if this be not so, the nonpayment of rent in arrear was a fact of which the State alone could take advantage, and which did not affect the validity of his lease as between him and other persons. The tender of the rent upon the canceled lease was in no sense a compliance with the condition precedent prescribed by the statute to the granting of a new lease. The tender was properly disregarded by the Treasurer, because there was no lease in force to which the money could be applied. It did not constitute a payment of rent in arrears, and this is what the statute required before the execution of a new lease. A compliance with the statute could consist only in the payment of rent past due before the execution of the new lease. The tender was made to keep the old lease in force and was not repeated in the execution of the new contract.
The effect of the provision was to disqualify a defaulting lessee from leasing except upon compliance with the condition prescribed. The language used is not simply directory, but is strongly mandatory and prohibitive. It plainly prescribes a condition precedent to the exercise of a power by the Commissioner. If the provision were general and unqualified that no lease should be made to a defaulting lessee, it would be obvious that there would be no power in the Commissioner to make such a contract with a person so disqualified to lease. The effect of the statute is to thus disqualify the defaulting lessee, unless a condition precedent is performed. No doubt can therefore exist that the act of the Commissioner was void as against the State. The first sentence of the provision quoted has the effect to put the land upon the market for sale, under other provisions of the statute, immediately upon cancellation of a lease. It so continues until a valid lease is executed to take it off the market. We can not hold that a lease absolutely prohibited by law could have that effect. It is doubtless true that the State could give validity to such a contract by ratification, but no power is given by the statute to any officer to take such action as would be essential to a ratification. The State itself has not acted. Were it the case of a private individual whose agent had thus exceeded his power, acquiescence on his part might be inferred from the lapse of time, about four years, and acceptance of rent under the contract, and it might be true that no other person except the principal could set up the invalidity of the contract made by the agent. But such a principal would undoubtedly have the right to disregard a contract thus made without authority by the agent and to sell the property. The State can do the same thing, and by its public statutes it holds out to the public a constant offer to sell all of these school lands which have not been taken off the market by valid appropriation, and it therefore necessarily results, if the lease be not valid, that the land in question is open to applications to purchase. This is the only construction and application of the provision in question which will give effect to it, since there is no one who can determine for the State whether or not such transactions are to be avoided or allowed *Page 532 to stand. Suth. Stat. Const., secs. 447, 454. We have given the questions involved mature consideration and can see no way to avoid the result reached, which is, that the relator is entitled to the mandamus prayed for commanding the Commissioner to accept his application to purchase.
Mandamus granted.