A lease covering a large tract of unsurveyed school land, including that in controversy, having been lawfully canceled October 1, 1908, by the respondent, he mailed to the county clerks of the counties in which the land was situated a notice, dated October 6, and received and recorded by the clerks October 8, in which he fixed January 1, 1909, as the day on which the land would be on the market for sale. In giving this notice respondent seems to have intended to comply with section 2 of the Act of April 15, 1905, (Laws 29th Leg., p. 160), as applicable.
On the same day, but after the lease was canceled, corespondent Cooper made proper application to the county surveyor for the surveying of 1920 acres of the land, in accordance with section 8 of the statute just referred to, and thereafter all the proceedings provided by that section were regularly conducted, resulting in a sale of the three sections so surveyed to Cooper by respondent on February 6, 1909.
Relator made two applications to the same county surveyor for the surveying of four sections, one on October 8, 1908, after the county clerk had filed and recorded the notice above stated, and the other on January 2, 1909, and the sections since claimed by her were regularly surveyed and all the other proceedings required by section 8 were taken under each of such applications. One of the sections surveyed for Cooper (No 11), was included in her applications and was also surveyed for her. That section was denied to her and sold to Cooper by the Commissioner.
The only contention of relator's counsel is that Cooper's application for a survey was inoperative to secure to him the right to acquire the land in preference to others, as provided by section 8, because at the time it was filed the proper notice had not been given and the time when the land would become subject to sale had not arrived. We think there is an error in this contention growing out of the confusion of the procedure for the sale of unsurveyed land with that for the sale of the surveyed sections. Section 2 of the Act of 1905 relates to land that "shall come on the market by reason of the expiration of such lease." Unsurveyed land does not so come on the market by the mere termination of a lease, in fact, never comes on the market, for the reason that no provision is made for the sale of it in the unsurveyed state. The notice is required to specify the time "on and after which applications to purchase may be filed." No application to purchase unsurveyed land can be filed under this, or any other statute, upon the mere arrival of a given date. The Commissioner is required to give publicity to the time when "land will be on the market for sale by reason of the expiration of any lease;" and the section further says: "When a lease is canceled . . . the land shall not be for sale until ninety days thereafter," and publicity is to be given as in the case of expiration. All this plainly shows that these provisions are made with reference to sectionized school lands, which otherwise would be subject to sale at once upon the cancellation or expiration of a lease embracing them, and not with reference to unsurveyed lands which do not thus become subject to sale and can not be made so subject by mere notice. *Page 209 Section 2 lays the foundation for purchases under section 3 by "any person desiring to purchase any of the surveyed land." Besides the provision made for the surveying and sectionizing of the public domain added to the school fund by the Act of 1900, under the authority of the Commissioner, by virtue of which surveying the sections defined thereby may thereafter be sold as other surveyed land, there is the special provision of section 8 of the Act of 1905, under which individuals are allowed to have surveyed the quantities of land therein specified and then to purchase them in accordance with that provision. While that is a method by which the land finally becomes subject to sale and purchase, it so becomes subject only after the survey has been made and approved, and then only to him who has caused the survey in the first instance, and to others, like other sectionized land, only after he has failed to exercise his preference within the prescribed time. It seems plain that the provisions of section 2, relating to land which becomes subject to sale by the mere termination of a lease and the giving of a notice, have no application to land which must be treated as required by section 8 before it can be sold at all, and that the Commissioner was right in the construction which he seems to have adopted finally.
Mandamus refused.