(dissenting). — I think that the intent of the legislature to protect natural oyster beds from private appropriation is so manifest that a construction of the statute which will accomplish that end should be adopted by the *621courts, if the language will warrant it, and that the language used warrants the construction contended for by the respondent. Construing all of the provisions in relation thereto together, it seems to me that it was the intent of the legislature that thei’e should be a determination by the local board of appraisers of the facts in regard to the existence or non-existence of natural oyster beds on the tide lands before such lands should be open to purchase by reason of the cultivation of oysters thereon; that this determination should be in one proceeding as to all the tide lands of a county, so that all those who are interested in the preservation of natural oyster beds could take notice thereof, and appeal’ from the action of the board if they thought it was not such as the facts warranted; that such legislation would not warrant such board of appraisers in leaving this question open until an application was made for some particular piece of the tide lands, and then determine as to that piece alone the facts which they were required to certify under the statute. It will follow that, in my opinion, the entire proceeding on the part of the petitioner for the acquisition of title to the lands in question was premature, and that the commissioner of public lands for this reason alone properly refused to consummate the sale.
I am also of the opinion that the public interest will be best subserved by holding that in the state board of land commissioners has been reposed final authority as to the tide lands of the state except as their action is specially made the subject of appeal. And in my opinion it sufficiently appears from the statute that the legislature so intended. To it is given general supervision of these lands under the law, in addition to the authority theretofore vested in the boards of which it was to be the successor, and to my mind the legislation fully warrants the court in holding that it is made the duty of this board to *622supervise the action of all the officers who, under the statute, have anything to do with the care or disposal of tide lands, and excepting' as specially provided by statute, to finally determine all questions arising in connection with the administration of the laws in regard thereto. In my opinion the writ should be denied.
OPINION ON RETURN TO ALTERNATIVE WRIT.
Stiles, J. — To the alternative writ issued in this proceeding the respondent files his answer, in which he makes a material affirmative defense, viz.: That petitioner has at no time proved, or tendered proof before him, that he, or some person or corporation under whom he claims, did, prior to March 26, 1890, plant oysters upon ground not covered with a natural oyster bed.
In considering this case upon the petition, the attention of the court was directed almost wholly to the alleged fact that the commissioner was refusing to proceed with petitioner’s application on the ground that the board of land commissioners had made a decision which was binding upon him. The fact that there was no showing that any proof had been made before the commissioner himself was not alleged in the petition. Under the act to encourage the cultivation of oysters, passed in 1877 (Code 1881, p. 216), the license granted was for the planting of oysters in any bay or arm of the sea where there were no natural beds of oysters. In the act of 1890, authorizing the pur-' chase of lands covered by artificial oyster beds, the same language was used, and it is clear that, before any person is entitled to receive a certificate of purchase, he must make satisfactory proof to the commissioner of the facts showing his right to purchase. The petitioner in this case seems to have rested upon the idea that his sworn application was sufficient, in the absence of any contest, to authorize proceedings in mandamus against the commissioner, but it is *623evident that such a construction should not be followed. Wherever the law requires certain facts to exist as a condition precedent to the right to compel an executive officer to perform a -statutory duty, it behooves the person who, seeks to compel the officer to act to show that he has, by his own action, put the officer in a position where the ministerial act ought to follow as matter of law. So, in this case, it was the duty of the petitioner to make proof in such reasonable way as the officer might direct, of such facts as ought to satisfy the officer of the petitioner’s right to purchase. It may be that the course of proceedings taken by the land commission may have misled the petitioner up to this time, but he has lost no rights in the premises, and will lose none, since he can still make his proofs under the regulations made, or to be made, by the commissioner, and if the facts are found by that officer to be as he alleges, the acceptance of his money and the issuance of a certificate of purchase will naturally follow.
The law has entrusted the commissioner with the duty and power of determining the facts in each application presented to him, and directed him, upon the proof of those facts, to proceed in a certain way. With the determination of the facts the courts will not interfere, but should he make an erroneous application of the law to the facts it will then be time enough for judicial interference.
The petitioner will be allowed ten days from the filing of this decision to reply to the allegation of the respondent that no proofs of the petitioner’s right to purchase the lands described have been made to him, and if the reply contains a denial of that allegation, the cause will be further heard upon the issue thus made; but should no reply be filed raising such issue, the writ will be discharged.
Hoyt, Scott and Anders, JJ., concur.
Dunbar, C. J., dissents.