Dissenting. — I am unable to agree with the conclusions reached in the majority opinion.
In the first place, it is contended by counsel for plaintiff, which contention is adopted in the majority opinion, that the bid of Snow should not have been received on account of the insufficiency of the tender made by him. The following is an excerpt from the official record of the proceedings of the land board covering the sale in question: £ £ This being the date set for receiving bids on the timber on approximately 12,000 *672acres of land in the Boise basin, the board, through its State Land Commissioner. George A. Bay, offered the said timber at public sale. There were but two bids, one by Lyon Cobb, acting for the Barber Lumber Company, for $100,000, and one by Edwin Snow, for parties unknown for $101,000. There being no .further business it was moved and carried that the board take the bids under advisement until two o’clock P. M. of this day.”
It will be observed that at the time of the sale no objection was made by any member of the board, nor by any other person, to the bid of Snow, for the reason that cash did not accompany the bid. In the afternoon of said day, pursuant to adjournment, the board met, and at length considered the two bids before it. The official record discloses that at no time during this meeting did the board or any person make any objection to the bid of Snow because cash was not presented before the board. At the conclusion of this meeting the board took an adjournment for thirty days to consider the two bids. Thirty days later, to wit, on the 25th day of November, the board met and considered both bids at great length, and at no time, until the deliberations had practically closed, was any objection made by the-board or any member thereof to the sufficiency of the tender of the bidder Snow. In fact, no hint was ever given Snow that the board or any member excepted to his bid on account of his failure to place the cash before the board until the motion was made to accept the bid of the plaintiff company, when the mover included in his motion the words, ‘ ‘ and because there has never been, and is not now, a tender on the part of Mr. Snow.”
The record shows that at this point Mr. Snow tendered certified checks in the sum of $50,000, and uncertified cheeks in the sum of $51,000 on Idaho banks, and simultaneously stated to the board that the cheeks were used as a matter of convenience, and if given time he would bring the currency before the board. Notwithstanding this offer the board by motion rejected the bid of Snow and accepted the bid of the plaintiff company in the sum of $100,000, the same being $1,000 less than the bid of Snow.
*673Owing to the fact that during all the deliberations up to the last act of the board in accepting the bid of the company, no objection was made to the bid of Snow, because of his failure to produce the cash, and owing to the fact that he (Snow) offered, if given time, to procure the actual cash, and also to the further fact that it had been the custom of representatives of the land board to accept checks in. payment for land in various sales throughout the state, and owing to the further fact that the only tender made by the plaintiff company was in certified checks, I think the bidder Snow was entirely justified in assuming his tender would meet the requirements of the board, even if a portion of the amount was in uncertified checks on banks in the state of Idaho. I can find nothing in the record which indicates that the board was not willing to accept these cheeks until after the bidder submitting them had declined to perform conditions imposed by the board subsequent to the sale, which conditions are not provided for by the law, nor were they made a part of the notice of sale. I cannot agree that under the law the board was justified in refusing the bid of Snow because he and his clients declined to obligate themselves to perform such conditions.
Another question raised upon the argument is, whether the board was justified in rejecting the bid of Snow, for the reason that it did not in terms include the expense incurred by the applicant in determining the right to cut the trees upon the lands described in the notice of sale. Sec. 1594, Rev. Codes, provides, inter alia, “and if such highest bidder be some person other than the applicant, he shall pay the costs and disbursements incurred by said applicant in the matter of said application, as herein provided, the amount of which shall be determined by the board or by the person designated by the board to make such sale .... and no bids shall be received which do not include the costs incurred by said applicant in determining the right to cut the desired trees.” This statute provides the amount of these expenditures shall be determined by the board or by the person who makes the sale. Inasmuch as the board designated another to make the *674sale, the law imposed -upon him the duty of ascertaining the amount of such expenditure. The record shows that on the day of the sale, and while both bids were being considered, Snow stated in effect that it was his understanding that as a matter of law when his bid was made, the amount of expense incurred in cruising, etc., would be automatically added, and he further stated, “that when that amount is ascertained, it may be noted as the amount which will be paid by us to reimburse the parties who are the applicants for the sale,” in addition to the $101,000 to be paid for the timber. It will be noted this statement was made by Mr. Snow to the board while in session and considering both bids, and one month before the board assumed to exercise its discretion and reject his bid, assigning as one reason for such action that Snow’s bid did not include this preliminary expense. Furthermore, the record made a part of the return in this case does not show that at any of these various meetings the bidder was advised as to the amount of the expense, or where the same could be ascertained, until near the end of the final meeting, and after the motion to accept the bid of the plaintiff company had been made and seconded. If it was competent for the plaintiff company one month later to add to its bid conditions subsequently imposed by the board, I am unable to see how the bid of Snow could be held void because it did not specifically state these preliminary expenses were included, when any possible ambiguity was removed by him on •the day of the sale. It will thus be seen that while the matter was still pending and undetermined, Mr. Snow effectually cleared up any possible ambiguity that might have existed as to whether his bid included this preliminary expense, and stated to the board that his bid should be considered as covering such expense. This was at a meeting thirty days prior to the one in which the plaintiff company agreed to perform the additional conditions required by the board, and at which last-named meeting the bid of Snow was finally rejected, and the bid of the plaintiff company was accepted.
The next question presented is whether in a case of this kind the board is clothed by law with a discretion to reject a higher *675bid and accept a lower one, by reason of the lower bidder agreeing to perform conditions not provided for by law nor covered by the notice of sale. It may be assumed that in this particular case more benefit might accrue to the state, and particularly to the locality in which the timber is located by a sale to the plaintiff company, than the value of the difference between the bids; however, in determining this question, this court is announcing a rule of law which is to be the established policy of the state in all cases of this character for all time to come. For this reason, I do not believe the circumstances of this particular ease should have any weight in determining this important question. We are dealing here with a strictly legal proposition under the constitution and statutes of the state. Sec. 7, art. 9 of the constitution, quoted in the majority opinion, puts the direction, control and disposition of the public lands in the hands of the land board under such regulations as may be prescribed by lew. Sec. 8 of art. 9 of the constitution asserts: “It shall be the duty of the state board of land commissioners to provide for the location, protection, sale or rental of all the lands heretofore, or which may hereafter be, granted to the state by the general government, under such regulations as may be prescribed by law, and in such manner as will secure the maximum possible amount therefor.” These sections of the constitution are exclusive, and in my judgment admit of but one interpretation. No hint there that the state’s land or timber can be disposed of under regulations prescribed by the state land board or any co-ordinate branch of the state government except the branch charged by the constitution with the making of the law. Sec. 1594 of the Rev. Codes provides: “Thereafter said trees shall be publicly sold at the State Capitol, in the city of Boise, or at some other place designated by said board in said notice, to the highest bidder.” Under these positive declarations of the constitution and statutes, I cannot agree that the state land board has discretion to give public notice that it will sell this timber to- the highest bidder for cash, with no conditions attached, then after the sale has been concluded, impose conditions unknown to the constitution and *676the law, then reject the higher bid and accept a lower one, because of the failure of the higher bidder to comply with such conditions. The majority opinion asserts, in effect, that the state land board in exercising its discretion in this matter has acted only as a man of good business judgment would act in regard to his own affairs. However, I am convinced that there is a wide difference between the position of the land board and that of an individual transacting his own private affairs. The latter has unquestioned right to dispose of his own própert3r as he sees fit. In such matters he is a law unto himself. In the handling of his own business affairs he is amenable to no law so long as he does not encroach upon the rights of society or of his fellow-men. On the contrary, the duties and powers of the land board are circumscribed by the inflexible mandate of the constitution, that it must dispose of the public lands of the state “in such manner as will secure the maximum possible amount therefbr,” and also the statutory law that these trees shall bo sold at some place designated by the board to the highest bidder.
I cannot therefore agree that the board had discretion to reject a higher bid and accept a lower one on account of the fact that accepting the lower bid might indirectly enhance the value of the state’s holdings in the particular locality, and also benefit other enterprises in that region, in which the state has no interest. With a parity of reasoning it might be argued that the board could exercise such discretion in the sale of any public patrimony of the state, dependent upon the use to be made by the purchaser of the land or timber, after the consummation of the sale. I do not believe the board possesses such authority.
Counsel for plaintiff has cited numerous cases showing that a public board has some discretion in the matter of letting contracts for public works, etc. I assume such to be the established law of the country; however, in the letting of contracts for public works,-all conditions of the contract remain yet to be performed, and it is of course to the interest of municipalities, etc., to see that every contractor is able to perform the work as per specifications. I do not believe these cases *677apply here, for the reason that in this ease the sale is outright, and nothing remains to be done to complete the sale, except to pay the price.
The majority opinion asserts that the board should be given discretion in determining to whom the sale should be made, for the reason that the law requires the successful bidder to give a bond, guaranteeing that the state’s interests will be protected in the locality where the timber is situated. The record shows that at none of the meetings in which the bids were being considered was the matter of the bond ever mentioned. I do not believe it could be assumed that a bidder who was able and willing to pay $101,000 for the timber in controversy would be unable to give satisfactory bond for the protection of the state’s interests in the remaining timber. At any rate, the matter of giving the bond was never discussed between the board and the bidder Snow, or his client, and there is nothing whatever to indicate that the board rejected the bid because the said bidder was unable to give a bond satisfactory to the state.
I think the allegations of the answer constitute a defense to this action, and that the demurrer should be overruled. I dissent.