dissenting.
After a full hearing and a careful consideration of the evidence, without the aid of a referee, a decree in favor of plaintiff was entered at a former term. State v. Ball, 90 Neb. 307. In my. judgment the findings on the first trial Avere correct. I do not agree Avitli the referee and the majority that the newly discovered evidence requires a different judgment. The exceptions should be sustained. I also dissent from that part of the majority opinion opening the questions of estoppel and laches for future consideration. The doctrine that petty administrative officers by means of unauthorized acts can dispose of state school land in violation of provisions of thé constitution should never be sanctioned. If the constitutional and statutory system of holding and controlling school land may be substituted for unauthorized acts of taxing officers, Avho can tell whether any land belongs to the permanent school funds? Is morality in this respect to be the test of the rights of the state as intimated by the referee? Are ideas of unwritten, indefinable moral obligations, floating in the inner consciousness of judges, and arising from conflicting testimony of litigants, to be the means of depriving the sovereign of school land? Is trespass to be substituted for law? Unless there is some idea *364that constitutional government administered by written statutes is to be abandoned in a material respect, the questions of estoppel and laches, as announced in the former opinion, should not be open to further controversy.
Estoppel and laches are properly applied to rational persons who have the power to contract and to act in all their dealings as free agents, but those doctrines have no application to a sovereign having only power to act through departments and officers whose duties and powers are limited, and defined by written statutes. Individuals are not wronged by applying to the state a rule Avhich does not apply to them, because the powers, duties and acts of officers are shown by public records available to all. Courts ought not to assume in advance that the state will be immoral in its administrative dealings in regard to its school land. The legislature, if asked, Avill enact proper laws to correct any wrong or to appropriate money to pay any proper claim. In the meantime the attorney general should assert the rights of the state as they exist under present institutions. Any other view disregards the philosophy on which constitutional government administered by means of written statutes is founded. I am therefore compelled to dissent from that part of the majority opinion opening the questions of estoppel and laches.
Barnes, J., concurs in dissent.