dissenting.
The Legislature authorized and directed the Board of Educational Lands and Funds to sell the school lands. It did not authorize the board to give them away.
The issue is quite simple. The question is whether a trustee should be compelled to sell an asset of the trust for less than its full value.
It is the duty of the board to obtain the highest price possible for the land. State ex rel. Reed v. Scott, 18 Neb. 597, 26 N. W. 386; State ex rel. Ebke v. Board of Educational Lands & Funds, 154 Neb. 244, 47 N. W. 2d 520. The purpose of the appraisal for sale purposes is to insure that the full value is received for the land. In this case the appraisal was far below the sale price and less than one-half the amount of the Buell upset bid. It is apparent that the appraisal was defective and that the land should be resold as the board contends.
In State ex rel. Belker v. State Board of Educational Lands & Funds, 184 Neb. 621, 171 N. W. 2d 156, and on rehearing, ante p. 270, 175 N. W. 2d 63, it was pointed out that there is nothing in the act which in any way limits or attempts to limit the jurisdiction or power of the courts to determine whether a sale has been conducted in the manner required by law.
The majority opinion refers to the so-called HarshBudd amendment to L.B. 234 which proposed to insert the words “when the best interest of the state will be served” after the word “sold” as it now appears in section 72-257, R. S. Supp., 1967. The effect of the amend*811ment, if it had been adopted, would have been to give the Board of Educational Lands and Funds an uncontrolled discretion as to- whether any school lands should be sold. That is a far different matter than the right to refuse to complete a sale when it appears to the board that the land has been sold for less than its full value because of a defective appraisal.
The Legislature has the power to provide the method of administering the public school lands, but the method provided must be one which is within the law governing the administration of trust estates. State ex rel. Ebke v. Board of Educational Lands & Funds, supra. The Legislature has not done otherwise. It is the court which has chosen to ignore the rules of law applicable to trust property and trustees acting in a fiduciary capacity.
In State ex rel. Reed v. Scott, supra, this court held that it would not interfere with the discretion of the board unless there had been an abuse of the trust. In this case the court has determined to interfere to compel what appears to be an abuse of the trust.
The problem created by the decision in this case, although of judicial origin, may nevertheless be remedied by legislative action. It is a matter to which the Legislature should address itself at the earliest opportunity.Smith, J., dissenting.
The following facts are significant: The notice of sale stated: “No sale will be final until approved by the Board . . . and the Board reserves the right to reject any and all bids.” The terms, were read to both bidders who understood them. The auctioneer announced: “Sold, subject to approval by the Board of Educational Lands and Funds.”
The statutory interpretations in the majority opinion, with which I do not concur, ought not to be determinative. The parties in actual fact did not intend the transaction to be a contract which the court finds. We can only conjecture as to the extent the board’s procedure *812and the understanding of the bidders affected both appraisal and bidding.
Plaintiffs have invoked the extraordinary remedies of injunction and specific performance against the board. This unusual situation, even on the theory of the majority opinion, ought to be governed by this rule: Sometimes “equity does not lay so ready or so vigorous a hand upon a public official board to compel specific performance as it does to enforce the contracts of private parties.” Whitlow v. Board of Education, 108 Kan. 604, 196 P. 772 (1921). Plaintiffs’ suit is without equity. I respectfully dissent.