McCandless v. Carter

18 Haw. 221

Opinions

OPINION OF THE COURT BY

HARTWELL, J.

This was a bill to obtain an injunction restraining the govern- or and the commissioner of public lands from exchanging for private lands certain public lands on the Island of Lanai having an area of 47,669 acres of which all but 1000 acres are held by one Charles Gay under five leases terminating respectively February 9, 1907, of 7400 acres; November 1, 1907, of 7900 acres; June 23, 1908, of 9000 acres; January 1, 1916, including the lands of Namolai, area 8291 acres and Poomai, area 9078 acres, and January 2, 1925, of 5000 .acres, the total annual rentals being $1600.

The bill avers that the commissioner threatens to and will exchange said public lands for other lands equal in value and that the governor threatens to and will approve of the exchange unless restrained and enjoined from so doing; that the governor caused the following notice to be published in the daily newspapers: “Lanai Lands. Notice is hereby given that having decided an Exchange of the Public Lands on the Island of Lanai to be advisable, the Commissioner of Public Lands is prepared to receive offers of other lands that are equal in value to those of Lanai, and of greater immediate service to the Territorial Government, from any responsible person, up to and including Saturday, the fifteenth day of December, 1906. G. N. Carter, Governor. Executive Building, Honolulu, November 28,1906;” that the commissioner has no right or authority to exchange these lands for other lands of equal value or for any other lands and that the governor has no right or authority to approve of the exchange which is not by way of compromise or equitable settlements of rights of claimants, nor by way of exchange for parcels of land required for roads, nor for sites of government buildings, nor for any other government purposes; that the lands are of groat value,-the said land of Kamolcu, containing about 8000 •acres of good grazing land with about three miles of sea frontage with a good harbor, the land extending inland about six miles, having a value of $40,000; that the said land of Poomai is good grazing land having about five and one-half miles of sea frontage, including a fair harbor or landing, and extending inland over six miles, having a value of $3^,000; that each of the other lands is worth more than $5,000.

The averments made upon information and belief are that the •commissioner threatens to make the exchange mentioned and those which relate to the value and condition of the lands. The jurat is in the usual form — that the plaintiff has read the complaint and knows its contents and that “the same are true, except as to those matters therein stated on information and belief, and as to those he believes it to be true.” Ex parte injunctions were issued upon the filing of the bill but, on defendants’ motion, the injunction against the governor was dissolved and the bill as to him dismissed. The commissioner’s demurrer to the bill was overruled and his appeal from the decree overruling the demurrer was allowed. The demurrer raises the points (1) that the bill is insufficiently verified; (2) that the averment that the exchange is not authorized by law and that the commissioner ought to be enjoined states conclusions of law; (3) that the plaintiff has not shown any interest which entitles him to an injunction; (4) that the bill does not show that the commissioner is about to do any act in violation of law.

As a general thing injunctions ought not to issue upon statements of material matters made upon information and belief. In this case the proposed exchange is shown by the official notice published in the newspapers, the value and kind of lands proposed to be exchanged being largely a matter of information and belief. "We consider that the bill properly presents the question of the legality of the proposed exchange and that it is properly verified.

The right of a citizen and taxpayer to obtain an injunction against official acts involving unauthorized rise of public funds has repeatedly been adjudicated in this court. Castle v. Minister of Finance, 5 Haw. 27; Lucas v. Amer. Haw. E. & C. Co., 16 Haw. 80; Castle v. Secretary of the Territory, Ib. 769. In the-¡jresent case the bill does not show whether the loss of revenue from rent would be offset by rents from land of equivalent value or by a saving of revenue which otherwise would be used. Iu ihe absence of an averment of loss none can be inferred. The taxpayer would gain from the transaction pecuniarily if the Territory should thereby obtain property for such public uses as school houses, for instance, for which otherwise legislative appropriations would be made requiring increased taxation and in such cases the plaintiff’s only interest would be his desire that the public land laws be correctly administered.

Perhaps a citizen and taxpayer’s right to obtain injunctions, to restrain official acts affecting public property ought not to be based on the pecuniary loss, howsoever trivial or conjectural, but on the broad ground that any citizen may obtain a judicial inquiry into the validity of such acts and an injunction against them if found to be unauthorized. In the view we take of the-fourth question raised by the demurrer it is unnecessary to-decide the question of the plaintiff’s right to sue in this case.

The remaining question to be considered is whether the commissioner, by approval of the governor, has the power to malee the proposed exchange. By Sec. -1-2 of the Civil Code of 1859, tlie minister of tlie interior, by authority of the king in cabinet council had “power to lease, sell or otherwise dispose of the publie lands and other property in such manner as he may deem best for the .promotion of agriculture and the general welfare of the kingdom subject, however, to such restrictions as may from time to time be expressly provided by law.” Chap. 24, Acts of 1874,. requires consent of the privy council for sales of land above-$5,000 in value, and Chap. 44, Acts of 1876, requires sales and leases of land of over $'300 in value to be made only at public auction, but that this provision shall not apply to cases “where the government shall by quit claim, or otherwise, dispose of its-rights in any land by way of compromise or equitable settleménh-of the rights of claimants, nor to cases of exchange, or sales of government lands in return for parcels of land required for-roads, sites of government buildings, or other government purposes.”

Sec. 42, as thus amended, and as further amended to conform to the constitution of 1894 and the Organic Act,’ is found in Secs. 252 and 254 R. L. Sec. 276 R. L., being Sec. 17 of the Land Act of 1895, with the amendments required by the Organie Act, is as follows:

“The commissioner may with the consent of the governor sell public lands not under lease, in parcels of not over one thousand’ acres, at public auction for cash. Upon any such sale and the payment of the full consideration therefor, a land patent shall be-issued to the purchaser.

• “And he may, with such consent, sell public lands not under-lease in parcels of not over six hundred acres, at public auction, upon part credit and part cash, and deliver possession under an agreement of sale containing conditions of residence on or improvement of the premises sold, or of payment by instalments or otherwise of the purchase price, or all or any of such conditions.

“And in case of default in the performance of such conditions, the commissioner may, with or without legal process and without notice, demand or previous entry, take possession of the premises- and thereby determine the estate created by such agreement. In case of such forfeiture, such land shall be sold at auction. -either as a whole or in parcels, for cash or on terms of time payments in the discretion of the commissioner; and if such sale shall result in an advance on the original price, the original purchaser shall receive therefrom the amounts of his payments to the government on account of purchase, without the interest and a pro rata share in such advance in proportion to the amounts of his payments. If such sale shall result, however, in a less price than the original, the amount returnable to him shall be charged with a pro rata amount of such decrease proportioned to the amounts of his payments. The treasurer is hereby authorized to pay the amount returnable to the outgoing tenant, upon the requisition of the commissioner, out of any funds available for such purpose.

“Which agreement shall entitle the purchaser to a land patent of the premises upon the due performance of its conditions.

“The commissioner shall have authority to fix any upset price for all such sales for cash or part credit and part cash.

“All such sales shall be held in Honolulu, or in the district where the land to be sold is situated. Any person designated by the commissioner may act -as auctioneer at such sales without taking out an auctioneer’s license.

“Provided, however, that land patents may be issued in exchange for deeds of private lands or by way of compromise upon the recommendation of the commissioner and with the approval -of the governor without an auction sale, and further provided, that the governor may in his discretion upon such recommendation and approval, execute quit claim deeds for perfecting the titles of private lands where such titles are purely equitable or where such lands are suffering under defective titles, or in cases -of claims to use of lands upon legal or equitable grounds.”

Since by Sec. 75 of the Organic Act the superintendent of public works succeeds to- the powers and duties of the minister •of interior with reference to lands then under the control of the minister and as the commissioner of public lands succeeds to the powers and duties of the commissioners under the act of 1895, Sec. 252, E. L., declares that “The commissioner of public lands or superintendent of public works, as the case may be, by and with the authority of the governor, shall have power to lease, ■sell,” etc. The power of the superintendent of public works to ■exchange public for private lands under his control is without limitation as to tlie land to be given in exchange, the commissioner’s power to exchange land Tinder his control being sncli as is expressed in the proviso of- Sec. 276, E. L. The attorney general’s contention that the commissioner has power to exchange under Sec. 254, E. L., cannot be sustained since Sec. 75 of the Organic Act, transferring to the superintendent the powers and duties of the minister of the interior, is not limited by Sec. 73. Pratt v. Holloway, 17 Haw. 537.

Sec. 276, E. L., authorizes the commissioner to sell unleased public land at public auction in parcels' of not over 1000 acres for cash, and partly for credit in parcels of not over 600 acres for residence and cultivation, concluding with the proviso with reference to exchanges and compromises without auction sale and quitclaiming the government title in cases of .defective titles or legal or equitable claims. The plaintiff insists that this authority for issuing patents in cases of exchange or compromise is confined to parcels of not over 1000 acres not under lease on the ground that it is only to such land and such parcels that the provisos refer. The decision of the case depends largely upon the meaning of the words “provided however.” They may mean the same as “but nevertheless,” or “but notwithstanding what is above expressed,” or “but anything hereinbefore contained to the contrary notwithstanding,” in either of which expressions “but” conveys no other meaning than “and,” and the power to exchange expressed in the proviso, if regarded as an independent power, would refer to any public land under the" commissioner’s control. While the commissioner is authorized to sell public land (1) not under lease, (2) in parcels of not over 1000 acres, (3) at public auction and (4) for cash (or partly for credit in case of the 600 acre parcels to be used for residence or cultivation) he is authorized to issue land patents in exchange for deeds of private lands without public auction upon his recommendation and the governor’s approval. The exercise of this power is not expressly limited to unleased or 1000 acre parcels. Siich limitation, if intended, would appropriately be expressed by inserting after the word “exchange” the words “of parcels of not over 1000 acres of unleased land.” There are several reasons why sncli unexpressed limitations would not be implied. They obviously would be inapplicable to tlie cases of defective titles or legal or equitable land claims mentioned in the second proviso oi the same paragraph as well as to cases of compromise mentioned in the first proviso. As the earlier act, See. 254, It. L., contains no limitation to unleased or 1000 acre parcels in cases of exchange, compromise, etc., it would be reasonable to expect that if such limitation were intended in the later act it would be expressed.

It is urged, however, and with truth, that the Land Act of 1895 was intended, as shown in its various provisions, as a homestead and settlement act, to furnish opportunities for small proprietors and that the withdrawal of public lands from purposes of the homestead act, although for other public purposes, lessens the important benefits to be derived from the act. Unquestionably the act ought to be construed, as far as reasonably is practicable, so as to- promote and not obstruct its clearly expressed objects, but such considerations do not justify the court in supplementing the act by provisions not therein expressed. Moreover, while the restriction of sales to auction sales of not over 1000 acre parcels not under lease might secure better prices, the restriction does not prevent the same person from booming purchaser of any number of parcels. There would be no advantage to the public in dividing this land on Lanai into parcels within the 1000 acre limit and obtaining a surrender of the leases prior to an exchange. If the lands were thus divided and the leases cancelled it would be a matter of policy whether the parcels should be exchanged for other lands of equivalent value.

It is not averred that any of this land is agricultural land suitable for settlers or homestead purposes. None but experts could decide upon the possibility of obtaining water for bringing waste or pastoral land under cultivation. One who is not an expert may or may not think that water could be obtained by conserving the rainfall or well boring. Expert knowledge is required to determine whether as the leases terminate, if the lands should remain unleased, nature would probably replace tire forest or a devastation from floods and lrigli winds would continue. "Whether it would be better to trust to obtaining appropriations to make the lands of use for cultNation or to lease them under conditions requiring lessees to reforest or, on the other hand, to utilize opportunities of obtaining by exchange valuable property for immediate public uses is a question which requires for its decision the exercise of excellent judgment and forethought.

Opon the plaintiff’s contention, as we understand it, while public land to any required extent under the superintendent of public works may be exchanged for “parcels of land required for roads, sites of government buildings or other government purposes” (Sec. 254, R. L.), all lands under the control of the commissioner are intended by the Land Act of 1895 to be used or disposed of by him only qs pointed out in the act and to permit the exchange of leased land, although worthless for settlement or homestead purposes, would violate the spirit and intent of the act. It must be observed, however, that Sec. 254, exempting exchanges of land from the necessity of public auction, merely recognizes the power to make them which is implied in the power given by Sec. 252 to dispose of public lands; but Sec. 276 does more than to recognize the commissioner’s power of exchange, it declares affirmatively that the power can be exercised, and without the requirement of public auction, the terms used being- as broad as those of Sec. 252. The homestead act of 1895, while restricting sales and leases of land, allowing sales only of land not under lease, and providing that leases shall not be renewed while having more than two years to run, leaves the matters of exchanges of land and of compromises of land claims to the discretion of the commissioner and governor.

In Oregon v. Hitchcock, 202 U. S. 60, decided April 23,1906, the State of Oregon filed a bill to restrain the secretary of the interior and the commissioner of the general land office from patenting to any Indan or other person certain lands which, on March 12, 1860, were swamp and overflowed lands, the State of Oregon claiming the lands under an act of Congress of March 12, 1860. Tbe objection was made by demurrer that as tbe legal title to tbe lands was in tbe United States the suit did not lie since tbe United States, being the real party in interest, could not be sued without its consent. Tbe court, after citing from Minn. v. Hitchcock, 185 U. S. 373, as follows: “Now tbe legal title to these lands is in tbe United States. Tbe officers named as defendants have no interest in tbe lands or tbe proceeds thereof. Tbe United States is proposing to sell them. This suit seeks to restrain tbe United States from such sale, to divest tbe government of its title and vest it in tbe State. Tbe United States is, therefore, tbe real party affected by tbe judgment and against which in fact it will operate, 'and tbe officers have no pecuniary interest in tbe matter,” their said: “Tbe legal title to all these tracts of land is still in tbe Government. No patents or conveyances of any kind have been executed. There has been no finding or adjudication by tbe Land Department that tbe lands referred to were swamp or overflowed on March 12, 1860. Under those circumstances it is not a province of tbe courts to interfere with tbe Land Department in its administration. So far as a grant of swamp lands is claimed, it must be held that tbe grant is in process of administration, and, until tbe legal title passes from tbe Government, inquiry as to equitable rights comes within tbe cognizance of the Land Department. Courts may not anticipate its action ox take upon themselves tbe administration of the land grants of the United States.”

G. D. Gear and A. G. M. Robertson for plaintiff. E. G. Peters, Attorney General and F. W. Milverton, Deputy Attorney General, for defendants.

If tbe proposed exchange should secure land suited for homesteads and settlement it would clearly promote tbe objects of tbe land act and yet would be based on the same law under which land would be acquired for other public uses. This fact lends force to tbe view that considerable undefined discretion is necessarily left to tbe commissioner and governor, the exercise of which discretion cannot be conirolled by injunction.

The decree appealed from is reversed, tbe demurrer is sustained and bill dismissed.