Slay v. Lowery , 152 Miss. 356 ( 1928 )

I am unable to agree with the decision of the majority opinion in this case. The patent involved here reads as follows:

"Whereas, by virtue of the provisions of Chapter 77, Section 2912 of the Code of the State of Mississippi, 1906, providing for the sale of the Forfeited Tax Lands of the State of Mississippi, and whereas R.J. Lowery, desiring to purchase the 1 Lot South by Lowerey et als.; East by Holley Estate; North by Bayou Auguste; West by Avery et als., in the City of Biloxi, Patent No. 14730, May 2d 1921, 1 Lot South by Division St., East by Illsley; North by Section Line; West by Benachi, in City of Biloxi, Miss., Patent No. 14759, dated June 16, 1921. Lot No. 4, Block 22, Summerville, Biloxi; Lots 1 and 6, Block 23, Lots 10 and 11, Block 23; Lots 3 and 4, Block 23-A; Lot 8, Block 28, Lot 11, Block 37, and all in Summerville, Biloxi, Miss., Patent No. 14958, May 3, 1922.

"Lot South by Ryan; East by City Property; North by Porter St.; West by Logan, Biloxi, Miss. Lot 3, Block 31-A, Summerville, Biloxi, Patent No. 15809, dated Sept. 16, 1924. Lots 1 and 1e, Block 35, Lot 19, Block 9, Summerville, Biloxi, Patent No. 15128, dated Nov. 10, 1922 ____ of Section ____ Town ____ Range ____, County of Harrison and having complied with all the requirements of the law in such cases made and provided.

"Now, therefore, The State of Mississippi, in consideration of the premises and the sum of one dollar being the amount required to purchase said land at the rate of $ ____ per acre, does hereby grant and convey to said R.J. Lowery, the lands above described."

This patent shows on its face that it was issued in lieu of five prior patents, and the property, as shown by the deed, is situated in different parts of the city of Biloxi. The court takes judicial notice of the location of municipalities in the state, and census reports made by the United States government under Federal law. In 1920 Biloxi had a population of 10,937 people, and it is a matter of general and common notoriety that the population has increased along the Mississippi coast where Biloxi is situated, and that the market value of lots in the city is much higher than in former years.

The patent does not show on its face that the property had been appraised by the land commissioner, the Governor and the attorney-general. The concluding part of section 1, chapter 185, Laws 1926, 6088 of Hemingway's Code 1927, provides:

"In selling such lands and the improvements thereon, if any, the land commissioner may ask and obtain greater prices therefor than those of swamp and overflowed lands."

The term "may," when used in a statute prescribing duties for officials, is generally used in a mandatory sense; and was clearly intended to be so used here. In selling lands in municipalities, where values are higher than in the rural sections, a greater price should be obtained for such lands. It is well known that land in municipalities, platted into blocks and lots, is of much greater value than mere acreage.

Section 2, chapter 185, Laws of 1926, prescribes that:

"All sales of such lands situated within municipalities, which lands have heretofore escheated to or title thereto become vested in the state, and which have been sold by the land commissioner of the state at a fair and reasonable price not less than that prescribed for the swamp and overflowed lands, may be conveyed to the original holder of the patents, or if he has sold same to his vendee at such reasonable price as the state land commissioner, the Governor, and the attorney-general shall fix."

This clearly prohibits the selling of such lands at less than a reasonable price, and such reasonable price must be determined by the officers named in the statute. This determination is to be based upon investigation and knowledge. The statute does not intend that they shall be sold without any of the officers making an inspection, and reporting on the values so fixed. The powers conferred in this statute are merely statutory powers, and it is well settled law that the record in such cases must show affirmatively the jurisdictional facts upon which such officers may act, and that no presumptions are indulged in favor of their action, in the absence of such showing. Ferguson v. Board of Supervisors,71 Miss. 524, 14 So. 81; Bolivar Co. v. Coleman, 71 Miss. 832, 15 So. 107.

There is nothing in the record to show that there was any consent whatever by the attorney-general, or that he participated in the sale of any manner whatever. The Governor and the land commissioner were not authorized to grant a patent in this case without having the attorney-general participate in the appraisal, and the record should show the appraisal, and that he did participate therein.

Section 95 of the Constitution of 1890 provides:

"Lands belonging to, or under the control of the state, shall never by donated directly or indirectly, to private corporations or individuals, or to railroad companies." (Emphasis supplied.)

The court must give effect to the Constitution by considering its purpose, and the history of the state prior to its enactment. The words "directly or indirectly" were put in for the specific purpose of preventing any such construction as the majority opinion has put upon it. Certainly it was not intended to prohibit a donation where there was absolutely no consideration whatever, and to uphold the same thing when a mere nominal consideration was received, grossly out of proportion to its value. In other words, when a mere nominal consideration is given, it is an indirect donation, and in the case before us the consideration is so small, and so unreasonable, considered with the fact that the lands were within the municipal corporation, as to prove conclusively to the reasoning mind that it was a mere scheme to avoid the effect of the constitutional provision. We all know, as a matter of common sense, and everyday experience, that lands are nowhere subdivided into blocks and lots, and sold for any such consideration as fifty cents, or even a dollar, per lot.

Section 66 of the Constitution provides that:

"No law granting a donation or gratuity in favor of any person or object shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the legislature, nor by any vote for a sectarian purpose or use."

Suppose the legislature should undertake to dispose of the state university to a sectarian body. Would a nominal consideration of one dollar or ten dollars take the transaction out of this section? To so hold would shock both common sense and the conscience. It would be a mere effort to evade a plain and mandatory section of the Constitution, designed to protect the public in the saving of the state's property from an unwise and generous legislature.

We think this view is absolutely supported by Winton v.Day, 96 Miss. 1, 49 So. 264, cited in the majority opinion as not being applicable. It is true that in that opinion the court held that the transaction there involved violated both section 95 and paragraph (u) of section 90. After commenting upon its conflict with paragraph (u) the court, on page 7 of the Mississippi report, page 266 of the Southern, said:

"But, if this were not true, the statute violates section 95 of the Constitution, as it is a donation of lands `belonging to or under the control of the state,' within the meaning of section 95 of the Constitution."

Prior to 1890 the state owned great tracts of timber and other valuable lands which, through a mistaken policy of legislative generosity, have been sold for a mere nominal consideration to individuals and corporations. The situation represented such a gross injustice to the public at large as to amount practically to giving away great sections of valuable public lands. The constitutional convention wished to prevent any further exercise of such vicarious generosity, and we should construe the constitutional sections so as to further, and not defeat, the purpose the convention had in mind.

It is impossible for me to bring my mind to that state of hypnotism produced by legal presumption, to assume that the officers in fact valued the land here involved, and sold them at a fair and reasonable consideration. Common sense is one of the most valued assets we have in any situation in life, and especially where one is dealing with the public rights, and is under duty to exercise reason and administer justice. Under the decision now rendered, the constitutional provision becomes practically meaningless, and will no longer serve to protect the public interest.

McGOWEN and PACK, JJ., concurring in the dissent.