Omaha daily bee., 1902-08-22
UPHOLDS PURCHASE RIGHT
Attorney General Writes Opinion on School
Land Contracts.
CANNOT AsRoeATE CONTRACT RIGHTS
Indications Are That stnte University
VIII HRvs a Largely Increased
Attendance n Com
ing Year.
(From a Stan correspondent.)

rus a 9R1NAaAa NkNA
comment in these dispatches regarding the
applications for the transformation OF
lease contracts on school land into sale
contracts, has had the effect OF greatly
increasing the correspondence of the land
commissioners Office. for lease holders all
over the state are anxious to obtain full
possession and ownership of their land.
The position OF Land Commissioner Foil
mer in this matter is directly opposite to
that OF his predecessor in office, but he Is
reinforced BY an emphatic ruling from the
Department Of Justice.
Under the law which remained on the
statute books Of the state from 1879 till
1897 a lease holder was entitled to purchase
the land he occupied. provided he fulfilled
all the obligations Of the contract and would
pay the state the full appraised value CT
the land. The legislature Of 1897 repealed
this law. Former Land COMMISSIONS
Wolfe held that the repeal Of the law in.
validated the contracts, and therefore he
rejected all applications for the purchase
Of land. Mr.. Follmer regrets that he is
forced to take a different stand, for he
would prefer to have the state keep all OF
the school land, but he recognizes the fact
that the contracts entered into by the
state under the old law cannot be repu-
dated. Holders of leases given prior to
1879 have also asked to buy their rented
land, but all Of their applications have by
both commissioners been rejected, for the
law under which their lease contracts were
given made no provision by which they
could buy the land, as was expressly pro-
vided In the subsequent act.
Any person desiring to purchase land un-
der a lease contract given between 1879
ana 1897 must pay all expenses of sppraise-
ment, review or reappralsement and they
must be willing to pay the full market
value Of the land. This will be determined
by the value Of land in the immediate
vicinity. II land in the neighborhood is
worth $25 per acre on the market, the
lease holder must pay that amount, or else
be satisfied with his lease contract.
II is estimated that there are upward
of 1000, 900 acres Of land now occupied un.
der leases given between the years 1879
and 1897. The opinion by the attorney gen.
eral follows:
Opinion of Attorney General.
From your communication and the docu-
ments accompanying the same II appears
that the state on November 3. 1897, leased
to s. J, Hin eighty acres of school land in
Stanton county. The terms of the lease
was twenty-five years. BY assignments
Irwin r. Layton holds the lease, is I'm
possession of the land and claims the right
to surrender his contract and to purchase
the land from the state. This right is as
serted under the PE5vis.Sns of @scSticn . cf
the act of 1873, under which the lease was
executed. The statute cited grants to one
who complies with all the terms OF his
t tSSse lhe U ysaps sn no 80 nSrchase y The w - nd
Before this right was exercised the legis-
lature repealed the statute under which it
was acquired and prohibited further sales
of school lands, except for church. school
or cemetery purposes.
Under the facts stated in connection with
the nraGanf condition NJ the afnftafpg yntrr
request is as follows: I'VE would ask that
YOU favor us with a speedy opinion as TO
whether this otiiee has the right to issue
In a lease the iessee's' option to buy the
land demIsed is an oblLsation which is
under. consideration In Knerr against Brad
ley did not contain or In direct terms refer
recite hat the contract Is made IN p pTrs
suance of the statute, and the statutory
provisions relating to the option became a
When the lessee received bis lease he
had a statutory and contractional right to
c aoIa the pT wifh is t% SsrsSmnmis years years ai by
70 surreTder his lease and buy the land.
BY these rights he was encouraged TO make
improvements with the assurance that he
might enjoy them for twenty-five years and
at the end Of that time purchase the land
upon which they were situated. The state
Is not only bound 70 respect such rights,
but is prohibited by section 10, article /. Of
the constitution Oh lie IOnlleu 6IAleS from
passing a law which impairs the obligation
OF contracts. Section 16. article l, OF the
state constitution also prevents the enact
provisions protect the rights of the lessee
and his assignee from invasion by the legis-
iature.
Applies TO the state.
1t is a rule of law we'll established in this
country that constitutional provisions
against impairment OF contracts apply to
obligations OF q state as we'll as to those
the extent 70 which a contract is impaired
extent the statute Is condemned. Rights
away by a repeal of the statute under
which the contract was issued. Rights
under a sS contract St Ssts { pursuant y .ba e a
ing law and not by subsequent legislation.
The supreme court of this state in State
legislature may change or modify the
remedy, II cannot, by a direct act. deprive
the party Of q s~ubstantiai contract Iightn
statutory right of a lessee to name an ap-
pralser TO act with others In fixing the
value OF the school land occupied by him
taken away by a later act OF the legisia-
The principles OF law and the presidents
to which / have adverted make II clear that
the lessee or his assignee still has all the
under section 2 Of the act OF 1879. unless
they have been forfeited or waived. Suisse
quent statutes prohibiting further sales OF
school land do not, therefore, apply TO
school land held under a valid lease now
IN force and which was issued under the
act Of 1879.
When Irwin r.. Layton establishes the
fact that he has succeeded 10 all the in
tereste and rights of S. L. IAN under the
'iatter's lease OF October IA. 1879, shows that
all the obligations imposed upon lessee by
Ahe contract and the statute ave been
performed. exercises in the proper manner
hhis option 10 buy the land and surrenders
his lease. he will be entitled 10 4 contract
rof sale and IL will then be the Outs Of the
state to enter into contract according to
the terms OF its original obligation 10 do so.
Look for Large Attendance.
Students viii soon begin to gather in
Hincoln for the thirty-second annual ses-
sion Of the University OF Nebraska. The
authorities CT the institution predict an in
lereasing attendance and are preparing for