Bisbee daily review., 1908-02-13
SOLVES HARD SCHOOL
 LAND PROBLEM
Replies To Letter From Dis trict Attorney BulIard of Maricopa County In Regard to Lease of Tract.


 the interpretation of the school land law, received from District Attorney Bullard, Of Maricopa county, Attorney General Clark has rendered the fol lowing opinion:
 Prescott, Feb. 7th, 1908. MT. G. P Bullard, District Attorney,
 Phoenix, Arizona.
 Dear sir:-I have yours of Feb. 4th relating to the controversy regarding the leasing of certain lChool lands in Maricopa county.
 You state that a certain portion of a school section in said county wass prior to the enactment of Title 45 of the Revised Statutes of 1901, occupied by one Titus, who expended some money in improving the same; that after the passage of said act, Titus conveyed his Improvements uo one Sampson, who was and is a nonresI- dent of Arizona; tha Sampson has in termittently cultivated said land through a tenant named Frazer. but las never himself been a citizen of Arizona; that on October aIu, -SS ., G. H. Rothrock made application to lease said land; that the board of su-
  application of Rothrock, Sampson conveyed to his tenant Frazer all of said improvements and Frazer, in the 5th day of December, 1907, also ap- piled to the board of supervisors for a lease of said land, claiming to be the occupant thereof. You submit two questions which you consider to be the leading ones in the case, as fol- lows:
 1, As between Frazer and Roth rock, which is entitled to the lease?"
 2. TT Rothrock is entitled to the lease, as against Frazer, was Samp- son, the assignor of Frazer, such an occupant. of the land at the time of the application of Rothrock to lease the land, as would entitle either Sampson, or his assignee, to receive payment for the improvements?'
 I advise you first, that under the provisions of paragraph 4044, the su- pervisors are empowered to lease school lands only to citizens of this Territory, or those who have declared their intention to become such. As suming, therefore, that Sampson was not a citizen of the Territory, and has not declared his intention to become sucn, he was not entitled to lease the land under any circumstances and the board would have no power to lease it to ilim. This being the case, it is obvious that Frazer acquired no rights merely as a sub-tenant or agent e Sampson, but if he was a resident of the Territory during his occupancy of said land he was, none the less, an occupant because he was also acting as the agent of Sampson. This brings us to a consideration of paragraph 4046, in which it is provided that any one wishing to lease school or univer- sity lands shall make application to the board of supervisors and shall state, among other things, whether the land is occupied and, if so, by whom; that, if said lands are occupied, the supervisors shall notify the occupant of said lands that ne must, in order to retain possession thereof, pay the leasing value and take a lease oF said lands, or that the supervisors will pro- ceed to appoint appraisers to appraise said Improvements.
 It becomes very plain, therefore, that where school lands are occupied, the board of supervisors acquires no jurisdiction to lease the lands as against he occupant, unless a proper apphcatizl has been filed, setting forth that said lands are occupied, and by whom, and further, that the super visors would have no jurisdiction even then to lease said lands as against the occupant, unless the board had notified the occupant as provided in paragraph 4046.
 I believe this whole question turns on whether Rothrock in his applica- tion stated the lands were occupied and by whom, and whether the board then notified the occupant, a5 it is re quired to do under the provisions Of said paragraph. It seems to me to have been the legislative intent that any occupant of school lands, wheth- CT in his own right, or as agent of some other person, should have notice of an application for a lease of the tract occupied by him in order that he might elect whether he himself would lease the land, or have his i'm provements appraised and purchased. Rothrock's application, therefore, Hn- less it contained a statement of occu- pancy and unless the board notified the occupant, can have, absolutely no standing before the board, as against Frazer. To hold otherwise would be depriving Frazer of due process of law.
 Unless advised as to the condition Of the record upon the points above raised, I shall be unable to answer your questions satisfactorily. If you will kindly advise me whether Roth rocks application contained the nee essary statement as to occupancy and if so, whether the board gave proper notice to the occupant, shall be glad to consider the matter further.
 Very respectfully yours,
 B. s. CLARK,
 Attnrnav CarnoraI