majority">Dickinson, J.

- This is an appeal by the plaintiffs from an order sustaining a demurrer to the complaint. The plaintiffs claim to have acquired á right to leases from the state of certain mineral lands, in accordance with the provisions of Laws 1889, ch: 22. Leases having been executed to the defendant, Jamison, the plaintiffs-seek by this action an adjudication to the effect that their right to-such leases was superior to that of the defendant; that they are in equity entitled to the same; that the defendant be adjudged to hold the leases in trust for the plaintiffs; that a transfer of the same-to the plaintiffs bé adjudged, or, alternatively, that the leases be canceled, and that the right of the parties to acquire leases be determined by competitive bidding therefor under the statute as it was construed in Whiteman v. Severance, 46 Minn. 495, (49 N. W. Rep. 255.) The sufficiency of the complaint, as setting forth a cause of action, is to be decided.

The lands in controversy are a part of the indemnity school lands granted by the United States in lieu of deficiencies in the school land sections, (16 and 36.) It is claimed that the state selected these lands, and filed a list thereof in the United States land office in Jan*26uary, 1888, but it appears from the complaint that not until March, 1891, was this selection approved and certified by the Secretary of the Interior. This certified list of lands was transmitted from the general land office to the governor of the state in April, 1891. It was received by the governor as early as April 21st, and on the 24th of April delivered to the commissioner of the state land office.

It is averred in the complaint that, upon the passage of Laws 1889, ch. 22, relating to the leasing of mineral lands, the state auditor made a rule that in awarding leases under that law if there should be more than one application for a. lease of any parcel of land, the lease should be awarded to the person making the first application, and who should in other respects comply with the requirements of that act. While this rule was in force, but before the approval and certification of the lands by the department of the interior, and, as it seems, as early as March, 1890, the plaintiffs presented to W. W. Braden, then commissioner of the state land office, applications in proper form for mineral leases of the lands in question. Such applications were by the commissioner accepted and filed in his office as proper and sufficient applications under the statute, the commissioner determining and certifying that the plaintiffs were entitled to leases when the lands should be conveyed to the state; but, for the reason that the lands had not been patented to the state by the United States, the commissioner refused to give orders, as prescribed by the law, for the payment to the state treasurer of the money required to be paid before leases are to.be granted, and, because such order was not given, the state treasurer refused to receive the money, although the plaintiffs tendered payment. The plaintiffs’ applications were the only ones that were made for leases of these lands, excepting those of the defendant, Jamison.

The certified list of these lands, transmitted to the governor as above stated, was delivered to the state land commissioner, A. Bier-man, (who had succeeded Mr. Braden in that office,) in the afternoon of April 24, 1891. Thereafter, and on the same day, the applications of the defendant, Jamison, for leases of these lands were filed, upon which applications leases were some days subsequently executed to him, by direction of the commissioner.

On the morning of the 25th day of April, 1891, as soon as the plaintiffs learned of the approved and certified list of lands having been *27received in the state land office, they applied to the then commissioner for leases upon the applications previously filed by them, and of which, as well as of the action of the former commissioner thereon, Mr. Bierman had long before been fully informed. The plaintiffs then called the attention of the commissioner to their applications on file, to the action of the former commissioner thereon, and to the rule adopted by him in respect to applications of this nature. They also on that day paid the requisite sums of money to the state treasurer. The commissioner then recognized the plaintiffs’ rights by reason of such applications, and determined that they were entitled to leases, which he directed to be prepared.

The complaint further sets forth that, after the filing of the plaintiffs’ original applications, the defendant, Jamison, and others entered into an agreement and combination for the purpose of acquiring leases of the same lands, knowing the facts before stated relative to the prior filing and acceptance of the plaintiffs’ applications, and that the commissioner, Mr. Bierman, “became a member of such combination,” and was such when the leases were issued to Jamison. It is alleged that the members of the combination, for the accomplishment of such purposes, and to defeat the plaintiffs, contrived to have the certified list withheld from delivery to the commissioner, .and its receipt by the governor kept secret, until the formal applications of the defendant had been prepared ready for filing, and that the leases to the defendant were executed by the commissioner in fulfillment of such agreement, and to carry out the purposes of the combination.

We are referred to the following laws of congress as being the laws under which the state acquired the lands, and which regulated the manner of such acquisition: (1) The act of February 2G, 1857, authorizing the formation of a state government (11 U. S. Stat. 166; 1878 G. S. p. 16, § 5, subd. 1.) (2) Resolution of congress of March 3, 1857, (11 U. S. Stat. 254.) (3) Act of May 20, 1826, (4 U. S. Stat. 179.) (4) Act of February 26, 1859, (11 U. S. Stat. 385; U. S. Rev. Stat. §§ 2275, 2276.) And (5) Act of August 3, 1854, (U. S. Rev. Stat. § 2449.) But we find it unnecessary to consider the nature of the rights which the state may have acquired under the statutes above cited by its mere selection. It certainly did not acquire any title thereby. It seems to be conceded on the part of the appel*28lants, and it cannot well be questioned, that any selection made by the state would be ineffectual to transfer the title from the United States to the state, at least until such selection should be approved by the Secretary of the Interior. Until then, at least, if not until the certification of such lands to the state pursuant to the provisions of U. S. Rev. Stat. § 2449, the lands selected by the state were not subject to the operation of Laws 1889, ch. 22. That law we deem to be applicable only to lands “belonging to the state.” This language, both in the body of the law (section 1) and in the title, 'indicates this as being the proper and most natural construction, if, indeed, there is any room for construction. Besides, it is hardly to be supposed that the legislature could have intended to authorize leases of, and the prosecution of mining operations on, lands of the United States of which it might never secure the title.

Only under the act of 1889 can any rights have been acquired in these lands. Only by force of this statute was the land commissioner authorized to make leases, and the conditions under which he might do so are prescribed by that statute. As the act is applicable only to lands belonging to the state, and as these lands did not in any sense belong to the state when the plaintiffs filed their appli-catioixs, prior even to the approval of the selections by the Secretary of the Interior, such filing was not authorized by the law or within its contemplation, and the plaintiffs acquired ho rights or advantage thereby. It was of no legal effect. Finney v. Berger, 50 Cal. 248; Lansdale v. Daniels, 100 U. S. 113. Nor did the action of the former commissioner, Mr. Braden, give effect or validity to such applications.

Being thus unauthorized and ineffectual, such applications did not acquire validity and become effectual, of themselves and without further proceedings, upon the filing of the selected lists of lands, approved and certified, in the office of the state land commissioner. Lansdale v. Daniels, supra.But when, after the filing of' such lists, the plaintiffs directed the attention of the commissioner to their applications then on file, and when the latter accepted and recognized them as proper applications, we think that the purposes of the law were accomplished. The purpose of the requirement as to making formal applications was to inform the land commissioner, in order that he might properly discharge his duties in respect to. *29the making of leases and contracts. As between several applicants, priority of filing would give no advantage. Whiteman v. Severance, 46 Minn. 495, (49 N. W. Rep. 255.) Hence it was not important that the filings indorsed on the several applications should show when, or in what order, the applications were presented. It was not essential that the applications should show by indorsed dates of filing, or otherwise, when they were presented at the office, although such filings doubtless ought to be made for purposes of authentication and proof, and as the orderly course of proceeding. Therefore the plaintiffs’ applications on file gave them the rights of applicants when the commissioner, Bierman, accepted and treated them as valid, the parties then having the right to file applications. If the applications had been withdrawn from the hands of the commissioner, as they might have been, and immediately returned to him as renewed applications, they would have been valid. But that empty formality was not necessary.

Our conclusion on this branch of the case, as presented in the complaint, 'is that the plaintiffs’ applications became effectual before the leases were made to the defendant, and the question as to which of the applicants should be preferred ought to have been determined by competitive bidding between them, as was decided in Whiteman v. Severance, supra.But, as wás also decided in that case, the unauthorized preference of one of the applicants, the other not being afforded an opportunity to bid for the preference, would not justify an adjudication -charging the former as trustee for the latter. Nor do the facts that the plaintiffs were not afforded an opportunity to bid in competition with the defendant, and that leases were erroneously awarded to the latter, afford a sufficient ground for setting them aside, so as to permit the parties to enter into competitive bidding for leases. The state is one of the two parties to the leases which have been made to the defendant, and, the state not being a party to this action, the leases cannot be judicially annulled.

Under the decision in Whiteman v. Severance, supra,to which we adhere, the plaintiffs cannot prevail upon the facts stated in the complaint, unless the complaint alleges such corrupt misconduct on the part of the state land commissioner, so connected with the applications filed in the name of the defendant, that such applica*30tions should be declared to have been void. It may well be assumed that if these applications were void,—of no legal effect,—so that the plaintiffs’ applications were to be regarded as having been the only legally effectual filings, the plaintiffs would have been entitled to leases, and that in such a case the defendant might be adjudged to hold the leases made to him in trust for the plaintiffs. But we are of the opinion that the complaint does not show such conduct on the part of the commissioner as would render void the defendant’s applications.

It is probably true that if the commissioner was a party in interest with the defendant in the applications filed in the name of the latter, it being agreed that the officer was to share in the benefits to be derived therefrom, considerations of public policy would forbid that legal validity should be ascribed to the applications. But the complaint does not allege such a state of facts, and the allegations of a pleading are not to be extended by mere inferences of official misconduct. The complaint does not allege that the officer had, or that it was ever agreed or even understood that he was to have, any interest in the leases applied for by the defendant. In construing the pleading it is not to be legally inferred that such was the case from the facts alleged,—that, an agreement and combination having been formed between the defendant and divers other persons for the purpose of acquiring leases of these lands for their joint benefit, the officer “became a member of such combination.” Not only is there no averment that the commissioner ever had any personal interest in the transaction, but he is not made a party to the action, which fact lends support to the conclusion, resting chiefly, however, upon the construction of the complaint 'itself, that the plaintiffs did not intend to rest their case on the fact that the officer was himself a party in interest in the transaction.

A distinction is to be observed between a case where the officer has himself an interest in an application concerning which he is to act officially,—which might of itself render void the application,—and a case where the officer acts erroneously, or even wrongfully, in furtherance of an application or claim in which he is not thus interested. This complaint seems to fall under the latter class, and, however culpable might be such conduct as is there ascribed to the officer, it did not render void the applications of the defendant. *31What is alleged as having been done prior to, or at the time oí, the filing of these applications, seems to have been directed to the end of enabling the defendant to be the first to file applications after tbe approved list of lands should be received from Washington-, and filed in the state land office. But that did not prejudice the rights of any others who might desire to apply for leases of the same land, for as we have already said, and heretofore decided, priority of application gave no superior right. Hence, even if the officer did improperly, or even with the wrongful intent of favoring this defendant, contrive to enable him to m'ake the first filing, that did not render that filing or application void. The defendant had an absolute right to make the application, and, whether it was made before or after others should exercise the same right, its legal effect would be the same. As to what was done after the filings had been legally made, for the purpose of favoring and preferring the defendant’s claim, it is enough, for the purposes of this decision, to say that it had no retroactive effect, so as to render the applications invalid and void; and, as has been already said, the plaintiffs’ right to have it declared that the leases are held in trust for them depends upon the proposition that the plaintiffs were, in legal contemplation, the only applicants. If the state were a party to the action, so that the leases might be judicially avoided, the allegations as to the conduct of the commissioner and of the defendant subsequent to the filing of the applications would have a different bearing, and might be deemed to constitute sufficient ground for setting aside the leases.

(Opinion published 55 N. W. Rep. 749.)

For the reasons here stated, we are of the opinion that the court ruled correctly, and the order is affirmed.

Vanderburgh, J., did not sit.

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