THE PEOPLE V. PRITCHARD.

SEC. 2. Said lands shall first be offered at public sale, by auction, but shall not be sold at a less price than $1.25 per acre, which shall be the minimum price therefor, and shall be subject to entry at private sale, at such minimum price, after being offered at public auction, as in this act provided, and such lands shall be sold at public and private sale, in the smallest legal subdivisons, required by purchasers."

It is seen, therefore, that when provision was made for a cash expenditure of an average amount per mile, not exceeding the value of six hundred and forty acres, at the minimum price fixed by the laws of this state, the sum, until the minimum price should be changed, would be an average of eight hundred dollars per mile; and that the choice between money and land, given to the contractor by the Act of 1859, as amended, was a choice between an average of eight hundred dollars per mile, or lands in lieu of it.

It is worthy of observation that this provision implies freedom of choice between land and money on the part of the contractor, and an indifference on the part of the state as to whether the one should be taken rather than the other. Such could hardly have been the case, except upon the supposition that the land and money would be equivalents in the consideration of the state. The lands were also to be in liquidation of subsequent contracts, or in payment of cash contracts then existing. This difference in phraseology is easily explained. As to cash contracts already made, a money liability was supposed to have been incurred to be discharged by payment, while the contractors, under subsequent contracts, would be entitled to select their lands on approval of their bonds and contracts by the Governor, but would not have them in payment until performance. The effect of the final disposition of the lands would be the same in both cases.

The transfer upon the agreed consideration would surely be a sale.

THE PEOPLE V. PRITCHARD.

We have seen that, by the second section of the Act of 1858, the land could not be in market until offered at public sale. The Act of 1859, as amended by the Act of 1862, provides that lands selected by contractors shall be withheld from market during the full time specified in the contract for the completion thereof. This language clearly implies that but for such provision the land open to selection would be in market, and as none could be so unless offered at public sale, the inference is very strong that no lands not in market were intended for selection.

It is urged on the part of the relators that the express authority to contractors to select land anywhere in the state, is a plain declaration that any lands may be taken. This position is deemed to be clearly untenable. The phrase itself would be extremely inapt to express that meaning; and it is well known, indeed, to have been a simple amendment of former provisions, which obliged the contractor to select his lands in the county in which the work was done. Such was the Act of 1859. It had no relation to the question as to whether lands not in market could be selected. The purpose was to define the territory in which a particular contractor could select lands subject to selection. The Act of March 7, 1861, was the last which required that the lands should be selected in the county, and in reference thereto, the Act of 1862 provides that in all those contracts made prior to March 7, 1861, when the party contracted to take lands, the same must be selected in those counties where the work was performed. The Act of 1862 also distinguishes the upper from the lower peninsula, as to the right to select lands. It seems too plain to admit of argument, that this provision has no bearing upon the question as to whether lands which have never been offered for sale may be taken by contractors in lieu of money.

These statutes relating to swamp lands are not to be considered separately as isolated and independent enactments.

They all bear upon the same subject, and are to

THE PEOPLE V. PRITCHARD.

be construed together as one system, and as explanatory of each other.

When thus considered, it seems evident that the purpose of the legislature was to make no distinction between contractors and other persons, as to the value of the consideration to be received by the State for the lands. And it seems equally clear, that it was never intended that such contractors should have the right to select at pleasure from the body of lands not placed in market, and from which all other persons had been excluded from purchasing.

The course contended for on the part of the relators would produce the utmost confusion in the accounts with these lands in the offices of the Auditor General and State Treasurer, and would lead to results which could not have been contemplated, and which can not be defended. The argument by which the position of the relators is sustained would, if carried out, completely subject to the disposal of contractors all mineral and other lands of the greatest value covered by the congressional swamp grant, notwithstanding their careful reservation from market by the state.

Before acceding to a proposition leading to such consequences, the case should be well supported and clear.

That is not the case in this instance. The position taken on the part of the relators finds support neither in the general policy of the state respecting the swamp lands, nor in the spirit of the very legislation on which the position is based. On the other hand, the view taken by the respondent accords with such policy, is reasonable and just in itself, and appears to be justified by a sound interpretation of the laws bearing upon the question.

I think that the writ prayed for should be refused with costs.

The other Justices concurred,

OCTOBER TERM, 1868, AT DETROIT.

Ferdinand Monnier v. Thomas W. Mizner.

Judgment record: Effect of recitals in order denying motion for new trial. When a judgment is supported by the declaration, the court will not take notice of a recital of facts in an order denying a motion for a new trial, for the purpose of determining the legal question of the right to include in the judgment certain claims of rent.

The recitals in such order are no part of the record and can not supply the want of a bill of exceptions.

Error to Wayne Circuit.

Heard and decided October 6th.

The defendant in error, Mizner, sued the plaintiff in error upon a bond given by him on appeal from a commissioner awarding restitution of certain premises for the nonpayment of rent. The declaration alleges a holding by Monnier from Mizner, under successive demises, on all of which rent was due, (the first lease commencing January 1, 1866, and the last May 1, 1867,) and that the commissioner found that all the rent was due to that date. Monnier appealed to the Circuit Court, but the judgment of the commissioner was there affirmed. Judgment was given in the Circuit Court for the whole amount of the rent. Afterwards, a motion for a new trial was made, and the court made the following order, to wit: