
    W. M. Pence et al. v. J. T. Robison, Commissioner of the General Land Office, et al.
    No. 1956.
    Decided June 2, 1909.
    1. —School Land—Unsurveyed Tracts—Repeal.
    Section 8 of the Act of April 15, 1905 (Laws 29th Leg., pp. 164-166), giving to an applicant for the purchase of unsurveyed school land, who has surveyed it for the purpose of buying, sixty days after the approval of his survey in which to make his purchase, was not repealed by the Act of May 16, 1907, section 6e (Laws 30th Leg., pp. '494, 495), providing that “No one shall hereafter have any preference to purchase any unsurveyed land except as provided in this Act for original lessees out of leases.” (P. 489.)
    2. —Same—Preference.
    The right given by the Act of 1905 is not a preference right, within the meaning of section 6e of the Act of May 16, 1907. All persons were equally entitled to acquire unsurveyed land without preference, by complying with the conditions of purchase. (Pp. 489, 490.)
    Original application to the Supreme Court by Pence and another for writ of mandamus against the Commissioner of the General Land Office. Jesse S. Cross, an adverse claimant of the land in controversy, was made co-respondent.
    
      Charles Gibbs and Stephens & Miller, for relator.
    
      R. V. Davidson, Attorney-General, and Wm. E. Hawkins, Assistant, for respondent, Robison.
   Mr. Justice Williams

delivered the opinion of the court.

The writ of mandamus prayed for is refused for the reason that we do not agree with the only contention of relators, that the right given by section 8 of the Act of 1905 (Laws 29th Leg., 164-166), to an applicant who has caused public land, previously unsurveyed, to be surveyed for the purpose of buying it within sixty days after the approval of the survey, is taken away by the provisions of section 6e of the Act of 1907 (Laws 30th Leg., 495), that “bio one shall hereafter have any preference to purchase any unsurveyed land except as provided in this Act for original lessees .out of leases.” The right given by the Act of 1905 is not a preference right in the sense of the provision just quoted. All persons are equally entitled by the former Act to take the steps therein authorized to acquire unsurveyed land, no preference being given to one over another. The beginning of those proceedings is not the exercise of a preference, but is the initial step necessary to a purchase, which anyone may take. When that step has been taken and has been followed by the others necessary to the purchase, the person who has conducted them is recognized as an applicant who has acquired the right to buy, not by virtue of a preference given to him for other reasons, but because he has complied with the conditions upon which he may purchase unsurveyed- land, and the duration of that right is limited to sixty days in which it may be matured into a completed purchase. ■ The right is not even called a preference in the statute. Laws in existence prior to 1907 did give preferences, so named in the statutes, and it was to such that the law of that year evidently refers. Whether it applies to the preferences given by. section 8 of the law of 1905 to the owners of enclosures and im- . provements is not involved in the case before us, neither the relators nor the co-respondent being in either class.

Mandamus refused.  