In July, 1885, the appellee, a corporation, made application to the Land Board constituted by the act of April 12, 1883, to lease a large body of the public domain in Greer county. The Board accepted the applicant’s bid of six cents per acre, and executed to it a lease of two hundred and three thousand acres for the term of six years. The rent for the first year was paid, and this suit was originally instituted by the State to recover the rent for the second year. The defendant corporation having set up its answer as a defense that the action of the Land Board was without authority of law and void, a supplemental petition was filed which alleged the occupation and use of the lands by the defendant by fencing, *258herding and grazing cattle upon them during the time for which the rent was sought to be recovered, and praying, in the event the lease should be adjudged void, a recovery of the reasonable value of such use and occupation. Upon the trial the court found as matters of fact that the lease was executed and that the lands were occupied and used as alleged in the petition and supplemental petition, but concluded as a matter of law that the State could not recover.

The act by which it is sought to sustain the authority of the State Land Board to make the lease in question is entitled “an act to provide for the classification sale and lease of the lands heretofore or hereafter surveyed and set apart for the benefit of the common school, University, the Lunatic, Blind, Deaf and Dumb, and Orphan Asylum funds.” The first section directs that the lands may be sold and leased as thereinafter provided, and in designating them follows literally the language of the title. The sixteenth section, which provides the manner of leasing, reads as follows: “Pasture lands and agricultural lands not timbered may be leased in suitable quantities for stock and ranch purposes,” etc. This language, however, must be taken to refer to the lands described in the first section of the act. This construction is made imperative by that provision of the Constitution which requires that the subject of a bill shall .be expressed in its title. It is clear, therefore, that this statute did not confer authority upon the Land Board to lease any land except the school, University and Asylum lands, and then only after they had been surveyed and set apart. By the act of February 25, 1879, “all the vacant unappropriated public domain embraced in the territorial limits of the county of Greer” is appropriated, one-half to the public free schools and the other for the payment of the public debt. The act further provides that the lands shall be subsequently surveyed and disposed of in such manner as may thereafter be provided by law. Ho statute has since been passed for the survey and disposition of these lands. We are of opinion, therefore, that the State Land Board, in attempting to make a lease of any part of the public domain in Greer county, clearly transcended its authority, and that the lease purporting to have been made by it to appellee must be held void. By the pretended lease the appellee acquired no right and incurred no obligation.

But it is insisted, that one who goes into possession of property under a lease purporting to be executed by authority of an. *259other, is estopped to deny the authority after he has enjoyed the benefits of the tenancy. This may be true as a general proposition; yet, we think, the principle does not apply in this case. Until a recent date, it has been the policy of the State to permit the use of the public lands by the people at large as public commons. In April, 1879, a law was passed requiring persons who should fence school lands to pay rent at the rate of twenty-five dollars per section per annum. This applied only to lands which had been surveyed and set apart for the benefit of the school fund. This was followed by the more comprehensive act, under which the lease in this case was attempted to be made. The statute of April, 1879, recites in its preamble as the cause of its enactment, that many persons had enclosed a large portion of the public free school lands and thereby severed them from the public commons to the exclusion of others. This indicates that at the date of that act a right of common in the public domain was recognized by the Legislature; and the policy to hold them for location and sale and not revenue. The act of April 12, 1888, provided for the lease of lands which had been surveyed and set apart to the benefit of the several funds named in it, but as we have shown, applied to no other parts of the public domain. All other lands were left to the operation of the previous laws; and it was evidently not contemplated that any income should be derived from, them. It was clearly the will of the Legislature that they should not be subject to lease until they were surveyed and set apart for the benefit of one of the funds named in the act. Any attempted leases of such lands were then not only void for want of authority in those who acted as agents of the State, but also for the reason that the leases themselves were wholly without authority of law and in contravention of the policy of the State. It may be that a tenant can not deny the authority to make the lease after he has had the use of the premises under it where the authority may be lawfully conferred, but it does not follow, that one who has held possession under a void lease, may not set up its invalidity, when no lease can be lawfully made. It follows from what we have said, that we are of the opinion that the court below did not err in holding, that the State can not recover upon the cause of action set out in the original petition.

But it is further insisted that the State was, entitled to recover the reasonable value of the use and occupation of the *260lands. The action for the use and occupation of land is maintainable when there is no express contract of lease, but where one maybe implied from the circumstances of the case. (Taylor’s Land, and Tenant, sec. 636; Wood’s Land, and Tenant, 948.) In this case the State not having authorized the lands to be leased under any circumstances, and it being impossible to make an express lease, none can be implied. Not only was the attempted lease in this case without authority of law, but the permission sought to be given by the lease to the defendant was forbidden by the act of February 7, 1884, which prohibits herding for grazing purposes upon the public domain, unless the same shall “have been leased from proper authority.” (Laws 1884, p. 70, sec. 6.)

Our conclusion is, that the occupation of the lands of the State, as alleged in the petition and as found by the court, was unlawful; but that the remedies, as sought in this action, are not those that are contemplated by the law for the wrong that was done to the State. The act last cited shows, as we think, that it was the policy of the Legislature to permit the public lands, which are not surveyed and set apart for the benefit of the State’s institutions of learning and public charities, to remain open as commons for the use of the people in general, and that the intention was to enforce this policy against those who should occupy the lands in contravention of the provisions of the law, by penalties recoverable in the criminal and civil actions therein provided. This action is not brought for the recovery of the penalty provided by the act and can not, in our judgment, be maintained.

The judgment is therefore affirmed.

Affirmed.

Opinion delivered June 22, 1888.

[Associate Justice Walker not sitting.]