State ex rel. Veeder v. Collins , 5 Wis. 339 ( 1856 )

By the Court,

Smith, J.

By reference to the report of the matter of the appeal of J. J. Guppy from the decision of the register of the state land office, in relation to the right of entry of certain lands of the tract of land granted by the Congress of the United States to aid in the improvement of the Fox and Wisconsin Rivers, and to connect the same by a canal, reported at length in 3d Wisconsin Reports, 502, it will be seen that Yeeder, Mars and Guppy, as county j udge and trustee for the settlers* applied, in 1853, to the said register, to enter a certain quarter section of land, part and parcel of said grant. The decision of the register was in favor of Yeeder, and Guppy1 and others appealed to the Circuit Court of Columbia county, where the decision of the register was reversed, and the right of Guppy, trustee as aforesaid, was adjudged. Yeeder and Mars, each separately, appealed from the decision of the Circuit Court to the Supreme Court, where the decision of the Circuit Court was reversed, and the right of Yeeder was determined and established, and an order was entered, remanding the case to the Circuit Court “ with instructions to said court, to make an order in said cause, to be directed to the proper officer, for the issuing of. a certificate for the land i.i question in said cause, to the said Richard F. Yeeder, in pursuance of the statute in such case made and provided.”

On filing the remittitur, and certified copy of this order in the Circuit Court aforesaid, the counsel for Yeeder moved the said court to make the order in conformity with the direction of the Supreme Court; which motion was denied. This application is now made to compel the said Circuit Court to make the order embraced in the motion, and in conformity with the direction of the Supreme Court.

The judge, in his return to the alternative writ, issued upon filing the relation, admits the making of the motion and the denial thereof,.and for the reason “ that there was no proper officer, to whom such order could, or should be directed, who lawfully might or could issue to the said Yeeder the certificate of title mentioned in the order and direction aforesaid, of the Supreme Court.”

The judge further returned “ that by the laws of the state of Wisconsin, it was once the duty of the register of the state land office to issue certificates in such sales, and that at the time of denying the said motion, so made in the said Circuit Court, for the order aforesaid, there was no register of the state land office, to wbom said order could be directed; nor was there then, nor is there now, any such officer, or officers, as tbe register of the state land office, nor any other officer liable, or qualified to issue the certificate aforesaid.”

Upon this return, the counsel for Yeeder moves for a peremptory writ of mandamus, to be directed to the circuit judge, to compel him to mate the order required by the direction and judgment of the Supreme Court; on the ground: 1. That the register of the state land office, is the proper officer to issue the certificate of entry to Yeeder, and that he is still in office for that purpose.

On' a former occasion when this subject matter was before us on appeal, we decided that by the 42d section of the act to provide for the improvement of the Fox and Wisconsin Eivers, and to connect the same by a canal {Rev. Stat. p. 672), “ any one, who at the time of the passage of that act (August 8,1848), had the requisite improvement on any of the lands granted, which on partition should fall to the state, took, by virtue of the act, the right to enter such land in accordance with its provisions.” The provisions of that act required of .the claimant the payment of the purchase money to the receiver, the presentation of the receipt of the latter to the register, and to make his application for the land, with the proper proofs of his improvements, &c., with all of which provisions Yeeder had complied ; upon which it was made the duty of the register to issue to him a certificate of his entry and purchase of the land.

By an act of the legislature, approved February 1, 1853, it is provided that in case of conflicting preemption claims, the parties may appeal from the decision of the register to the Circuit Court of the proper county. Yeeder’s claim was contested by Guppy, as trustee for the settlers upon the land, or a portion of the land claimed, and by Nancy Mars, in her own right, and by some other claimants. The register decided in favor of Yeeder, whereupon Guppy and Mars appealed, in which case it was provided bj tbe act last mentioned, that no certificate should be is* sued by the register until the appeal should be decided, and the decision certified to him.

The seventh section of the same act provides for an appeal from the Circuit to the Supreme Court, and the sixth section provides that the court in which the appeal shall be tried shall make an order that the register issue h certificate for the land in question to the successful party, and shall award costs, &c.

By an act of the legislature, approved July 6,1853, “ an association for the completion of the improvement of the Fox and Wisconsin Rivers,” was incorporated, to which the “lands granted by Congress, remaining unsold,'’ were granted upon certain terms and conditions therein expressed. The seventh section of this act provides, that after the expiration of thirty days from the taking effect thereof by the full organization of the association, and filing the bonds required, the duties of the board of public works, of which the register was a member, should cease. Previous to the passage of this act, the term of office of the register was one year, and until his successor should be appointed and qualified. The association had been fully organized, and had filed their bonds more than thirty days previous to the filing of the remittitur from this court, and of the motion mentioned in the relation.

We have already seen that the right of Yeeder was- fixed by the act of 1848, and his compliance with its provisions. 3 Wis. Rep. 502. He had made his ajaplication in due time and form, had paid his money, and had done all that the law required him to do. As, however, there were contesting claimants, the statute directed the register to withhold the certificate of his purchase, until his right to enter the land in such manner (by preemption) should be decided by the proper court. When the court de- ' cided in favor of his right so to purchase, he became entitled to a certificate of the purchase so made. The decision of the-court did not confer the right, but was declaratory of what his rights were. During the pendency of the appeal, the register was the legal custodian or depositary of the certificate. He held it in trust for the party who should be found entitled to it upon the trial of tbe appeal; and we have no doubt that it would become Ms duty to issue tbe certificate to sucb party, in pursuance of tbe order of court.

But it is said that tbe act of July, 1858, abolished tbe office of register. Admit, for tbe .moment, that tbe office was abolished by that act, tbe person who filled it would remain, and if no other provision were made, be would continue to bold tbe papers in bis custody for tbe use of sucb persons as might be entitled to them, and without doubt might be compelled to deliver them over, or submit them to sucb use as might be legally demanded. If, therefore, it were true that tbe office was abolished by tbe act of July 6, 1853, and tbe act of 1848 was thereby repealed, still tbe person in whose custody sucb certificate by law remained during tbe pendency of tbe appeal, would not- be entitled to withhold it after the appeal should be determined. And if be could not withhold it from tbe person rightfully entitled to it, tbe latter should have tbe appropriate remedy to obtain its possession.

But tbe office of register is not, in terms, abolished by tbe act of July- 6, 1853, nor tbe act of 1848 in this behalf repealed thereby. It only provides that after tbe expiration of thirty days, tbe duties of tbe register shall cease. Nothing further was to be required of - him as sucb register. His ordinary and general duties bad ceased. Tbe lands were disposed of by tbe act; tbe improvement, and works connected therewith, were passed into other bands, and so, of course, tbe general and appropriate duties of tbe office ceased with tbe relation of tbe state as owner or trustee of tbe lands. But though these appropriate and ordinary duties of tbe register should cease, it is not to be supposed that the legislature intended to absolve that officer- from tbe performance of any act which might become necessary to preserve tbe faith of tbe state, or to perfect its contracts. Certainly, it would seem, if sucb bad been their intention, we should find some intimation of it in.tbe language used-by them in framing tbe act. None sucb is to be found. On the contrary, tbe act wisely avoids tbe total abolition -of tbe office, because, in the multitude of business transactions in that office, some ministerial acts, then undone, might require completion, and hence official character and responsibility are not entirely taken away.

The register, by the act of 1848, continued to hold the office until his successor was appointed and qualified. By the act of Eebruary, 1, 1853, it is made his duty to issue the certificate to the successful party in the appeal from his decision in case of conflicting preemption claimants, upon service upon him of the order of the proper court, when the appeal shall have been determined. In the act following, approved July 6,1853, although it is declared that the duties of the register and receiver of the state land office shall cease, the act of Eebruary preceding is not repealed, and it becomes our duty to give effect to both. They are not only consistent, the one with the other, but from the nature of the several provisions of the two acts, it is difficult to perceive how the latter can constructively repeal the former, in any respect of the matters now under consideration. Indeed, an appeal under the former act could hardly be decided in the circuit, much less determined in the Supreme Court, before the latter act would take effect, and it is quite apparent that it was intended that such appeals should be heard, tried and determined, and their results carried out in conformity with the act which allowed them. Hence the register, for all the purposes necessary to perfect those appeals, and to execute the orders made therein, upon their determination, remained in' office, and was, and is the proper officer to whom such order should be directed.

In either case, therefore, whether the register, during the pen-dency of the appeal was the mere legal custodian of the certificate of purchase, its delivery only postponed, or, whether the act of issuing the certificate on the order of the proper court, was an official act to be done by him as register, we have no doubt that that office was continued for all the purposes of the 8th section of the act of July 1, 1853. We are also of the opinion that that section continues in full force in relation to all appeals brought under it; and that the register in office when the act of July 6, 1853, took effect, is the proper officer, as well as person, to wbom tbe order of tbe Circuit Court should be directed ; and that bis certificate, issued in conformity with such order, will be as yalid and effectual as though the act of July 6, 1853, had not been passed.

It is suggested by the counsel for the respondent that the latter is incompetent to issue the order in this case, for the reason that he was of counsel for the appellant Mars, on the appeal. But this objection ought not to prevail, because the execution of the order of this court does not involve or require the exercise of judicial discretion, but only the execution of the mandate of this court.

Again; it is insisted that the statement of the respondent in his return, that .there is no proper officer to whom the required order can be directed, is a statement of fact, admitted by the demurrer. We think this is a misapprehension of the legal effect of the pleadings in the case. Undoubtedly a mere matter of fact, well pleaded, is admitted, by the demurrer. But such is not the case where the pleader asserts a proposition of law. The existence or non-existence of such officer, the repeal or non-repeal of the statute creating the office, its continuance or abolition, by force of subsequent statutes, and the like questions, are indubitably matters of law and not of fact, and hence their, assertion in the pleading is not an admission of their truth by demurrer, nor is the court bound so to regard them.

Let the peremptory writ go.