State ex rel. Damman vs. The Commissioners of S. & U. Lands. That on November 13, 1851, Peaselee paid to the commissioners the sum of $11.20, being the interest in advance on the said parcels of land for the year 1852, and up to January 1, 1853, but that he made default in the payment of interest for the year 1853; that the commissioners caused to be published in the La Crosse Independent Republican, a newspaper published at La Crosse, a list of school and university lands in the counties of La Crosse and Monroe, which had become forfeited, containing among other lands, the said parcels, which list contained. no statement or certificate that said lands had become forfeited, or that they were subject to private entry; that said list was published in no other paper in the state, and, for the first time in said La Crosse paper, October 6, 1854. That October 4, 1854, one John S. Byrne entered at private sale the said parcels of land described in the certificate issued to Peaslee, upon which the commissioners issued to the said Byrne duplicate certificates of said lands, bearing date October 4, 1854; that at the time of such entry he did not make any application in writing to the secretary of state; and that the said lands had never been re-offered for sale at public auc tion; that afterwards, on February 13, 1855, the com[416] missioners issued an order, stating in substance that the forfeited lands in La Crosse and Monroe counties, had been sold without due advertisement, and directed that all certificates issued upon the resale of said lands be recalled upon payment of interest and penalty by the holders of the original certificates; and that afterwards, May 30, 1855, Peaselee sold and assigned all his interest in the certificates issued to him as aforesaid, to the relator Damman, and that on July 11, 1855, Damman exhibited to the state treasurer the certificates and assignments, and offered to pay and tendered in legal coin, the amount of principal, interest, costs, damages and alty, and charges in any manner due on the certificates, and demanded of him that he indorse the receipt of such payment pen State ex rel. Damman vs. The Commissioners of S. & U. Lands. on the certificates, but the treasurer refused to receive the money so tendered and to indorse the receipt thereof. That afterwards, on July 14, 1855, Damman offered to the commissioners to pay up in full the whole amount for principal, interest and charges on said lands, and to surrender the certificates, and take a patent for said lands; but the commissioners refused to permit him to pay up as aforesaid, and refused to receive the money, cancel the certificates, and issue patents for the lands. The relator prayed for a mandamus, commanding the commissioners to accept and receive from the relator the amount. of principal, interest, costs and charges on the certificates, and indorse a full receipt thereon, and to cause patents to be issued for the lands, according to the terms of the certificates, etc. Upon filing the relation, an alternative writ was awarded, which set out the facts as stated in the relation. After return of the writ, a stipulation of facts was filed that the case be heard upon the facts stated in the alternative writ, and the further fact, that after the lands were forfeited as stated in the petition, and before a tender was made to the school [417] commissioners, of the principal, interest and damages, and demand made for a patent by the relator, John S. Byrne entered the same at private sale, and paid the requisite portion of the principal and interest, and obtained a certificate therefor, from the commissioners under a sufficient notice, and a sufficient publication thereof, under chapter 43 of the Session Laws of 1853." D. R. Wheeler, for the relator. H. S. Orton, for the respondents. By the Court, COLE, J. We are very clearly of the opinion that a peremptory writ of mandamus must be awarded in this On the 13th of November, 1851, when the assignor of the relator purchased of the commissioners of the school lands, case. State ex rel. Damman vs. The Commissioners of S. & U. Lands. the land mentioned in the relation, the following provisions of chapter 24 of the revised statutes were in full force and operation: "Section 15. In case of the nonpayment of either principal or interest when due, according to the terms of the certificate of sale, such certificate shall become void from the time of such failure, and the purchaser or purchasers shall forfeit all right and interest in the land described in such certificate, and the commissioners may take immediate possession thereof, and resell the same as hereinafter provided. "Section 16. At any time before a resale of such land, the payment of the sum due, with interests and all costs occasioned by the delay, together with five per cent. damages on the whole sum owing for such land, shall prevent such resale and revive the original contract. "Section 17. If on a resale of such land, the same shall produce more than sufficient to pay the sum owing therefor, with interest and costs, and five per cent. damages, on the amount of purchase money unpaid, the residue, when collected, shall be paid over to the former purchaser, or his legal representatives." "Section 27. All school and university lands which shall be forfeited by the nonpayment of either principal or interest, be fore the same shall be subject to private entry, shall be [418] reoffered for sale at public auction, and the minimum price of all parcels or lots so forfeited, upon which improvement shall have been made, shall be such as shall have been determined in the manner provided in the 46th section of this chapter." There can be no doubt but these express provisions of the statute, at the time the contract of sale between the purchaser and state was made, entered into, and became a part of such contract, and no subsequent law could be enacted which could change the conditions or impair the obligations imposed by them. Green v. Biddle, 8 Wheat., 1; Bronson v. Kinzie, 1 How., State ex rel. Damman vs. The Commissioners of S. & U. Lands. 311; McCracken v. Hayward, 2 id., 608; Butler v. Palmer, 1 Hill, 325. The purchaser or his assignee had the right, under the 16th section just cited, to revive the original contract at any time before a resale of the land, by paying the sum due with interest, and all costs occasioned by the delay, and five per cent. damages upon the whole sum due; and by the 27th section, forfeited school lands were not subject to private entry until they had been reoffered for sale at public auction. Such were the conditions of the contract entered into between Peaselee, the assignor of the relator, and the commissioners in behalf of the state. Now the question is, how have these conditions been kept and fulfilled by the parties? The material facts of the case as agreed upon by the relator and the commissioners are substantially as follows: Peaselee made default in paying the interest for the year 1853, and upon the 30th of May, 1855, assigned the duplicate certificate to the relator. The relator on the 11th of July, 1855, presented to the state treasurer, at his office, the duplicate certificate assigned to him, and then offered to pay the amount of principal, interest, costs and damages, and all sums of money due thereon, and demanded that the same should be received and receipted by the treasurer upon the certificate. The treasurer refused to receive the money or make the indorsement upon the certificate; the same application was made. on the 14th of July, 1855, to the other commissioners, and a demand made for a patent, which was also refused. After the lands became forfei el, and before a tender was made to the commissioners of the amount due upon the certificate, and all damages and costs, and a demand made for the patent, John S. Byrne entered the land at private sale, and paid [419] the requisite portion of principal and interest, and obtained a certificate therefor from the commissioners, after a suffieient notice and publication thereof, under section 3, chapter 43, Sess. Laws 1853. And further the land had not at any time been offered for sale at [ublic auction since Nov. 13, 1851. The Attorney General ex rel. Carpenter vs. Ely. Under these circumstances, we think it an incontestable proposition, that the entry of Byrne was null and void. The lands were not subject to private entry, and could not be, until after offered for sale at public auction. Not only upon the ground of public policy, that the state was interested in having the land offered at public sale, but the purchaser had a right to insist upon it, as it was a part of the contract which the commissioners, in behalf of the state made with him, that it should be thus offered, before it should be subject to private entry. The purchaser had a direct and immediate interest in the proceeds of the sale after the state was paid. He, therefore, has the right to demand that the lands should be sold at public auction. Until that was done, no private entry could be valid. The act of 1853 does not aid the matter; for it was not competent for the legislature to change an existing contract so as to materially impair the rights of parties under it, even should it attempt it. It is by no means evident that the legislature intended that section 3, chapter 43 of Session Laws of 1853, should apply to any previous sale. However that may be, it is very manifest that the act of 1853 cannot operate injuriously upon rights and interest which had become vested in 1851. Peremptory mandamus awarded. NOTE. - Followed State ex rel. Mayers v. Commissioners, 5 Wis., 348. See note thereto, and to Smith v. Mariner, id., 595. [420] THE ATTORNEY GENERAL ex rel. CARPENTER vs. Ely. ELECTIONS-How conducted Duty of canvassers · - Court and jury may go behind canvass. At an election, if a ballot contains the names of two persons for the same office, it is bad as to both, but it connot be rejected as to candidates for other offices regularly named upon the ballot. |