Dixon, C. J.
The turning point in this case, and fatal objection to the plaintiff’s title, as it appears to us, is the want of the written application required by law to be produced to the secretary of state by every purchaser at private sale of any school or university lands. R. S. ch. 28, § 35. This is the first step in procuring such title, and the foundation of it, wherever the rights of third parties intervene. It is indispensable to its validity, as has more than once been decided by this court. State v. Janssen, 2 Wis. 423; Mariner v. Gray, 4 Wis. 380. The proof is very clear and positive that no application in writing by the plaintiff ever came to the hands of the secretary, or to the proper office, according to the mode in which the business was transacted, until after the defendant had made and presented his written application, and entered and paid for the land in due form of law. It is needless to dwell upon the testimony to this point, as it is too clear and indisputable to admit of any reasonable doubt. The learned counsel for the plaintiff does not question it, except upon the ground that the application may have been mislaid or lost, and the proper entry upon the books accidentally omitted. This is a very unsatisfactory explanation, and, con[128]*128sidering the course of business through the different offices, as shown by the principal witness, cannot be credited. If the application had been made, it is very improbable that it should have been lost, and that there should have existed no evidence of it in the school land office at the time of purchase by the defendant, as testified by McBride.
And the effect of this testimony is not encountered or overcome by the presumption in favor of the correctness of official action, as argued by counsel. In the absence of all proof to the contrary, the correctness of the action of the. commissioners in cancelling the entry of the defendant and allowing that of the plaintiff, may well be presumed. On the other hand, if previous application had been duly made by the plaintiff, accompanied by the requisite payment of purchase money, the presumption is equally strong that it would have been shown by proper entries in the books; and so, too, is the presumption that the application itself .would have been found in the proper place, subject of course to the accident of being occasionally lost or mislaid. The presumption, therefore, affords no aid to the plaintiff; and, besides, it is to be resorted to only where the proofs are doubtful, or in the absence of proof. The question must be decided upon the evidence, as it appears without the jaresumption. The truth seems obvious that no application by the plaintiff was presented to the secretary of state until long after the land was entered by the defendant. The application forwarded by Yail, as he testifies, on the 16th of May, to the state treasurer, was no doubt retained by the treasurer or by his “ deposit clerk ” until the plaintiff came to Madison shortly before the 19th of August, when the order was made by the commissioners setting aside the sale made to the defendant.
And this view is in harmony with the entire testimony. The money of Mr. Vail, the plaintiff’s agent to enter the land, deposited with Mr. Hastings, at that [129]*129time the treasurer of the state, was not in the state treasury. It was in the hands of Mr. Hastings as a mere private individual, who, for the convenience of parties transacting business with the school land department, thus consented to act as their agent. It was the same as if any other person at the capitol had undertaken to receive and pay money into the treasury and to present written applications for parties residing in distant parts of the state. The deposit of money with such person, or the receipt of any application by him, would have availed nothing as an entry or purchase of land. No more did they with Mr. Hastings. So long as he retained the application, the land was unapplied for, and was subject to entry by any other person. And the fact that he retained the application is most strongly corroborated by the fact that no money was paid into the state treasury on the plaintiff’s purchase until the 27th of August, one month after the defendant had bought and paid for the land. And this alone is sufficient to invalidate the plaintiff’s claim, even though his application had been first filed in the proper office. Application without payment gives no vested right, and it still would have been competent for the defendant to apply for and purchase in the manner he did. McIndoe v. Jones, 6 Wis. 334; Mariner v. Gray, supra. And see Smith v. Mariner, 5 Wis. 551; Smith v. Clark, 7 id. 551; and Whitney v. State Bank, id. 620. His relations with such depositors, and duties as treasurer, were no doubt well understood by Mr. Hastings, and it would have been somewhat strange had it been found that the application was filed in the secretary’s office and an entry or sale in form made, and yet no charge or credit of the money upon his own proper books as treasurer. No treasurer would be likely to do business in that way He would do as the evidence shows Mr. Hastings did, retain the application and the money on deposit until the note and mortgage were properly executed, the [130]*130lien or incumbrance by tax deed removed, and all things ready to consummate the sale. And these, it seems, occupied considerable time in the performance; for it was not until the 24th of August that the mortgage was approved by the attorney-general. But in the meantime the defendant’s application to purchase for all cash down was received.. In that case the tax deed constituted no obstruction. It was for him to redeem after the purchase, and there was to be no delay for the execution and recording of a mortgage. His application was accepted, the money paid into the treasury, and a receipt executed, thus giving him complete equitable title to the land, unless it was still competent for the commissioners to set aside the sale to him and allow the entry by the plaintiff, as was subsequently attempted to be done — which is the next question to be considered.
This question as to the power of the commissioners to vacate sales and set aside or annul certificates of entry, depends upon the true meaning and construction of sec. 121 of said chapter 28, which reads as follows : “ In case of the sale of any school or university lands made by mistake, or not in accordance with law, or obtained by fraud, such sale shall be void; and no certificate of purchase issued thereon shall be of any effect; but the holder of any such certificate shall be required to surrender the same to the commissioners, who shall thereupon refund the amount paid for the land described in such certificate.”
It is urged that this statute confers judicial powers upon the commissioners, without benefit of appeal or review in the courts, and that their action in declaring the sale void, is final. It is to be observed, with respect to the language, that it does not expressly confer upon the commissioners any power or authority to hear and determine the causes for which it is declared the sale shall be void. It is merely enacted that for certain causes, if made by mistake, or not in accordance [131]*131with law, or obtained by fraud, the sale shall be void; but how, or by what officers or tribunal those causes shall be examined and decided, the statute does not say. The questions involved are purely of a judicial character, and the inference may be most reasonable that only a judicial investigation or trial was intended.
Free access — add to your briefcase to read the full text and ask questions with AI
Dixon, C. J.
The turning point in this case, and fatal objection to the plaintiff’s title, as it appears to us, is the want of the written application required by law to be produced to the secretary of state by every purchaser at private sale of any school or university lands. R. S. ch. 28, § 35. This is the first step in procuring such title, and the foundation of it, wherever the rights of third parties intervene. It is indispensable to its validity, as has more than once been decided by this court. State v. Janssen, 2 Wis. 423; Mariner v. Gray, 4 Wis. 380. The proof is very clear and positive that no application in writing by the plaintiff ever came to the hands of the secretary, or to the proper office, according to the mode in which the business was transacted, until after the defendant had made and presented his written application, and entered and paid for the land in due form of law. It is needless to dwell upon the testimony to this point, as it is too clear and indisputable to admit of any reasonable doubt. The learned counsel for the plaintiff does not question it, except upon the ground that the application may have been mislaid or lost, and the proper entry upon the books accidentally omitted. This is a very unsatisfactory explanation, and, con[128]*128sidering the course of business through the different offices, as shown by the principal witness, cannot be credited. If the application had been made, it is very improbable that it should have been lost, and that there should have existed no evidence of it in the school land office at the time of purchase by the defendant, as testified by McBride.
And the effect of this testimony is not encountered or overcome by the presumption in favor of the correctness of official action, as argued by counsel. In the absence of all proof to the contrary, the correctness of the action of the. commissioners in cancelling the entry of the defendant and allowing that of the plaintiff, may well be presumed. On the other hand, if previous application had been duly made by the plaintiff, accompanied by the requisite payment of purchase money, the presumption is equally strong that it would have been shown by proper entries in the books; and so, too, is the presumption that the application itself .would have been found in the proper place, subject of course to the accident of being occasionally lost or mislaid. The presumption, therefore, affords no aid to the plaintiff; and, besides, it is to be resorted to only where the proofs are doubtful, or in the absence of proof. The question must be decided upon the evidence, as it appears without the jaresumption. The truth seems obvious that no application by the plaintiff was presented to the secretary of state until long after the land was entered by the defendant. The application forwarded by Yail, as he testifies, on the 16th of May, to the state treasurer, was no doubt retained by the treasurer or by his “ deposit clerk ” until the plaintiff came to Madison shortly before the 19th of August, when the order was made by the commissioners setting aside the sale made to the defendant.
And this view is in harmony with the entire testimony. The money of Mr. Vail, the plaintiff’s agent to enter the land, deposited with Mr. Hastings, at that [129]*129time the treasurer of the state, was not in the state treasury. It was in the hands of Mr. Hastings as a mere private individual, who, for the convenience of parties transacting business with the school land department, thus consented to act as their agent. It was the same as if any other person at the capitol had undertaken to receive and pay money into the treasury and to present written applications for parties residing in distant parts of the state. The deposit of money with such person, or the receipt of any application by him, would have availed nothing as an entry or purchase of land. No more did they with Mr. Hastings. So long as he retained the application, the land was unapplied for, and was subject to entry by any other person. And the fact that he retained the application is most strongly corroborated by the fact that no money was paid into the state treasury on the plaintiff’s purchase until the 27th of August, one month after the defendant had bought and paid for the land. And this alone is sufficient to invalidate the plaintiff’s claim, even though his application had been first filed in the proper office. Application without payment gives no vested right, and it still would have been competent for the defendant to apply for and purchase in the manner he did. McIndoe v. Jones, 6 Wis. 334; Mariner v. Gray, supra. And see Smith v. Mariner, 5 Wis. 551; Smith v. Clark, 7 id. 551; and Whitney v. State Bank, id. 620. His relations with such depositors, and duties as treasurer, were no doubt well understood by Mr. Hastings, and it would have been somewhat strange had it been found that the application was filed in the secretary’s office and an entry or sale in form made, and yet no charge or credit of the money upon his own proper books as treasurer. No treasurer would be likely to do business in that way He would do as the evidence shows Mr. Hastings did, retain the application and the money on deposit until the note and mortgage were properly executed, the [130]*130lien or incumbrance by tax deed removed, and all things ready to consummate the sale. And these, it seems, occupied considerable time in the performance; for it was not until the 24th of August that the mortgage was approved by the attorney-general. But in the meantime the defendant’s application to purchase for all cash down was received.. In that case the tax deed constituted no obstruction. It was for him to redeem after the purchase, and there was to be no delay for the execution and recording of a mortgage. His application was accepted, the money paid into the treasury, and a receipt executed, thus giving him complete equitable title to the land, unless it was still competent for the commissioners to set aside the sale to him and allow the entry by the plaintiff, as was subsequently attempted to be done — which is the next question to be considered.
This question as to the power of the commissioners to vacate sales and set aside or annul certificates of entry, depends upon the true meaning and construction of sec. 121 of said chapter 28, which reads as follows : “ In case of the sale of any school or university lands made by mistake, or not in accordance with law, or obtained by fraud, such sale shall be void; and no certificate of purchase issued thereon shall be of any effect; but the holder of any such certificate shall be required to surrender the same to the commissioners, who shall thereupon refund the amount paid for the land described in such certificate.”
It is urged that this statute confers judicial powers upon the commissioners, without benefit of appeal or review in the courts, and that their action in declaring the sale void, is final. It is to be observed, with respect to the language, that it does not expressly confer upon the commissioners any power or authority to hear and determine the causes for which it is declared the sale shall be void. It is merely enacted that for certain causes, if made by mistake, or not in accordance [131]*131with law, or obtained by fraud, the sale shall be void; but how, or by what officers or tribunal those causes shall be examined and decided, the statute does not say. The questions involved are purely of a judicial character, and the inference may be most reasonable that only a judicial investigation or trial was intended. There is nothing in the language directly, or hardly indirectly, opposed to such an interpretation; and if it were the only alternative, thus to construe it or to hold that the commissioners are invested with full judicial powers and made the final and exclusive arbiters in such cases, we should have no hesitation in saying that the former construction must prevail. It would prevail on constitutional grounds, if on no other. It is obviously incompetent for the legislature to vest judicial powers of the kind, to be finally and exclusively exercised by any officer or body of officers, except by the courts of law or equity organized under the constitution and in the manner therein prescribed. Every construction in conflict- with that instrument must be rejected, and a statute incapable of harmonious exposition with it, must fall. But the rule is, that statutes should be so construed as, if possible, to stand. There is but one way of construing this statute consistently with the supposed delegation of power to the commissioners, and so that it may stand, and that is by holding that the action of the commissioners is always subject to examination and review in the courts. As already observed, the power of the commissioners to set aside sales for the causes named, is not expressly conferred. Its existence is implied from the last clause of the section, by which the holder of any such certificate is required to surrender the same to the commissioners, who shall thereupon refund the amount paid for the land described in the certificate. It is not inconsistent with the words of the statute that this order or requirement should follow a judicial sentence or decree annulling the sale ; and yet it is by [132]*132no means certain that it was not the intention to authorize the commissioners in the first instance to declare the sale void. I have some difficulty in holding that even this power may be given them; but such has been the practical construction which the statute has received, and its invalidity may not,- after all, be so clear. Long usage under a statute is entitled to very great weight in its interpretation, and ought not, perhaps, to be overlooked when it is examined in a constitutional point of view. The exercise of a summary jurisdiction of the kind by the commissioners may be often very useful, and, subject to review and correction in the courts, the objection to it does not seem insuperable. The process of judicial investigation, while it has the advantage of greater care and deliberation, and consequently of greater certainty in attaining correct results, has also the disadvantage of many times being very slow. In the very numerous transactions of the school land office, cases may not be unfrequent where delay would be most injurious. The cases may be plain ones, and prompt determination required. They may be such that no judicial examination will be advised or sought, but the decision of the commissioners accepted as correct. In such cases the benefits of the summary mode of proceeding are manifest, and the evils disappear when it is known that the judicial remedy is open to any person feeling himself aggrieved by the action of the commissioners. And the giving of such power is in harmony with what has been the general practice of our government, both state and national, in this respect. The officers intrusted with the sale and disposition of the public lands have always been invested, with certain limited judicial powers of the kind, closely connected with the duties they are required to perform, and which seem necessary to a proper performance of them. They have been authorized to vacate entries of land under similar circumstances, and to issue certificates to other [133]*133applicants. They have been empowered to bear and decide questions of contested rights of preemption or entry, which are quite judicial in their nature, and often present points of much difficulty and importance. In some instances an appeal has been given directly from their decision to the courts, as was done by a law of this state giving an appeal from the decisions of the register of the state land office for the sale of the lands granted to the state to aid in the improvement of the Fox and Wisconsin rivers. Veeder v. Guppy, 3 Wis. 502. And in all cases it has been held, we believe, where no appeal is directly given, that the proceedings of such officers, so far as they act judicially, are subject to review and correction in any proper action instituted between the parties in interest.
And so we must hold in this case, that the order of the commissioners vacating the sale to the defendant is subject to be reviewed under the answer of the defendant, which is in the nature of a cross bill or equitable action, instituted by him to enforce his title or claim in equity to the land. And this jurisdiction of the court being established, the conclusion favorable to the title or claim of the defendant follows from what has been previously said. There was neither fraud, mistake, nor a non-compliance with law in the sale, and the action of the commissioners was unauthorized. The court below should have so found upon the trial of the equitable issue, and should have directed a conveyance by the plaintiff to the defendant, upon payment to him by the latter of the purchase money and the interest, together with such sums as may have been paid by the plaintiff for taxes, or otherwise lawfully expended, with interest on the' same. This will make the plaintiff whole, and restore to the defendant that of which he was unlawfully deprived by the order of the commissioners made at the instance of the plaintiff.
There are some other facts in the case, but they [134]*134are not such as to vary this conclusion. The alleged agreement between the plaintiff and defendant, by which the latter was to surrender possession of the land, was never executed on the part of the plaintiff, at least as it was understood by the defendant. It is doubtful whether the agreement was of any validity by reason of the misunderstanding of the parties. Their minds seem not tp have met as to the place of payment. But a still more serious objection to it is the statute of frauds. To have been valid as an executory agreement to release the defendant’s equitable title or interest, it should have been in writing and subscribed by him. And more than this, the agreement was entered into by the defendant under a misapprehension of facts. He was ignorant of what had transpired at the land office, or of the circumstances under which the sale to him had been set aside. That proceeding was ex parte, and he did not learn the facts until* after this action was commenced, and would probably be entitled to relief on that ground.
On the whole, we are of opinion that the judgments appealed from, both that upon the equitable issue, which was first tried, and that upon the issue at law, must be reversed, and the cause remanded with directions to enter judgment in favor of the defendant for the relief demanded in his supplemental answer, the sums expended by the plaintiff, and which the defendant offers to pay, being first ascertained in accordance with the rules above stated.
By the Court. — So ordered.