Perry v. Superior City

26 Wis. 64

• Court: Wisconsin Supreme Court
• Decided: June 15, 1870
• Status: Published

Opinion

Paine, J.

Under the decision in Clarke et al. vs. Fay, 20 Wis. 478, the order sustaining the demurrer to the complaint must be affirmed. It was there held that the organizations authorized by chap. 151, Laws of 1858, were not authorized to make the entry of lands, and receive the title in trust for the settlers, as contemplated by the act of Congress therein referred to. Without entering upon any re-examination of the correctness of that conclusion, it seems to follow from it, that the organizations provided for by that statute of this state have no substantial powers whatever. The act evidently was passed upon the assumption that the organizations under it would be such as were contemplated by the act of Congress. It was designed solely to accomplish that result. No powers are conferred except such as are incidental to that principal power. When that fails the whole act fails. It has no further function to perform. And as those organizations could not enter the lands nor take the title, it follows that they could not contract for services to accomplish that object. And this action, being upon the contract only, cannot be sustained.

Whether if, notwithstanding the decision of this court, the proper departments of the federal government treat those organizations as being such as were contemplated by the law of Congress, and issue patents to them for the purposes provided for by that law, there would be any equitable mode of compelling those for whose benefit the titles are so acquired to make compensation for services like those of the plaintiff, or whether his only remedy was to present his claim under chap. 275, Laws of 1861, we cannot now determine. It seems to follow necessarily from the former decision, that no action can be sustained directly against the organization, on the contract itself.

By the Court. — Order affirmed.