State ex rel. Anderson v. Timme

18 N.W. 837, 60 Wis. 344, 1884 Wisc. LEXIS 127

• Court: Wisconsin Supreme Court
• Decided: April 8, 1884
• Status: Published

Opinion

Lyob, J.

It cannot be doubted that the return of the commissioners to the alternative writ of mandamus contains averments of fact which show that the preemption claimed by the relator is false and fraudulent. His occupancy of the land for agricultural purposes, and the making of the required improvements, both of which are essential to a valid preemption, are expressly denied in the return. Hence, the return, if true, is fatal to the remedy which the relator seeks to enforce, unless the- commissioners are barred from defending against the relator’s claim to the land.

It is maintained on behalf of the relator that an appeal is given to the commissioners by sec. 201, R. S.; that the same is exclusive of any other remedy to avoid a fraudulent preemption claim; and that, having failed to appeal within the prescribed time, they cannot now be heard to allege that the preemption claim is invalid and a fraud on the state. The position is that they must either appeal or issue the patent, no matter how grossly fraudulent the preemption claim may be.

A probable fallacy in this position is that the statute does not, in terms at least, give an appeal to the board of commissioners. The language is, “ either of the commissioners ” may by appeal have the preemption right determined by a jury. It may well be held that this statute does not give an appeal to the board, as such, but only to a member of it who may desire to test the validity of the preemption and thus, if the preemption is held invalid, prevent the issuing of a patent which a majority of the board might be disposed to issue.

But assuming, for the purposes of the case, that the statute gives the commissioners the right of appeal, it by no means follows that they are estopped, by their failure to appeal, to contest in this proceeding the relator’s right to a patent. In support of his position, counsel for the relator invokes the rule, often asserted and acted upon by this court, that where a party is seeking to enforce a purely statutory right he is confined to the specific remedy given by the statute, and has no general remedy at common law. Did sec. 201 give the relator the right of appeal, — • which, unlike sec. 8, ch. 156, Laws of 1864 (Tay. Stats., 666, § 19), it does not,— doubtless the relator would be within the above rule, and would be confined to the remedy by appeal to enforce his preemption right. But the rule does not bind the party against whom the right is claimed, unless the statute expressly takes from him all other remedies. If it does not, he may resort to any appropriate common law process to defend against the right claimed. The statute does not restrict the commissioners to any specific line of defense, and hence, although they did not appeal, the}7 may allege here that the relator’s claim is fraudulent and void.

The point is made that by refusing to issue the patent the commissioners have assumed to exercise judicial power. We think the point is not well taken. True, they have assumed to determine that the preemption claim of the. relator is fraudulent, but this is no more than they are authorized by sec. 230, R. S., to determine after the patent has issued. Under that section the commissioners may determine that the sale was made by fraud or mistake, or against the law, and thus invalidate the certificate of sale or the patent. This court held, in Gough v. Dorsey, 21 Wis., 119, that sec. 230 does not confer upon the commissioners judicial power in the sense in which that term is used in the constitution, and hence that it is a valid enactment. The decision is equally applicable to this case.

By the Oourt.— The demurrer to the return of the commissioners is overruled.