State ex rel. Byrne v. Harvey

11 Wis. 33

• Court: Wisconsin Supreme Court
• Decided: March 6, 1860
• Status: Published

Opinion

By the Court,

Paine, J.

We think the motion to quash the alternative writ in this case must be granted. The writ was sued out to compel the secretary of state to issue a patent for certain forfeited mortgaged lands, which the relator claims to have bid in, on a re-sale. The obvious answer to the application is, that the secretary of state is not authorized by law to issue the patent, even if the relator were clearly entitled to it. The school land commissioners are required to issue patents, and the statute provides that they shall be signed by the governor, and this court has frequently refused to attempt by mandamus to compel the executive to perform that duty, which the law devolves upon him.

Another answer is, that the relation does not show that the title has ever yet vested in the state. It alleges that the land was bid in by the commissioners, and was re-sold to the relator ; but it does not allege that the statement, which, on being recorded, as required by sec. 3, chap. 28, of the present Revised Statutes, vests the title in the state, was ever made or recorded. This court held, in the case of Krebs vs. Dodge, 9 Wis., 1, decided at the last term, that such statement was necessary, in order to convey the title to the state. If the case were otherwise proper for a mandamus, what would have been the proper course of the relator with respect to the making and recording of this statement, assuming it not to have been made, it is unnecessary for us to determine.

And we do not feel called upon to go outside of the motion to determine questions not presented by it. Our time is sufficiently occupied in deciding questions that are presented, to preclude us from examining others, éven if it were proper for us to do so.