State ex rel. Anderson v. Timme

• Decision Date: 31 January 1888
• Citation: 36 N.W. 325,70 Wis. 627
• Parties: STATE EX REL. ANDERSON v. TIMME.
• Court: Wisconsin Supreme Court

70 Wis. 627

36 N.W. 325

STATE EX REL. ANDERSON

v.TIMME.

Supreme Court of Wisconsin.

January 31, 1888.

Certiorari. Motion to quash return.

This was certiorari upon application of William J. Anderson to Ernest G. Timme, secretary of state, H. B. Harshaw, state treasurer, and C. E. Estabrook, attorney general, to review their action as commissioners of public lands, in declaring void a patent issued to relator.H. W. Chynoweth, for relator.

Atty. Gen. C. E. Estabrook, for respondents.

LYON, J.

Certiorari to the commissioners of public lands to bring up for review their action in annulling a certain patent for 120 acres of swamp land theretofore issued by them to the relator under chapter 15, Rev. St., as a preemptor of such lands. The return of the commissioners to the writ of certiorari need not be stated at length. It shows that upon notice to the relator, and after a hearing, they annulled the patent in question for alleged fraud in obtaining it. The relator moves to quash the return, claiming that the annulling of the patent for fraud is the exercise of judicial power, which the legislature has not conferred, and cannot confer, upon the commissioners. The latter claim they have the power to annul the patent.

The statute under which the commissioners assumed to annul the relator's patent is section 230, Rev. St., which provides that “in case of the sale of any public lands, made by mistake, or not in accordance with law, or obtained by fraud, such sale shall be void, and no certificate of purchase or patent issued thereon shall be of any effect; but the holder of any such certificate or patent shall be required to surrender the same to the commissioners.” This section was considered and construed by this court in the cases of Gough v. Dorsey, 27 Wis. 119;Gunderson v. Cook, 33 Wis. 551; and State v. Timme, 60 Wis. 344, 18 N. W. Rep. 837. The result of these cases is that the powers conferred upon the commissioners by section 230 are not judicial powers within the constitutional meaning of the term. The reason why they are not, as given in Gough v. Dorsey, is that the acts of the commissioners, under that statute, are not binding or conclusive upon any one, but such powers are given to facilitate the convenient transaction of business in the state land department, and the exercise thereof is always subject to review and correction in the courts in collateral actions. This is equivalent to holding that such a decision binds no one, and is not an obstacle to the assertion of his interest by any person claiming an interest in the land affected thereby, in any appropriate action. In Gough v. Dorsey, DIXON, C. J., said: “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...