State ex rel. Gates v. Comm'rs of Pub. Lands

• Decision Date: 27 April 1900
• Citation: 106 Wis. 584,82 N.W. 549
• Parties: STATE EX REL. GATES v. COMMISSIONERS OF PUBLIC LANDS ET AL.
• Court: Wisconsin Supreme Court

106 Wis. 584

82 N.W. 549

STATE EX REL. GATES

v.COMMISSIONERS OF PUBLIC LANDS ET AL.

Supreme Court of Wisconsin.

April 27, 1900.

Application by James L. Gates for alternative writ of mandamus against the commissioners of public lands and others. On motion to quash the writ. Motion sustained.

Section 205, Rev. St. 1878, fixed the minimum price of state swamp lands. By chapter 324, Laws 1878, state lands within certain specified territory were withdrawn from sale and reserved for a state park. By chapter 367, Laws 1897, chapter 324 aforesaid was repealed and certain lands therein mentioned, including the state park lands, were required to be appraised and placed on sale as therein provided. Such lands were appraised accordingly and measures taken to further execute the law. August, 1897, the statutes of this state were revised, section 205 of the statutes of 1878 being carried into the revision without change. The special law of 1897 was not expressly repealed. By chapter 345, Laws 1899, such special law was amended and recognized as being in force.

February 10, 1900, the relator applied to the commissioners of public lands for leave to purchase a considerable quantity of state swamp lands under section 205, Rev. St., that were within the territory affected by the special act of 1897, and such proceedings were had as to entitle him to have his application granted if the lands applied for were subject to sale under such section. The commissioners of public lands rejected the relator's application upon the ground that the sale of the lands applied for was governed by the special law of 1897.

The facts above related, in the main, were embodied in a petition verified by the relator and filed in this court, upon which an alternative writ of mandamus was regularly sued out, requiring the commissioners of public lands to grant the relator's application or show cause why to the contrary on the return day of the writ. On such return day the respondents moved to quash the writ.Rublee A. Cole, for relator.

E. R. Hicks, Atty. Gen., for respondents.

MARSHALL, J. (after stating the facts).

The sole question that requires solution in this cause, raised by the respondent's motion to quash the alternative writ of mandamus, is, did the continuation in the statutes of 1898, of section 205, Rev. St. 1878, in connection with the repealing clause of the new statutes--“repealing all acts and parts of acts the subjects whereof are hereby revised and re-enacted or which are repugnant to its provisions,”--displace the special law of 1897 regulating the sale of state lands therein mentioned?

The rule is that a general law, or the mere re-enactment of a general law, will not repeal a special act by implication. 23 Am. & Eng. Enc. Law, p. 422, and notes; End. Interp. St. § 223; Chew Heong v. U. S., 112 U. S. 536, 5 Sup. Ct. 255, 28 L. Ed. 770;Gilchrist v. Railroad Co. (C. C.) 47 Fed. 593. Also that a mere re-enactment of a statute continues it without change as regards special laws within its general scope. State v. Howe, 95 Wis. 530, 70 N. W. 670;Baines v. City of Janesville, 100 Wis. 369, 75 N. W. 404.

So there can be no question but that the special law of 1897, governing the sale of swamp lands within the territory there designated, was unaffected by the mere carrying forward and continuation of the general law relating to the sale of such lands, which existed when such special law was enacted, into the revision of 1898; and the proposition under discussion must be resolved in...