State ex rel. Sweet v. Cunningham

• Decision Date: 30 January 1894
• Citation: 57 N.W. 1119,88 Wis. 81
• Parties: STATE EX REL. SWEET ET AL. v. CUNNINGHAM ET AL., COMMISSIONERS OF PUBLIC LANDS.
• Court: Wisconsin Supreme Court

88 Wis. 81

57 N.W. 1119

STATE EX REL. SWEET ET AL.

v.CUNNINGHAM ET AL., COMMISSIONERS OF PUBLIC LANDS.

Supreme Court of Wisconsin.

Jan. 30, 1894.

Application by the state at the relation of Benjamin Sweet and another for mandamus to Thomas J. Cunningham and others, commissioners of public lands. Denied.

The other facts fully appear in the following statement by NEWMAN, J.:

The action is mandamus to the commissioners of the public lands. The relation sets out that on June 5, 1893, the relators made application,in the manner required by law, for the purchase at private sale of certain school and swamp lands therein described; that said lands were then subject to entry at private sale; and that the application was refused by the commissioners. The return of the commissioners to the alternative writ states that a part of these lands had been withdrawn from sale, and reserved for a state park, by chapter 324 of the Laws of 1878; that all of said lands had been withdrawn from sale by an order of the commissioners made February 13, 1883, and were not, at the time of relators' application to buy them, subject to private sale. It was referred to the judge of the thirteenth circuit to hear, try, and determine the issues of fact. His determination of such issues is on file in this court. It finds that all of said lands, except five 40-acre tracts have been, prior to June 5, 1893, offered for sale at public sale, and then remained unsold; that, after they had been so offered for sale at public sale, to wit, on February 13, 1883, the commissioners made an order withdrawing all public lands from sale; and again, on April 3, 1883, made another order, declaring that all public lands which had been withdrawn from market by the former order were thereby restored to market, and were again for sale; that, prior to June 5, 1893, the letter “R” had been written opposite to each tract of such lands in the books of the land office, which was understood in the office to mean that such lands were reserved from sale; and that, after relators' application was received, the commissioners made a formal order withdrawing such lands from sale.

Elliott & Hickox and D. S. Tullar, for relators.

J. L. O'Connor, Atty. Gen., and J. M. Clancy, Asst. Atty. Gen., for respondents.

NEWMAN, J., (after stating the facts).

The question of law arising upon the facts found is, were these lands subject to private sale at the time when the relators made application to buy them? Probably chapter 324 of the Laws of 1878, which declared these lands to be dedicated and set apart for a state park, and forbids their further sale, has very little influence upon the question. These lands mostly belong to the school fund of the state. The school fund is a trust fund, and is placed by the constitution beyond the power of the legislature to divert it to any other use than the support of the schools of the state. It could not set them, or any part of them, apart for a state park. Const. Wis. art. 10, § 2; Lynch v. The Economy, 27 Wis. 69;People v. Allen, 42 N. Y. 404. Neither could it withhold these lands from sale. That power is confided to the discretion of the commissioners of public lands by the constitution, and lies in no other office or body. Const. Wis. art. 10, § 8; State v. Hastings, 10 Wis. 525;McCabe v. Mazzauchelli, 13 Wis. 478; State v. Brunst, 26 Wis. 412. So the state park law has very little influence on the question. These lands had been once offered at public sale. Afterwards, on February 13, 1883, the commissioners of public lands made an order withdrawing all the public lands from sale. This they had power to do, at least so far as concerns the school lands. Article 10, § 8, of the constitution reads: “The commissioners shall have power to withhold from sale any portion of such lands, when they shall deem it expedient.” This action of the commissioners had the effect to withhold from sale, while in force at least, all the school lands owned by the state, including those described in the relation. Afterwards, April 3, 1883, the commissioners made another order declaring all the lands affected by the previous order to be again in market, and for sale. Afterwards chapter 222, Laws 1885, was enacted. It provides that “the commissioners of public lands are hereby authorized, at any time when, in their judgment, the public interest can be best subserved thereby, to withdraw any public lands from sale; provided, that, when reoffered, the lands so withdrawn shall first be offered at public sale, such public sale to be advertised and conducted, in all particulars, in the same manner as public sales are now held.” A defect in the system of disposing of the public lands was supposed to be disclosed by the decision of this court in State v. Commissioners of Public Lands, 61 Wis. 274, 20 N. W. 915. In that case it was held that, under the statute as it then was, all public lands which have been once...