61 Wis. 274 | Wis. | 1884
In their return the commissioners admit that the lands in question had once been offered at public sale, had been sold and forfeited, and had been reoffered at public sale and remain unsold. They further admit that the relator took the necessary steps, and made tender and deposit of the necessary money, to enter and purchase the lands, if the same had been or were for sale at the time. But the
See. 207, R. S., in substance provides that all public lands not theretofore offered for sale, or not purchased under the preemption rights provided by law, shall, from time to time, in the discretion of the commissioners, be offered for sale at public auction as therein provided; and that no such lands shall be subject to private entry until they shall have first been offered for sale at public auction. “ All such sales shall be made at such times and public places as the commissioners shall designate; and they shall, previously to any such sale, cause a notice thereof, specifying the time and place of such sale, to be published once in each week, etc.
Sec. 211, R. S., provides that “ all public lands which shall have been once offered at public sale and remain unsold, and all such lands that have been forfeited, if they shall have been reoffered at public sale and remain unsold, shall be subject to private sale, at the minimum price fixed therefor by law, to the person first making application therefor, provided he forthwith comply with the terms of sale.”
These are all of the provisions of the statute which it is necessary to consider. It will be observed that the first provision — with some exceptions which have nothing to do with this case — absolutely requires that all public lands shall be offered for sale at public auction before they are subject to private sale. This is the policy of the law. The commissioners have full discretion as to when the lands shall be first offered for sale at public auction; they also have discretion, after lands have been so advertised for sale, to withhold such portions as in their opinion it may not be advantageous to sell. But there their discretion in the matter ends. It is claimed on the part of the commissioners that the words “ before or after advertisement of sale ” cannot and should not be construed as restricting the power of the commissioners to the case where the lands are first offered for sale, but that it is a continuing power which may be exercised in respect to any lands which remain unsold. But the radical difficulty with that view is that it is in direct conflict with the plain reading of the other provision that declares that all public lands which have once been offered for sale and remain unsold, and all such lands as have been forfeited,— if they have been reoffered at public
But it is said the language “ shall be subject to private sale” should be construed so as to qualify the clause and make it read, “ providing the commissioners have not withdrawn such lands from sale.” In other words, we are asked to construe the clause as though it read, “ such lands shall be subject to private sale or not within the discretion of the commissioners;” for this is what it would amount to by that interpretation. But it is obvious that this would be importing into the clause a material and important qualification or condition which the legislature has not seen fit to place there. The language of the law is that forfeited lands, as these are, which have been reoffered at public sale, shall be subject to private sale. The law gives a party who complies with its conditions the absolute right to enter such lands at private sale. If the legislature had intended to make that right subject to a discretionary power in the commissioners to withdraw them, from market, it is reasonable to presume it would have said so. In the first provision the legislature clearly prescribes when the commissioners may exercise their discretion. They may withhold the lands from public sale either before or after advertisement. But when they have once been offered at public sale, or have been forfeited and reoffered at such sale, and remain unsold, they are then in the market, and cannot be withdrawn therefrom by the commissioners.
The attorney general argues that there is no good reason why the commissioners should not have and exercise the discretionary power of withdrawing lands from sale as well after they have once been offered at public auction as before they have been so offered. But the reason which occurs to us is that the legislature has given the discretion which may
It is attempted to draw an argument to sustain the power of the commissioners from the law as it stood prior to the revision of 1878. But, without dwelling on the point, we say that in our judgment no aid can be derived from that source in support of the respondent’s contention.
The demurrer to the return must be sustained, but with leave to the respondents to amend if they so desire.
By the Court.— It is so ordered.
An application for a peremptory writ was granted November 29, 1884.