88 Wis. 81 | Wis. | 1894
The following opinion was filed January 30, 1894:
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 ch. 324, Laws of 18J8, 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
These lands had been once offered at public sale. After-wards, on February 13, 1883, the commissioners of public1 lands made an order withdrawing all the public lands from' sale. This they had power to do, at least so far as con-' cerns the school lands. Art. X, sec. 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 ch. 222, Laws of 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can be best subserved thereby, to withdraw any public lands from sale; provided that, when re-offered, the lands so withdrawn shall first be offered at public sale, such public sale to be advertised and conducted, in all par^ ticulars, in the same manner as public sales are now held.”
A defect in the system of disposing of the public- lands
There is no question of the power of the legislature to direct the manner in which the public lands shall be sold. It may direct whether they shall be sold at public sale or at private sale and upon what notice. As to school lands, art. X, sec. 8, of the constitution provides: “ Provision shall be made by law for the sale of all school and university lands after they shall have been appraised.” It does not appear by the finding whether the school lands mentioned in the relation have been appraised. As to lands other than school lands, there is no constitutional direction. This statute is remedial. It is to be construed liberally, to advance the remedy intended by the legislature. As the law was then understood, the public lands were then subject to compulsory sale at the minimum price. All had been once withdrawn from sale by the order of the commissioners, February 13, 1883. The act was intended to apply to such lands as had been withdrawn from sale before its passage, and not alone to such as might be withdrawn after its passage. Else the remedy must fail, in great part, to cure the evil. Besides, the act being a part of the system which the legislature has provided for the disposal of the public lands, it is in pari materia with all other statutes
The lands described in the relation had been withdrawn from sale by the order of the commissioners of February 13, 1883. It does not appear that they had been re-offered •at public sale, as directed by the act of 1885. They were not subject to private sale on June 5, 1893.
By the Court.— The peremptory writ of mandamus is denied.
i Upon a motion for a new trial, counsel for the relators contended: Fwst. That the conclusions arrived at by this court improvidently reverse a judgment of this court of long standing and hitherto unquestioned authority (State ex rel. Holston v. Commissioners, 61 Wis. 274). Second. That ch. 222, Laws of 1885, is not retroactive, because (1) it is plainly prospective in its phraseology; (2) the general usage for many years has been to treat it as prospective only; (3) it was not necessarily retrospective if enacted as a curative law; (4) if considered as retroactive it is unconstitutional, in that such a construction antagonizes vested rights and deprives a department of the government of a portion of its constitutional functions.
The following opinion was filed May 25, 1894:
The relators’ attorneys have misapprehended, in some respects, the decision in this case. It is not obnoxious to all the criticisms made upon it.
It is observed by counsel that neither counsel in the case called in question the proper construction of ch. 222, Laws of 1885, and hence that the court was not asked to construe it. Nevertheless, the court felt called upon to construe it. It seemed to the court that the proper construction of that statute was the key to the situation. The construction of that statute being settled, the whole case is open and clear. The court held that that statute was “ intended to apply to such lands as had been withdrawn from sale before its passage, and not alone to such as might be withdrawn after its passage.” All else of the decision is but the corollary from that construction. This construction of the statute was required upon well-established canons of construction. It makes the remedy intended by the legislature effectual. This construction does not, as counsel urges, give the statute a retroactive operation. It operates only upon sales of the public lands which may be made after its passage, and then only upon lands which had been offered for sale and withdrawn at the time of its passage, or such as should thereafter be offered and withdrawn. It operates only upon a condition existing at the time of its passage, or arising afterwards. This is not retroaction. It does not disturb any vested rights.
Nor is it strictly accurate to say that the decision reversed or overruled the case of State ex rel. Holston v. Commissioners, 61 Wis. 274. The decision certainly does not overrule it, in terms. That case was not in point. It in no way conflicts with the decision in this case. What was thought to be an oversight or mistake was pointed out. That is all.
It is true that, etymologically, there is a difference in the meaning of the words “ withhold ” and “ withdraw,” which
By the Oourt.— The motion for a new trial is denied.