Sherman v. Wright

GAROUTTE, J.

This is an appeal by defendant from a judgment of the superior court of Sacramento County awarding plaintiff a writ of mandate and from an order denying defendant’s motion for a new trial.

Applications to purchase state lands were made to the register of the state land-office, respectively, by Mrs. Wrinkle and Samuel Levy. These applications were approved, and some two years thereafter, and pending the issuance of patents, this plaintiff filed an application to purchase certain portions of the lands covered by the previous applications. Accompanying his application was a protest directed against the issuance of patents to the first applicants, and a demand that the trial of the contest thus raised be referred to the proper court. Nothing further was done in the premises by plaintiff, and six months thereafter his application and protest were canceled, and patents issued to Wrinkle and Levy. About six months subsequent to this time, plaintiff tendered a three-dollar fee to defendant, and thereupon brought this proceeding for a writ of mandate, asking that the defendant be compelled to certify the contest created by the cross-applications and protest to the superior court of Inyo County.

Various questions are raised upon this appeal, but the court will devote its attention to one of them alone, as the conclusion arrived at upon its consideration is decisive of the case. And that conclusion is: no valid demand was made upon defendant by plaintiff that the contest be referred to the superior court for trial; and the weakness in the demand is found in the fact that no offer or tender of the fee of three dollars provided for by the statute was made to defendant when plaintiff’s demand for reference was made. For reasons hereafter stated, the court attaches no importance to the fact that the fee was

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tendered about the time this proceeding was inaugurated. Under the facts of this case, at least, that tender came too late, and availed nothing. The case stands exactly as though no tender of the fee was ever made.

Fees collected for services performed by the register of the state land-office are moneys belonging to the state; and section 501 of the Political Code provides: “The register must charge and collect fees as follows: For each certificate of purchase, duplicate, or patent, three dollars; for certifying a contested case to district court, three dollars.” Section 3414 of the same code provides: “When a contest arises concerning the approval of a survey or location before the surveyor-general, or concerning a certificate of purchase or other evidence of title before the register, the officer before whom the contest is made may, ... or when either party demands a trial in the courts of the state he must, make an order referring the contest to the district court of the county in which the land is situated, and must enter such order in a. record-book in his office.” The words here quoted, found in section 501 of the Political Code, “for certifying a contested case to the district court,” mean the same as the following words, found in section 3414 of the Political Code: “He must make an order referring the contest to the district court of the county in which the land is situated, and must enter such order in a record-book in his office.” When this order is made and entered, the superior court of the proper county has jurisdiction for trial purposes. It is said in