Carpenter v. Sargent

By the Court, Crockett, J.: This is an application for a mandamus to compel the respondent, as County Treasurer of San Joaquin County, to accept from the petitioner the first payment for a quarter section of swamp and overflowed land, and to execute a proper receipt therefor. The petitioner made his application to the County Surveyor on the 18th of August, 1865, in the form prescribed by the Act of April 27th, 1863 (Stats. 1863, p. 591), to purchase the land from the State. The County Surveyor noted the application and proceeded to make the survey, which was completed on the 11th of September, 1865, on which day the survey and other necessary papers were forwarded to the Surveyor General for his approval, and were received by him and filed in his office on the twenty-second of the same month. On the 30th of October, 1865, the Surveyor General approved the application and survey, and forwarded an approved copy of the survey to the County Surveyor, which was received and recorded by the latter officer November 4th, 1865. On the 2d of January, 1866, the County Surveyor delivered to the applicant the approved copy of the survey, and on the same day the applicant presented said approved copy to the then County Treasurer, and tendered to him the first installment [560]of the purchase money and interest on the remainder, as required by law; but the County Treasurer refused to accept the money or to receipt therefor, on the ground that the statute required the payment to be made within thirty days after “ the record of approval of survey or location by the Surveyor General in the County Surveyor’s office,” as provided by the first section of the Act, of April 27th, 1868. The first question to be determined is, whether the refusal of the then County Treasurer to accept the money was justifiable; for it is obvious that if he properly refused to receive it, nothing has since occurred which renders it incumbent on his successor, the present respondent, to accept it. Section first of the Act expressly requires the first payment to be made within thirty days after the record in the County Surveyor’s office of the approval of the Surveyor General. It provides for no excuses and makes no exception founded on mistake, inadvertence, or inevitable accident. Section seven makes it the duty of the County Surveyor “ immediately upon the receipt from the Surveyor General of any approved copy of survey of swamp or tide lands, to forward the same to the applicant.” In this case the applicant did not tender the money to the County Treasurer until after ■the lapse of fifty-nine days from the time when the approval of the Surveyor General was recorded in the County Surveyor’s office; and the only excuse given for the delay is the neglect of the • County Surveyor to forward to him the approved copy of the survey within the thirty days. But this neglect of the County Surveyor does not excuse the delay. The books of his office were at all times open to inspection, and exhibited the date of the record of the Surveyor General’s approval; and though the statute makes it his duty immediately to forward to the applicant the approved copy of the survey, there is no provision from which it can be reasonably implied that a neglect of this duty will defer the time of payment beyond the thirty days. On the