#### William Q. Cole, Auditor, et al. *v.*Joseph M. Wineman et al.

1. Mandamus. *Officers. Duties under statute. Repeal pending suit.*

A petition for mandamus against officials for the pei-formancé of duties enjoined upon them by statute will be dismissed when the statute, pending an appeal by the defendants, is repealed in so far as the petitioner can claim any right thereunder.

3. Same. *Patents. Erroneous issuance. Refunding purchase money. Secretary of State. Laivs*1900, *p.*91. *Laivs*1903, *p.*137.

The act of 1900, providing that in cases where the state, “through the land commissioner or secretary of state,” has issued patents for land to which it had no title, the patents shall be canceled and the purchase money refunded (Laws, p. 91), having been impart repealed by the amendatory act of 1903, which is in the same words, except that the words “ or secretary of state ” are omitted (Laws, p. 137), mandamus cannot be maintained for the issuance of refunding- warrants on patents issued by the secretary of state.

From the circuit court of, first district, Hinds county.

Hon. Eobert Powell, Judge.

Mandamus by Joseph M. Wineman and others, as the heirs and distributees of Mark Wineman, deceased, against W. Q. Cole, Auditor of Public Accounts, Edward H. Nall, Land Commissioner, and Monroe McOlurg, Attorney-general, judgment was rendered awarding the writ, and the defendants appealed.

On the 2d day of May, 1882, the secretary of state issued patents to a large number of applicants, each taking 240 acres or less of land coming within the designation of “swamp and overflowed” lands, in Adams county. On the same day all these patentees conveyed to one Marx Wineman all the lands, aggregating several thousand acres, so patented to them.- These patents were issued under ch. 14, *74p. 33, of the laws of 1877, which contained, the following proviso : “Provided, that no person shall be allowed to enter more than 240 acres under the provisions of this act.” It developed afterward that the state had issued patents to these, lands to another before the patents were issued under which Wineman purchased. This is a petition by plaintiffs (appellees), as heirs and distributees of Marx Wineman, now deceased, to compel by mandamus the auditor of public accounts, the attorney-general, and the land commissioner to cause a warrant to be issued amounting to over $6,000 (being the purchase money, interest thereon, and office fees paid for the lands embraced in the patents issued by the secretary of state May 2, 1882), based upon sec. 4, ch. 76, of the laws of 1900, which is as follows: “That if the state of Mississippi, through the land office, or secretary of state, has heretofore issued, or shall hereafter issue a patent, or patents, for any lands to which the state held no title, or which did not belong to the state at the time of the issuance of such patent, or patents, or by oversight, or otherwise, two patents may hereafter be issued for the same land, the land commissioner shall report such patent, or patents, with the facts, to the attorney-general, who shall make investigation of the case, and if he shall find that the lands so patented did not belong to the state, he shall so report to the land commissioner, who shall take such patent, or patents, or duly certified copies of patents, in case of loss of the original, to the auditor of public accounts, and the auditor shall mark such patents, or certified copies of patents, ‘cancelled/ and file the same as a voucher in his office, and shall issue his warrant in favor of the patentee, or his or her assigns, heirs or representatives, for the amount paid the state for such cancelled patent, or patents, and upon such cancellation the auditor shall certify same to the clerk of the chancery court of the county in which such patent has been recorded, and such cleric shall thereupon immediately cancel the record of same.” The defendants demurred to the petition, and the demurrer was overruled. They then answered *75and filed pleas alleging, *inter alia,*that the law of 1900 did not apply, because the words “or secretary of state” bad been fraudulently and surreptitiously written in the bill after it had passed both houses of the legislature, and before enrollment, and the bill had been erroneously so enrolled; and that the patents were fraudulently, collusively, and unlawfully obtained. A demurrer to these pleas was sustained, defendants declined to answer further, and a judgment was entered directing the issuance of the peremptory writ. The act of the legislature of 1902 (laws, p. 127) was exactly that of 1900, with the exception that the sentence, “or secretary of state,” was omitted. It was passed by the legislature after the submission of the cause, and the briefs of counsel do not, therefore, relate to the effect of the repealing act, the point upon which the decision turned.

*Monroe McOlurg,*attorney-general,' for the state.

*Brame & Brame*and *Alexander & Alexander,*for the appellees.

Argued orally by *Monroe McOlurg,*attorney-general, for appellant, and by *L. Brame*and *O. H. Alexander,*for appellees.

Whitfield, C. J\,

delivered the opinion of the court.

The recent act of the legislature (Laws 1902, p. 127) repealed absolutely all of the act of 1900 (Laws 1900, p. 91), upon which this petition for mandamus was based. The sole and exclusive basis for this mandamus has, therefore, by the legislature, been absolutely removed. The necessary result of this legislation is that the judgment in this case must be reversed, and the petition dismissed, at the cost of the appellees, and it is so ordered.

*Reversed.*