The record-union., 1899-07-01
MUST CERTIFY THE PAPERS.
SHERMAN GAINS A POINT IN
HIS ACTION.
Judge johnson Orders Writ of
Mandate Against. the Sur
veyor General.


Surveyor General, granting tie appl.-
cation for a writ of mandate to COM
pei the defendant to certify certain pa
pers in his office, relative to certain
lands in Inyo county. On the filing OF
judgment thirty days will be given in
which to file a motion for a new trial.
The opinion rendered is in full as fol-
lows:
This is an application for a writ of
mandate to compel defendant, in his
capacity as Surveyor-Gene and ex-
ofhcio Register Of the State Land Office,
to certify certain papers in his office, at
fecting a contest, to the Superior Court
of Inyo county for certain lands cre-
ated by the receding waters of Owens
Lake.
It appears that on the Both Of Sep
TENDER, 1898, one Sarah C. F. Wrinkle
filed her application to purchase por-
ton of the land in question in the State
Land Office; on the Sth of February,
1894, her application was approved ard
a certificate of purchase issued on the
18th of March, 1894, and on June Sth,
1885, a patent was issued to her there
for,
It also appears that on the 18th day
of December, 1894, one Samuel Levy
filed in said office an application to pur-
chase the remaining portion of the land
in question; that on the 18th day of
March, 1895, said application was APP
proved by the proper authority; on May
9th a certificate of purchase was issued,
and on the Sth day of June, 1898, a
patent was issued to him therefor.
In the meantime, on the 11th day Of
June, 1897, the plaintiff filed his appli-
cation in said Office to purchase the
land embraced in both applications. and
at the same time he filed protest
against issuing any evidences Of title
to said Levy and Wrinkle, and de-
mand to have the matter referred to
the proper court fer trial
At the time he filed his application
and demand for contest he paid the
fee of So required for the application,
but did not pay the fee of So required
for referring a contest to court. No de-
mand, however, was made upon him
for the So, and the same was not paid
until February 9th, 1898, when the
plaintiff paid the same.
Defendant claims that a writ Of man
date will not lie against him for the
reason:
First-That the fee of So for referring
contest was not paid; and,
Second-That patents having been is
sued for the land in controversy, that
they are conclusive and reference
could affect no rights in the matter.
First-Sec. 501 P. c. provides The
Register must charge and collect fees
as follows = For certifying a
contested case to- the District Court,
So =
Sec. 3414 P. C. provides: when a
contest arises concerning the approval
Of survey or location before the Sur
veyor- General, or concerning a certif-
cate Of purchase or-other evidence Of
title before the Register, the officer be-
fore whom the contast is made may,
when the question involved is as to the
survey, or one purely of fact, or wheth-
er the land applied for is a part Of the
swamp or overf1owed lands of the State.
or whether it is included within a con-
firmed grant, the lines Of which have
been run by authority of law, proceed
to hear and determine the same; but
when, in the judgment of the officer, a
question Of law is involved, or when
either party demands a trial in the
order referring the contest to the Dis
trict Court of the county in which the
land is situated, and must enter such
order in a record book in his office
By Section 3514 p. c. it is provided
that when an application to purchase
land is made, the applicant shall pay
a fee of So in advance.
By these three sections it will be seen
that three distinct duties are devolved
upon the Surveyor-General and Regis
ter.
First-When an application is made
to purchase lands he shall collect 30 IN
advance, as a prerequisite to filing; and,
second, he shall certify, when demand
is made, contests to the proper court
for adjudication; and, third, he shall
charge and collect a fee of So for GER
tifying each contest to the court.
AS to the first duty he has no volition
as to when he; is to collect the fee. He
must collect in advance. 1t is made his
imperative duty to collect it before he
performs any official act whatever. L
think the law is as equally imperative
as to his duty when demand Tor
reference is once made; that is, when
the same is filed in his office ne has no
other alternative but to obey the be-
hests of the statute. and certify the
matter for trial to the proper court
It is also imperative upon him that
he collect So for certifying the case.
But the time Of collection is left to his
sound discretion. He can, If he wishes,
give the parties reasonable credit, II ne
wishes to do so, but he takes all the
chances. He is liable on his official bond
for all such fees as he fails to collect.
people VS.. Gardner, 30 Cal, 304)
1t will be borne in mind that prior
to the amendment of February 10,
1876, Section 1914 did not contain the
words "and no application shall be re-
ceived, filed or noted in any way, until
such fee is paid" The Surveyor Gen.
eral. Gardner, received some 1881 APP
plications to purchase lands where he
failed to collect the fees, to wit: 50
each. The applicants did not lose their
rights, but the Supreme Court said in
the case just noted that he and -his
bondsmen were liable.
Section 5O1 above cited provides for
zee of So, but does not make 1t oblga-
tory upon the Register to collect y
before he certifies the case for trial.
He is liable to the State for the money
if he does not collect it. He should
demand the fee of the party who makes
the application to have the case re-
ferred. If he accepts the demand, and
does not require the fee, he cannot re-
fuse to certify; and If he accepts the
demand and does not afterward make
aa,,,ood f,. tho fao ha cannot refuse to