State v. Torinus

Berry, J. A statute of Wisconsin, approved March 3,1869, entitled, “An act to protect the lands and timber thereon granted to the St. Croix and Lake Superior Railroad Company,” authorizes the governor of said state to appoint one or more agents to preserve and protect the timber above mentioned, and makes it the duty of such agent or agents, on behalf of the state, to take possession of all logs and timber which may be cut or carried away from said lands without lawful authority, and to sell and convert the same into money, to be immediately paid into the state treasury, “provided that such sale of timber or logs so seized shall be made at public auction to the highest bidder, for cash.” The sale which the agent is authorized to make is clearly a sale for money, to be paid in hand at the time of sale, so that he can pay the same into the state treasury “immediately.” As the agent has no authority in the premises, save that which he derives from the act, this is equivalent to a prohibition to sell for anything but money in hand. A sale for anything but money in hand is therefore wholly unauthorized and void. The authority of the agent being to sell for money in hand, the defendants, upon a purchase by them, were not entitled to the possession of the logs except upon paying, or at least tendering, the purchase price in money, and by reason of the same limitation upon his authority the agent had no right to deliver possession of the logs to the defendants except upon such payment or at least tender. A delivery without payment, or at least tender, was therefore wholly unauthorized and void, and conferred no right whatever in the logs upon the defendants, as against the state of Wisconsin. One Harriman having been duly appointed agent under the [337] act aforesaid, seized certain logs under the provisions of the act, and gave notice that he would sell the same “at public auction, to the highest bidder, for cash. ” The referee before whom this case was tried finds “that at the time and place mentioned in said notice said logs were offered for sale in accordance with said notice, and to secure the possession of said logs, and under protest theretofore made against his right to seize or sell the same, these defendants bid the sum of five dollars and one cent per thousand feet for 1,676,180 feet thereof, and i*vo dollars per thousand feet for 200,000 feet thereof, and said logs were thereupon struck off and delivered into the possession of these defendants; that the note in suit was given by defendants to said * * * * Harriman for the amount so bid on said sale for said logs so cut and removed as above stated, and for no other purpose or consideration; that all the acts and doings of said Harriman in and about the premises were as the agent of the •state of Wisconsin, under the act of the legislature of said state.” The note in suit was made and delivered about five months after the day of sale of the logs. Upon this state of facts we think the referee was right in his conclusions of law, which were, in substance, that the sale was unauthorized and void; that the plaintiff was not bound by the sale, and did not thereby lose its right of property in the logs, and that the note, having no other consideration to support it than such unauthorized and void sale, is null and void, and the plaintiff is not entitled to recover thereon. As the authority of the agent to make the sale was conferred by, and mostly dependent upon, an act of the legislature — that is to say, a statutory law — and his attempted sale was void because it failed to comply with such law, the sale could be ratified and made good only by an act of the legislature. This is so, for the reason that the sale, being authorized to be made in a particular way by statute, and therefore forbidden to be made in any other way, asy attempted ratification [338] by anything except an act of the legislature would be an attempted ratification by a violation of law. It would be an attempt without authority of law to make that good which the law declares void. As there is no pretence in this case that the sale attempted to be made by Harriman was ratified by any legislative action, there is no ground for .claiming that the sale or note have been made good. Judgment affirmed,