It could not have been true in this case that the contest was before the Surveyor-General. The complaint shows (and it is not denied by the answer) that defendant's application had been approved by the Surveyor-General in January, 1871, and he had in said approval ordered the defendant to make the first payment within fifty days, but that defendant had failed so to do, and the register, in violation of law and of the terms of said approval, had issued a certificate of purchase to defendant, and that the plaintiff had subsequently taken steps to purchase the land of the State, and filed a protest with the register, against his issuing to defendant further evidence of title, and demanded a trial in the courts--hence the contest was before that officer. There was nothing before the Surveyor-General for the plaintiff to contest. Neither of the State land officers can make an order of reference until a protest is filed. Any claimant may attack the position of another. The appellant, had he desired to do so, might have broughton a contest before the Surveyor-General by filing a protest which raised some question of law or fact. And in order to do this he would necessarily have to go before the Surveyor-General to inaugurate his contest there. But the respondent being the actor, he had to attack his adversary before the register, which he did in due form, under section seventeen, by showing that appellant was not entitled to purchase the land, or to hold the certificate he had illegally acquired, or to receive a patent thereon.
Counsel's second point is somewhat novel. He claims that his demurrer should have been sustained, because the State was a necessary party to the suit, and was not made a party plaintiff. This would place the plaintiff in a serious dilemma. He has no way to compel the State to join him as plaintiff. True, our statute provides that where a party who should be plaintiff, refuses to join as such, he may be made a defendant; but the State being a sovereign, cannot be sued unless by her own consent, given by act of Legislature, and such consent has not been given. But the statute ignores any such course; it provides that parties to contests of this kind may bring such actions.
OPINION By the Court:
The defendant's application for the location of the lands in contest was insufficient. The statute of April 27, 1863 (p. 593), under which the application for the location was made, requires that the application be accompanied by the affidavit of three disinterested persons, stating, among other things, that the applicant is a resident of the State, and that the lands were unoccupied by any person except the applicant. The affidavit, filed on behalf of the defendant, failed to state those facts. After the location was approved, the defendant failed to make payment within the time required by the statute. The defendant, not insisting that the proceedings on his part were sufficient to authorize the issuing of the certificate of purchase, contends that the court has no jurisdiction of the subject-matter of the action, and that the certificate of purchase is not void, but at most only voidable at the suit of the State, and not at the suit of a private party who claims under proceedings subsequent to those under which the certificate issued to the defendant.
In respect to the first point, the defendant's position is, that the court acquires jurisdiction only by virtue of the order made and certified by the officer before whom the contest arose, and that in this case there was no contest before the register--the officer who made the order referring the contest to the District Court for trial. The plaintiff attacks the defendant's certificate of purchase, which had been issued by the register. If the defendant rightfully holds the certificate of purchase, the plaintiff has no right to have his application approved by the Surveyor-General, but if the certificate was improperly issued, then the plaintiff may proceed with his application. There is no contest between the parties in the Surveyor-General's office, for the contest relates to the right of the defendant to the certificate of purchase already issued to him, and as that was issued by the register and not by the Surveyor-General, no contest could arise in the office of the latter in respect to the validity of the certificate. We are, therefore, of the opinion that the register was the proper officer to make and certify the order, referring the contest to the proper District Court for trial. In so holding, however, we are not to be understood as determining that an order in such case, signed by the " Surveyor-General" (who is ex officio the register), would not be sufficient.
In support of the point, that the State is the proper party to a proceeding to set aside a certificate of purchase, and that an action having that object cannot be maintained by a private person, who bears no other relation to the land than as a subsequent applicant for its purchase, the defendant relies upon the principles of law applicable to proceedings for the annulment of patents, instituted in courts of equity, where there are no special statutory provisions in respect to the parties to the proceeding. But those principles have no application here, for the statute determines who are the proper parties to a proceeding of this character. The seventeenth section of the statute of 1868 (Stats. 1867-8, p. 511), and both the statutes previously in force, and the Political Code, contains similar provisions--provides for cases of a contest concerning the approval of a survey or location, or concerning a certificate of purchase, or other evidence of title, directs the proper officer to make an order referring the contest to the proper District Court, and provides that either party to the contest may bring an action in such court to determine such contest. The purpose of the action is not to annul the certificate of location or purchase, or other evidence of title; but if both of the parties are applicants for the purchase of the lands, the purpose is to procure a determination of the question, as to which applicant has the better right to purchase them; or, if the contest has its origin in a protest, filed by a person who is not seeking to purchase the lands from the State, the purpose of the action is to determine whether the party, against whom the protest is filed, has the right to purchase the lands; and the annulment of the certificate of purchase, or other evidence of title, is merely a consequence of the determination that the party holding it was not entitled as against the other party, to effect a purchase of the lands. In other words, the statute provides a mode by which, and the parties in whose name an action may be instituted to determine which party has the better right to purchase the lands, where there are contesting applicants, or to determine, in case of a mere protest, whether the party against whom the protest is filed, is entitled to make the purchase; and as the statute declares that either party to the contest may bring the action, there is no ground upon which the position, that the State is a necessary party, can be sustained.
Judgment affirmed.