State ex rel. Attorney-General v. Merrill

WhitON, J. The application by the attorney-general, for a mandamus in this case, is founded on an act of the legislature, passed March 2d, 1849, which provides, among other things, that the attorney-general shall demand of Merrill that the amount received by him, as receiver of the Milwaukee and Rock river canal lands, be forthwith paid over to the state treasurer, and that the books, papers and vouchers belonging to the said office of receiver, and relative to the said canal lands, be forthwith delivered over to the state treasurer. That act further provides, that if Merrill shall fail or neglect to comply with such demand for the space of five days, then the attorney-general shall cause a mandamus to issue from the supreme court, etc. There are a number of other provisions contained in the act, to which it is not necessary to refer. We are satisfied that without the act, we have full power over the subject-matter of this application, as well as jurisdiction of the case. It appears, by the certificate of the attorney-general, that he made the demand upon the respondent about the thirty-first day of March, A. D. 1849 ; and it further appears by the affidavits of the proper state officers, that the demand has not been complied with. The counsel for the respondent contended, in the argument, that the funds, as well as the other property mentioned in the act of the legislature, are not the property of the state, and that the state officers have no right to the custody or [283] control of them. The foundation for this argument is the alleged fact, that the proceeds of the lands donated by congress, to aid in the construction of the Milwaukee and Eock river canal, belong to the United States ; the property which, by the act above referred to, the respondent was commanded to deliver to the state treasurer, being a portion of those proceeds. This, if I correctly apprehended the position taken by the counsel for the respondent, is the only reason why the command of the legislature is resisted. 'Without examining this position, for the purpose of ascertaining its correctness, it may be well to inquire whether, if well taken, it can avail the respondent in this proceeding. He was elected receiver of the canal lands, by the two houses of the legislature of the territory of Wisconsin; that legislature created the office and prescribed the duties; and he obtained possession of the property in question by virtue of his office. As between him and the territory of Wisconsin; there can be no question in regard both to the legal and moral obligation resting upon him ; authority need not be citecTto show that, by accepting the office and undertaking to perform its duties, he became answerable to the territory of Wisconsin for the manner in which those duties were discharged. This office created a trust which he undertook to fulfil, and to its performance he must be held. He became the agent of those whose officer he was, and having possession of the property, by virtue of his agency, he cannot compel his principal and a third party to implead, to determine their lights to it, while he retains possession; if the territory was in existence, he would have a plain duty to discharge, which could be fulfilled only by delivering to his principal the property in question. But the territory having ceased to exist, his counsel contended that he can only be compelled to deliver the property to its rightful owner, whom he alleges to be the United States ; that whatever might have been his obligation to the territory. [284] in respect to this property, be owes none to the state of Wisconsin. This position will not bear scrutiny. The state is the successor of the territory, and if the respondent contracted any obligation to the territory, by accepting the office, he is bound by the same obligation now to the state. If he had executed a bond to the territory, for the payment of money, I suppose it would be admitted- that the state would be entitled to collect the money due upon it; and yet, this proposition is no clearer or manifest than that the duties and obligations of the respondent, created by his official relations to the territory, are due now to the state, as its successor. Const. Wis. art. 14-, §§ 4, 5. A peremptory mandamus must issue.’