Attorney General v. Foote

11 Wis. 14 | Wis. | 1860

By the Court,

Dixon, C. J.

The demurrer of the attorney general to the answer of the respondent, must be sustained. The first separate defense set up in the answer, that the respondent has not usurped, &c., is bad. It does not answer by what warrant or authority he claims title to the office, which the writ calls upon him to show. He must either justify or disclaim; and not guilty, or non usurpavit, are bad answers. 4 Cowen, 118 ; 15 John., 338.

The defense secondly set up is also bad; for although it is alleged that chapter 199 of the local laws of 1859, entitled, “An Act to establish a municipal court in the city and county of Milwaukee,” was duly published, as required by law, and went into effect before the day on which the respondent claims to have been elected to the office of municipal judge, by virtue of its provisions, yet as it is a public statute, of which we are bound ex officio to take notice, as well as to the time it went into effect, as to its provisions, this allegation is not admitted, or to be taken to be true by the demurrer. The existence, or the time of the taking effect of a public act, cannot be put in issue, or admitted or denied by the pleadings, but must be determined by the judges themselves. Sedgwick on Stat. and Con’l Law, 34; id., 118; Dwarris, 467. That the act in question is public, was determined by this court, In the matter of Bridget Boyle’s Petition for a writ of ha-beas corpus, &c., 9 Wis., 264. We likewise in that case, as on previous occasions, held that in the absence of any suggestion which might lead to a more accurate inquiry, the date of the certificate of the Secretary of State, appended to the published volumes of the laws, would be taken to be the date of their publication and taking efFect. The certificate is dated June 29th, 1S59, and we accordingly there held, that the act went into operation on that day. No suggestion of any other or prior publication is made in this case; and our conclusion must therefore be the same. The election and qualification of the respondent, at the time alleged in his answer, without warrant, of law, were consequently null and void. Commonwealth vs. Fowler, 10 Mass., 295.

The demurrer must be sustained, and judgment of ouster go against the respondent.