1 Chand. 258 | Wis. | 1849
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
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.
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.’