In re Burke

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtLYON
Citation76 Wis. 357,45 N.W. 24
PartiesIN RE BURKE.
Decision Date18 March 1890

76 Wis. 357
45 N.W. 24

IN RE BURKE.

Supreme Court of Wisconsin.

March 18, 1890.


Application for habeas corpus.

[45 N.W. 24]

Cole & O'Keefe, for petitioner.

L. K. Luse, Asst. Atty. Gen., for Warden.


LYON, J.

In August, 1889, the petitioner was brought before L. A. CALKINS, Esq., then acting as judge of the municipal court of the city and county of Ashland, for examination on a charge of embezzlement. He waived an examination, and was held for trial. In September following the district attorney filed an information against him in the same court for such offense, and in October of the same year he was tried, convicted, and sentenced to imprisonment in the state-prison for the term of two and one-half years. He is now serving such sentence. The petitioner now makes application to this court for a writ of habeas corpus, to the end that the legality of his imprisonment may be inquired into. The foregoing facts are stated in his petition. He seeks to be released from such imprisonment because, as he alleges, there was no such court in existence as “the municipal court of the city and county of Ashland” at the time he was so convicted and sentenced, and no such officer, either de jure or de facto, as judge of such court. If these reasons exist, they are undoubtedly available on habeas corpus, for they go to the jurisdiction.

It was thought best to follow the practice indicated in Re Semler, 41 Wis. 517; and so an argument of the application was directed, and has been had. All questions which could be raised on the return to the writ have been fully argued; and we are as well prepared to decide them on this application as we should be had the writ been issued, and were the petitioner before us on the return thereto.

The municipal court of the city and county of Ashland was established by chapter 94, Laws 1889, with jurisdiction concurrent with that of the circuit court of the same county of all cases of crimes and misdemeanors arising in that county, except murder and rape. The act was published March 15, 1889, and it is provided therein that the same “shall take effect and be in force from and after its passage and publication.” Section 11. The act also provides as follows: “The qualified voters of the county of Ashland shall, on the first Tuesday in April, 1889, and on the first Tuesday of April every fourth year thereafter, elect a suitable person to the office of judge of said municipal court, to be called ‘municipal judge,’ who shall hold his office for the term of four years from the first Monday in January next succeeding his election, and until his successor shall be elected and qualified. * * * Whenever a vacancy shall happen in the office of said judge, the governor shall fill such vacancy by appointment.” Section 4. Power to appoint a clerk of such court is conferred upon the judge thereof by section 5. The first election for judge was held under said act on the first Tuesday in April, 1889, and L. A. CALKINS was duly elected. The notice of election specified that his term of office would commence on the first Monday in January, 1890. Two days after such election the governor appointed Mr. CALKINS judge of said court, to hold the office until the first Monday in January, 1890. On the authority of State v. Messmore, 14 Wis. 163, it is claimed that the governor had no authority to make such appointment. For the purposes of this application, it will be assumed that he had not. It should be observed, however, that this application is not necessarily ruled by the Messmore Case, for the appointment in that case was to the office of circuit judge, and the case was decided upon certain constitutional provisions which may not be entirely applicable here. The questions to be determined are: Was there any such court as “the municipal court of the city and county of Ashland” when such proceedings were had against the petitioner? And, if such court was then in existence, are those proceedings nullities, because no person had lawful authority at that time to exercise the functions of judge thereof?

We are of the opinion that these questions are fully answered in Re Boyle, 9 Wis. 264. The facts in...

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18 practice notes
  • City of Terre Haute v. Burns, No. 9279.
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 Junio 1917
    ...v. Burke, 248 Ill. 224, 93 N. E. 775-777, 140 Am. St. Rep. 159; State v. Carroll, 38 Conn. 449, 467, 471, 9 Am. Rep. 409; In re Burke, 76 Wis. 357, 45 N. W. 24;McVeany v. Mayor, etc., 80 N. Y. 185-195, 36 Am. Rep. 600;Hamlin v. Kassafer, 15 Or. 456, 15 Pac. 778, 3 Am. St. Rep. 176;Warden v.......
  • Strange v. Oconto Land Co.,
    • United States
    • United States State Supreme Court of Wisconsin
    • 20 Octubre 1908
    ...such exercise. Cole v. President, 57 Wis. 110, 14 N. W. 906;C. & N. W. R. Co. v. Langlade County, 56 Wis. 614, 14 N. W. 844;In re Burke, 76 Wis. 357, 45 N. W. 24;In re Manning, 76 Wis. 365, 45 N. W. 26;Farrier v. State, 48 N. J. Law, 613, 7 Atl. 881. They were not necessarily town officers ......
  • Ridout v. State
    • United States
    • Supreme Court of Tennessee
    • 14 Julio 1930
    ...a judge de facto and the sentence, therefore, Page 261 valid, the judgment was affirmed, and the court quoted with approval from Re Burke, 76 Wis. 357, 363, 45 N. W. 24, as follows: "If the office has been lawfully established, and a person exercises the functions thereof by color of right,......
  • Olson v. Hawkins
    • United States
    • United States State Supreme Court of Wisconsin
    • 17 Abril 1908
    ...Wis.; In re Boyle, 9 Wis. 264;Cole v. Black River Falls, 57 Wis. 110, 14 N. W. 906;Yorty v. Paine, 62 Wis. 154, 22 N. W. 137;In re Burke, 76 Wis. 357, 45 N. W. 24;Fenelon v. Butts, 49 Wis. 342, 5 N. W. 784;Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178. Among other refe......
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18 cases
  • City of Terre Haute v. Burns, No. 9279.
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 Junio 1917
    ...v. Burke, 248 Ill. 224, 93 N. E. 775-777, 140 Am. St. Rep. 159; State v. Carroll, 38 Conn. 449, 467, 471, 9 Am. Rep. 409; In re Burke, 76 Wis. 357, 45 N. W. 24;McVeany v. Mayor, etc., 80 N. Y. 185-195, 36 Am. Rep. 600;Hamlin v. Kassafer, 15 Or. 456, 15 Pac. 778, 3 Am. St. Rep. 176;Warden v.......
  • Strange v. Oconto Land Co.,
    • United States
    • United States State Supreme Court of Wisconsin
    • 20 Octubre 1908
    ...such exercise. Cole v. President, 57 Wis. 110, 14 N. W. 906;C. & N. W. R. Co. v. Langlade County, 56 Wis. 614, 14 N. W. 844;In re Burke, 76 Wis. 357, 45 N. W. 24;In re Manning, 76 Wis. 365, 45 N. W. 26;Farrier v. State, 48 N. J. Law, 613, 7 Atl. 881. They were not necessarily town officers ......
  • Ridout v. State
    • United States
    • Supreme Court of Tennessee
    • 14 Julio 1930
    ...a judge de facto and the sentence, therefore, Page 261 valid, the judgment was affirmed, and the court quoted with approval from Re Burke, 76 Wis. 357, 363, 45 N. W. 24, as follows: "If the office has been lawfully established, and a person exercises the functions thereof by color of right,......
  • Olson v. Hawkins
    • United States
    • United States State Supreme Court of Wisconsin
    • 17 Abril 1908
    ...Wis.; In re Boyle, 9 Wis. 264;Cole v. Black River Falls, 57 Wis. 110, 14 N. W. 906;Yorty v. Paine, 62 Wis. 154, 22 N. W. 137;In re Burke, 76 Wis. 357, 45 N. W. 24;Fenelon v. Butts, 49 Wis. 342, 5 N. W. 784;Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178. Among other refe......
  • Request a trial to view additional results

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