In re Burke

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

OPINION TEXT STARTS HERE

Application for habeas corpus.

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 that proceeding are as follows: In 1859 the legislature enacted a law establishing a municipal court in the city and county of Milwaukee. Private & Local Laws 1859, c. 199. The act provided that it should take effect from and after its passage. It provided, also, for the election of a judge of such court on the first Tuesday in April, 1859. It was approved March 18, 1859, but was not published, and hence did not take effect, until June 29th of that year. An election of such judge was held at the time appointed therefor in the act, and the person elected qualified, and entered upon the discharge of the duties of the office. The election was afterwards declared void by this court on quo warranto proceedings, and the person thus elected was ousted from the office. State v. Foote, 11 Wis. 14. Before such ouster, but after the act of 1859 had been published, Bridget Boyle was tried in said court, before such acting judge, for a misdemeanor, and convicted thereof, and was committed to prison for non-payment of a fine. On habeas corpus, the county judge discharged her from custody; but this court held, on certiorari, that, notwithstanding the person acting as judge during those proceedings had no lawful right to the office, still the imprisonment of the petitioner was not illegal. Hence the order of the county judge releasing her from custody was reversed. The only difference in the two proceedings, on their facts, is that in the Boyle Case the judge was elected without lawful authority, while here he was appointed, as is assumed, without such authority. There is no difference in principle between the cases. After holding, in the Boyle Case, that the judge thus elected without authority of law became judge de facto when the law took effect, and that his right to the office could not thereafter be inquired into collaterally, the opinion, written by Mr. Justice PAINE, proceeds as follows: “When it appears that the person exercising the powers of an office is in by such a color of right, and that he has such possession of the office, as makes him in law an officer de facto, then his acts, as to third persons, are valid, and his right to hold the office can only be inquired into in some...

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    • United States
    • United States State Supreme Court of Missouri
    • February 11, 1946
    ...111 Mo. 542; 33 C.J., p. 1039, Note 46; 33 C.J., p. 1038; Commonwealth v. Stasio, 8 N.E. (2d) 923; In re Manning, 45 N.W. 26; In re Burke, 45 N.W. 24; In re Manning, 139 U.S. 504; State ex rel. v. Grayston, 349 Mo. 700, 163 S.W. (2d) 335; In re Franz' Estate, 346 Mo. 1149, 145 S.W. (2d) 400......
  • Moffett v. Commerce Trust Co.
    • United States
    • United States State Supreme Court of Missouri
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    ......582, 292 P. 947;. Clark v. Moffett, 136 Kan. 711, 292 P. 555, 290 U.S. 642, 290 U.S. 602; State v. Douglas, 50 Mo. 593;. State v. Miller, 111 Mo. 542; 33 C.J., p. 1039, Note. 46; 33 C.J., p. 1038; Commonwealth v. Stasio, 8. N.E.2d 923; In re Manning, 45 N.W. 26; In re. Burke, 45 N.W. 24; In re Manning, 139 U.S. 504;. State ex rel. v. Grayston, 349 Mo. 700, 163 S.W.2d. 335; In re Franz' Estate, 346 Mo. 1149, 145. S.W.2d 400; Connor v. Paul, 138 Mo.App. 13, 119 S.W. 1006; Sec. 86, R.S. 1939. (42) The Commerce Trust Company, as. domiciliary administrator in ......
  • Ridout v. State
    • United States
    • Supreme Court of Tennessee
    • July 14, 1930
    ...... judge of the trial court. Holding that the judge who tried. and sentenced Manning was at least a judge de facto and the. sentence, therefore,. [30 S.W.2d 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, but whose election or appointment thereto is illegal,. his official acts therein cannot be successfully attacked in. collateral ......
  • Ridout v. State
    • United States
    • Supreme Court of Tennessee
    • July 14, 1930
    ......Holding that the judge who tried and sentenced Manning was at least 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, but whose election or appointment thereto is illegal, his official acts therein cannot be successfully attacked in collateral proceedings, but in ......
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