In re of Boyle , 9 Wis. 264 ( 1859 )

By the Court,

Paine, J.

The petitioner was convicted of an assault and battery before the municipal court of the city of Milwaukee, and committed to jail. She sued out a writ of habeas corpus before the county judge, who discharged her on the ground that the act establishing the municipal court, whs a general law, and had never been in force for want of publication. The matter is brought before this court by cer-tiorari.

We think the act in question was a general law, within the provision of the constitution, that “ no general law shall be in force until published.” And in support of that opinion,we shall only refer to the remarks upon that subject in the Iowa county seat case, and in the case of Clark vs. Janesville, both decided at this term; and the latter opinion having been writ ten sometime after the argument of this case.

On the hearing before the county judge, it was admitted by the demurrer that the act had never been published at the time of the election of the judge and clerk of the municipal court, and that it was not published in the volume of General Laws of 1859. No question seems to have been made as to its publication in the private laws of that year, nor as to the effect of such publication. But on examination it is found to have been published among'the private laws, and the question then arises, whether such publication renders the act operative.

We think it does. Although not properly classified, it was still published by the proper officers, and under the authority of law. And we think the mistake of those officers in placing it in a class of laws where it did not properly belong, does not prevent its publication there from being such a one as gives it validity. Such a mistake is very liable to occur. The question whether a law is a public or private law, is frequently quite difficult to determine, and has often been the subject of serious doubt in courts. When, therefore, the statute requires a classification to be made by ministerial officers, we think it would be proceeding upon too strict principles to say that Avhere the act is otherwise properly published, a mere mistake in its classification should defeat its operation. The constitution makes its validity depend on its publication, not on its proper classification. And although we held in the Iowa county seat case, that the publication must be under the authority of law, yet, we there held that the laws prescribing the manner and detail of it, were, to a certain extent, directory merely, and that a literal compliance with them in every respect, was not essential to give the act validity. And these provisions concerning their classification, we think, are of such a directory character.

The certificate of the Secretary of State, appended to the Private Laws of 1859, bears date on the 29th day of June ; and without determining whether this should be adopted in all cases, as the date of publication of the volume, we have concluded so to adopt it in all cases where there is no allegation, or suggestion, which might render a further, or more accurate inquiry necessary. We hold the act in question, therefore, to have been in force from that date.

And without determining what effect this would have upon the title of the judge or clerk of that court to their respective offices, in a direct proceeding to test their right, yet an election having been held, and they elected, and having entered upon the actual exercise of the duties of the offices, we think after the law became operative, so that the offices were legal, they were officers de facto, and that their right to hold the offices cannot be inquired into in a collateral proceeding of this kind. It is not an inquiry into the jurisdiction of the court, which may always be inquired into; it is an inquiry into the right of the judge to hold his office, which is a question entirely distinct from that of the jurisdiction of the court over the offence.

Neither do we say that it cannot b& inquired into on ha-beas corpus, whether the officer sentencing a prisoner was an officer de facto. That inquiry might, undoubtedly, be made. Because, every person assuming to exercise the authority of an officer, does not thereby necessarily make himself an officer defacto. But 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 direct proceeding for that purpose ; and such, it appears, was the character of the officers here. And the trial and conviction of the petitioner having occurred after the law was in force, we think she cannot, on habeas corpus, raise the question of the strict legal right of the judge to hold the office. And our conclusions upon this point, we think, is fully sustained by the following cases, Fowler vs. Beebee, 9 Mass., 231; Commonwealth vs. Fowler, 10 Mass., 305; Case vs. The State, 5 Ind., 1; The State vs. Williams, 5 Wis., 308.

The order of the county judge, discharging the petitioner, is reversed.