Mallory v. Wheeler , 151 Wis. 136 ( 1912 )

KebwiN, J.

Counsel for appellant relies upon ch. 120 of the Private and Local Laws of Wisconsin for 1870 as amended by ch. 471 of the Private and Local Laws of 1871 respecting the rights and duties of the public administrator for the city and county of Milwaukee, which authorizes investigation hy such public administrator for the discovery of goods and chattels in certain cases. The appellant contends that Governor Wheeler, the respondent, was bound to appear and answer in accordance with the citation, and that the court below was in error in holding to the contrary.

The case presents some interesting questions and is not free from difficulty. The state law referred to not only authorizes examination and inquiry, hut also authorizes the public administrator, in some cases referred to, to take charge of goods, chattels, credits, and estates of persons dying intestate. Oh. 120, P. & L. Laws of 1870 as amended, secs. 4, 7, 8, 9, 10, and 11.

Oh. 16, Supplement to P. & L. Laws of 1865, provides for the incorporation of the “Wisconsin Soldiers’ Home,” to be permanently located at Milwaukee. By acts of the state legislature of the state of Wisconsin and Congress of the United States, all the property of the Wisconsin. Soldiers’ Home was transferred, turned over, and conveyed to the “National Asylum for Disabled Volunteer Soldiers,” incorporated by act of Congress. But the acts recognize in the state and reserve to it the right to service of civil and criminal process within the territory ceded. Ch. 16, Supplement to P. & L. Laws of 1865; ch. 68, P. & L. Laws of 1867; Act of Congress of March 21, 1866, secs. 4825 to 4837 inclusive of the Bevised Statutes of the United States; ch. 275, P. & L. Laws of 1867; Act of Congress of March 3, 1901, ch. 853, 31 U. S. Stats, at Large, 1175; In re O’Gonnor, 37 Wis. 379.

Ch. 51, U. S. Stats, at Large (vol. 17, p. 417), approved January 23, 1873, provides for the change of the corporate name from “-The National Asylum for Disabled .Volunteer Soldiers” to “The National Home for Disabled Volunteer Soldiers.”

On the part of the respondent it is insisted that Governor Wheeler, as governor of the National Home, was an officer of the United States and could not be called to answer under state laws for his acts and doings. Furthermore, that the management of the property 'and effects of deceased soldiers is exclusively under the control of Congress through a board of managers, under the federal statutes and rules and regulations made in pursuance thereof; that the inmates in said National Home are subject to the rules and articles of war the same as if they were in the army; that the governor of the Home, under direction of the board of managers, is engaged in the internal administration of a federal institution, hence the state legislature has no constitutional power to interfere with such management as is provided by Congress. Bespond-ent’s counsel contends that state courts have no authority to interfere with federal officers or agents in the performance of their duties, and cites In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658; In re Loney, 134 U. S. 372, 10 Sup. Ct. 584; In re Waite, 81 Fed. 359; In re Fair, 100 Fed. 149.

The general proposition to which the foregoing cases are cited may he admitted, but neither the proposition nor the cases cited rule the instant case. An examination of these cases will show that they involve a situation where there was interference with an officer of the United States or an agent acting under federal authority. Governor Wheeler was not-an officer of the United States. As a general rule an officer of the United States is one who holds his place by virtue of appointment by the President, by one of the courts of justice, or by the heads of departments authorized by law to make such appointment. 3 Cyc. 818; U. S. v. Mouat, 124 U. S. 303, 8 Sup. Ct. 505; U. S. v. Germaine, 99 U. S. 508; Babbitt v. U. S. 16 Ct. Cl. 202; Wood v. U. S. 15 Ct. Cl. 151.

Governor Wheeler does not derive his appointment from the President, from any court of justice, or any head of the federal departments authorized by law to make such appointment. He is appointed by the board of managers as the local manager or governor of the corporation in question. He reports to the board of managers, and the board of managers annually reports to Congress.

This court held in In re O’Connor, 37 Wis. 379, that the title to the premises occupied by the “National Home for Disabled Volunteer Soldiers” in Milwaukee county is not in the' United States, but in a corporation created by Congress; that the corporation is in its nature a charitable institution and its rights and property are not in any just and legal sense the rights and property of the United States, and that it was not competent for the legislature of Wisconsin to abdicate its jurisdiction over this territory except where the lands are purchased by the United States for the specific purposes contemplated by the constitution.

Counsel for respondent relies strongly upon Ohio v. Thomas, 173 U. S. 276, 19 Sup. Ct. 453. Complaint was made in that case by the dairy commissioner against Governor Thomas of the Ohio branch of the National'Home for the alleged violation of the act of the state legislature of Ohio in relation to the use of oleomargarine. The governor was convicted and sentenced to pay a fine and to imprisonment until the fine was paid. On writ of habeas corpus sued out in the circuit court of the United States he was discharged. It will be seen in this case that the prosecution under the state law directly interfered and conflicted with the duty of the governor under federal authority, and it was held that the state legislature had no constitutional power to interfere with the management as provided by Congress.

In In re Kelly, 71 Fed. 545, also relied upon by respondent and involving the Milwaukee institution, it was held that the management and officers are agencies of the United States and as such are exempt from any interference by the authorities, or courts of the state in their control, discipline, or government of the Homes or property.

In Boske v. Comingore, 177 U. S. 459, 20 Sup. Ct. 701, a United States collector of internal revenue was adjudged by a state court of Kentucky in contempt because he refused to file in the state court certain copies of reports which were in his custody as officer of the treasury department, basing his refusal upon a regulation of the treasury department which restricted the use for any purpose other than that specified. It was held that the collector had no authority to do otherwise than to refuse to comply with the order of the state court.

We think it quite clear that these cases do not reach the situation now before us. There was nothing in the order or citation in the instant case in violation of or inconsistent with the acts of Congress or rules 'and regulations governing the Home. If the citation or order of the county court required Governor Wheeler to do any act inconsistent with the federal statutes or rules and regulations in question, a different question would be presented. The order of the county judge pro-AÚdes that Governor Wheeler be cited to appear and be examined on oath and to answer such interrogatories as may be put to him touching the matter of the complaint, and further directs that the citation issue. The citation issued in pursuance of the order and requires Governor Wheeler to appear and submit to examination on oath touching the matters of the complaint, and further recites that he is suspected of having in his possession or under his control certain personal property belonging to John Doe (alias), deceased, late an inmate of the Home, or show cause to the contrary.

Counsel for respondent lays great stress upon the acts of Congress and rules and regulations made in pursuance thereof relating to the management of the National Home, and argues that the proceeding here instituted is in conflict with such rules and regulations, and cites many sections of the rules in support of this contention. These rules, it is true, provide particularly with reference to the management of the National Home, the settlement of accounts of members, the conservation of property, and generally the management in considerable detail. For example, rule 409 provides for taking immediate possession of the moneys and effects of deceased members; rule 410 provides for appraisal; rule 411 provides that money shall be turned over to the treasurer and all property to the quartermaster; rule 413 provides that in January and July of each year, the day to be fixed by the quartermaster in consultation with the governor, the quartermaster shall sell at public sale the effects of deceased persons, except letters or private papers, bank books, or negotiable securities, which shall be held subject to application by heirs or legal representatives; rule 415 provides that amounts received from sales of the effects of deceased members shall be turned over to the treasurer, etc.; rule 416 provides that all applications for effects of deceased members shall be referred to the manager of the branch to which the deceased member belonged, etc.; rule 4Í7 provides form of application for effects of deceased members; rule 418 provides with reference to application for effects of deceased members, and rule 419 for keeping account of posthumous funds; rule 420 provides for individual accounts in name of deceased members; rule 421 has reference to payment of approved claims.

The foregoing and some other rules referred to are set out in respondent’s brief and claimed by respondent to be inconsistent with the present proceeding. The court is not able to agree with counsel in this contention. It is quite clear that, in so far as the order and citation go, there is nothing to indicate that any proceeding will be taken to interfere with the federal statutes and rules and regulations made in pursuance thereof.

It is claimed by ‘appellant that the order from which the appeal to the circuit court was talcen was not appealable. Sec. 4031, Stats. (1898), as amended by ch. 593, Laws of 1907, gives any person aggrieved by an order of the county court the right to appeal. The statute under which the present proceeding was taken provides, in effect, that if any person shall neglect or refuse to obey the process provided for he shall be attached and committed to prison. The governor was therefore obliged to comply with the order or suffer the penalties imposed for failure to do so. He was an aggrieved party, and the order appealable. State v. Milwaukee E. R. & L. Co. 136 Wis. 179, 116 N. W. 900; Powers v. Powers, 145 Wis. 671, 130 N. W. 888; American F. P. Co. v. Winter, 147 Wis. 464, 133 N. W. 595.

By the Court. — The order of the court below is reversed, and the cause remanded with instructions to the court below to affirm the order of the county court.