#### State of Wisconsin *vs.*Merrill.

Tho office of Receiver of the canal lands, donated by the U. S Government to Wisconsin Territory, having been conferred by the territorial Government, he became the trustee of'that fund' fi>r the Territory; and in its transition from a Territory to a State, thatoifi-oor becamo. subservient to the directions of tho State Legislature and its enactments.

*It*is inadmissible fur a porson who has assumed a trust under tho Territorial Government, and invested himself with the funds, and refuses to account for tho manner in which ho has discharged that trust to the power that conferred, it upon him, because there may be contesting claimants for the fund,to set up any adverse claim hy any perspn or power, whero proceedings'have been taken to bring him to an account, and to disclose the situatibn of the fund and his aots.imthe management thorcof.

A trustee can never contest the rights or plaijn,s of the porson who oreatod him trustee, by setting up other claimants to tho trust fund, and thus making it necessary for tho contesting claimants to Interplead each other for tho establishment of their claims.

This, was.an application for a mandamus against the defendant,, under a,nd by virtue of a legislative act of the State, passed March *2,*1849, entitled *“an act to*prescribe certain duties of the Attorney General of the State,, and the District Attorney of Milwaukee County.” *See Session Laws of*1.849, *page*3ft.

Merrill was elected by the joint action of the Terri-, toriai Legislature..Receiver of the lands donated by an act of Congress, to the Territory of Wisconsin, to aid in the construction of the contemplated Milwaukee and Rock River Canal. Tho *State*of Wisconsin, on becoming admitted as, such, claimed (as would appear by the passage of the act in question) the fruits of the lands in the hands-of Merrill,, the Receiver. In. accordance with, the provis-. *259ions of the act before referred to, the Attorney General procured the affidavit of Beriah Brown, the then acting clerk in the office of the Secretary of State, that he had made an examination and search of the records and papers of that office, for the bonds, mortgages and other papers pertaining to the canal lands, and could find none deposited there. He also procured the affidavit of the Deputy Treasurer of State, showing that Merrill had not deposited with the Treasurer any proceeds of the sale of the canal lands. He also procured the affidavit of the Governor of the State, setting forth that Merrill had not rendered to him a final account of the monies received by him, Merrill, as Receiver.

Afterwards the Attorney General made his certificate that he had called upon Merrill, and had exhibited to him a certified copy of the act of the Legislature before referred to, and demanded that he should forthwith pay ■over to the Treasurer of the Slate, the amount received by him, Merrill, as Receiver of the Milwaukee and Rock River Canal Lands; and that he also deliver to the Treasurer of the State, the books, papers and vouchers belonging to the office of Receiver. That Merrill, at the time of such demand, promised to call upon the Attorney General, af a specified day, and give him his final answer as to the demand made by him; but that he did not call in accordance with such promise, and had done nothing in the premises.

Upon these papers, Mr. Brown, the Attorney General, made a motion for a *peremptory mandamus*to be directed to Merrill, requiring him to deliver to the Treasurer of the State all books, vouchers, bonds, mortgages, and other papers received by him in the character of Receiver, ip *260accordance with the provisions of the Statute before referred to, and also requiring Merrill to render a true account of all the sales made, or moneys received by him as such Receiver, for which he had not already account-tod, and to pay over to the Treasurer of the State, the balance not already accounted for.

*J. S.*Brown, *Attorney General,*for the State,

*A. D. Smith and J. M. Arnold,*for Merrill.

The Reporter had not the opportunity of hearing the argument of the Attorney General, or of the inspection of his brief. But he was understood to have assumed and argued- — That the donation made by Congress, of the lands in question to the *Territory*of Wisconsin, to aid in the construction of the Milwaukee and Rock River Canal, and the Territory, having become merged in the State, by an act of Congress admitting it as such, succeeded to all the rights which the Territorial Government had, or could have, in the donation made by Congress for the benefit of the Territory; that, if the government of *the*United States claimed *any*interest in the donated lands, it had not asserted any such claim, or taken any steps to reclaim from the Receiver, Merrill, either the monies or securities in his hands for the lands sold, and for which he held the monies or securities; that the State had, at all events, become the trustee of the government of the United States, as to all the claims which it had; and was invested with authority to call the Receiver to an account for his stewardship; that the Receiver, under the state of the case,, could not defend himself from the claim of the *State, made*upon him by this procedure, by *denying its*authority, or *261repudiating its interest in the fund claimed to be in his hands; and that the State, as the successor of the Territory, had the right, at least, to bring the Receiver to an account; and if that were done, the State would be liable to the Government for the .amount it should recover, provided the fund should be established to belong to the United States.

On the behalfof Merrill it was assumed and argued that the Territory was not bound to become the owner of the canal, though it would have had an interest in it to the extent of the donation made by Congress; that by the resolutions andnetsof the Territorial Legislature, there was a strong attempt to prevent and abuse the trust, and to -diyeri the fund to the use of the Territory, regardless of the trust which had been assumed; that in the transit of the Territory into a State, the State did not acquire the right conferred by Congress, upon the Territory, unless upon the condition that it (the State) should assume all the duties, liabilities and obligations imposed upon the Territory, *by the*act of Congress, which it had not done; that if the State could acquire any interest in the lands which remained undisposed of, at tire formation of the State, it could exert no act to annul or counteract any thing done by the Territory, nor control or prevent the «exercise of any functions of any officer appinted by the. Territorial Legislature, in regard to his official acts in «office; that Merrill had no appointment under the State government; but held his office of Receiver, free and distinct from any dependence upon, or subserviency to State authority.

*By the Coui\t.*

Wííitom, J.

The application by the Attorney General, fox .a mandamus in this case, is founded *262on an act of the Legislature, passed March 2d, 1840/ 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 Slate 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 live days, then the Attorney General shall cause a mandamus to issue from the Supreme Court, &c. There are a number of other provisions contained in the act, to which it is not necessary to refer. We are satisfied that without Ihe act, we have full power over the subject matter of this application, as welhas 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 control of them. The foundation for this argument is the alleged fact,that the proceeds of the lands donated by-Congress, to aid in the construction of the Milwaukee and Rock River Canal, belong to the United States; the properly which, by the act above referred tor the respondent was commanded to deliver to the State Treasurer, being a portion of those proceeds. This, if I *263correctly apprehended the position taken by the counsel for the respondent, is the only reason why the command of the Legislature is resisted. Without examining this position, for the purpose of ascertaining its correctness, it may be well to inquire whether, if well taken, it can avail the respondent in this proceeding. He was elected Receiver of the canal lands, by the two houses of the Legislature of the Territory oi Wisconsin; that Legisla1-ture created the office and prescribed the duties: and lie obtained possession of the property in question by virtue of his office." As between him and the Territory of Wisconsin, there can be no question in regard both to the legal and moral obligation resting upon him; authority need not be cited to show that, by accepting the office and undertaking to perform its duties, he became answerable to the Territory of Wisconsin, for the manner in which those duties were discharged. This office created a trust which he undertook to fulfil, and to its performance he must be held. He became the agent of those whose officer he was, and having possession of the property, by virtue of his agency, he cannot compel his principal and a third party to implead, to determine their rights to it, while he retains possession; if the Territory was in existence, he would íiave a plain duty to discharge, which could be fulfilled only by delivering to his principal the property in question.

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 in respect to this property, he owes none to the State of Wisconsin.

*264This position will not bear scrutiny. The State is the successor of the Territory, and if the respondent con-»' tracted 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 he 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, áre due now to the State, as its successor. *Constitution of Wisconsin, Art,*14, *Secs.*4 *and*5,

A peremptory mandamus must issue.