text:
    Sholes v. The State.
    1. PUBLICATION OF REVISED STATUTES — CONTRACT WITH STATE — ACCORD AND satisfaction. — S. was selected under section 2, chapter 154, Revised Statutes 1849, to publish the Revised Statutes, and he delivered to the governor, under his contract, 4,000 copies, worth, iti fact, §2.28 per copy; in all, §9,120. Under the provisions of sections, chapter 154, Revised Statutes 1849, the governor had subscribed in the executive records of his office for said copies at §1.53 each, amounting for the 4,000 copies to §6,120, which was appropriated in full payment as the state claimed, and in pai-t payment as the plaintiff claimed, for the books; the act (Laws 1850, ch. 143,) expressing that that sum was appropriated “in full for 4,000 copies of the Revised Statutes of the state of Wisconsin, subscribed for and received by the governor of the state,” and this sum the plaintiff afterwards received from the state treasurer. Held, 1. That the provision of the constitution prohibiting the tailing of private property for public use, without due compensation, had reference only to cases of the exercise of the right of eminent domain, or superior ownership vested in the state, and had no application to contracts between it and individuals so as to bind it to pay as on a quantum meruit, or quantwn vdlebat, though the contract price was much less. 2. By the act in question, the governor was made the agent of both parties to subscribe for the copies, and fix the pi-ice within his discretion, not exceeding a certain amount, and to accept the books when offered according to the contract, and the plaintiff took the contract at the risk of the action of the executive. 3. The appropriation, which, by its terms, was to be in full for the books, having been received by the plaintiff, there having been controversy about his demand, estops the plaintiff from setting up any further claim on account of his demand; neither fraud, accident or mistake in matter of fact having intervened to his prejudice. Calkins v. State, 13 Wis. 389.
    2. Public phutting — constitution.—The provision of section 21, article 7, of the constitution, making it the duty of the legislature “to provide, by law, for the speedy publication of all statute laws, and such judicial decisions made within the state as it may deem expedient,” is not dependent upon or necessarily connected with the provisions of section 25, article 4, requiring all printing, authorized or required for the legislature or state, to be let by contract to the lowest bidder. The acts for the publication of the Revised Statutes (ch. 154, R, S. 1849) is not in conflict with this provision of the constitution.
    3. State contract with. — A. contract between an individual and the state is to be construed, and the liabilities of the parties under it are to be determined by the same rules as in contracts between individuals.
    (2 ChcMid. 182.)
    ACTION in the Supreme Court against the State.
    This was an action instituted by tbe plaintiff under the provisions of the statute, authorizing actions at law against the state by individuals, founded upon the petition of the plaintiff filed at the present term of this court, alleging that by an act, passed by the legislature of the state of Wisconsin, approved March fifteenth, in the year one thousand eight hundred and forty-nine, entitled “ of the publication of the revised statutes,” it was enacted that the revised statutes of this state should be published in one volume, large octavo, on new small pica type, and on paper of good book quality, bound in calf in tbe modern style of law book binding ; and that for tbe purpose of publication, tbe copyright of said statutes was secured for tbe space of two years to tbe commissioners to revise tbe laws or some suitable person to be selected by them; that tbe commissioners, or tbe person so selected, should, within twenty days after tbe passage of said act, execute to tbe governor of this state a bond in tbe penal sum of $10,000, with two or more sufficient sureties to be approved by said governor, conditioned for tbe faithful pubbcation of tbe work and its delivery to the state agreeably to tbe provisions of said act; that tbe governor of tbe state was authorized and required, in tbe name of tbe state of Wisconsin, to subscribe for and take, when printed, bound and completed, as was therein provided, four thousand copies, to be desposited in tbe state library for tbe use of tbe state, at a sum not exceeding one dollar and seventy-five cents per volume, unless tbe volume should contain more than seven hundred pages, in which case there should be allowed twenty-five cents for every one hundred pages of excess over tbe above mentioned number of seven hundred pages, and proportionately for a less number of excess of pages; that tbe contractor was required to publish at least two thousand copies in, addition to tbe number contracted for by tbe state, and in the sale of them was restricted in price to a sum not exceeding four dollars per copy; that tbe said revised statutes should be printed, bound, completed and delivered at tbe seat of government of tbe state on or before tbe first day of December then next; that tbe governor was authorized to receive and accept of tbe said statutes so as to be delivered, if be should be of tbe opinion that tbe work bad been done according to tbe contract and tbe requirements of said act; that should be accept and receive tbe same, be was authorized and directed to deliver to said contractor a receipt for tbe same, and to cancel bis bonds; that tbe contractor, in tbe publicar tion of tbe work, shoidd be subject in its arrangement, side notes, index and general character, to the person, or persons who might be appointed by the legislature to superintend the same • and by an act entitled, “ of the superintendance of the publication of the revised statutes,” it was made the duty of the secretary of state to cause to be copied the several chapters composing the revised statutes, and all other laws which were required to be published therewith, and to furnish them to the said commissioners within thirty days of the close of the then session of the legislature, and he was authorized to employ such clerk or clerks as might be necessary to accomplish the work within the time specified; and it was provided that said expense for copying should not exceed, in the aggregate, more than $250, and that the same should be paid by the person or persons having the copyright; that agreeably to the provisions of said act, the commissioners to revise the laws did, on the twentieth day of March, in the year one thousand eight hundred and forty-nine, select and appoint the petitioner to publish and deliver the said revised statutes, according to the provisions of said act; that on the twenty-fourth day of March, in the year last aforesaid, this petitioner did execute the bond required by said act, which bond was duly approved by the governor of the state and placed on file; that the petitioner then proceeded to the publication of said revised statutes with a direct reference to the maximum price mentioned in said act, to wit: the sum of one dollar and seventy-five cents per volume, for seven hundred pages, and twenty-five cents additional per volume for every hundred pages of excess over said number of seven hundred, and proportionately for a less number of pages of excess ; that the petitioner submitted the arrangement of the work, its side notes, index and general character, to the direction of Oharles M. Baker, who was duly appointed, by an act of the legislature of the state,' entitled “ of the superintendence of the publication of the revised statutes,” to superintend the publication of said revised statutes, and that he paid the said Charles M. Baker the sum of $600 for superintending the publication of said statutes, as was required to do by the act last above referred to, and paid the secretary of state $250 for copying said statutes, as he was required to do by said act; that this petitioner published six thousand copies of said revised statutes, each volume containing nine hundied and twelve pages, large octavo, printed on new small pica type, on paper of good book quality, bound in calf, and in the modern style of law book binding ; that on the first day of December, in the year one thousand eight hundred and forty-nine, he delivered to JSfelson Dewey, governor of the state, at Madison, the seat of government of said state, four thousand copies of the said revised statutes, printed, bound and completed as aforesaid, which copies the said governor did then and there accept of this petitioner, and did cancel this petitioner’s bond so executed as aforesaid, and deliver to this petitioner a receipt for said statutes, which receipt is in the words and figures following, to wit: “ Received of O. Latham Sholes four thousand copies of the revised statutes of the state of Wisconsin, published by him, in boxes unopened, which he has guaranteed to contain the requisite number of 4,000 volumes, and to be of the quality of the sample delivered. (Signed) NELSON DEWEY, Governor of Wisconsin; ” that the said two thousand copies of said statutes, required to be published by said act, additional to the four thousand copies contracted for by the state, have been so published as required by said act, and that in the sale of the said two thousand additional copies, this petitioner has restricted himself -within the sum of four dollar’s per volume; that your petitioner has, on his part, in all respects complied with the provisions of the said acts, entitled “of the publication of the revised statutes” and “ of the superintendence of the publication of the revised statutes; ” that the four thousand copies delivered as aforesaid to the governor of this state, were placed in the state library, and have been distributed and are being distributed according to the provisions of the law; and this petitioner believes and states that the said revised statutes so delivered to the governor of this state as aforesaid, were worth and ara of the value of two dollars and twenty-eight cents per volume, the maximum price mentioned in said act; that this petitioner, during the time of the publication of said revised statutes, and at the time of delivering the same, supposed and believed that he was to receive the said maximum price for the publication and delivery of the same ; that this petitioner, after having delivered the statutes aforesaid, presented his claim to the legislature of this state, asking an appropriation of nine thousand one hundred and twenty dollars, the price and value of said revised statutes, and the said legislature, by an act approved February 6th, 1850, did appropriate to this petitioner the sum of six thousand one hundred and twenty dollars, and refused to allow this petitioner the balance of his claim, which balance amounts to the sum of three thousand dollars, which sum this petitioner believes and states remains justly due and unpaid to this petitioner ; and your petitioner represents that he deems himself aggrieved by such refusal of the legislature to allow said just claim of your petitioner against the state, and therefore files this, his petition, in pursuance of an act of the said legislature, approved February 9th, 1850, entitled “ an act to direct in what manner and in what courts suits may be brought against the state; ” and this petitioner therefore asks the aid of this court in the premises, and that the state may appear before the supreme court and answer this petitioner according to the provisions of law and the rules of this court, and that this petitioner may have such justice and such other relief as the law and very rights of the case may require, and as to this court may seem proper and just.
    To the petition the attorney-general, in behalf of the state, put in a general demurrer. On the argument of the cause, the parties entered into the following stipulation, which was made a part of the case:
    “This case is to be heard upon the following agreed state of facts : That in pursuance of the act first mentioned in the petition, the petitioner was selected and appointed by two of the commissioners mentioned in said act to publish the revised statutes ; that the petitioner executed his bond to the governor of the state, which was approved by him; that the petitioner did then publish the number of copies mentioned in said petition ; that the governor, in the name of the state, did make the subscription for four thousand copies in the book kept in his office for the record of executive proceedings, a copy of which subscription is hereto attached, and made a part of this stipulation ; that by an act of the legislature the sum of six thousand one hundred and twenty dollars has been appropriated to said petitioner, in payment, as the state claims, for the copies of said statutes so subscribed for as aforesaid, and- in-part- payment, as the petitioner claims: and that said petitioner has drawn and received the amount of said appropriation from the treasurer of this state; that said petitioner delivered to the governor the said four thousand copies so subscribed for, and that the same have been placed in the state library, and a portion of them distributed by authority of law, and further, that it is not known to the state or any of its officers that said petitioner knew of said subscription at the time of the delivery of said four thousand copies; that two dollars and twenty-eight cents is a reasonable and fair price for each copy of said statutes so delivered to the state ; that the following statement of the subscription shall make a part of the case:
    “DECEMBER 1, 1849.
    “ On this day the following executive action was had, to wit: By the authority of an act of the legislature of the state of Wisconsin, approved March 17, 1849, entitled 1 an act to provide for the publication of the revised statutes of this state,’ the governor of this state is authorized and required, in the name of the state of Wisconsin, to subscribe for and take, when finished, bound and completed, as by said act provided, four thousand copies of the said revised statutes for the use of the state, at a sum not exceeding one dollar and seventy-five cents per volume; provided, however, if tire said volume shall exceed seven hundred pages, the sum of twenty-five cents additional per volume for every hundred pages, and proportionately for a less number of excess, shall be allowed. It is therefore ordered by the governor of this state that four thousand copies of the said volume of said revised statutes mentioned in said act be, and the same is hereby subscribed for, on the account of and in the name of the state of Wisconsin, at the sum of one dollar for seven hundred pages of such volume, and at the rate of twenty-five cents additional for every hundred pages of excess over and above the said seven hundred pages, as provided by said act.
    ‘ ‘ By the Governor, NELSON DEWEY.”

      Oothren, Arnold <& Sharpstein, for petitioner,
    claimed and argued that the contract made with the plaintiff, on the part of the part of the state, was in accordance with the provisions of the statutes of the state; that the execution of the bond for the performance of the work created the duty and made it obligatory on the plaintiff to execute it, and on the part of the state it imposed the obligation of payment; that on the execution and deposit of the bond by the complainant for the execution of the work, the governor was bound, by the legislative act, to make a subscription, in behalf of the state, for the work at the maximum price fixed by the act, or to have indicated, at the time, that he should affix a lower sum; that, by the act, the governor was not bound to subscribe until the work was completed and ready for inspection and delivery; that the governor was not invested -with any discretion, when he subscribed, to fix the subscription at a lesser sum than the maximum price recognized by the act; that the act authoriz-
      mg the printing was in accordance with the constitution; that the constitutional objection, if any there was in the case, could not now be raised, when the work had been done and the state had received it; that the state cannot set up, in its own wrong, a constitutional objection to defeat the effect of its own legislative action, after rights by another have been obtained under it; that the governor was not the agent of the plaintiff, under the act of the legislature; that, by making the subscription and receiving the books, the governor had no power or authority to diminish the maximum price, and that by these acts the duty of paying the maximum price became legally fixed upon the state.

      Q. James, on the part of the state,
    insisted that a legislative act, transcending the powers granted by the constitution, could not invest an individual with any rights or claim against the state; that the plaintiff having been cognizant of and assenting to the appropriation made by the legislature for his compensation, and having accepted and received the amount so appropriated without objection, he was estopped from all legal claim to a greater or additional sum; that being an applicant to the legislature for the passage of the act, after it had passed and he had received the fruits of the legislation in that behalf, it put an end to all further claim, to be asserted by an action at law.
   Larrabee, J.

This is the first suit brought under the statute, passed in obedience to the mandate of the constitution, authorizing actions at law against the state.

The petition states that the plaintiff was appointed and employed by the commissioners to publish, in a volume, the revised statutes of the state; and that, in pursuance of the law, Rev. Stat. 740, he delivered to the governor, under his contract, four thousand copies, worth |2.28 per volume, amounting in the whole to the sum of $9,120; that the legislature subsequently appropriated to him the sum of $6,120, and refused to allow Mm the balance of his claim, amounting to $8,000, and for which balance this suit is brought.

A stipulation between the attorney for the plaintiff and the attorney-general on behalf of the state has been filed, by wMch it is agreed that the governor subscribed, in the executive records of his office, for four thousand volumes, at the price of $1.53 per volume; that this sum per volume, amounting in the whole to $6,120, was appropriated by the legislature in payment, as the state claims, and in part payment, as the plaintiff claims, for the books, and wMch sum the plaintiff received from the state treasurer; that the volumes were delivered according to the contract and placed in the state library, and a portion of them subsequently distributed throughout the state; that it is not known to the state or any of its officers whether the plaintiff knew of the fact of the governor’s subscription, nor is it known under what motives the plaintiff did the particular acts set forth in the petition; that the books were reasonably worth the sum of $2.28 per volume.

This is the case, and simple as it seems to be, it has given rise on the' argument, to the gravest constitutional and legal questions. On the part of the plaintiff, it is claimed that the admission by the attorney-general, that the books were worth more than was paid for them, is conclusive upon the state, and that the provision of the constitution that private property shall not be taken for public purposes without just compensation, entitles Mm to demand at our hands a judgment for the full value of his books. On the .other hand, it is insisted by the attorney-general, that the law authorizing the employment or appointment of the plaintiff to do this work, is in direct violation of the constitutional provision reqmring all printing authorized or required by the legislature for its own use or for the use of the state, to be let by contract to the lowest bidder, and that, therefore, the law was absolutely void, and that the plaintiff did not and could not acquire any legal rights whatever under it. It is further contended by the attorney-general, that the price, not exceeding a specified maximum, was left entirely to the judgment of the governor, and he having once fixed it by his subscription, and the books having been delivered under that subscription, the executive action is conclusive, both upon this court and the legislature. That though the copies furnished the state were each actually worth more than the price fixed by the governor, and allowed by the legislature, yet the plaintiff was fully indemnified by the monopoly which he enjoyed from the publication, and the profits which he made on his general sale; and that whether this be so or not, the plaintiff, having elected to accept the legislative appropriation which was in its terms in full of Iris demand, Session Laws 1850, p. 112, he is estop-ped from now setting up a claim for what really might be an equitable compensation.

I shall consider these arguments in the order in which they have been stated.

The plaintiff claims that he is entitled to maintain this action because his books were worth more than he has received for them, and that private property cannot be thus taken for public use without just compensation. A very reasonable proposition, and one, which standing by itself, and unaccompanied with the facts in this case, would probably not be disputed by the attorney-general, nor indeed, by any one. But what are the facts ? The plaintiff agrees by his delivery of the books under the subscription of the governor, to furnish them at a certain price, and which price he has already been paid. Now, can it be said that this is a taking of private property for public use, which entitles the owner to a quantum valebat ? Does the state, in purchasing property of one of its citizens, or accepting his services under a contract, though it should turn out that that property or those services were worth more than the stipulated price, become liable for all time thereafter to an action to recover whatever that property or those services may be proved to be worth ? Such a doctrine cannot be .entertained for a moment. The idea is certainly an oiiginal one, and could not have occurred either to the barons at Runymede, or the framers of our constitution. A contract is a contract, whether made between individuals or between states, or between a state and an individual, and all parties competent to contract are bound by it. The provision in regard to talcing private property for public purposes, was intended to indemnify the individual against the acts of the state in its sovereign political capacity, and had no reference to mere ordinary contracts between the state and one of its citizens.

This is the argument offered to sustain the claim of the plaintiff. It was, however, further contended, that the law itself fixed the price at which the state was to receive these books. But it is impossible to give it this construction, unless we reject entirely that part of the law authorizing the governor to subscribe at a price not exceeding a certain amount. The law certainly implies a discretion, or it is utterly without meaning. The governor was made the agent of both parties, to subscribe for at a price not exceeding a specified maximum, and accept the books when completed according to the conditions of the contract, and it cannot now be urged that the plaintiff was ignorant of the price fixed by that subscription, for it was his right to have ascertained it, and the duly of no one to have informed him of it. He entered into the contract with his eyes open, and knew, or ought to have known that this discretion was placed iu the hands of the governor. If he feared an illiberal or unjust decision, he should not have entered into the contract.

This, I believe, disposes of the whole of the argument of the plaintiff’s counsel, and presents a case, which had it arisen between individuals, would never have reached the dignity of contested argument, but would have been decided as soon as stated.

In the view already taken of the case, it is not necessary to examine the grounds of defense urged by the attorney-general, but as the matter was elaborately argued, and involves a constitutional question, it may as well be disposed of now.

It is said that the law under which these books were published, is in violation of section 25, article 4 of the constitution. This provision, considered alone, includes all mere mechanical printing required for the use of the state in all its departments. It is intended, in this regard, to remove from the officers of government the opportunity or incentive to traffic in official power, and to confine their action within the simple sphere of legitimate official duty. It, perhaps, would have been well if the revised statutes could have been published under the advantages of the competition provided by the constitution for the ordinary printing of the state, for political morals would not have received the shock, nor the state have suffered the reproach which has been more than probably, unjustly, the result of the law under which they were published. The charge of fraudulent legislation in the inception of the law, which has been assigned by the attorney-general as a reason for the executive action, can have no weight as an argument with this court. It might, if substantiated, have been a legitimate consideration for the executive or the legislative branch of the government, in the exercise of the discretion given by the contract itself to the former, and in the measure of compensation accorded by the latter; but here it is entirely out of place.

Section 21, article 7 of the constitution, directs that the legislature shall provide for the speedy publication of all statute laws, and of such judicial decisions as may be deemed expedient.

This provision we do not regard as dependent upon or necessarily connected with the provision in relation to printing. While it is true that the employment of the art' of printing is the best means of publication, still publication cannot be confined to the limited signification of mere printing, but comprehends the exercise of additional labor and skill. This provision implies a discretion to be exercised in the method of publication ; for instance, — that the general laws which cannot be in force until published, shall be published in the public journals, that being the most speedy method ; or in pamphlet form, that being more convenient for many purposes; or even by proclamation at the door of the court house in each county, and that the whole body of the laws and the decisions of the supreme 00111!; shall be published in the more permanent form of a bound book. All these would be different forms of publication, and all would answer the constitutional requirement; and it is obvious enough that in many instances the object could not be accomplished under a contract for mere mechanical printing.

But it is said, that the legislature having made an appropriation which in its terms was to be in full for these books, and the plaintiff having accepted and drawn from the state treasury the amount of that appropriation, he is estopped, as it were, from setting up this claim.

To this argument of the attorney-general, I have heard no answer ; nor is it perceived how any can be given. As between man and man, it admits of no question ; and I cannot conceive that the circumstance of one of the parties being a state, can affect the matter in the slightest degree. An individual contracts with his state, not as his sovereign, but as he would with any other municipal power, or with an individual; and having, with a full knowledge of the facts, received compensation in full, it is impossible that such a case constitutes an exception to the general rule, by which a party is concluded by his acceptance in full, where there is no pretense of fraud or mistake. Such were the terms upon which the appropriation was made, and such the terms upon which the money was drawn from the treasury. There could be no mental or other reservation, on the part of the plaintiff, which could in any way bind the state.

We are, therefore, all of opinion, upon the whole-case, that the plaintiff' has failed to substantiate his claim against the state, and judgment must be rendered accordingly.

Judgment against the plaintiff for costs.


source: Caselaw Access Project

author: WhitoN, J.

license: Public Domain

text:
    The State v. McCarty.
    1. Indictment — caption—amendment.—An indictment cannot he amended, after it has been returned by the grand jury, in any material part. If improperly amended, judgment thereon -will be arrested.
    2. Same. — -It is not essential to state at length in the caption to an indictment the qualifications of the grand jurors, nor to recite the facts which give the court jurisdiction, if it be one of general criminal jurisdiction.
    3. Same. — The allowance of an amendment to the caption of an indictment, which is no part of the indictment; in respect to a matter which needed no amendment, is no cause for arresting judgment.
    (2 Ohand. 199.)
    CERTIFIED case from the Circuit Court for Brawn County.
    This matter came into this court on the certificate and report of the circuit judge holding the circuit court for Brown county, to be advised in accordance with the statute. It will be seen by the opinion of the court that the matter arose, upon a motion of the district attorney to amend the caption of an indictment found against McCarty, when the same was called for trial, which motion was granted, and McCarty was found guilty, and his sentence suspended in order to obtain the opinion of this court upon the .question raised upon the allowance of the amendment.

      iS. B. Cotton, for McCarty,

    argued that the caption of an indictment is an essential integral part of it, and as much the finding of the jury or any other portion of it; and to this point cited 1 Chitty’s Crim. Law, 325, 326, 328, 335; 1 Hawk. P. 0. 327 ; 1 Stark. 220, 222. That in this state the caption is material, under tbe provisions of tbe constitution, and could not be amended after it was filed. 1 Cbitty’s Grim. Law, 336 ; 2 Hawk P. C. Tbat a verdict did not cure a defective indictment.

      G. James, in bebalf of tbe state for tbe attorney-general,
    argued tbat it was not cause for arresting judgment, because there was no sufficient caption to an indictment. Wheat. Am. Com. Law, 65,66 ; People v. Jewett, 3 Wend. 319.
   WhitoN, J.

This’case comes up on tbe report of tbe ch’-cuit judge before whom tbe cause was tried. Tbe defendant was indicted for murder.

Tbe indictment charging tbe offense commences as follows :

State oe WISCONSIN, ) Circuit Oounty of Brown, ss.:

Of October term, in the year of our Lord one thousand eight hundred and forty-nine.

“The jurors of tbe grand jury for the state of Wisconsin, inqtdring in and for tbe county of. Brown aforesaid, being duly tried, empanelled and sworn, do, upon then- said oaths, present,” etc.

After tbe defendant bad pleaded to tbe indictment, tbe district attorney moved to amend it, by inserting after tbe words “state of Wisconsin” in tbe second line, tbe words “good and lawful men of tbe county .aforesaid,” and also after tbe word “aforesaid” at tbe end of tbe third line, tbe words “ at tbe October term of said circuit court, begun and holden at Green Bay in tbe said county, on tbe first Monday of October, in tbe year of our Lord one thousand eight hundred and forty-nine.” Tbe amendments were allowed by tbe court, and the jury having found tbe defendant guilty, tbe judge being in doubt as to tbe correctness of bis ruling, certified tbe case to this court in accordance with tbe statute.

If tbe amendments were at all material, their allowance would be good cause for arresting the judgment. Indictments .cannot be amended. But tbe amendments allowed were to the caption, and that is no part of the indictment. 1 Chit. Crim. Law, 326; The People v. Jewett, 3 Wend. 319. And we are satisfied that in this case the caption was correct, as it stood before the amendments were allowed. It is not necessary to state at length, in the caption to an indictment, the qualifications of the grand jurors, nor to recite all the facts which give the court jurisdiction, when the court in which the indictment is found, is a court of general criminal jurisdiction. Turns v. Commonwealth, 6 Met. 224. hi this case, as the indictment was in all respects good, before the amendments were allowed, and as their allowance did not prejudice the defendant on his trial, we see no reason for arresting the judgment.


author: Htibbell, J.

text:
    La Point v. Cady.
    1. Covenant — proviso—exception—-pleading.—In an action upon a covenant to furnish to the plaintiff a certain amount of •water-power for one year, daily for a certain number of hours, subject however to the interruptions provided for in a certain lease between other parties, which were not specified in the covenant sued on, nor set forth in the declaration on it. Held, that this clause of the lease sued on constituted a 'proviso, and not an exception, and therefore it was not necessary to set out in the declaration the clause in question or the lease to which it referred'; this matter being properly defensive to be pleaded by the defendant to the defense. The rule would be otherwise, if the clause constituted an exception.
    2. Exception — proviso.—The distinction between a proviso and an exception is, that a proviso is properly the statement of something extrinsic of the subject-matter of the covenant which is to go in discharge of the covenant by way of defeasance, while an exception is the taMng out of a covenant of some part of the subject-matter of it.
    (2 Ohand. 202.)
    ERROR to the Circuit Court for Milwaukee County.
    This was an action of covenant, brought by the plaintiff in error against the defendant in errpr, upon a lease containing mutual covenants, to wit: On the part of tbe plaintiff, to furnish to tbe defendant a certain water-power in Milwaukee, for a stipulated price for one year, furnishing a given amount of water, and to be furnished for a certain number of hours daily, subject, however, “to the interruptions provided for in a certain lease by the Milwaukee & Eock river canal company, to J. T. Perkins,” but which were hot set forth in the lease between the parties to this action, or in the declaration. The declaration alleges breaches by the defendant of non-payment of the sum stipulated.
    The defendant pleaded that1 the covenant declared upon was not his deed, and under that plea gave notice that he would prove that the plaintiff did not perform certain covenants contained in his part of the lease to be performed by him, and relating principally to the deficient supply of water as stipulated by the covenant.
    On the trial of the cause the plaintiff gave in evidence the lease between the parties, and gave testimony showing, or tending to show, a failure on the part of the defendant to furnish the water-power to the plaintiff according to the provisions of the covenant in the lease, and showing, or tending to show, the damages sustained thereby.
    The defendant offered hr evidence testimony showing, or tending to show, a compliance on his part with the covenants contained in such lease, and, amongst other things, produced, or offered to produce in evidence, the lease executed to him by the Milwaukee & Eock river canal, company, and referred to in the lease between the parties to this suit, and here the parties respectively rested.
    The court, among other things, charged the jury, as follows : “The plaintiff has brought what is called an action of covenant, because he sues upon the defendant’s covenants in the lease he has made. In order to maintain his action he must first' set out such a covenant as he can recover on; and second, must set out tire real covenant contained in the instrament fully, clearly and truly. In tbe present case, the lease from defendant to plaintiff, contains the covenant (to supply water-power) on which the action is based, but that covenant is qualified by a reference to the lease from the Rock river canal company to defendant, and the undertaking of defendant is limited by the obstructions provided for in the canal company’s lease. In order, therefore, to enable the plaintiff’ to show what extent his right had, he must show to what extent it was limited by the provisions of-the canal company’s lease. Now, to show these limitations on a trial in court, he must introduce testimony by persons or papers to prove the facts clearly and with certainty, and unless he has alleged substantially in his declaration the matter that he wishes to prove, he cannot introduce evidence to prove it. In the present case the declaration merely recites the language of the defendant’s and plaintiff’s lease, referring generally to the other lease. What the provisions of that other lease are it does not aver, or assume to aver, or set out. Hence the lease of the Rock river company was offered in evidence, and the defendant objected that no foundation was laid for such proof in the declaration. Not being satisfied fully as to the point when the lease was offered, I admitted the proof. But on further reflection, I am well satisfied that the objection is well founded, and that the lease of the canal company must be rejected by the jury. I am the more fully convinced in this view of the matter by an examination of the canal company’s lease, and comparing it with the words of the defendant’s and plaintiff’s lease. The word ‘interruptions,’ which occurs in the latter lease as describing the limitations of the plaintiff’s rights under it, does not occur in the former lease. What is meant by the word 1 obstructions,’ as used in the lease between the parties, must be explained by the court or jury, and can only be ascertained by a careful examination of the canal company’s lease. To what precise extent it reaches and qualifies the rights and liabilities of the parties, is a matter of much doubt, and of very great importance, both to these parties and many others similarly situated. It was necessary for the plaintiff, before he could show to you that he had been deprived of the water-power which the defendant had covenanted to give him, to show, precisely and clearly, what amount of water-power he was entitled to; and that he can never do, without introducing the canal company’s lease and showing what interruptions it provides for on this point. I am of the opinion that the plaintiff’s declaration is fatally defective, and that he cannot, in any event, recover in this suit.”
    The jury found a verdict for the defendant, upon which he had judgment, and the cause came to this court on a writ of error.

      A. D. Smith and O. K. Watkins, for plaintiff in error:
    The covenant declared upon is, that the defendant, in consideration of rents reserved and covenants on the part of the plaintiff, agreed to furnish the plaintiff so much water as shall be necessary for a sash factory.
    An agreement of the plaintiff occurs in the lease, not to use such water-power but ten hours per day, of which a statement is made in the declaration ; and the breach assigned is, that the defendant did not furnish the water ten hours per day. There are, in the lease, covenants “ that plaintiff shall put up the fire apparatus,” “shall clean away the chips,” etc., “ and that the use of the water-power by plaintiff is to be subject to the 1 interruptions provided for in the lease of the Milwaukee and Rock river canal company to J. T. Perkins.’ ” These covenants of the plaintiff are not stated in the declaration, with an averment of the performance, and need not be, because they are only to a “ part of the consideration on both sides ” (1 Saund. 320, note 4); and a breach of either of them may be recovered for in damages. Bennett v. Pixley, 7 Johns. 240.
    2. These covenants need not to be noticed in the declaration, for the covenant declared on is not a covenant to famish water far paying rent, or for cleaning away chips, or far putting up fire apparatus, or in consideration of the same performed; but a covenant of defendant to furnish water in consideration that plaintiff had entered into covenants to oe performed., and not in consideration of the same performed. In the one form the plaintiff’s covenants would be a condition precedent to be averred and performance proved, before this action could be maintained. In the other form, in which the same are stated in the lease, they are independent covenants, and performance need not be averred or proved. 1 Saund. 320, note 4; Gunningham v. Morrell, 10 Johns. 293; 1 Chitty’s Plead. 364, 347; 5 Wend. 497; 8 id. 615.
    3. The interruptions to which plaintiff is subjected are not exceptions to or qualifications upon the covenant declared on, but are extrinsic the subject-matter of the defendant’s covenant, and form a proviso upon the covenant and not an exception to it. An exception should be stated, but a proviso need not be. 1 Saund. Plead, and Ev. 393 ; 1 Saund. 234, note 2 ; Tempany v. JBurnand, 4 Camp. 20.
    4. These provisions in the Milwaukee and Rock river canal company’s lease are all in defeasance of defendant’s covenant, and should be pleaded in discharge of his liability (2 Denio, 235), and need not be stated by plaintiff.
    5. The court should not withdraw the testimony from and submit the cause to a jury, but should either submit the evidence and leave the defendant to his remedy, by motion in arrest, or nonsuit the plaintiff 21 Wend. 109 ; 23 id. 480 ; 1 id. 376 ; 18 id. 169.

      Orton & Gross, for defendant in error,
    argued that the qualification contained in the lease executed by the canal company to J. T. Perkins, and which lease was referred to in the covenant made between the paifies in this suit, was not set out or averred in the declaration executed in this cause; that in order to have made that lease the subject of evidence, it should have been set out in the declaration, so far as it had application to the lease executed between the parties to this suit, or tended in any way to qualify, restrict or enlarge it; that in a declaration founded upon a covenant, mutual, dependent or independent, the plaintiff was bound, by the rules of pleading, to set out all matters which were incidental to the covenant, at least so far as it related to or formed a part of the covenant declared upon; and especially so where the latter instrument was the basis upon which damages were claimed, or laid the foundation for the recovery of damages; that the admission of such a paper, in order to maintain a suit in this form of action, showed clearly that the declaration, was defective, so far, at least, as the introduction of such evidence was concerned; and to this point they cited, 2 Phil. Ev., 146; 17 Eng. Com. Law, 24. As to the form of the declaration in such a case they cited, 2 Chitty’s Plead. 528 ; 1 id. 86, 89 ; Gould on Plead. 178.
   Htibbell, J.

The plaintiff’s declaration sets out several covenants in the defendant’s lease, including the following: “Also the use, during the continuance of the lease, in the said room first named, of so much water-power, to be delivered in said first room, as should be necessary and proper for the purpose of enabling the plaintiff to carry on the business of manufacturing sash, doors and blinds, and to propel all machinery proper and necessary to be used in and about the business aforesaid, to be used, nevertheless, but for ten hours per day for each and every day during the term aforesaid, according to the tenor and efiect of said lease ; which said water-power the said defendant covenanted to furnish to the said plaintiff for the purpose aforesaid, by him to be used but ten hours per day, for each and every day of said lease, subject only to the interruptions provided for in the lease of the Milwaukee and Rock river canal company to the said defendant, and to temporary inten'uption from unavoidable accidents.”

And, in setting forth the breaches, the plaintiff’s declarar tion contains the folio whig averment: “He was deprived of the use of water-power sufficient to propel his machinery, ten hours per day, as aforesaid, and enable him to cany on his said business; and that, too, without any hindrance or interruption from the said canal company, or from said accidents, hut solely from the acts of said defendant.” No part of the canal company’s lease was set forth in the declaration.

On the trial of the cause the plaintiff offered evidence to show that the deprivation of water-power was not caused by “interruptions” provided for in the canal company’s lease, and also offered in evidence the lease itself, for the purpose of showing what those “interruptions” were. The lease was ruled out by the circuit court on the ground that the declar ration contained no allegation authorizing its admission. The court also instructed the jury that it “ was necessary for the plaintiff, before he could show'that he had been deprived of the water-power which the defendant had covenanted to give him, to show precisely and clearly what amount of waterpower he was entitled to, and that he could never do without introducing the canal company’s lease, and showing what interruptions it provides for on this point.” And further, that the plaintiff’s declaration, in that respect, “ was fatally defective, and he could not recover in that suit.”

The question now is, whether the ruling and instructions of the circuit court were erroneous. Much was said, in the argument, on the subject of dependent and independent covenants, and the rules of pleading applicable thereto ; but I have been unable to discover any point which raises such a discussion, and I am not inclined to differ with the learned counsel, or his authorities; on that branch of legal science. The difference between us arises upon the construction of the clause in the plaintiff’s lease which refers to the lease of the canal company, and the question is, in technical language, whether that clause constitutes an exception or a proviso. Tn the court below I held it to be the former, that is, I held it to be a direct and positive qualification or limitation of the covenant to supply water-power. If this was the proper construction, it was necessary for the plaintiff to state the matter which constituted the qualification, and to prove it as alleged. In other words, he must set forth so much of the canal company’s lease as was necessary to show the nature and extent of the “ interruptions provided for ” therein, and must introduce the lease in evidence on the trial. 1 Saund. 293 ; 11 East, 633 ; 4 Camp. 21; 1 Term, 638.

If, on the other hand, this clause in the covenant 'constituted a proviso, and not an exception, it was not necessary for the plaintiff to set out either the clause in question or the lease to which it referred. But the defendant would be compelled to raise the matter by plea or notice, if he deemed it material to his defense. Such is the rule of authority upon this subject. ■ 1 Lev. 88 ; Cro. Jac. 537 ; 1 Saund. 233, note c. It is not necessary, nor would it perhaps be respectful to my associates on the bench for me -here to indulge in a discussion of the distinction between an “exception” and a “ proviso.” Much learning has been displayed hi this case and elsewhere without disclosing to my mind any very clear, definite or practical line of demarcation. The very learned Mr. Saunders has given perhaps,' as satisfactory a definition of the terms as can be found. “ There is,” says he, “ some distinction between a proviso and an exception. A. proviso is properly the statement of something extrinsic of the subject-matter of the covenant, which shall go in discharge of that covenant by way of defeasance ; an exception is the taldng out of a covenant some part of the subject-matter of it.” 1 Saund. PL & Ev. 393.)

But whatever doubts or difficulties environ the distinction itself, when it is once ascertained, and the doubtful clause in a covenant has been baptized with a name, the rules of pleading applicable thereto are readily determined. If it be resolved into a proviso, the burden of proof, as we have seen, changes from the plaintiff to the defendant. In the present instance, a majority of the court hold that the clause in question is a proviso, and they therefore hold that the plaintiff unnecessarily set forth this clause in his declaration, and unnecessarily added the averment that he was deprived of the use of the water-power “ without any hindrance or interruption from the said canal company, or from said accidents, but solely from the acts of said defendant.” They further hold that these parts of the declaration may be treated as mere surplusage, and that it was not necessary for the plaintiff to sustain them by proof, but that it was sufficient for him to state the covenant to supply the water-power in the place mentioned, for the time mentioned, and then to allege the breach. In this view of the matter, the rejection of the canal company’s lease, when offered in evidence, becomes immaterial ; but the instructions of the court to the jury were erroneous. Deeming it far more important to settle a rule of practice than to establish an opinion, I cheerfully yield to the authority of my brethren.

Judgment reversed, with costs.


author: Stow, C. J.

text:
    In the Matter of the County Seat of La Fayette County ex rel. James H. Knowlton.
    1. County seat — constitution.—The act of 1846, dividing Iowa county, and establishing La Fayette county, provided for the purchase of a quarter section of land in a certain town for the county seat (the Centre), the purchase was made accordingly. Subsequently the act of 1847, organizing the county, provided that “ until suitable buildings are provided at the county seat, the courts and public offices shall be held at such place as the commissioners shall select,” and Shullsburg was selected for that purpose. An act of 1848 provided for determining the location of the county seat by a popular vote, and that, until the comity seat should he so selected, it should he and remain at Shullshurg; hut no selection was made when the constitution was adopted, providing that “no county seat shall he removed until the point to which it is proposed to he removed shall he fixed hy law, and a majority of the voters of the county voting on the question shall have voted in favor of its removal to that point. In March, 1819, an act was passed, authorizing a vote on the question of the removal of the county seat, which provided that if a majority of the votes should he for removal to Shullshurg, then it should he the permanent county seat; hut if there was no such majority for removal, then the county seat should continue to he permanently located at the Centre; and a vote was had accordingly, the result of which was in dispute, as well as the then location of the county seat.

      Held, 1. That the act of 1818 removed the county seat to Shulls-hurg, where it remained at the time of the adoption of the constitution, and it could he removed from that place only in conformity with the constitutional provision or the act of 1848.
    2. That the act of March 11, 1849, assuming the false hypothesis, that the county seat was elsewhere, no valid action or election could he held under it.
    3. That the legislative recognition, in the act of 1849, that the county seat was at the Centre, was unavailing, the legislature having no power to pass such a declaratory law. The right of the judiciary alone to declare what the law is, asserted, and the power of the legislature in any ordinary case to pass a declaratory law is doubted.
    4. That, as a matter of law, irrespective of the l-esult of the election under the act of 1849, the county seat still remained at Shullshurg.
    (2 Ohand. 212.)
    CERTIFIED case from tbe Circuit Court for La Fayette Comity.
    This matter came before the court upon the certificate of the circuit judge of the fifth circuit, upon the relation of James H. Knowlton, under the provisions of an act of the legislature, entitled “ an act to provide for the final settlement of the location of the comity seat of the county of La Fayette,” approved January 29, 1850, and whereby it was required that the said circuit judge should make a statement of the votes cast at the general annual election in the comity, in the year 1848, upon the question of location of the county-seat, which election was had under the provisions of an act of the territorial legislature, entitled “ an act to authorize the voters of La Fayette county to vote for locating the county seat thereof,” approved March 11, 1818 ; and also requiring the said judge, in like manner, to make a statement of the votes cast at the general annual election in the year 1849, upon the question of the removal of the county seat, under and by virtue of an act of the legislature, entitled “an act to authorize the electors of La Fayette county to vote on the removal of the county seat,” approved March 31, 1849. The act of January 29, 1850, conferred jurisdiction upon this court, and made it incumbent upon it to hear, decide, and give judgment upon the matters in controversy, and thereby determine where the county seat in fact was, under the various laws relating thereto, and the proceedings had under them by the electors of the county.
    The opinion of the court, making, as it does, a constitutional question the basis of its decision, it is not deemed necessary to incorporate the voluminous case made up by the parties, and certified by the judge to this court.

      James H. Knowlton, the relator, argued:
    1. That the county seat of La Fayette county, was located at Shullsburgh by an act of the territorial legislature, passed March 11, 1848, whereby it was provided that, until a county seat shall be selected and suitable county buildings thereon erected, the county seat shall be and remain at the village of Shullsburgh; that the county seat having been established at that place, whether permanently or temporarily, but being there at the adoption of the constitution, it could only be removed through the medium of the provisions contained in that instrument, and that it was not pretended that any such means had been adopted.
    2. That, the act of March 11, 1848, locating the seat at Shullsburgh, was a valid law, and in support of it, cited 1 Cow. 550.
    3. That the act of March 31, 1849, was inoperative, unconstitutional and void ; inoperative, because it contained no provisions for canvassing the votes authorized by it to be cast, upon the question of locating the county seat. That being a special law for a special purpose, the canvassing officers of the county took no authority by implication to perform any act not specifically assigned to them, and because, at the time of its enactment, the constitution was in full force, and that act was repugnant to its provisions.
    4. That there was no law locating the county seat at any other place than at Shullsburg, except the act of 1846, and that it had not been shown that that act has been complied with, so as to make any location elsewhere.

      Strong & Oothren, for the contestants of the location of the county seat at Shullsburg,
    argued, that the county seat was either at Shullsburg or at the Centre of the county, on the land purchased by the county for the public buildings ; that in arriving at a right conclusion as to its locality, all the legislation and acts of the citizens must be considered and taken into 'account; that the act of 1846, established the county seat, without qualification, on a quarter section to be selected and entered or purchased, with an area of three and a half sections or square miles, which the counsel claimed had been done; that the response which had been made to the case made by the relator, showed it had been done in accordance with the act authorizing it, and that the territorial act of 1847 recognized the seat as thus established, as also it was by the act of 1848 and 1849, and by the voting which occurred under the last mentioned act, and the certified result of the votes cast; that by the votes cast under the act of .1849, there was not a majority in favor of locating it at Shullsburg, and by a resolution of the -board of supervisors, the centre was recognized as the county seat; that the act of 1848, locating temporarily the holding of the courts at Shullsburg, did not create a permanent location there, and that the act of 1849, and the voting under it, establishes the location at the Centre.
   Stow, C. J.

This is a most extraordinary proceeding, and one which, in my opinion, we ought never to have entertained. The question, in the shape in which it has been presented, is not properly before us, and even if it were, it does not appear to me to be a case of which this court has original jiwisdiction. The legislature having, however, in its wisdom, sent the matter to us, and we (whether as judges, commissioners, or arbitrators, it would be difficult to determine) having consented to entertain it, the parties interested are entitled to a decision, or, at least, to an expression of opinion from us.

The question is — where is the county seat of La Eayette county ?

For the proper understanding of this question, it is necessary to examine at length the various statutes, as well as the constitutional provision on the subject.

The act of 1846, p. 41, dividing Iowa county, and establishing La Fayette, provides, section 3, for the purchase by the county commissioners of a quarter section of land in town 2, range 3, for the use of the county, and further provides, that the place thus purchased shall be the county seat. vThe commissioners made the purchase.

The act of 1847, p. 57, organizing the county, provides, section 7, “ that until suitable buildings are provided at the county seat, the courts and public offices shall be held at such place as the commissioners shall select,” and it seems that Shullsburg was selected for that purpose.

The act of 1848, p. 186, authorizing the people to-vote for locating the county seat, provides, section 1, for the electors, on the second Monday of May following, determining by an absolute majority, the site of the county seat, and gives them unlimited authority in selecting the place. The same section further provides, that if no place should receive a majority of all the votes, at the voting in May, the electors might continue to vote on the question at every subsequent annual election, until a county seat should be selected and located. The next section provides, that until a county seat should be selected, as provided for by the first section, “ the county seat shall be and remain at Shullsburg.” Under this act no effectual voting has been had.

Such were the laws and state of things when the constitution went into operation, and which provides, article 13, section 8, that “ no county seat shall be removed until the point to which it is proposed to be removed shall be fixed by law, and a majority of the voters of the county, voting on the question, shall have voted in favor of its removal to such point.”

Then comes the act of March 11, 1849, p. 139, which authorizes, section 1, the electors to vote at the general election in November following, “ on the question of the removal of the comity seat,” and which provides, section 3, that “if a majority of the votes shall be for removal to Shullsburg, then Shullsburg shall be the permanent county seat; but should there not be a majority for such removal, then the county seat shall continue to be permanently located at the Centre.” A vote was had under this act, the result of which has been the subject of controversy, and was the cause of the extraordinary law of last winter, providing for this novel proceeding.

The relator, the champion of Shullsburg, claims that the vote was in favor of that place, while the other side contends that it settled the question in favor of the Centre.

In the view we take of the constitutional provision, and of the antecedent legislation on the subject, it is not necessary for us to exercise the powers of a board of county canvassers, which the legislature has attempted to confer upon us, nor to decide whether in fact Shullsburg had a majority of the legal votes.

Though the centre had been previously made the county seat, the act of 1848 provides, in express terms, that Shulls-burg, until another place should be selected, and suitable public buildings provided at it, should be and remain the county seat; thus in effect, and by necessary implication, though not in words, removing the seat from the Centre. No other j>lace had been selected when the constitution went into operation, and which found Shullsburg, for the time being at least, defacto and de jure, the county seat. And so, in our view of the constitution, in was to remain until the contingency contemplated by the act of 1848 occurred, or until another point had been fixed by the legislature, and approved of by the popular vote.

I cannot admit the proposition, that the county seat having been fixed at Shullsburg but temporarily, and being subject to be removed from there at any time by a popular vote, it is not within the purview of the constitution. The constitution makes no distinction between temporary and permanent county seats. In fact, up to its adoption, no county seat could be considered as permanent, the legislature having always, until then, had the power of changing a county seat at pleasure, and haring often exercised that power most capriciously and vexatiously, and it was to guard against the mischief and inconvenience, and perhaps the legislative immorality of arbitrary removal, that the constitution wisely provided that no county seat should be removed until another point for it should be fixed by law, and approved by the people of the county. Shullsburg held, it is true, by a land of defeasible title, and at the will of the county; but, nevertheless, its right was complete for the time being, and, for all we know, might never have been disturbed. The constitution found it in the possession of this right, and guaranteed to it its continued enjoyment, until deprived of it by virtue of the act under which it held, or by the process provided by the constitution itself.

The county seat then being at Shullsburg, on the adoption of the constitution, and not having been removed from there by any legal or constitutional process, it is idle to inquire whether, under the law of 1849, there was a majority of votes for removing it to that place. The law assumes the false hypothesis that the county seat was somewhere else, and no valid action could be had under it.

' It is said, however, that the act of 1849 recognizes the Centre as the comity seat, and is declaratory to that effect. I answer, with deference, that the legislative recognition proves nothing, and that the legislature had no power to pass such a declaratory law. The judiciary alone is to determine what the law is. And I much doubt whether, under the American system of written constitutions, the legislature can, in any ordinary case, enact what is properly a declaratory law. We have, in general, got our ideas of such laws from abroad, without attending to the wondrous difference there is between the legislative power in our own country and all others. The parliament of England is said to be supreme, and having the power of passing any law it pleases, even one changing its constitution, not being restrained by any organic and paramount law, it may properly, in a political sense be called so. In Russia and Turkey, the legislative power being one with the judicial and executive, is purely despotic, and may, of course, enact or declare whatever law it sees fit, being liable to be called in question by God alone. But with us the case is far different. The national congress, within the grant of powers to the general government, and the state legislatures, where not restrained by the federal or their own constitutions, may pass whatever laws they think proper, but it is still, as I have already remarked, the judiciary only which can settle what the law is, or has been. And when the ■ legislature, national or state, undertakes to declare — in other words, to construe — the existing law, it (as a general thing) goes beyond its constitutional sphere, and usurps powers which do not belong to it. I say, as a general thing, because I admit that there are matters of legislative cognizance which are not the subjects of judicial review, such as declaring war — declaring war already to exist by the act of another nation: and others of a like character. In these cases, the legislature, in a political sense, is supreme, and is not to be controlled by the judicial or any other human power — as in Russia and Turkey, it acts independent of every thing except the supreme judge and governor.

The conclusion of the court is, that the county seat of La Fayette county is now at Shullsburg, and that it has been there since the act of March 11, 1848, and that it is to remain there until removed as provided by that act, or until removed under the constitutional provision on the subject, and we direct the following minute to be entered of record:

In the matter of the county seat of "V La Payette county, f

ex Tel. C

Jambs H. Knowlton. j

This matter having been argued by counsel, as well on the part of the relator as on the part of other persons interested, and due deliberation being had thereon, it is ordered, adjudged and decreed, and this court, by virtue of the statute in this case made and provided, does order, adjudge and decree that the county seat of the said county now is, and has been, since the act of the territorial legislature of March 11, 1848, at Shullsburg, in the said county; and that it there remain, until another site is selected, and suitable buildings provided thereon, as provided by the said act of March 11, 1848, or until removed according to the provisions of the constitution.