
    Hyman, Respondent, vs. Susemihl and others, Appellants.
    
      November SO —
    December 15, 1908.
    
    
      Newspapers: Statutory publication of official proceedings: Requirements as to language: Counties: Authority of county board: Appeal and error: Pleading: Demurrer: Answering over.
    
    1. Where a statute either directs or permits a publication at public expense in the absence of language evincing a contrary intention such publication must be made in the legal language of the country.
    2. The English language is the language of this country, to he used in all legal and official notifications and proceedings, in the absence of any statute-authority to the contrary.
    3. Sec. 674a, Stats. (Supp. 1906), requires every county board, by ordinance or resolution, to provide for one publication of a certified copy of all of its proceedings had at any meeting in a newspaper published and having a general circulation in its county, and sec. 675 authorizes publishing public notices relating to tax sales, redemption,' and “other affairs of the county” in a newspaper printed in any other than the English language, under certain enumerated restrictions. Held:
    
    (1) If a county board desires to mate publication in a foreign language it must look to the statutes for authority to do so, and in the absence of such authority the right to make a contract for such publication does not exist.
    (2) Sec. 675, providing what publications a county board may make in a foreign language and prescribing the conditions that must exist before such publications can be made, excludes publications in a foreign language other than those mentioned, including its proceedings.
    4. An order overruling a demurrer to a complaint providing that “plaintiff have judgment therein, but with leave to the defendants to withdraw their demurrer and put in an answer within twenty days,” gives leave to the defendants to withdraw their demurrer if they choose and also gives leave to answer over, which latter right is not dependent upon the demurrer being withdrawn, and is not erroneous in requiring the withdrawal of the demurrer as a condition precedent to interposing an answer.
    'Appeal from an. order of the superior court of Lincoln ■county: Almost A. Helms, Judge.
    
      Affirmed.
    
    This is an appeal from an order overruling two general demurrers interposed „by different defendants to the complaint in the action. The plaintiff, as a taxpayer of Lincoln county, brings the action in his own behalf and in behalf of all other taxpayers of the county to enjoin the county board from directing the payment of any claim presented by the defendant Otto Susemihl for publishing the proceedings of said board in the German language, and also to enjoin the ■chairman of the board of supervisors and the county clerk from issuing or delivering to the defendant Susemihl any county order on account of such publication. The material part of the complaint sets forth that the defendant Otto Susemihl was and is the publisher of a newspaper printed in the German language; that at a meeting of the county board of said county held in Hovember, 1906, at the solicitation of the said defendant Susemihl, the county board, by a majority vote, in behalf of the county, voted to enter into an agreement with said defendant Susemihl, by the terms of which he agreed to publish in the German language in said newspaper the proceedings of said board at the rate of twenty-five cents per folio; that no ordinance or resolution was adopted by tbe county board providing for such publication, and tbat no order was made by said board directing such publication, and no determination was made by said board before entering into tbe agreement referred to, to tbe effect tbat it was necessary for tbe better information of tbe .inhabitants of tbe county tbat sucb proceedings should be published in some language other than tbe English language; tbat it does not appear from tbe last previous census tbat one quarter or more of the adult population of said county are of tbe German nationality not speaking tbe English language; tbat the defendant Susemihl is preparing to publish in tbe German language in tbe newspaper referred to tbe proceedings of tbe county board, pursuant to tbe action of tbe county board in making tbe aforesaid contract; tbat unless restrained tbe county board will audit and allow tbe claim for sucb publication and a county order will be issued pursuant to such allowance and will be paid by the county treasurer of the county, and it-is further alleged tbat tbe claim for publishing said proceedings will amount to a considerable sum.
    Eor tbe appellants there was a brief by F. J. Smith and B. E. Smith, and oral argument by F. J. Smith.
    
    
      John, Vcm Heclce, for the respondent.
   Babites, J.

Ob. 298, Laws of 1901 (sec. 614», Stats, r Supp. 1906), provides tbat:

“The county board of supervisors in every county in tbe state of Wisconsin, shall, by ordinance or resolution, provide for one publication of a certified copy of all its proceedings had at any meeting, ... in one or more newspapers published and having a general circulation therein. . . .”

Sec. 675, Stats. (1898), provides, among other things, that:

“The county board may order public notices relating to tax sales, redemption and other affairs of the county to be published in a newspaper printed in any other than tbe Eng-lisb language, to be designated in such order, whenever they shall deem it necessary for the better information of the inhabitants thereof, and it shall appear from the last previous census that one fourth or more of the adult population of such county are of a nationality not speaking the English language, and that there .shall have been a newspaper published therein continuously for one year or more in the language spoken by such nationality; provided, that all such notices shall also be published in a newspaper published in the English language as provided by law. . .

It is alleged in the complaint and admitted by the demurrer that it does not appear from the last census of Lincoln county that one quarter or more of .the adult population of such county are of a nationality not speaking the English language, and it is conceded -by the appellants that the contract for the publication of the board proceedings cannot be sustained under the provisions of sec. 675, the material part of which is quoted above. It is contended by appellants that sec. 674a is wholly independent of sec. 675, and contains the requisite authority for the hoard to make the contract in question. It is asserted by the respondent that the words,, “and other affairs of the county,” contained in sec. 675, are broad enough to and do include county board proceedings, and that because of such provision such proceedings can only he published in a foreign language when the prerequisite conditions prescribed by sec. 675 in fact exist. If this were the only objection to the contract in question we would hardly consider it tenable. If this contract could be made under sec. 674a were it not for.the occurrence of the words above quoted in sec. 675, we would hesitate to say that it is not valid.

While there seems to be a dearth of authority upon the subject, the decided eases, as far as we have heen able to discover, .are in harmony and are to the effect that where a statute either directs or permits a publication at public expense, in the absence of language evincing a contrary intention, such publication must be made in the legal language of’ the country. To this effect are the cases of Road in Upper Hanover, 44 Pa. St. 277; Graham v. King, 50 Mo. 22; Richardson v. Tobin, 45 Cal. 30; Tyler v. Bowen, 1 Pittsb. Pep. (Pa.) 225; Kratz’s Appeal, 2 Pittsb. Pep. (Pa.) 452; Chicago v. McCoy, 136 Ill. 344, 26 N. E. 363. Tbe value of the latter case as authority is minimized by the fact that the constitution of the state of Illinois provides that all laws of that state and all official writings and executive, legislative, and judicial proceedings shall be published in the English language and no other. This constitutional provision was held to apply to the publication under consideration by the court, but it is apparent from the language in the opinion that the same result would follow if there were no such constitutional provision.

This court' has d’ecided that, where a statute directs certain acts and proceedings of city councils to be published in a newspaper, the requirement of the statute is fulfilled by making the publication in a newspaper printed in a foreign language, provided such official act or proceeding is printed in such paper in the English language. Kellogg v. Oshkosh, 14 Wis. 623. It has also been held that the publication of a summons, under a statute authorizing its publication in a newspaper most likely to give notice to the defendant, might be made in a paper printed in a foreign language, provided the publication of the summons was made in the English language. Wakeley v. Nicholas, 16 Wis. 588.

The utmost that has been decided in the cases referred to is that where a statute either authorizes or directs a publication to be made in a newspaper, and is silent as to the language in which such paper must be printed, publication may be made in a newspaper habitually printed in a foreign language, provided the publication authorized or directed is made in the English language. Instead of these decisions sustaining the view of the appellants, the inference therefrom is strong that publication in a foreign language would not meet such a statutory requirement as the one under consideration. There is no warrant, aside from that contained in sec. 675, which we have been able to discover, either in the statutes or in the decisions, for applying any different rule in the case of a discretionary publication than that which appellants concede is applicable to the mandatory one.

The only other case in this court bearing upon the subject under consideration is State ex rel. Goebel v. Chamberlain, 99 Wis. 503, 75 N. W. 62. In that case the court said:

“The English language is the language of the country, to be used in all legal and official notifications or proceedings, in the absence of any statute authority to the contrary.”

Unless this declaration is held to be an incorrect statement of the law, and is overruled, it is manifest that the demurrers in this case were properly overruled. It is not claimed that sec. 674a gives any express authority to publish the board proceedings in a foreign language, and neither is it claimed that any other statute of the state confers such authority, excepting sec. 675, and it is admitted that the contract does not come within the provisions of that statute. If a county board desires to make a publication in a foreign language, it must look to the statutes for authority so to do, and, in the absence of such authority, the right to make a contract for such publication does not exist. Furthermore, sec. 675, providing what publications a county board may make in a foreign language, and prescribing the conditions that must exist before such publications can be made, shows a legislative intent to exclude publications in a foreign language other than those provided for.

The order appealed from overrules the demurrers interposed in the action, and provides that “plaintiff have judgment therein, but with leave to the defendants to withdraw their demurrers and put in an answer within twenty days.” It is said that the order is erroneous in that it requires a withdrawal of the demurrers as a condition precedent to interposing an answer. We do not so construe tbe order. It does not require tbe withdrawal of tbe demurrers under penalty of a forfeiture of tbe right to answer. Leave is given the defendants to withdraw their demurrers if they choose, but leave is also given to answer ovet, which is not dependent upon the demurrers being withdrawn.

By the Court. — The order appealed from is affirmed.  