Silkman v. City of Milwaukee

DixoN, C. J. We have no occasion to doubt, and indeed we concur in, the correctness of the views generally expressed by the learned city attorney upon the several provisions of the charter referred to and examined by him. We agree with him that until the money has been collected by the city treasurer for the use of the holder of the certificate of the board of public works, the treasurer is the agent of such holder, to be set in motion in his behalf only by mandamus in case he refuses or neglects to proceed with the collection according -to his official duty, and as required by the provisions of law found in the charter and its amendments. We differ from the learned attorney, however, upon the proposition, that after the money •has once been collected and placed in the city treasury — for it seems the treasurer has no where else to put it, — an action for money had and received cannot be maintained against the city, when the treasurer improperly refuses to pay it over on demand made by the holder of the certificate. For the purpose of receiving and disbursing according to law all moneys coming into the city treasury, the city treasurer must be regarded as the agent of the city, receiving, holding and disbursing the funds for the city, as principal, and not for himself, and not as the agent of numerous private individuals who may be interested in those funds. For all such purposes he has but one principal, and that principal is the city or corporation by which he is chosen treasurer, and to which he is required to give security for the faithful performance of all his duties, and to which also he must render an account for all moneys coming [561] into Ms bands in bis official capacity. And it is immaterial for sucb purposes that tbe funds are trust funds, or sucb as are received and held in tbe treasury for tbe use and benefit of particular persons or corporations, until tbey shall be called for by sucb persons or corporations. Tbe city is tbe trustee, and not tbe treasurer. He is the mere agent, and bis default is tbe default of tbe city, his principal, against which tbe action may be brought by the party aggrieved by sucb default or neglect. If, therefore, the money in question bad been actually received by the' treasurer, or if tbe complaint bad shown that fact, we should have been obliged to hold this action well brought. Counsel for tbe plaintiff say tbe complaint contains a statement of such facts only as were deemed necessary to sustain an action for money had and received, and tbey admit that if tbe defendant be not charged with a liability by tbe complaint as for money had and received, no cause of action is stated therein. Sucb being tbe view of counsel, and sucb tbe manifest nature and object of tbe action as shown by the complaint, all questions as to tbe regularity or validity of the previous proceedings out of which tbe certificate arose, and in pursuance of which tbe moneys were levied and collected, if at all, became clearly immaterial, and for tbe reasons given by tbe same learned counsel. If tbe city has received the money and refuses through its proper officer to pay it over as required by law, it does not lie with tbe city, no one else objecting, to raise questions or insist upon proofs in this action as to tbe validity of its own antecedent acts. We shall inquire, therefore, merely into tbe sufficiency of tbe complaint as a complaint for money bad and received ; for sucb is the cause of action counted on, and not one upon tbe contract for paving tbe street, or upon tbe certificate issued by tbe board of public works. Tbe complaint does not in terms allege that tbe money, or any money, was actually received by tbe treasurer. It stops precisely short of making that averment It alleges a sale of tbe lot or portion of it to satisfy tbe assessment, and tbe issu562 anee of tbe certificate of sale to tbe purchaser. It does not aver that tbe purchaser paid his bid, or that the certificate of sale was delivered to him. We are asked to infer tbe payment of tbe money and delivery of the certificate of sale from the other facts which are alleged. We do not think this can be done. The liability of the city in this form of action cannot arise until the money has been actually received in its treasury; and that fact must be clearly and positively alleged and proved. The liability springs from the receipt in fact of the money, and a refusal to pay it over upon demand properly made; and no constructive receipt of it, or receipt by inference or implication, or liability by way of estoppel growing out of the acts of the city treasurer, can be accepted in the place of or as a substitute for the money in the treasury. If the treasurer has failed in the performance of his duties in any other respect than in not paying over the money when he has it in the treasury, the injured party has his remedy in some other form of action, and to that remedy he must resort. Tbe facts pleaded are not inconsistent with the supposition that the money sued for may not have come to the treasury of the defendant. If the money did in fact so come, let the pleader so allege. The facts pleaded do not exclude the inference that the money, though bid or offered at the sale, was not paid by the bidder, and that the certificate, though issued, that is, made out and signed and entered upon the books, was not delivered to the supposed purchaser. And, though this might have been a wrong on the part of the treasurer, to give time to the purchaser or not to proceed immediately to a resale of the premises — a dereliction of official duty by him, for which he or the city would be answerable to the plaintiff in some other form of action, yet this action could not be maintained against the city under such circumstances, because no money was received by it fbr the use of the plaintiff, which is the underlying fact and veiy foundation of the action. The complaint is defective in not averring that the money sued for was received by the treasurer or into the treasury; and [563] for this reason tbe order appealed from must be reversed, and tbe cause remanded for further proceedings according to law. By the Court.— It is so ordered.