Etsell v. Knight

WiNsrow, J. The principle that public moneys paid out without authority of law may be recovered of the guilty parties in such an action as the present, where the public officers refuse to act, is so thoroughly established in this state that it is unnecessary to do more than state it. In the present case it is charged, and not denied, that the county treasurer and county clerk, during their term of office, by their active influence procured the passage of a resolution [543] by tbe county board authorizing them each to employ a clerk at a salary, and that thereafter said clerk and treasurer paid to their own deputies, out of county moneys, such salaries so voted. It is clear that these payments were unlawful. Our statutes provide that the county board shall, at its annual meeting, fix the amount of the salaries of salaried officers to be elected during the ensuing year, and that such salaries shall not be increased or diminished during the officers’ term. Sec. 694, Stats. 1898. They further provide that both the treasurer and county clerk shall receive for their compensation the salaries fixed by the county board and no more (secs. 708, 714), and that each may appoint a deputy to aid in the discharge of his official duties and act in case of his absence or disability (secs. 706, 711). There are no provisions for the payment of salaries to such deputies out of the public moneys, and the unmistakable intent of the statutes is that the salary paid to each of such officers is to be in full compensation for the discharge of the duties of his office, whether performed by himself or his deputy. Any payment, therefore, of public moneys to said deputies is illegal, not only because such payment practically amounts to an increase of the officer’s salary during his term of office, but also because the law does not authorize it. Nor have we found in the present case any elements of es-toppel, as were found in the case of Frederick v. Douglas Co. 96 Wis. 411, 71 N. W. 798. In that case the employment of Mr. Grace was shown to be a matter of public notoriety, and it was held that the action was not seasonably begun for the purpose of recovering back from him moneys paid, but in the present case there is no showing of that kind. It was plainly erroneous, however, to render a judgment in favor of the taxpayer against the defendants, including the county. While the taxpayer is allowed to bring the action, he sues only in the right of the county, and the judgment should [544] bave been tbat tbe county of Bayfield recover of tbe defendants Knight and Froseth tbe amount of tbe damages found, and tbat tbe plaintiff Btsell recover against tbe same defendants bis taxable costs. By the Gourt. — Judgment reversed, and action remanded witb directions to enter judgment in accordance witb tbis opinion.