City of Milwaukee v. Binner

Maeshall, J. We perceive no basis in the record for the claim that appellant Thompson did not unlawfully appropriate the money paid to Binner. True, there was no moral turpitude about it; but if violations of law without such characterization, in respect to the administration of public funds, could be efficiently pleaded in justification, the door would be wide open for serious abuses. It is the policy of the law to hold an official custodian of public funds to very strict accountability, and to make him responsible for money illegally disbursed, regardless of whether the municipality received an equivalent or not. There is no other safe course, and any attempt to evade the law must receive judicial condemnation upon every opportunity therefor. The money was delivered to the city clerk for a particular purpose. That, necessarily, made him a trustee thereof for such purpose. The trust was susceptible of being executed only by paying so much of the money as was needed to procure expert assistants to work on the tax roll, and returning the balance to the city treasurer. The law contemplated payment for services of a particular kind and to the person [532] or persons rendering the service, and on sworn pay-rolls showing such facts. Notwithstanding there evidently was no intent to injure respondent and, probably, in an indirect way it obtained full value in work on the tax roll for money paid, the fact remains that the pay-rolls were false; that while Binner drew the money on the pretense that it was for tax-roll work, he did no such work, except for a small part of the time for which he was paid. lie had no right to draw the money because he did not do the work. The fact that' it was done by another who was in the city’s employ and without pecuniary prejudice to it, does not change the situation. From the circumstances of the wrong to respondent, a promise is conclusively implied to return the money disbursed to and received by Binner, which is just as binding as any other contract to pay money. This case is ruled in favor of respondent by Frederick v. Douglas Co. 96 Wis. 411, 71 N. W. 798; Washburn v. Lee, 128 Wis. 312, 319, 107 N. W. 649, and many other cases. Counsel for appellants seem to have been misled, by reading the opinion written by Chief Justice Cassoday in Frederick v. Douglas Co., into supposing that, in case of actual rendition in good faith of needed services to a municipality and payment therefor out of the public treasury, the money, though illegally taken from such treasury, acquires a. new status in the operation; that the title thereto vests in the recipient, or that ah equitable bar is created by operation of law, preventing the municipality from recovering the money back. There is something of that sort in the opinion, but it was not the basis of the decision and is contrary to the majority view, as plainly expressed in an opinion by the present Chief Justice in these words: “To hold that, when public officers have paid out money in pursuance of an illegal and unwarranted contract, such moneys cannot be recovered in a proper action brought upon behalf of the public, merely because the payment has been voluntarily made for services actually rendered, would be to [533] introduce a vicious principle into municipal law, and a principle wliicb would necessarily sweep away many'of tbe safeguards now surrounding tbe administration of public affairs. Were tbis, in fact, tbe law, it can readily be seen tbat public officials could at all times, witb a little ingenuity, subvert and nullify tbat wholesome principle wbicb prohibits their spending the public funds for illegal purposes. All tbat would be necessary to be done would be to make tbe contract, have tbe labor performed, pay out tbe money, and the public would be remediless.” In Washburn v. Lee, supra, tbe principle so unquali-fiedly stated was thus approved: “There is no doubt, under our decisions, tbat tbe recipient of public moneys illegally paid is liable therefor. . . . Every public officer dealing witb public moneys is an agent witb strictly limited powers, and those limits are presumptively known of all men, so none can assert belief in any broader agency. An illegal payment has no effect on the title of tbe money, so it remains tbe property of tbe principal, the public, and can be recovered back.” And further, in effect, if money is paid by a municipal treasurer, either of his own motion or by order of bis principal, for a known illegal purpose tbe right of such principal to recover it back is clear. No more need be said. Tbis case presents a very plain situation for application of tbe doctrine declared as stated. It is a much stronger case for such application than tbe Frederick Case. Tbe money was not, as there, paid out on tbe order of tbe municipality. Tbe action was not, as there, instituted by a taxpayer who bad so slept upon his rights tbat equity might properly refuse, at bis suit, to enforce tbe right of tbe municipality. Here tbe money came lawfully into the bands of tbe city clerk and was illegally disbursed by him to Binner, and tbe city very promptly disavowed tbe act upon having full knowledge thereof, and took steps to recover tbe money back. By the Court. — Order affirmed.