Milquet v. Van Straten

Rosenberry, J. In the former case it was held that the school board was authorized to provide transp.ortation for children of school age who desired to attend the public school and no other and that the contract was void in toto. At the outset the right of the plaintiff to maintain this action is challenged. Whatever the law may be in other jurisdictions; it must be regarded as settled in this state that a taxpayer may maintain an action in his. own behalf and in behalf of other taxpayers to recover back into the public treasury funds which have been illegally extracted therefrom. Willard v. Comstock, 58 Wis. 565, 17 N. W. 401; Frederick v. Douglas Co. 96 Wis. 411, 71 N. W. 798; Quaw v. Paff, 98 Wis. 586, 74 N. W. 369; Land, L. & L. Co. v. McIntyre, 100 Wis. 245, 75 N. W. 964; Webster v. Douglas Co. 102 Wis. 181, 77 N. W. 885, 78 N. W. 451; Northern T. Co. v. Snyder, 113 Wis. 516, 89 N. W. 460; Wilcox v. Porth, 154 Wis. 422, 143 N. W. 165. The trial court in its opinion said; “The plaintiff’s conduct throughout the whole transaction would indicate malice and feeling against Van Straten, and I do not think his acts indicate good faith in bringing and maintaining this suit.” A very careful search of the record fails to- disclose any evidence of malice or ill-feeling on the part of plaintiff toward Van Straten and we are at a loss to know upon what this conclusion was based. The plaintiff has at all times, in all places, and under all circumstances, contended that it was beyond the power of the school district board to disburse public funds under the contract held by this court to be void. This cannot by any stretch of the imagination be held to indicate malice, ill-will, or ill-feeling toward Van Straten or any one else. The plaintiff has with commendable courage maintained his convictions as to the duty of the school board in the premises, in which contention he was fully justified. At any rate, his position affords no [307] support for a finding that he was guilty of any malice or ill-feeling. It is also contended that plaintiff is estopped from maintaining this action. It is contended that the failure of the plaintiff to take more vigorous action to prevent the payment of the public funds out of the school treasury, and the fact that one of his children and another child who lived in his home rode with the other children transported, works an estoppel against the right asserted by the plaintiff to have this money repaid into the public treasury. Here the defendant was refusing to sign orders in his capacity as treasurer of the school district, was defending a mandamus action begun to compel him to sign such orders to the extent of appealing the case to this court. Upon what theory the plaintiff was required to act more vigorously we do not understand. The facts in this case do not bring it within the doctrine of Frederick v. Douglas Co. 96 Wis. 411, 71 N. W. 798; Ellefson v. Smith, 182 Wis. 398, 196 N. W. 834. It is argued quite vigorously that the defendant is entitled to retain moneys illegally paid him because he performed a service which was reasonably worth the amount of the money so paid. The facts are that the contract called for the transportation of twenty-seven children. Of the twenty-seven children, two or at times three attended the public schools. It is argued that it would cost the district as much to transport two or three children as it would twenty-seven and that therefore the defendant is entitled to retain the moneys paid him under the illegal and void contract as compensation under quantum meruit. This is a specious but fallacious argument. No doubt the defendant rendered valuable service, but the service was rendered to the persons whose children were transported and not to the district. The district by statute can make itself liable for the transportation of children only in the manner therein prescribed. While the district had the power to make a valid contract [308] for the transportation of those children who were in fact attending the public schools, it had no power to do what it did do in this case. This is not a case where the district has received something of value for which it ought equitably to account, as in Thomson v. Elton, 109 Wis. 589, 85 N. W. 425. Under the statute there was no authority in the district for the disbursement of the money paid to the defendant, and within the authority of the cases cited the defendant must account for the moneys so illegally paid and received by him. By the Court. — The judgment appealed from is reversed, and the cause remanded with directions to enter judgment as prayed in the complaint for $450 on the first cause of action and $509.94 on the second cause of action, being the amount paid down to the time of the cessation of the illegal transportation as found by the trial court.