Board of Supervisors v. Hackett

Constitutional Law : Sec. 26, Art. IV, state constitution — Increasing or diminishing compensation of public officers. — Five per cent, on delinquent taxes — sec. 2, ch. 26, Laws of 1861. — Account stated, — Pleading. 1. See. 26, Art. IY of the constitution of this state (which declares that the compensation of any public officer shall not be increased or diminished during his term of office) applies only to officers who receive a fixed salary from the public treasury of the state. 2. Under sec. 2, ch. 26, Laws of 1861, the five per cent, collector’s fees on delinquent lands returned to the county treasurer, belong to the county, and not to the treasurer. . 8. A county treasurer, authorized to sell county bonds in his hands, to pay certain expenses, under the instructions of a committee of the board, sold without such instructions more than were necessary to pay such expenses. B.eld, that he must account to the board for the amount of the discount on the bonds sold without authority. i. In an action on a county treasurer’s bond, brought by the district attorney in the name of the board of supervisors, the question of his authority to bring the suit as to particular causes of action set up in the complaint, can he raised only by pleading in abatement want of such authority, or by motion for an order requiring him to show his authority, &c. 5. In such an action, where it appeared (and the answer alleged) that the board of supervisors had examined the treasurer’s account, and had objected only to certain specified items entered to his credit, and instructed the district attorney to-bring suit for the amount thereof: Feld, that there was no account stated between said board and the defendant, and nothing to show that the suit as tc such additional items could not be maintained.

APPEAL from the Circuit Court for Milwaukee County. The defendant was treasurer of Milwaukee county from the first Monday of January, 1863 to the first Monday of January, 1865. This action is against him and the sureties on his official bond, for alleged breaches thereof in not paying over to his successor in office the full amount of moneys in his hands belonging to the county (the alleged deficit being about. $8000), and in converting to his own use thirty-seven bonds of said city for $130 each, deposited with him as such treasurer.— The only answer contained in the printed case was a general denial. It appears, however, that there was another answer filed, which, after denying the chief averments of the complaint, alleged as a separate defense, that the defendant, on or about the 1st of January, 1865, delivered to the board of supervisors “ a full account in detail, of all moneys which came to his hands as such treasurer during the year 1864, and of all disbursements made by him,” which was referred to a committee of the board for examination; that after a full examination thereof and of said treasurer’s books, the committee (about the 3d of February) made a report in writing to the board, “approving all of said account, and not objecting,to any charge or credit therein, except that it objected to all of the charge against the county for commissions on bounty fund received and paid out in excess of $1000, and also to the sale of any of said bonds except for the purpose of paying the expenses incidental to and necessary to carry into effect the act authorizing the issue of said bonds; which report was then and there approved and adopted by said board of supervisors; and that said committee and said board, after full consideration and examination of [defendant’s] accounts for the year 1864, heretofore, to wit, on the 3d day of February, 1865, settled, ap proved and consented to the correctness of the same, and each and, every item and particular thereof, except the items above mentioned.” It appeared from the evidence, 1. That on the 11th of January, 1865, the board of supervisors appropriated to defendant, $1000, “ in full compensation for all fees and services performed under and by virtue of an act entitled ’ An act to empower the county of Milwaukee to raise money for the payment of bounties to volunteers, approved February 15,1864. ’ ”* 2.That defendant received from tbe clerk of tbe board 1538 bonds of tbe county issued under said act, each for $130, making tbe aggregate amount $199,940 ; that he was authorized by resolutions of tbe board to deliver such bonds instead of money to volunteers entitled to bounty; and also to sell a sufficient number of them “ to cover all expenses accruing from time to time on tbe same,’ under the supervision of tbe select committee on bounties and of the chairman of tbe board; that in his account rendered as aforesaid, he credited himself with tbe following items: Total amount of bounty bonds delivered to volunteers. $192,140 00 Total amount of bounty bonds sold to pay expenses of issuing the same... 6,630 00 Total amount of bounty bonds delivered to successor in office.. ljl^O 00 Total amount of accounts paid out of bounty bond fund. 1,'721 91 Treasurer’s commission at 1 per cent, on $199,940 receipts — being total amount of bounty bonds received by him in lieu of and as money...1. 1,999 40 Treasurer’s commission át 1 per cent.'on $198,WO disbursements — being total amount of bounty bonds paid out by him in lieu of and as money.. 1,987 70 3. That thirty-seven of the bonds were sold by defendant at $111 each, mainly to pay his commission as charged in the two last of the above items, and without consulting the committee. 4. That after defendant’s account was presented to the board, the committee to which it was referred reported that the sale of the thirty-seven county bonds was without authority, except as to $1,000 worth thereof; and that the charges of $1,999.40 for receiving the county bonds, and $1,987.70 for disbursing them, were erroneous ; and this report was adopted by the board together with a resolution directing the district attorney to sue the defendant “for the recovery of moneys detained from the county * * as set forth in the foregoing report.” It further appeared, 5. That defendant had not charged himself with $L,041.80, received under sec. 2, ch. 26, Laws of 1861, being five per cent; on the delinquent tax lists returned to him by town, city and village treasurers. 6. That he had charged a commission of one per cent on certificates of sales of land to the county for delinquent taxes, amounting to $18,296, as upon so much money received into the treasury. The plaintiff appealed from a-judgment of nonsuit. contended that as the board of supervisors, which is authorized to settle with the treasurer (R. S., ch. 18, secs. 27,46), and cause his bond to be put in suit if its condition has been broken (R. S., ch. 18, sec. 136), had disapproved only of certain specified items in the treasurer’s account, and directed them to be litigated, no other matters could properly be included in the complaint. 2. That the compensation of defendant for the duties performed by him in receiving and disbursing moneys as such treasurer, was fixed by secs. 134 and 136, ch. 13, R. S., when he entered upon his term; and by sec. 26, Art. IY of the constitution they could not be increased or diminished during the term. Connor v. Mayor of N. Y, 1 Seld., 285, 294; Palmer v. City* of N. Y, 2 Sandf, 318, 323 ; Hateh v. Mann, 15 Wend., 44; Massing v. The State, 14 Wis., 502; Jones v. Sup’rs Grant Co., id., 518; People v. Burroughs, 27 Barb., 89 ; Havardv. The Stale, 10 Ind., 99. 3. That the amount charged for commissions on the bounty fund, being a just and legal charge, was a part of the expenses of executing the bounty law, the payment of which out of the proceeds of the bonds is expressly provided for in sec. 6, ch. 42, Laws of 1861, and by the resolution of the board of supervisors. contended: 1. That sec. 26, Art. IY. of the constitution applies only to salaried officers. 2. That it applies only to compensation for services ordinarily pertaining to any office, and not to extraordinary duties imposed upon an officer in view of some special exigency, as in the present case. 3. That if defendant’s compensation is to be governed by secs. 134 and 135, R. S.,the commissions .charged upon the bounty bonds were unauthorized, inasmuch as most of them were not in fact sold, and no “ moneys ” were “ received and paid out by him as treasurer ” in connection with such bonds. 4. That if the bonds had actually been sold, he would have been entitled to only one half the commission charged, sec. 134 providing that “ on moneys arising on sale of lands and other property belonging to the county, * * he shall receive only one half the above fees for receiving and paying out the same.” 5. That it was not necessary to show that the board of supervisors formally directed this action to be brought to recover the five per cent, and the illegal commissions other than upon bounty bonds. The authority of the law officer of the county to prosecute the suit must be presumed as between these parties. There is nothing in the case to negative the fact of full instructions by the board. 6. The board has no power to bind the county by the allowance of an unlawful claim. Brainard v. New London, 22 Conn., 552; Brady v. New York, 2 Bosw., 173 ; McSpedon v. N. Y, 20 How. Rr. R, 395 ; Wolcott v. Lawrence Go., 26 Mo., 272-Money illegally paid by a municipal corporation may be recovered back in an action for money had and received. Brum-bull v. Campbell, 3 Gilman, 502; Petersburg v. Maffin, 14 Ill., 193; TJ. 8. v. Yale Todd, 13 How. (U. S.), 52 (n). Mistakes in settlement with a county treasurer may be corrected. Washington Go. v. Parlier, 5 Gilm., 232; 8 Allen, 371 ; 4 "Wend., 453.