Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1893-09-14
DECISION RENDERED.
Judge Webb Decides that D. .. Com
way must Refnnd Fees
to County.


allowing a bill of fees to D. D. Conway,
as Clerk of the Court, for certain SER
vices rendered. By stipulation the
matter was presented to Judge Webb
for his decision. We append that de-
cision in part as matter of interest to
the Board Of Supervisors as well as tax
payers generally. 1t is not only the
amount involved in the bill but it set
ties the rights for all future time. This
decision will not only be of local inter
est, but may be of considerable interest
to the counties of Marathon and
Sheboygan where like bills have been
paid for several years past:
WOOD COUNTY VS.. D. D. CONWAY.
| Verbatum as far as it goes, and contain
ing all of interest to the public of
the opinion.
The facts are stipulated and are,
briefly as follows: The defendant is
and was clerk of the circuit courtfo the
| plaintiff county, as such clerk he made
and presented to the Board of Super
visors at regular meeting thereof, held
in November 1892, bill of fees and
services rendered, and claimed by him
to contain only proper charges against
the county. Such bill was made up of
several items, including the following;
Recording 245 declaration papers
| to become citizens and index
| ing the same G1 80 cents. 80
Recording so naturalization papers
and indexing the same 0 ST.. 5000
Making. g...................$ SIP. 50
The bill was allowed in the whole and
county order or orders issued there
for which were paid by the County
Treasurer to the defendant upon pre-
sentation. The services mentioned
were actually performed, no fraud or
concealment was practiced by either
party, subsequently to the payment of
said amount to the defendant, the
Board of Supervisors determined that
the two items in defendants said bill
above mentioned were not proper
charge against the county, and instruct
ed the District Attorney to demand Of
the defendant that he repay the said
amount to the county, and in case of re-
fusal, to bring an action in the county's
behalf to recover the same. Such de-
| mand was duly made and such repay
ment refused, and thereafter this action
to secure the same.
The services charged for in the above
items, were and age not proper charge
against the county. The persons
who obtained such services are alone
responsible to the clerk for his fees
therefor, The County Board acted
wholly without authority in directing
their payment. Such being the fact,
the county is not estopped from re-
covering back the money so illegally
paid out. The Board of Supervisors
cannot by an act wholly beyond its au-
thority estop the county from securing
moneys which have been illegally
drawn from the treasury.
The action of the County Board may
and probably will bind the county in
case in which the Board may properly
exercise discretion, where it has iuris-
diction to take any affirmative action,
not SO where, as in the present case, it
has no authority whatever to act affirm
atiyely. The wrong to the county hay
ing been done, the county must proceed
to rectlfy it, if at all, through the action
of the county board because no other
way has been provided. A reversal of
the action of the county board in allow
ing the bill, (if such reversal were pos
sible,) would not accomplish the result
sought, SO no time need be taken to
state the reasons why the county could
not resort to an appeal, or to writ of
certlorari to reverse the action of
the county board in allowing the illegal
items. The county has actually paid to
the defendant the items illegally al
! lowed, and a return to the treasury of
the money SO paid out is what is de-
manded in its behalf in the present
case.
Its only remedy, as [ think, is the
one resorted to; an action as for money
had and received.
To hold therefore that the county
cannot recover in the present case
would be to hold that it is without
remedy by means Of which money once
paid out of the county treasury pursu-
ant to the direction of the county board
however illegal and unauthorized, can
not recover in the present case would
be to hold that it is without a remedy
by means of which money once paid
out of the county treasury pursuant to
the direction of the County Board,
however illegal and unauthorized, can
not be recovered back-such is not, and
ought not to be the law as applied to
counties and municipalities who can
act only through officers whose powers
and duties are strictly defined and
| limited by the statutes.
The plaintiff is entitled to recover
from the defendant the S172.50 paid to
him without authority, and interest
thereon for the time when demand of
repayment was made and such repay
ment refused.
Filed Sept. 4th, 1893.
CHAs. NJ. WEBB, Circuit Judge
--azs>e-<>-t-as= t-as=---
Ignorance of the merits of De Wits