Vernon County censor. [volume] (Viroqua, Wis.) 1865-1955, 1922-10-25

, cesSary to keep pace with the modern /
age in which we live because our Of
ficials are men of nerve and courage /
and the overwhelming majority of our
citizens and business men wholly
eonsecrated to Viroqua's best interests. |
Thank God for the boosters-the men
who uphold the hands of those who I
try to do worthy things for our ethyl
The decision of Judge Higbee fol-
| lows
State Of Wisconsin, Circuit Court, /
Vernon County.
! Chris Ellefson, Plaintiff,
4 A. E. Smith ct al, Defendants.
| MEMORANDUM DECISION
! The demurrer to the answer in this |
case reaches back to and searches the |
complaint, and, while the allegations |
of the complaint are somewhat indie |
! finite as to the fact that the defend |
ants are now the officers of the City
/ of Viroqua, still, think it should be !
i inferred that they are and that it
would be futile to expect them to vim
dictate the rights of the city in re-
/ spect to the matters set forth in the
complaint.
The contract set forth in the COM
plant and in the answer was con-
tract which the officers of the city of
Viroqua had authority to make with
the defendant, J. j. Connolly, provid-
ing the necessary preliminary steps
were taken to authorize the making
of such contractIh In that respect the
case is clearly distinguishable from
such situations as were presented in
Friedrich against Douglas County, Sc
Wis. and Neacy against Drew, 1877 N.
w. R. 218. The allegations of the
complaint clearly imply that the work
under this contract was fully perform
ed and the money paid out by the
City Officials before the legality of
the transaction was in any wise chal-
lenged.
1t is hardly possible that work of
such magnitude and public nature
could be done without general public
knowledge. The plaintiff alleges, how
ever:
"That he did not know of the afore-
said unlawful acts of the defendants
and mis-appropriation of public mon
eys until shortly prior to the COM
mencement of the action, TO wit, on
or about May LIST, 1922"
That allegation / think should be
construed that he did not have know
ledge of the fact of the failure of the
defendants to advertise for bids and
to take the necessary preliminary
steps to the making of the contract,
but that he did know of the prosecu-
ton Of the work.
Under the allegation of the COM
plant and the admission of the answer
it is clear that the prosecution of this
4 work or the payment of any of the
! public moneys for the same would
q have been enjoined at the suit of tax
4 payer, but under the authority of the
case of Friedrich against Douglas
Il county, / think it is clear that the
money paid under the contract, if the
allegation of the answer are true, land
they must be taken to be SOY cannot
now be recovered, whether it be based
upon the rule as stated by Justice Cas-
sody, in that case or the rule laid down
by Justice Winslow in his separate
opinion therein. The principle there
decided is clearly recognized in the
Il case of Neacy against Drew, wherein
Justice Doerfier quotes from the opin-
: ion in the Friedrich case as follows.
a Gould it. under any view of the
81 circumstances, be said to be equitable
8 to compel Mr.. Grace to pay back the
= money which he received for long and
valuable labors, rendered honestly and
"a III SOoO 1tAIits bue DtiiSub VI WHICH etts
corporation has received, and concern
X ing which the taxpayers of superior
were, or ought to have been, fully IN.
3 formed during their entire progress Y
& And then to distinguish the Neacy
case he says: =
4 From the foregoing quotation, tbs
q Frederick case can readily be disting
uished from the instant case. Short
n ly after letting of the illegal contrac
to the Concrete Company, the plain
tiff herein brought an action, bases
Is upon the illegality of such contract
and in which he prayed for an injunc
ton restraining the city from payint
out any of its moneys on accoun
thereof"
And, it is my judgment that tn
Demurrer should be over-ruled.
III By the Court,
Dated this Doth day of July, 1877.