City of Bismarck v. Burleigh County
| Decision Date | 22 November 1922 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Burleigh County, Nuessle, J.
Affirmed.
F. E McCurdy, State's Attorney, for appellant.
H. F O'Hare, for respondent.
The county of Burleigh was liable for the full amount of the mother's pension paid to residents living within the city of Bismarck in said county under § 2508, Compiled Laws 1913, and the city of Bismarck, a municipal corporation, was not liable for any part of the mother's pension paid by the county of Burleigh to residents of said county living within the city of Bismarck. Pierce County v. Rugby, 47 N.D. 301, 181 N.W. 954.
While the general proposition of law that money voluntarily paid under a mistake of law cannot be recovered is everywhere recognized, yet an exception to this general rule is also recognized in the case of an unauthorized payment made by a public officer. See the following cases which assert and uphold this exception: United States.--Wisconsin Cent Ry. Co. v. U. S. 164 U.S. 190, 17 S.Ct. 45, 41 L.Ed. 399; McElrath's Case, 12 Ct. Cl. 201. See also United States v. Bartlett, 2 Ware, 17, F. Cas. No. 14,532. Compare Badeau v. United States, 130 U.S. 439, 9 S.Ct. 579, 32 L.Ed. 997; Schlesinger's Case, 1 Ct. Cl. 16; Folsom's Case, 4 Ct. Cl. 366; McKee's Case, 12 Ct. Cl. 504; Palen v. United States, 19 Ct. Cl. 389; Barnes v. Dist. of Columbia, 22 Ct. Cl. 366; Hillborn v. United States, 27 Ct. Cl. 547. Arkansas.--Weeks v. Texarkana, 50 Ark. 81, 6 S.W. 504. California.--Compare Riverside County v. Yawman, etc. Mfg. Co. 3 Cal.App. 691, 86 P. 900.
The reason for the exception to the general rule is that while an individual is dealing with his own money, and may do with the same as he pleases and is answerable to no one, yet public officers are dealing with money which is not their own and over which their powers are subject to well-known limitations. They can pay when the law requires or permits, and they cannot pay when it forbids. Barnes v. District of Columbia, 22 Ct. Cl. 394.
An action may be maintained to recover back money paid without authority of law . . . out of the city treasury, though fraud in fact be not imputed to the recipient of the money. The law charges upon persons receiving public moneys knowledge of the powers and authority of public auditing and disbursing officers, and compels the refunding to the treasury of moneys received from officials who exceed their authority, by making, under the forms of law, payments for which the legislature has not directly or indirectly given warrant. Such illegal payments may be sued for or may be used by way of setoff. McGinniss v. New York, 6 Daly (N. Y.) 419.
This is an appeal from a judgment and order overruling a demurrer to the complaint. The complaint shows that in August, 1921 defendant presented to the city a claim for $ 1348.80, being 25 per cent of mothers' pensions paid by the county to nineteen different mothers during the years 1919 and 1920 which claim the city paid to the county. The complaint shows that the claim...
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