Quaw v. Paff

• Decision Date: 01 March 1898
• Citation: 74 N.W. 369,98 Wis. 586
• Parties: QUAW v. PAFF, COUNTY TREASURER.
• Court: Wisconsin Supreme Court

98 Wis. 586

74 N.W. 369

QUAW

v.PAFF, COUNTY TREASURER.

Supreme Court of Wisconsin.

March 1, 1898.

Syllabus by the Judge.

A county treasurer made a claim against his county for about $500 for extra services, which were in fact within the line of his official duty, and the claim was allowed by the county board, and the money withdrawn by him from the county funds. After demand of, and refusal by, the county board, to compel a return of the money, this action was brought by plaintiff in his own behalf, and that of other taxpayers, to charge such treasurer as a trustee of such money, and to compel him to account for, and pay the same into the county treasury. Held, on a demurrer to the complaint setting up the facts:

1. A salaried county officer, for the performance of the duties of his official position, and service which he performs voluntarily as such officer, by request of the governing body of the corporation, is entitled to his salary only.

2. An officer who obtains public money from the treasury by forms of law, ostensibly for extra services, but to which he has no right in fact, does not thereby obtain title to such money, and on a failure of the proper officers to respond favorably to a demand by a taxpayer to compel a return of such money, such taxpayer may, acting in his own behalf and in behalf of other taxpayers, maintain an action to charge such officer as a trustee of such money, and to compel him to account for and pay the same over to the rightful owner.

Appeal from circuit court, Marathon county; Chas. V. Webb, Judge.

Action by Samuel M. Quaw, in behalf of himself and all other taxpayers of Marathon county, against Carl F. Paff, treasurer of Marathon county, to declare and enforce a constructive trust. From an order overruling defendant's demurrer to the complaint, he appeals. Affirmed.

Action to declare and enforce a constructive trust. The material allegations of the complaint are, in substance, as follows: From and after the first Monday of January, 1895, defendant Paff was county treasurer of Marathon county, and plaintiff a taxpayer of such county. The action was brought by plaintiff in his own behalf, and in behalf of all other taxpayers of the county similarly situated. At the annual November (1895) meeting of the county board of supervisors of the county, there was allowed to the treasurer, Paff, on bills filed by him, $475 for clerk hire, and $28.92 for posting tax sale notices. Thereafter Paff withdrew from the county funds the amount so allowed to him, and converted the same to his own use. He did not perform any service as a consideration for the money so allowed to him, except such as he was required to perform because of his official position. The sum so allowed and drawn formed no part of his salary as fixed by law before he entered upon the duties of his office. He, and the members of the county board, when his claim was allowed and the money drawn from the public funds, knew that he was neither legally nor equitably entitled to the same. In May, 1896, plaintiff, in behalf of himself and other taxpayers, demanded of Paff that he return the money so illegally drawn as aforesaid, which demand has not been complied with. At a meeting of the county board held in June, 1896, a request in writing, made by plaintiff in behalf of himself and other taxpayers, was presented to the county board to take the necessary proceedings to recover of Paff, for the benefit of the county, the money so drawn as aforesaid, offering at the same time to indemnify the county against all costs of the necessary legal proceedings. The request was indefinitely postponed by the board. The judgment prayed for, among other things, is that defendant be required to return the money illegally drawn by him from the public funds, and that plaintiff have such other relief as might be deemed just and equitable. To the complaint, appellant interposed a demurrer upon the following grounds:

(1) For want of jurisdiction of the subject of the action.

(2) For want of legal capacity to sue.

(3) For defect of parties plaintiff.

(4) For defect of parties defendant.

(5) For failure to state facts sufficient to constitute a cause of action.

The demurrer was overruled, and defendant appealed.Bump, Kreutzer & Rosenberry, for appellant.

Mylrea, Marchetti & Bird and Brown & Pradt, for respondent.

MARSHALL, J. (after stating the facts).

It is not contended on the part of the appellant that there was any legal or equitable claim against Marathon county as a basis or consideration for the money which, under the forms of law as set...