Ward v. Town of Barnum

• Decision Date: 10 January 1898
• Citation: 52 P. 412,10 Colo.App. 496
• Parties: WARD v. TOWN OF BARNUM. [1]
• Court: Colorado Court of Appeals

52 P. 412

10 Colo.App. 496

WARD v. TOWN OF BARNUM. ^[1]

Court of Appeals of Colorado

January 10, 1898

Appeal from district court, Arapahoe county.

Action by the town of Barnum against Thomas Ward, Jr. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Ralph Talbot, Thomas Mitchell, O.B. Liddell, and B.C. Hilliard, for appellant.

James H. Buford and C.M. Bice, for appellee.

BISSELL J.

This action was brought against Thomas Ward, Jr., to recover $150 which had been paid him by the town of Barnum in August 1893. The cause was tried on a substantial stipulation of facts, from which it appeared that there had been an election, prior to that date, of mayor and one or more trustees of the town. A contest was begun attacking the validity of the election of the mayor and one trustee. Mr. Ward was employed to attend to these suits. On the conclusion of the proceeding he presented a bill to the town of Barnum for $150, which was allowed, a warrant issued, and ultimately paid. Subsequently--whether by a change in the board, or otherwise, we are not advised--the legality of the employment and payment by the town were questioned, demand was made on him for the return of the money, and this suit brought to recover it. In the district court judgment passed against Mr. Ward, and he prosecutes this appeal.

But one proposition has been presented or argued by either side, and in reality the whole case turns on its determination. It is insisted by the appellant that, since the claim was allowed by the town authorities, and the town afterwards paid it, it cannot be heard to question its legality, nor can it compel the return of the money, any more than could an individual who had voluntarily paid a claim which was not a legal obligation. There are some authorities which seem to accept this doctrine, though most of the decisions contain some other element by which they can be entirely justified. The distinction which has been drawn by the various courts between those cases where payments have been made by municipal or county authorities, and the suit to recover the amount has been defended on the hypothesis that the payment was a voluntary one, and those where like payments have been made by individuals, seems to us to be well marked, and can be sustained on principle. The distinction is this: Where the alleged debt was without validity, and the board which allowed the claim and paid it was wholly without authority to act in the premises, whatever they may do under those circumstances is without force, and the county or municipality is not estopped thereafter to assert that the act was ultra vires. The reason of the rule is that the trustees, the boards of supervisors, or the common council are the agents of the county or other public corporation with specified power, and, where they act outside of it, what they do is not the act of the principal, who may reject what the agent has done, and recover, because of this lack of authority. It is almost universally held that where a claim would under some circumstances be a legal and legitimate one, and the board or the acting powers have assumed to pass on its validity, possessing adequate authority for the purpose, their adjudication is final. Where, however, they have no authority to allow the bill or pass on its validity, the act is void, and the voluntary character of the payment is no defense to a suit by the authorities to recover the money which has been thus illegally paid. These acts do not bind the county or the municipality any more than the payment by an agent, acting for his principal and outside of the limits of his power would estop the principal from recovering the money which the agent had wrongfully...