Arbuthnot v. Kelley

165 Wis. 362 | Wis. | 1917

Marshall, J.

Did the circuit court err in holding that Kelley did not violate sec. 4549, Stats. ? That must be answered in the affirmative, because the statute expressly makes such a transaction as he was guilty of a criminal offense. In Menasha W. W. Co. v. Winter, 159 Wis. 437, 150 N. W. 526, the court dealt with substantially such a matter and held that the transaction was “directly within the condemnation’ of the statute and the contract absolutely void.”

Was appellant guilty of fatal laches, barring him from prosecuting the action? That is ruled in the negative by Milwaukee v. Reiff, 157 Wis. 226, 146 N. W. 1130. It was there held that an action to recover, money paid out of the public treasury in violation of law cannot be successfully defended against on the ground of laches, within the equitable doctrine of Frederick v. Douglas Co. 96 Wis. 411, 71 N. W. 798. Such is the doctrine invoked by respondent here and which the circuit court supposed was applicable.

There cannot be such a thing as excusable violation of a criminal statute, such as the one involved here, on the ground of good faith or fatal laches, short of the limitation of the written law, as to remedies for tlie wrong. If good faith, or mere delay, as in this case, in resorting to a remedy, conld he invoked to, in effect, change the title to money illegally obtained from a municipality therefrom to the wrongdoer, the legislative policy embodied in the written law could be easily set at naught by judicial administration. The remedy invoked here, while of an equitable nature, as regards appellant, is to enforce a legal liability to the town. The wrong which afforded appellant such a remedy, was the failure of the public officers to perform their duty.

By the Oourt. — The judgment is reversed, and the cause-remanded for judgment in favor of the plaintiff and against defendant Kelley for the benefit of the defendant town for $434.25 with interest thereon from the 1st day of December, 1914, and for judgment against said Kelley for plaintiff’s benefit for the costs and disbursements of the action. Costs, in this court are awarded to appellant against said Kelley.