Ellefson v. Smith

182 Wis. 398 | Wis. | 1924

Crownhart, J.

The defendants, respondents on appeal, are the mayor, city clerk, treasurer, and members of the common council of the city of Viroqua, and the contractor who built a reservoir for the city water system. The contract for building the reservoir was let by the city officials without specifications being on file with the city clerk and without advertising for bids, contrary to the statutes of the state applicable thereto. The reservoir was built and payment made to the contractor of the contract price of $5,450. This action was brought to compel restitution by defendants to the city treasury of the sum so paid.

The circuit court held that the defendants in good faith let the contract and paid therefor. We may say at the outset that there can be no good faith, in law, where a public statute is intentionally ignored or violated. Laws are made to be enforced, and public officials are bound to execute the laws as enacted. They take their offices cum onere, and cannot plead neglect or. refusal to comply with their duties according to law to escape the penalties provided. Such failure or refusal to obey the law constitutes malfeasance in office. Sec. 4549, Stats. We interpret the court’s finding, however, to mean no more than that the parties entertained an honest belief that the interest of the city was best served by the method adopted.

This action, however, is in equity to compel restitution of money paid out of the public treasury, and equitable principles apply. If the action was to restrain execution of the contract or payment thereunder, the action would lie: Sayles v. Hartford, 161 Wis. 136, 152 N. W. 853; McGowan v. Paul, 141 Wis. 388, 123 N. W. 253; Kircher v. Pederson, 117 Wis. 68, 93 N. W. 813; Ricketson v. Milwaukee, 105 Wis. 591, 81 N. W. 864; if the contract had been tainted by fraud or collusion, recovery could be had: Webster v. Douglas Co. 102 Wis. 181, 77 N. W. 885, 78 N. W. 451; Willard v. Comstock, 58 Wis. 565, 17 N. W. 401; if the officers had gone beyond the power of the city to contract, restitution might be enforced: Northern Trust Co. v. Snyder, 113 Wis. 516, 89 N. W. 460; Wilcox v. Porth, 154 Wis. 422, 143 N. W. 165; Balch v. Beach, 119 Wis. 77, 95 N. W. 132; Etsell v. Knight, 117 Wis. 540, 94 N. W. 290; or, if the defendants were contumacious in flying in the face of court proceedings to restrain their action, they might be held to a strict accountability: Neacy v. Drew, 176 Wis. 348, 187 N. W. 218; Chippewa, B. Co. v. Durand, 122 Wis. 85, 99 N. W. 603; Webster v. Douglas Co. 102 Wis. 181, 77 N. W. 885, 78 N. W. 451; and if the city had been defrauded in any way by the illegal action of its officers arid the contractor, we should have no hesitation in compelling the guilty parties to return the money to the city treasury. But this is not such a case. Here the city had the power to build a reservoir. The reservoir was, and is, a public necessity. It was built at a fair price. It has been accepted by the city and is in use as a necessary part of the water system. There appeared to the officials to be an emergency, owing to the lateness of the season, to' let the contract promptly to save increased cost owing to freezing of the ground. The officials believed the welfare of the city would be best served by letting the contract without waiting for bids. They were advised by a civil engineer of experience, in the city’s employ, as to the reasonable cost of such a structure. The officials profited not at all by the contract, nor does it appear that the city suffered in any way by the failure of the officials to comply with conditions precedent to letting a valid contract. The contract was let at a regular public meeting of the council, the work was done in full public view, and it was a matter of public comment in the press and discussion among the citizens.

The plaintiff taxpayer did not know of the contract or the failure of the officials to comply with the 'law until shortly before he commenced the action. But he is suing in a representative capacity, and the court found facts from which it would seem that the taxpayers generally must have had more or less knowledge of the actual facts while the work was proceeding and before it was commenced. Viro-qua is a small city and such matters of importance to the city would hardly escape general notice. We do not, however, base our decision on laches of the taxpayers plaintiff.

The case is one where the city has the full benefit of the improvement necessarily made, the price was fair, and the city cannot turn over to the defendants the property so built for' the city. A court of equity 'does not sit t0‘ inflict punishment, but rather to do justice on well-defined principles. We do not recognize any appeal to conscience in this matter. No one has been injured in his person or property rights. And, as was said by Mr. Justice Winslow in Frederick v. Douglas Co. 96 Wis. 411, at p, 426 (71 N. W. 798):

“Were a court of equity to make this judgment under the circumstances, we should regard it as having become an engine of oppression, rather than an instrument of justice.”

That was a case where an experienced attorney did work for the county under an illegal contract. He had received some $1,200 as part payment for his services. This court permitted him to retain the money already received but denied further recovery. It would be unconscionable to require a greater, degree of care upon the part of laymen in executing a contract than upon an able, experienced lawyer. This case falls well within the principle of the Frederick Case. Other cases supporting this view to a greater or less extent are: Grand Chute v. Herrick, 163 Wis. 648, 158 N. W. 315; Lafebre v. Board of Education, 81 Wis. 660, 51 N. W. 952; Thomson v. Elton, 109 Wis. 589, 85 N. W. 425.

By the Co%irt. — The judgment of the circuit court is affirmed.