37 Wis. 496 | Wis. | 1875
For the purposes of the case it will be assumed that, by adopting the report of the committee appointed to ' examine the final account of Mr. Knipfer as county treasurer,
The duty of selling and assigning such certificates is imposed by law upon the county treasurer. Laws of 1861, eh. 188, see. 1 (Tay. Stats., 480, § 145). The same being an official duty of that officer, his salary necessarily includes compensation therefor. Hence, when the board of supervisors made an allowance of $2,000 to Mr. Knipfer for such services, it assumed to increase the salary of the county treasurer during his term of office. This the board had no authority to do. Laws of 1867, ch. 75 (Tay. Stats., 304, §§ 62-4). It seems to ús too clear for argument that the action of the board, being xdira vires, is not binding upon the county or the board of supervisors, which represents the county, and that no valid claim to the sum thus allowed can be predicated of such action.
But were it true that the selling and assigning of tax certificates belonging to the county is an extra official-duty — one not imposed by law upon the county treasurer, — we should still be of the opinion that no extra compensation can lawfully be allowed therefor. If the board attempts to impose duties upon the treasurer without legal authority to do so, that officer may refuse to perform them. But if he performs them, we think his official salary is the only compensation he can lawfully receive therefor. For example, the last legislature charged the justices of this court with the important duty of appointing suitable persons to revise the statutes of the state, and with other duties, some of them quite onerous, pertaining to such revision. Those duties are entirely foreign to our judicial functions, and probably we might lawfully have declined to perform them; but, having performed them, we cannot think for a moment that we have any right to receive, or the legislature to give, compensation therefor beyond our fixed salaries
An ingenious argument has been submitted by the learned counsel for the defendants, to the effect that the allowance by the board was an adjudication by a tribunal having jurisdiction of the subject matter, and, although it may be erroneous, it is-, nevertheless, valid and binding upon the county. The fault in this argument is, that it is based upon false premises. The board had no jurisdiction whatever to make the allowance. Its action is coram non judice. This is also an answer to the position that this is a case of the payment of money without fraud, under a mutual mistake of law, in which case it is said no action lies to recover back the money thus paid.
But it is further claimed that, although Mr. Knipfer may be liable in this action, the sureties in the treasurer’s bond were discharged from liability by the action of the board of supervisors. We do not think so. As already observed, the allowance for extra services was made without legal authority, and in the face of a positive statutory prohibition. The action of the board, being absolutely null and void, did not and could not affect the rights or liabilities of any one, and the liability of the sureties must be determined precisely as though no such action had been taken by the board of supervisors.
The plain status of the case then is this: At the expiration of his last term of office as county treasurer, Mr. Knipfer had in his hands, as such treasurer, the sum of $3,825.89, belonging to the county. He paid over to his successor in that office $1,825.89, and refused, on due demand, to pay over the remaining $2,000, and still retains the same. That Mr. Knipfer, and the sureties in his official bond, are liable to the county for such balance and the interest thereon, as the circuit court adjudged, we cannot doubt.
By the Court. —Judgment affirmed.
