168 Wis. 414 | Wis. | 1919
On the former appeal of the case to this court (165 Wis. 541, 163 N. W. 177) it was determined that the resolution adopted by the electors at the annual town meeting in April, 1915, was not a proceeding under ch. 54, Stats., relating to' town drains; that the only authority conferred on the town to establish, maintain, and pay for a drainage system is that provided for in ch. 54, Stats., and that sec. 776 does not confer such authority nor authorize the expenditure of town money for a drainage system. The facts of the case as established at the trial sustain the complaint so far as the foregoing propositions are involved and that decision necessarily rules the case upon these points. It logically follows that the town officers had no authority to establish this town drainage system; that their acts in relation thereto were clearly ultra vires and afford no protection, to them in an action by the town to recover the funds SO' unlawfully expended by them for this purpose. Etsell v. Knight, 117 Wis. 540, 94 N. W. 290; Douglas Co. v. Sommer, 120 Wis. 424, 98 N. W. 249; Washburn v. Lee, 128 Wis. 312, 107 N. W. 649; Milwaukee v. Binner, 158 Wis. 529, 149 N. W. 211; Milwaukee v. Reiff, 157 Wis. 226, 146 N. W. 1130.
It is urged that the court erred in holding that the plaintiff town is not estopped by the acts of the electors in authorizing by resolution the establishment of a town drainage system, by ratifying and approving the acts of the defendants as town officers in relation thereto, and by their formal authorization of the expenditure of town funds to defray expenses incurred in carrying out this project as directed by them. Nothing need be added to what has been said by this court on the subject that estoppel cannot apply to ultra vires acts of municipal officers. The cases above cited and McGowan v. Paul, 141 Wis. 388, 123 N. W. 253; Menasha W. W. Co.
“It is one thing to apply the doctrine to the irregular use of a power that exists, and quite another thing to create a forbidden power by a forbidden act. The former is nothing more than a waiver of the regularity of the exercise of a power which the municipality may exercise — a valid ratification of an irregular act because there was the power to exercise it regularly. The latter would be the creation by an unlawful act of a power expressly withheld.” Menasha W. W. Co. v. Winter, supra, p. 448.
The circuit court properly held that the town is not estopped from proceeding against the town officers to recover the town money which the officers caused to be paid out without any authority in the law. The resolution adopted by the electors April 6, 1915, obviously did not direct the town board to exercise the powers conferred on towns by sub. (13), sec. 776, and therefore the court did not err in rejecting evidence bearing thereon. The undisputed facts show that the town funds were illegally disbursed by town officers, and that the town has a cause of action against all or any of them who' participated in this illegal act. Since the cause of action is based on such wrongful act, the town can sue to recover the amount thereof from any one or more of them, as it may deem best, and those sued have no right to have their joint wrongdoers made parties defendant to the action, nor have the defendants against whom judgment is awarded for recovery of these moneys the legal right to have the other town officers who acted with them made defendants for the purpose of enforcing whatever rights they may have, if any, for contribution from them if they pay the amount recovered against them. The plaintiff is not to be subjected to having such rights between defendants tried out in its action. This record clearly shows that no such questions were attempted to be litigated, and hence the court did not commit prejudicial error in dismissing the case as to Baumgart, the town treasurer, to which the plaintiff makes
By the Court. — The judgment appealed from is affirmed.