Town of Cady v. Bailey

MaRshall, J.

The several alleged causes of action are substantially alike, except that each is for a balance for a particular year. If the first cause is well stated, all are, and the demurrers were properly overruled.

The first claim by defendant’s counsel is that the action is not on the official bonds of the defendant, but is on his personal liability as treasurer. We are unable to concur in that view. The defendant was liable independent of the bonds, and liable upon the bonds as well. It was proper to bring the action upon either liability and upon the bonds without joining the bondsmen. The complaint contains all the necessary allegations to show the pleader’s intent to declare for a breach of the official bond in respect to each cause of action. The conditions of the bonds are set out, and the facts pleaded constituting the breach relied upon as to each. If the causes of action were independent of the bonds, it would have been sufficient to allege generally that defendant duly qualified and entered upon the duties of his office, without setting forth particularly the conditions of the bonds. We reach the conclusion without difficulty that the several causes of action are upon official bonds given by the defendant, and that they are all well pleaded. Such bonds being instruments under seal, obviously the statute of limitations had not run at the time of the commencement of the action.

Compliance with sec. 776, R. S., respecting the necessity for a vote of the electors of the town at the annual town meeting, to authorize the action, was not necessary.. That section provides that the qualified electors of each town shall have power at any town meeting to direct the institution and defense of all actions in. which the town is a party or interested; but sec. 819, R. S., provides that “ the supervisors of each town shall . . . see that . . • . all breaches of official bonds to the damage of the town . . . are prosecuted.” The authority of the supervisors to institute and prosecute actions in the cases specially mentioned in sec. 819 is mandatory, and does not depend upon a vote of the electors of the town, under séc. 776. Fox Lake v. Fox Lake, 62 Wis. 486; State ex rel. Manitowoc v. County Clerk of Manitowoc Co. 59 Wis. 15; Woodman v. Bohan, 91 Wis. 36.

The point is raised that presumably the settlement made between the defendant and the town board for each year was examined and ratified by the people at the succeeding town meeting, pursuant to sec. 822, R. S., and that such settlement and ratification are binding on the. town. The law applicable to settlements between private parties does not apply to settlements between a public corporation and its officers, respecting the handling by the latter of public money. Notwithstanding such settlements, if such officers, by a mistake or otherwise, wrongfully retain public money in their hands, they may be proceeded against therefor at any time thereafter, upon discovery of the facts, within the period of the statute of limitations. Throop, Pub. Off. §§ 280-283; Otsego Lake v. Kirsten, 72 Mich. 1; Palo Alto Co. v. Burlingame, 71 Iowa, 201; Boardman v. Flagg, 70 Mich. 372; Sexton v. Richland Co. 27 Wis. 349.

The result of the foregoing is that the trial court properly overruled defendant’s demurrers.

By .the Courts The order of- the circuit court is affirmed, and .the cause remanded for further proceedings according to. law. ,