21 OAG 1141 (1932)
 
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Criminal Law
Indigent, Insane, etc.
Neglect of Duty
Public Officers

Poor relief officials are criminally liable
for wilful failure to care for needy persons
as required by law and are liable in damages
to any person damaged by neglect to provide
care of needy persons required by law;
unreasonable exercise of judgment in finding
of fact and extent of need is neglect.

Poor relief officials cannot be held civilly
or criminally when funds necessary to
performance of their duties
are not available.

December 30, 1932.

INDUSTRIAL COMMISSION.

You inquire what are the criminal and civil
liabilities of poor relief officials in
the administration of poor relief.

I am of the opinion that such officials are
both criminally and civilly liable within the
limitations indicated by the following
authorities:

     At common law a failure or neglect of an
     officer to perform a ministerial duty
     imposed upon him by law renders him
     guilty of a misdemeanor;

     and it would seem that, not-withstanding
     the provisions of a statute which have
     been disobeyed are, as respects the
     public,  merely directory, the neglect
     of the officer to observe them may be
     a misdemeanor. " 46 C. J. 1049.

     A refusal to perform a public duty is
     equivalent to a willful omission.

     46 C. J. 1049.
 
 

In Commonwealth v. Coyle,
160 Pa. 36, 24 L. R. A. 552, 554, it is said:

     We think the contention of the
     defendants that the common law does not
     hold them criminally liable for a
     willful neglect or refusal to discharge
     their duties as directors of the poor
     is unsound.

     In 19 American & English Encyclopedia
     of Law, p. 504, the rule on this
     subject is stated thus:

          The neglect or failure of a public
          officer to perform any duty which
          by law he is required to perform
          is an indictable offense, even
          though no damage was caused by
          the default, and a mistake as
          to his powers, or with relation
          to the facts of the case,
          is no protection.

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     In Russell on Crimes (vol. 1, p. 80),
     it is said that:

          It is an indictable offense, in the
          nature of a misdemeanor, to refuse
          or neglect to provide sufficient
          food or other necessaries for any
          infant of tender years, unable to
          provide for and take care of
          himself . . . whom the party
          is obliged by duty or contract,
          to provide for, so as thereby
          to injure its health.

     In Archbold's Criminal Pleading &
     Practice (vol. 2, p. 1355),
     it is said that:

          An overseer of the poor is
          indictable for misfeasance in
          office, as if he relieved as if he
          relieved the poor where there is
          no necessity for it . . . or if he
          misuse the poor, as by keeping and
          1odging several poor persons in a
          filthy or unwholesome room, with
          the windows not in a sufficient
          state of repair to protect them
          against the severity of the weather
          . . . and for most breaches of
          their duty, overseers may be
          punished by indictment
          or information.

     If, as they contend, their conduct is
     not condemned, in terms, by any of our
     statutes in relation to the care of the
     poor, it is gratifying to know, as we
     have seen, that the common law holds
     them responsible for it, as a
     misdemeanor in office.

In Matter of Pickett, 55 How. Pr. (N. Y.)
491, it was held that overseers of the poor
were criminally liable for neglect to perform
their duty. By way of dictum, the court
added that in its opinion the overseers
would be punishable for a misdemeanor
even in the absence of statute.

In State v. Williams, 34 N. C. 172,
it was held that a failure of a public
officer to perform his duty is indictable,
although not when its performance is
left to his discretion.

The statute was construed as leaving to the
discretion of the overseers of the poor
the duty of enacting laws and regulations
for the care of the poor.

In State v. Hawkins, 77 N. C. 494, 495,
it was held that an overseer of
the poor is a public officer

     in the sense of being liable at common
     law for any neglect of his duties and
     for any abuse of his powers.

The overseer, in this case, failed
to provide for certain paupers.
 

In State v. Hoit, 23 N. H. 355, the overseer
of the poor neglected to relieve a pauper.
The court held, p. 359, that the neglect
must be wilful, saying:

     . . Overseers of the poor may mistake
     their duty: they may err in judgment;
     they may proceed illegally for all of
     which they may be liable in a civil
     action; but before they can be convicted
     as criminals, they must be guilty of
     a wrong intent.

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In Derry v. County of Rockingham,
64 N. H. 499, it was said:

     . . . So long as he remained in Derry
     and needed relief, it was the duty of
     the overseers to relieve him, although
     he had no settlement there . . . ; and
     for wilful neglect of duty in this
     respect, they would have been
     liable to indictment.

State v. West, 82 Tenn. (14 Lea.) 38, 40-11:

     . . . Every culpable neglect of duty
     enjoined on such officer, either by
     common law or by statute, is an
     indictable offense. . .

     In Russ. on Cr. 136-7, it is said:

          An overseer of the poor is
          indictable for a misfeasance
          in the execution of his office,
          as if he misuse the poor. . .

In Otis v. Strafford, 10 N.H. 352,
it was held, p. 355:

     The whole provision for the relief and
     maintenance of the poor is thus left
     entirely to the official responsibility
     and duty of the overseers of the poor;
     and for any gross neglect of such
     official duty they are clearly liable.

     6 Cow. 276, . . .; 5 Cowen 654. . .

     Their liability is solely to public
     process against them for neglect
     of public official duty.

The rule would seem to be that the poor
authorities are liable, at common law, for a
misdemeanor for wilful neglect of their duty.

Of course, if the poor relief statute
provides for punishment, they may
be punished thereunder.

People v. Meakim, 133 N. Y. 214,
Sec. 348.29, Stats., provides:

     Any person mentioned in a section 348.28
     who shall . . . wilfully violate any
     provision of law authorizing or
     requiring anything to be done or who
     shall refuse or wilfully neglect to
     perform any duty in his office
     required by law, . .shall be punished .

Opinion was given,
XVII Op. Atty. Gen. 147,
that city officials whose duty it is to
properly relieve the poor may be prosecuted
under this section if they refuse or wilfully
neglect to perform such duties.

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In State ex rel. Schwenker v. District Court
of Milwaukee County, 240 N. W. 406, Justice
Fairchild discusses sections 348.28 and
348.29 and says:

     It follows from the phraseology of the
     statute that, Unless evidence is offered
     of corrupt conduct, the complaint cannot
     be sustained.

     Where an official having discretion in a
     certain matter acts upon his judgment in
     good faith, although erroneously, such
     act is not corrupt within the meaning of
     the statute, and likewise if, in the
     exercise of his discretion, he takes
     no action, although he errs, he is not
     guilty of neglect as that term is used
     in the sections quoted.

     This legislation is calculated to
     prevent an abuse of public justice by
     preventing an officer from unlawfully
     taking, by color of his office, from
     any man any money or thing of value
     that is not due him, or more than
     is due him, or before it is due.

     It is intended by the influence of the
     penalty in cases where necessary to
     insure, as far as possible, righteous
     conduct by any officer in his office in
     dealing with public affairs, and with
     the public or any member thereof, and
     to keep such officer from acting in
     any particular in the hope of private
     gain or from selfish motives.

The language is apt as to sec. 348.28, but it
is difficult to understand that it properly
applies to 348.29, unless the justice has
taken the word "corrupt" from some of the
earlier cases (see, for example, Faith v.
Koeppel, 72 Wis. 289, 293), where the
word obviously had a broader meaning
than merely improper personal gain,
and has given to it the popular
conception embodied in the word "graft."

It might well seem that the justice had
348.28 particularly in mind when he mentions
private gain and selfish motives, and that he
did not actually intend to go so far as to
say that corrupt intent in the sense of
private gain and selfish motives  are
essential for a conviction under 348.29.

In any event, however, it is to be noted that
he limits the language by saying that when an
official "having discretion in a certain
matter" acts in good faith, his act is not
corrupt. As will be noted in the discussion
later herein, the discretion of the poor
authorities is very meager, limited to the
finding of fact, and if they err in finding
so what is not so, they are outside of their
jurisdiction.

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Hence it does not seem that the decision in
State v. District Court alters the conclusion
reached above.

In 48 C. J. 443, it is stated:

     A poor officer who is negligent in the
     performance of a duty imposed on him by
     law, or is guilty of misconduct in
     office, is personally liable in
     damages therefor.

     So where an overseer of the poor wholly
     neglects his duty in providing in for a
     pauper he is liable to the pauper for
     the injuries sustained.

In support of the statement, Fowler v. Allen,
5 Cowen (N.Y.) 654, is cited,
and no other authorities.

In Fowler v. Allen, there was merely a dictum
to the effect that the overseers of the poor
may be held liable for official neglect or
misconduct.

In Minklaer v. Rock feller, 6 Cowen 276,
the court said, p. 280:

     . . The proper, and for aught that I
     perceive, the only course to be pursued
     when the overseer refuses to act in a
     case like this, is, to apply to this
     court in behalf of the paupers for
     a mandamus.

The action was one for neglect of duty, and
the damages alleged were what it cost the
plaintiff to care for the paupers.

Recovery was refused, but the court said,

     Page 280:

     . . . It appears to me, that if an
     action wouldlie at all, it must be
     in the name of the paupers themselves.

In Otis v. Strafford, 10 N. H. 352, 355, the
two cases above were cited. The court said:

     The whole provision for the relief and
     maintenance of the poor is thus left
     entirely to the official responsibility
     and duty of the overseers of the poor;
     and for any gross neglect of such
     official duty they are clearly liable. "

But the court added:

     . . . Their liability is solely to
     public process against them for
     neglect of public official duty.

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State v. Hoit, 23 N. II. 355, was a criminal
prosecution for neglect to relieve a pauper.
The court used this language, p. 359:

     . . Overseers of the poor may
     mistake their duty; they may err in
     judgment; they may proceed illegally;
     for all of which they may be liable in
     a civil action; but before they can be
     convicted as criminals, they must be
     guilty of a wrong intent.

These early cases tend toward the principle
laid down by Corpus Juris.

In Ames v. Smith, 51 Me. 602,
the syllabus reads:

     The forcible removal of the wife and
     family . . . to the town of their legal
     settlement, by the overseers of the poor
     of such town, would be an unauthorized
     act, for which they would be
     answerable in damages.

This case would not appear to add much,
since the act performed was
clearly an ultra vires act.

A poor district in furnishing relief to the
poor acts in a governmental capacity and,
pursuant to a firmly-established rule,
is not liable for injury caused by the
malfeasance or nonfeasance
of its officers or employees.

48 C.J. 434;

Kilt v. Board of Supervisors, (Mich.)
127 N. W. 821;

Foss v. Lansing, (Mich)
212 N.W. 952;

Gunther v. Board, (Mich.)
96 N. W. 386;

Wildoner v. Luzerne County,
267 Pa. 375, 110 A. 175;

Chelsea v. Washington,
48 Vt. 610;

Wood v. Boone County,
153 Iowa 92, 133 N.W. 377,
39 L.R.A. (N.S.) 168;

Schultz v. Milwaukee, 49 Wis. 254 (holding
that the rule of respondeat superior does
not apply where the thing done is a
governmental function);

Wallace v. Menasha, 48 Wis. 79,
to the same effect;

Apfelbacker v. State, 160 Wis. 565, 576.

A note in 40 A. L. R. 1358, states the
general rule to be that an officer or
employee of a municipality is liable
for his negligence in the discharge
of a duty, even though the municipality,
by reason of the duty being a governmental
function, is not liable.

Cases are cited from various jurisdictions,
holding firemen, policemen, health
authorities, town clerk, mayor, engineer
or surveyor, etc., liable for neglect.

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But the note also states, p. 1362, that where
the duty is discretionary or judicial, the
officer is not personally liable;

     unless guilty of a gross
     neglect of duty,

according to one case.

And a note in 24 A. L. R. 798, dealing
specially with the personal liability of
health officers, sustains the rule that
where vested with discretion they are not
liable, but where merely performing a
ministerial duty they are liable.

The note also holds health officers liable
where they act in excess of authority,
and where they erroneously or negligently
determine a fact upon which their authority
to act is predicated.

The rule is stated in Druecker v. Saloman,
21 Wis. 621, 629, as follows:

     But where a specific duty is assigned by
     law, and individual rights depend upon
     the performance of that duty, it seems
     equally clear that the individual who
     considers himself injured has a right
     to resort to the laws of his country
     for a remedy. . .
 

     Wherever the duties of the office are
     ministerial, any individual injured by
     the official acts of such officer, or by
     acts done by him under the color of his
     office, may resort to the courts
     for redress.

     Wherever the officer acts in the
     exercise of a clearly and purely
     discretionary authority, his
     determinations partake of the
     character of judicial decisions.

     It is sometimes difficult to draw
     the exact line between ministerial
     and discretionary or judicial authority.

In Smith v. Gould, 61 Wis. 31, 36,
the court said:

     We confess we are unable to understand
     upon what principle of law the
     defendants can be held personally
     responsible in damages for such
     error in judgment or abuse of discretion
     while performing an official duty.

In Fath v. Koeppei, 72 Wis. 289,
the court held that a city fish inspector
could not be held liable for damages for
improperly condenming and destroying
fish. The court said, p. 293:

     This is a high and responsible judicial
     power, as it concerns the public health,
     and as it may affect the rights of
     property; and the officer exercising
     such power is within the protection of
     that principle, that a judicial officer
     is not responsible in any action for
     damages to anyone for any judgment he
     may render, however erroneously,
     negligently, ignorantly, corruptly,
     or maliciously he may act in rendering
     it, if he acts within his jurisdiction.

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     . . . The principle protects all
     officers exercising judicial powers,
     whatever they may be called. . .

     It is a discretionary authority,
     where the determination partakes
     of the chararacter of a judicial
     decision.

In Lowe v. Comroy, 120 Wis. 151, 160,
however, the court modified the rule
laid down in the Fath case.

The case of Raymond v. Fish, 51 Conn. 80,
was discussed, and the court said:

     . . . The opinion, however, seems to go
     upon the ground that such quasi-judicial
     officers are under all circumstances
     absolutely protected from liability
     to the owner of the property, and
     are entitled to the same protection
     as an officer of a judicial tribunal
     in the discharge of official action
     within his jurisdiction. . .

Upon the authorities cited and the reason
advanced therein the rule is:

     Inasmuch as the law quite universally
     protects private property, the judgment
     or discretion of a quasi-judicial
     officer, though exercised honestly and
     in good faith, does not protect him
     where, by virtue of it, he undertakes
     to invade the private property rights
     of others, to whom no other redress
     is given than an action against the
     officer.

     Mechem, Public Officers,
     Section 642, and cases cited.

     In so far as Fath v. Koeppel, supra,
     is in conflict with this conclusion,
     it must be deemed overruled. "

Thus far, then, the rule appears to be that
quasi-judicial officers (being those who
exercise a discretion) are protected
except where,

(1)  they invade property rights and

(2)  the injured person has no other
     redress than an action against
     the officer.

In Adams v. Milwaukee, 144 Wis. 371,
the statute permitted recovery in case the
property destroyed as a nuisance or as
dangerous to public health was
not such in fact.

The court said, p. 378:

     We do not find it necessary to decide in
     this case whether the plaintiff could
     recover from the health commissioner
     or from the city for the destruction
     of his milk in case he should be
     able to prove that the milk was
     in fact clean, healthful, and
     free from the bacilli of tuberculosis.

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Reichert v. Milwaukee County, 159 Wis. 25,
36, states merely the general rule as to
ministerial officers:

     Every ministerial officer in the
     performance of purely ministerial acts
     is required, at his peril, to interpret
     the statute, or the order made in
     pursuance thereof, imposing a duty upon
     him and calling for action on his part.

     His decision if erroneous does not
     exempt him from liability in an action,
     but his decision if correct is
     sufficient to defeat an
     action against him."

In Apfelbacher v. State, 160 Wis. 565, 576,
the court recognizes the rule of Druecker v.
Salom on, by saying:

     A denial of the application of the
     doctrine of respondeat superior to
     the state when exercising a
     governmental function does
     not leave a person
     injured remediless.

     He has his cause of action against the
     person or persons actually committing
     the wrong.

     Morrison v. Fisher, post. p. 621. "
 

Morrison v. Fisher, 160 Wis. 621, held the
state fair board not liable for damages
resulting from an airplane accident, on
the ground that it was performing a
governmental function in operating
the fair, and that the furnishing
of amusement was within such duty.

The court said, p. 630:

     The public corporation not being liable
     for the reasons before stated, the
     members constituting it cannot be
     charged with liability unless it be
     shown that they were guilty of such
     misconduct in the discharge of their
     duties as would render them liable
     as individuals.
 

The rule is again clearly stated in State ex
rel Bautz v. Harper, 166 Wis. 303, where the
court said that a building inspector who
refused a building permit was acting in a
quasi-judicial capacity.

At p. 314 it was said:

     It is the general rule that officials
     acting in an honest exercise of their
     judgment in the discharge of such duties
     are not liable in damages to private
     persons for their mistakes and error.

     Lowe v. Conroy,
     120 Wis. 151,
     97 N.W. 942
     and cases cited.

     The denial to relator of a building
     permit is not an invasion of his private
     property rights and hence does not bring
     him within the exception specified in
     the Lowe case making quasi-judicial
     officers responsible in those cases
     of an invasion of private rights for
     which the law provides no redress other
     than in a private action for
     compensation for the loss sustained.

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This decision would seem to more firmly
establish the necessity of the officer's
invading a property right, and there
being no other redress than a damage suit,
in order to hold the quasi-judicial
officer for his mistakes.

Knaus v. Rollof, 178 Wis. 579, related to a
hearing and  determination by the tax
commission, regarding assessments.

It was said, p. 585:

     There can follow no legal damages from
     the action of public officers in the
     PROPER exercise of their duties.

     If the tax commission, acting within
     its jurisdiction as law authorizes,
     shall cause damage to citizens,
     it is not damage for which
     the citizen has redress.

     Therefore an action will not lie unless
     it appears that the public officers in
     some manner EXCEED THEIR AUTHORITY. "

In Meier v. Pilus, 70 Wis. 165,
plaintiff was given damages in an action
against the keeper of the poorhouse.

The facts were that a poor person
was brought to the poorhouse without proper
order of commitment, was accepted there,
and through negligence suffered injury.

The court pointed out that the keeper might
have refused to accept the person, and might
have returned him to those who brought him,
but (p. 173),

     permitted him to remain and undertook to
     care for him. The material question was
     whether, after undertaking such control
     and care of the plaintiff, he was guilty
     of such neglect as resulted in an injury
     to the plaintiff.

     Did he give him such care and attention
     as a man of ordinary prudence would have
     given under like circumstances? If he
     did not, he  did not do his duty.

The governmental function is not discussed
nor decided. It would seem that the court
treated the case as one coming under that
general rule of torts that a volunteer must
exercise ordinary care, such care as

     a man of ordinary prudence any would
     have given under like circumstances.

The court does not so state, but apparently
treated the situation as one beyond the
legal duty of the keeper - a case of
the keeper's acting personally
rather than as an official.

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The Meier case is discussed in Wood v. Boone
County, 153 Iowa 92, 133 N. W. 377, 39 L. R.
A. (N. S.) 168, and it is pointed out that
the governmental function feature was not
under consideration.

The Iowa court does not treat the Meier case
as being a repudiation of the general rule
by the Wisconsin court.

In Wood v. Boone, it was held that where
there is no liability against the public
corporation because the duty being performed
was a governmental function, there can be no
liability against the officer personally, on
the ground that it would be an anomalous
thing to hold the agent for acting within his
authority and exempt the principal.

It should be noted, however, that the facts
show the poor official was acting within the
scope of his power and in the exercise of a
discretion given to him. In other words, the
negligence charged was not his personal
neglience but the result of the law.

The facts were that the law permitted relief
of the poor or the furnishing of
transportation to place of settlement.

The poor official did the latter, while the
pauper was suffering from frozen feet.

While many of the cases cite Druecker v.
Salomon, 21 Wis. 621, none state that any of
its holding is overruled or modified.

That case dealt with "individual rights."

The later cases, as before pointed out,
deal with property rights exclusively.

The case of State ex ret Bautz v. Harper
refused relief because there was "no invasion
of his private property rights," and thus, by
implication, modifies the rule of the
Druecker case.

If this is sound, then the Wisconsin rule is
that quasi-judicial officers are liable for
negligence only when property rights are
invaded and when there is no redress other
than action against the officer.

No discussion. can be entered into as to when
property rights are affected under the
poor-law enforcement.

Obviously, the question must be determined
upon the facts of a particular case.

We must next turn to a consideration of what
discretion, if any, is exercised by the poor
authorities.

In Steele v. Dunham, 26 Wis. 393, it was held
that the duties of the board of equalization
are "judicial in their nature, as opposed to
mere ministerial acts" (p. 396), and that
they were immune from an action for damages
when an as-with sessment was increased above
the true value of the property.

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The court said, as to liability when the
official acts are malicious and corrupt:

     . . . I am not so clear upon the
     question whether they ought not to be
     held personally liable when they act
     maliciously and corruptly."  (p. 397).

Houston v. State, 98 XVis. 481, follows the
rule mentioned in 24 A. L. R. 798, that
a health officer is liable who
exceeds his authority.

In his case, his discretion, if any, was in
determining the fact of cattle being
diseased; and, having erroneously
decided the fact, the court said
he was acting outside his authority.

This is analogous to the discretion, if any,
of the poor authorities, who must decide the
fact of need, and if the person is in need,
the law is mandatory in requiring relief.

Robinson v. Rohr, 73 Wis. 436, points out
that there may be governmental functions and
ministerial functions in con nection with the
same duty, and sheds light on the distinction
between the two. It is said, p. 441:

     If, as public officers, they owe only
     a  duty to the public amd are not liable
     to persons, yet, if they so act as to
     owe a duty to individuals, then their
     negligence therein is an individual
     wrong which may be redressed
     by private action.

The thing that distinguishes the
quasi-judicial act is the exercise of
judgment, the exercise of discretion.

It becomes essential, therefore, to discern,
what discetion rests in the poor authorities.

It is obvious that their discretion relates
to no other matter than a determination of
fact. - first, the fact as to whether there
is need; second, the fact as to what the
needs are.

In Houston v. State, supra, the court held
that an act performed on the basis of an
erroneous determination of fact was
outside of his authority.

There apparently was not much discretion
accorded to a determination of fact
in that instance.

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State ex ret. Gilt v. Common Council, 9 Wis.
254, dealt with the power of the council to
determine what was "due cause" for the
removal of a teacher.

The court said, p. 259:

     . . . This is a clear limitation of the
     power of removal, and if the council
     should remove without "due cause,"
     its action would be entirely
     unauthorized.
 

     But it was said that the council had
     a discretion to determine what
     was "due cause."

     This may be true, if nothing more was
     meant than that the council had to
     determine for itself in acting under
     this power, whether there was "due
     cause" of removal, and that in thus
     determining, it must exercise its
     best judgment or discretion.

     This is undoubtedly so. . . But this
     does not by any means make their
     action a case of discretion
     not to be controlled.

     Such discretion exists only where there
     is a decision on some subject which the
     law has given the power to decide on,
     with the intent that such decision
     should be final, unless changed by
     some direct appeal or review.

     There the officer exercising his
     discretion on a matter which the law
     authorizes him to decide, his decision
     will not be interfered with by mandamus.

The court goes on to point out that if the
council decided that a charge was "due cause"
which actually was not, such decision would
not be within the limits of their discretion.

In other words, it seems that where
discretion exists in finding a fact, it is
not within the range of that discretion to
find a fact so which is not so.

State ex rel. Carpenter v. Hastings,
10 Wis. 519, held that the bank comptroller
had discretion to determine what printing was
necessary for use of his department, but that
he could not, in exercise of such discretion,
determine that printing was necessary which
was not in fact required.

In Harley v. Lindemann, 129 Wis. 514, the
court recognized the right to mandamus the
school board to recognize the right of
children to use illegally discarded
textbooks, although the choice
of textbooks was discretionary.

The illegality consisted in changing books
at shorter intervals than the statute
permitted. There is no discussion of
the discretionary power.

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In State ex rel. Pierce v. Board of Trustees,
158 Wis. 417, 433, it was said:

     The purposes of the appropriation and
     the authority of the trustees in the
     matter clearly conferred on them a
     discretion to determine when it would be
     for the best interests of the Institute
     to call for the moneys to pay for the
     cost of this building.

     This discretion must of course be
     exercised reasonably.

     It cannot be exercised in a way which is
     an evasion of a positive duty, nor in an
     arbitrary or capricious manner which
     amounts to a refusal of exercising a
     reasonable discretion.

We have here recognition that, even where
there is discretion, it must be exercised
within reasonable bounds.

To the same effect is
State ex ret. Koch v. Meims,
160 Wis. 274, 278, where it is said:

     It seems quite clear under this statute
     that the chairman is vested with broad
     power to determine whether the person
     attested is affiliated with the party
     or not.

     This being so, it is equally clear that
     thejudgment of the chairman cannot be
     disturbed unless he has abused the
     discretion or power vested in
     him by the statute.

     In other words, it must appear that the
     respondent abused his discretion in
     attesting or holding that the appellant
     was not affiliated with the
     Social Democratic Party.

We again itave a question of fact, and the
court indicates a willingness to interfere
when the fact is erroneously decided.

In State ex ret. Krause v. Jones,
196 Wis. 464, the discretion of the live
stock sanitary board was held not to extend
to an interpretation of "registered" as used
in a make it mean something not intended.

The board acted outside of its jurisdiction.

It should be noted that the requirements
of Section 49.01, Stats., for the relief
of the poor, are mandatory.

Meyer v. Town of Prairie du Chien,
9 Wis. 235.

True, the question of fact as to whether
or not the person requiring relief is in
need is one to be determined by the poor
authority, but that determination is not
wholly discretionary.

The right to relief depends upon the
actual fact, not upon caprice.

In Sweet Clinic v. Lewis County,
154 Wash. 416, 282 P. 832 (1929),
it was said, p. 423:

     . . . Commissioners of King county had
     full Power  and authority to determine
     whether S. was or was King county
     charge, and that if it had been
     determined that he was, it would
     have been the duty of the board
     to provide for him.

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The duty of the county commissioners being as
stated, we think it must be held that in the
exercise of their duty they are, to some
extent at least, subject to judicial
authority.

Of course, if the finding of fact as to the
need of the indigent is pure mistake,
then there does not exist the wilful
neglect of duty which is the basis
for a criminal action.

On the other hand, if the finding of fact by
the poor authorities is arbitrary, wilful,
and obviously wrong, and the court so
finds, then a criminal action would
undoubtedly be upheld.

I am of the opinion that, in Wisconsin,
the poor authorities may be prosecuted
criminally for wilful neglect of duty
in the care of the poor.

I am of the opinion that poor relief
officials are liable in damages to any
person who is damaged by their neglect to
comply with the mandatory requirements of
Section 49.01, and that an unreasonable
exercise of discretion in the determination
of the fact and extent of needs
is such neglect.

In these times, when counties and
municipalities may be without funds with
which to provide the relief to the needy
required by the statute, mention should be
made of the effect of such lack of funds upon
the liability of poor relief officials.

Mandamus will not lie to compel a public
official to perform a mandatory ministerial
duty requiring the expenditure of money when
the money is not available.

By analogy, the official cannot be held
either criminally or civilly for failing to
perform a duty requiring the expenditure of
money when the money is not available.

This accords with sound principles
of equity and justice.

FMW

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