Taylor, J.
1. The first objection taken to the complaint in this court by the learned counsel for the respondent is, that it does not show that the money ever belonged to the town of La Pointe. The ground of this objection is, that when the lands were sold from which the money was derived, the town of La Pointe covered the whole area of the county of Ashland — the town of Ashland not having been formed or organized until after sueh sales had all been made, viz., the second of July, 1872; and that therefore the allegation in the complaint “ that all the lands so sold were, at the time said sales were made, situate in said town of La Pointe, and none of such lands were within the limits of the town of Ashland,” does not show that none of said lands were situate within the limits of the town of Ash-land after the same was organized. The allegation that they were, when sold, within the limits of the town of La Pointe, might be strictly true at the time when they were sold, as at that time the town of La Pointe covered the whole county, and still [255]*255they might be within the limits of the town of Ashland after the formation of such town.
We are inclined to hold that this criticism upon the meaning of this allegation is not well taken. We think the allega-gation must be construed as relating to the limits of the towns as they existed at the time of the commencement of the action, and that the proper construction is, that the lands were within the limits of the town of La Pointe as then bounded, and not within the limits of the town of Ashland as then bounded. The further allegation in the complaint, which alleges that the descriptions of all said lands in the certificate of the commissioners show them to be situated in the limits of the town of La Pointe, this plaintiff, removes any doubt or ambiguity in the previous allegation; as the latter allegation clearly means the town of La Pointe as bounded at the time of the commencement of the action.
The want of an allegation in the complaint that the county clerk of the county made a distribution of the said sum of $24,592 amongst the several towns of the county, as required by section 11, ch. 537, Laws of 1865 (sec. 255, E. S. 1878), is cured, we think, by the general allegation that the county treasurer duly passed said moneys to the credit of the plaintiff town, and paid the same in fact into the treasury of said town, "and that the money came into possession of said town. These allegations, connected with the other allegations showing conclusively that the plaintiff town was entitled to receive the whole money, show with sufficient clearness that the possession and title to said money were in the plaintiff at the time it is alleged to have been unlawfully paid over to and received by the defendant town.
There is no dispute between the parties to the action that, under the provisions of the laws of this state, the plaintiff town is entitled to the whole sum of $24,592, if such sum was received from the sales of swamp and overflowed lands situate within the limits of said town as the same was bounded at the time [256]*256the money was received by the county treasurer from the commissioners of the school and university lands; and, as we understand the allegations of the complaint, it sufficiently shows that such was the fact. Nor is it disputed that the defendant town is liable to the plaintiff for the said sum of $10,000 received by it and appropriated by it to its public purposes, unless we shall hold that the whole law of this state regulating the distribution of the moneys derived from the sale of the swamp and overflowed lands is void.
2. It is insisted by the learned counsel for the respondent, that the laws of this state regulating the distribution of the moneys derived from the sale of swamp and overflowed lands are void, because they violate the provisions of the act of congress donating them to the state. If such laws were void for that reason, still we are of the opinion that the defendant could not avail himself of that fact as a defense to this action.
It seems to us quite clear that the treasurer of the plaintiff town could not, in an action against him for refusing to pay the money so received to the town or to his successor in office, have defended on the plea that the laws in pursuance of the provisions of which he received the money were void, because they violated the trust created by the act of congress. Having received the money under the provisions of the law, for the use of the town, he is estopped from setting up that the law is void. lie must hold the money subject to the provisions of the law under which he received it, until he has been coerced by some higher and superior power to hold the same for some other purpose. Having received the money for the use of his town as a public officer, he cannot convert it to his own use and set the town at defiance on the plea that the law under which he received it was void, and that the town has therefore no right to the money. We think this question has been settled by this court in the cases of Bullwinkel v. Guttenberg, 17 Wis., 583, and Cairns v. O’Bleness, 40 Wis., 469.
In the first case it was held that the treasurer of the town [257]*257must pay over to his successor in office all moneys collected by him as such treasurer, although they were in excess of the sums authorized by law to be collected by the town. This the court say was a matter between the town and the taxpayer, and not between the treasurer and the town. He, having received the money in his capacity as treasurer for the town, must account to the town for it.
• In the case of Cairns v. O’Bleness, the treasurer of the town refused to pay over money collected by him as its treasurer;- and' one ground of defense was, that he had collected the money ripon the tax roll without having any warrant directing him to collect the same. Upon this point the chief justice says: “ It. appears that the treasurer collected the tax without a warrant as' required by the statute. But he collected it for the town, vvrtute officii; and, having done so, could not retain the money as his own upon the ground that his authority was imperfect. He might have declined to- collect the tax without warrant;having collected it upon the tax roll, for the town, he could not,, be heard to claim that he collected it for himself.” The same rule has been sustained to its full extent by the courts of Vermont and Maine. Town of Lyndon v. Miller, 36 Vt., 329; Inhabitants of Trescott v. Moan, 50 Maine, 347.
In the last cáse cited the court say: ' “But it is contended that the proceedings of the town were irregular, informal and illegal. This is manifestly itrue. It is not often that such a medley of irregularities is exhibited in the proceedings of our-municipal corporations. But the question is, Are these irregularities of .such a character as to exonerate the defendants from paying over money which they have collected by virtue of these proceedings from the citizens, and to which they have no title, equitable or legal? The authorities, as well as every moral principle, negative such a proposition.” So, in the case at bar, had the action been against the town treasurer of the. town of La Pointe to compel him to pay over this money to his successor, he, having received the same for the use of his [258]*258town, by virtue of his office as town treasurer, would not be permitted to allege that the law under which he received it was void.
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Taylor, J.
1. The first objection taken to the complaint in this court by the learned counsel for the respondent is, that it does not show that the money ever belonged to the town of La Pointe. The ground of this objection is, that when the lands were sold from which the money was derived, the town of La Pointe covered the whole area of the county of Ashland — the town of Ashland not having been formed or organized until after sueh sales had all been made, viz., the second of July, 1872; and that therefore the allegation in the complaint “ that all the lands so sold were, at the time said sales were made, situate in said town of La Pointe, and none of such lands were within the limits of the town of Ashland,” does not show that none of said lands were situate within the limits of the town of Ash-land after the same was organized. The allegation that they were, when sold, within the limits of the town of La Pointe, might be strictly true at the time when they were sold, as at that time the town of La Pointe covered the whole county, and still [255]*255they might be within the limits of the town of Ashland after the formation of such town.
We are inclined to hold that this criticism upon the meaning of this allegation is not well taken. We think the allega-gation must be construed as relating to the limits of the towns as they existed at the time of the commencement of the action, and that the proper construction is, that the lands were within the limits of the town of La Pointe as then bounded, and not within the limits of the town of Ashland as then bounded. The further allegation in the complaint, which alleges that the descriptions of all said lands in the certificate of the commissioners show them to be situated in the limits of the town of La Pointe, this plaintiff, removes any doubt or ambiguity in the previous allegation; as the latter allegation clearly means the town of La Pointe as bounded at the time of the commencement of the action.
The want of an allegation in the complaint that the county clerk of the county made a distribution of the said sum of $24,592 amongst the several towns of the county, as required by section 11, ch. 537, Laws of 1865 (sec. 255, E. S. 1878), is cured, we think, by the general allegation that the county treasurer duly passed said moneys to the credit of the plaintiff town, and paid the same in fact into the treasury of said town, "and that the money came into possession of said town. These allegations, connected with the other allegations showing conclusively that the plaintiff town was entitled to receive the whole money, show with sufficient clearness that the possession and title to said money were in the plaintiff at the time it is alleged to have been unlawfully paid over to and received by the defendant town.
There is no dispute between the parties to the action that, under the provisions of the laws of this state, the plaintiff town is entitled to the whole sum of $24,592, if such sum was received from the sales of swamp and overflowed lands situate within the limits of said town as the same was bounded at the time [256]*256the money was received by the county treasurer from the commissioners of the school and university lands; and, as we understand the allegations of the complaint, it sufficiently shows that such was the fact. Nor is it disputed that the defendant town is liable to the plaintiff for the said sum of $10,000 received by it and appropriated by it to its public purposes, unless we shall hold that the whole law of this state regulating the distribution of the moneys derived from the sale of the swamp and overflowed lands is void.
2. It is insisted by the learned counsel for the respondent, that the laws of this state regulating the distribution of the moneys derived from the sale of swamp and overflowed lands are void, because they violate the provisions of the act of congress donating them to the state. If such laws were void for that reason, still we are of the opinion that the defendant could not avail himself of that fact as a defense to this action.
It seems to us quite clear that the treasurer of the plaintiff town could not, in an action against him for refusing to pay the money so received to the town or to his successor in office, have defended on the plea that the laws in pursuance of the provisions of which he received the money were void, because they violated the trust created by the act of congress. Having received the money under the provisions of the law, for the use of the town, he is estopped from setting up that the law is void. lie must hold the money subject to the provisions of the law under which he received it, until he has been coerced by some higher and superior power to hold the same for some other purpose. Having received the money for the use of his town as a public officer, he cannot convert it to his own use and set the town at defiance on the plea that the law under which he received it was void, and that the town has therefore no right to the money. We think this question has been settled by this court in the cases of Bullwinkel v. Guttenberg, 17 Wis., 583, and Cairns v. O’Bleness, 40 Wis., 469.
In the first case it was held that the treasurer of the town [257]*257must pay over to his successor in office all moneys collected by him as such treasurer, although they were in excess of the sums authorized by law to be collected by the town. This the court say was a matter between the town and the taxpayer, and not between the treasurer and the town. He, having received the money in his capacity as treasurer for the town, must account to the town for it.
• In the case of Cairns v. O’Bleness, the treasurer of the town refused to pay over money collected by him as its treasurer;- and' one ground of defense was, that he had collected the money ripon the tax roll without having any warrant directing him to collect the same. Upon this point the chief justice says: “ It. appears that the treasurer collected the tax without a warrant as' required by the statute. But he collected it for the town, vvrtute officii; and, having done so, could not retain the money as his own upon the ground that his authority was imperfect. He might have declined to- collect the tax without warrant;having collected it upon the tax roll, for the town, he could not,, be heard to claim that he collected it for himself.” The same rule has been sustained to its full extent by the courts of Vermont and Maine. Town of Lyndon v. Miller, 36 Vt., 329; Inhabitants of Trescott v. Moan, 50 Maine, 347.
In the last cáse cited the court say: ' “But it is contended that the proceedings of the town were irregular, informal and illegal. This is manifestly itrue. It is not often that such a medley of irregularities is exhibited in the proceedings of our-municipal corporations. But the question is, Are these irregularities of .such a character as to exonerate the defendants from paying over money which they have collected by virtue of these proceedings from the citizens, and to which they have no title, equitable or legal? The authorities, as well as every moral principle, negative such a proposition.” So, in the case at bar, had the action been against the town treasurer of the. town of La Pointe to compel him to pay over this money to his successor, he, having received the same for the use of his [258]*258town, by virtue of his office as town treasurer, would not be permitted to allege that the law under which he received it was void. Having received the money as the treasurer of the town, he must account to the town for it, unless he can show, as above stated, that he has been lawfully compelled, by some superior power or authority, to pay it over for some other lawful purpose.
We think the defendant town can have no better title to retain this money than the treasurer from whom it was received. The order of the county board, directing the payment of this money to the defendant town, was simply void, and conferred no authority on the treasurer of the plaintiff town to pay over the money, nor upon the defendant town to receive it. For the purposes of this demurrer, the defendant town must be held to have known, when it took and used the $10,000, that it had no right to receive the same, and that the treasurer of the plaintiff had no right to pay the same over to it; and, having received the money and appropriated it to the public uses of the town, it must respond to the plaintiff.
But we do not think the daws of the state upon the subject of the distribution of the moneys derived from the sale of the swamp and overflowed lands are void because they violate the trust, if any there be, imposed upon the -state by the act of congress granting the same to the state. That part of the act of congress which is supposed to limit the power of the state in the distribution of such funds, reads as follows: “ That the proceeds of said lands, whether from sale or direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of levees and drains aforesaid.”
The power to decide what part of the proceeds of the sales of these lands, or of the lands- themselves, it is necessary to appropriate for the purposes of their drainage and reclamation, must be vested in the legislature of the state, as there is no other authority in the state which can determine that ques[259]*259tion. This was intimated very strongly by this court in State v. Hastings, 11 Wis., 418, 453. The title to these swamp lands is vested in the state by virtue of the grant made by congress. The state has full power, therefore., to sell and transfer the lands, and no trust fastens upon or follows the lands. The trust imposed by the act is a personal one, and is obligatory only upon the state.
The supreme court of the United States say, in regard to the trust created upon the 'donation of lands to the state for the support of schools: “The trusts created by these compacts relate to a subject, certainly of universal interest, but of municipal concern, over which the power of the state is plenary and exclusive. In the present instance the grant is to the state directly, without limitation of its power, though there is a sacred obligation imposed on the public faith.” Cooper v. Roberts, 18 How., 173, 182. In Dunklin County v. The District County Court of Dunklin County, 23 Mo., 449, the supreme court of Missouri held that the trust created by the act of congress granting the swamp lands to the state was a personal trust reposed in the public faith of the state, and not a property trust fastened upon the land.
In Barrett v. Brooks, 21 Iowa, 144, the supreme court of the state of Iowa held: first, that under said act of congress the fee-simple title to the swamp lands passed to the state, and the legislature might dispose of the same; and second, that the United States is the only party which can enforce the trust coupled with said grant, to apply the funds arising from the sale of such lands “ exclusively, as far as necessary, to the purpose of reclaiming the lands.” It cannot be enforced on the application of a private citizen. In this last case the supervisors of the county, under the authority of a law of the state, appropriated $7,000 of the swamp-land fund to aid in the building of bridges in the county. A citizen undertook to restrain such appropriation, on the ground that it was a diversion of the fund from the purposes contemplated by the act of [260]*260congress. Judge Dillon, who delivered the opinion of the court, says: “The United States is the donor. Admit that the state or the county holds the lands charged with a trust to apply the proceeds, as far as necessary, to the reclamation of said lands: who can enforce this trust? The United States might. But it seems to us that it would never do to allow a single citizen ■ to allege that certain drainage is necessary in his neighborhood, or in the county, and permit him to maintain a bill to settle this as a judicial question. The court will then be obliged to receive testimony touching the question whether all necessary drains and levees in the county have been constructed for the reclamation of swamp and overflowed lands. The United States, in this grant, deals with the states, and not with counties or individuals. If the United States is satisfied with the disposition which the state has made, or authorized to be made, of these lands, individual citizens must remain content.” The same doctrine is, in substance, held by the supreme' court of the United States in Schulenberg v. Harriman, 21 Wall., 44.
In Supervisors v. State’s Attorney, 31 Ill., 68, 78, 79, the supreme court of the state of Illinois hold that the grant of the swamp lands to the states was absolute, and that the act did not even impose a trust upon the state to apply the proceeds of the same to their reclamation; and that the state had the power and right to dispose of such proceeds for any purpose which the legislature should determine was for the interest of the state. And in the same case the court holds that if a trust was imposed by the act of congress, there was no way to enforce it unless the United States should interfere. The same doctrine was reiterated in Newell v. Supervisors, 37 Ill., 253.
■ These authorities fully support the position that the legislature have full power to dispose of the proceeds of the sales of swamp lands, at least as against everybody except the United States; and that no person or corporation can be per[261]*261mitted to avoid any responsibility wbicli lias ' been assumed under tbe laws of tbe state in regard to tbe proceeds of tbe sales of these lands, on tbe ground that’ such proceeds are appropriated to a use which is not authorized by the grant of congress, or which, is in violation of the trust imposed upon the state by such act.
JBy the Court. — The order of the circuit court is reversed, and the cause remanded for further proceedings according to law. •