Plaintiff's cause of action against defendant arose out of the following facts: He and defendant were rival candidates for the office of sheriff of Butte County at the general election held in November, 1902. On the canvass of the returns by the board of supervisors defendant was declared elected and a certificate of election was issued to him. In January, 1903, he entered upon the discharge of the duties of his office. Plaintiff in due time contested defendant's election, his action was tried and resulted in a judgment in his favor on the twenty-fourth day of January, 1903. The judgment decreed that the certificate of election issued to the contestee, defendant and respondent herein, be annulled and set aside, and that the county clerk issue to contestant, plaintiff and appellant herein, a certificate of election to the office of sheriff. The county clerk duly issued this certificate of election, Chubbuck qualified, and on the *Page 171 twenty-sixth day of January, 1903, demanded of Wilson possession of the office, which was refused. Wilson in due time appealed from the judgment in the election contest to this court, and on the twenty-fifth day of March, 1904, the judgment against him was affirmed. Upon the going down of the remittitur one month thereafter, — namely, on the twenty-fifth day of April, 1904, — Wilson surrendered the office to Chubbuck, who then took possession of it, and has since discharged its duties. Chubbuck then commenced his action, setting forth all these facts, and alleging that the respondent had wrongfully withheld said office from him from the twenty-fourth day of January, 1903, the date of the judgment of the superior court, until the twenty-fifth day of April, 1904, and prayed for damages for such unlawful withholding in the sum of eight thousand one hundred dollars, the amount of salary and fees received by defendant between these dates. Defendant demurred to this complaint upon the ground that it failed to state a cause of action in that it appeared that defendant had received the salary and fees pending the election contest, and that during all of that time the defendant held the certificate of election and was discharging the duties of the office. The demurrer was sustained and plaintiff appeals.
The action is in form for money had and received. It is based upon the well-established principle that a de jure officer, after recovering possession of the office, has a right of action against the intruder, and that the salary and fees received by such intruder are the measure of his damage. Such was the rule at common law, and such, generally, is the rule in all of the states which have adopted the common law as the basis of jurisprudence. (1 Chitty on Pleading, 100 m.p.; 8 Am. Eng. 810; Avis v.Stukey, 2 Mod. 260; Vaux v. Jefferson, 2 Dyer, 114.) In Dolan v.Mayor, 68 N.Y. 274, [23 Am. Rep. 168], it is said: "The exclusion of a de jure officer is a legal wrong committed by the intruder. In a legal view it is immaterial that the defendant may have acted in good faith or that he supposed he had the better title. A good motive is not an adequate answer to a claim for indemnity for a violated right. There is a great preponderance of authority in support of the doctrine that the de jure officer can recover as against the intruder, the damages resulting from the intrusion." *Page 172
Indeed, as we have read respondent's brief, that such a right of action exists, where not destroyed by statute, is conceded. But respondent insists that the statutory law of this state now deprives the successful litigant in a contested election case of this right. He admits that under section 807 of the Code of Civil Procedure such a right exists, as it has been declared to exist in People ex rel. Drew v. Rogers, 118 Cal. 383, [46 P. 740, 50 P. 668], where the action is strictly for usurpation of office under section 803 of the Code of Civil Procedure, but argues that this right is limited to that particular class of actions because of the present reading of section 936 of the Political Code.
Prior to 1891 that section read as follows: "When the title of the incumbent of any office in this state is contested by proceedings instituted in any court for that purpose, no warrant can thereafter be drawn or paid for any part of the salary until such proceedings have been finally determined." In 1891 the legislature amended this section by adding the following: "provided, however, that this section shall not be construed to apply to any party to a contest or proceeding now pending or hereafter instituted who holds the certificate of election or commission of office, and discharges the duties of the office; but such party shall receive the salary of such office the same as if no such contest or proceeding was pending." Upon the construction of this section as amended, respondent cites Bledsoe v. Colgan, 138 Cal. 34, [70 P. 924]; Wilson v. Fisher, 140 Cal. 188, [73 P. 850]; and Anderson v. Browning, 140 Cal. 222, [73 P. 986], and, from his reading of these cases, declares that they are absolutely determinative of the case, and leave no ground for argument as to the soundness of the ruling of the court in sustaining the demurrer. It is important to consider, therefore, just what these cases do decide. Bledsoe v. Colgan was an original proceeding for mandate, brought against the state controller, asking that he be ordered to draw his warrant in favor of Bledsoe for salary as judge of the superior court. It was shown that in a quo warranto proceeding brought by Bledsoe to contest the right of John L. Campbell to hold the office, the trial had resulted in a judgment that Bledsoe had been duly elected to the office and should take possession thereof upon qualifying and taking oath, and that subsequently Bledsoe *Page 173 had so qualified and taken possession of the office, and had continuously performed the duties thereof. The defendants in thequo warranto proceedings had appealed from the judgment, and the appeal was pending at the time of this application for mandate. This court held that, under these circumstances, the judgment in mandate could not be considered the equivalent of the certificate of election contemplated by section 936 of the Political Code, saying that the commission of office which he was given by the judgment was not the same as the certificate of election which the law declared he must hold to become entitled to the salary while litigation was pending. "Prior to 1891," says this court, "when litigation arose contesting the title to an office, no salary could be paid to the incumbent of the office until that litigation was finally determined. But the legislature, recognizing the extreme harshness of this rule, made the exceptions found in the aforesaid proviso." Thus, what Bledsoe v.Colgan decides is, first, that the proviso to section 936 of the Political Code is valid and entitles the state, or other disbursing officer, to pay, and the incumbent who holds a certificate of election to receive the salary or emoluments of the office. Anderson v. Browning, 140 Cal. 222, [73 P. 986], was an appeal from a judgment of the superior court of Yolo County, directing the issuance of a peremptory writ of mandate requiring the defendant, as auditor of the county, to draw his warrant on the county treasurer in favor of the plaintiff as salary of the plaintiff as district attorney. Anderson had been declared elected and a certificate of election had been issued to him, and he had qualified by taking the official oath and had entered upon the discharge of his duties. His opponent, Huston, had instituted a contest of Anderson's right, and a trial had resulted in a judgment in favor of Huston. Anderson had appealed to this court and the appeal was pending at the time of the demand made upon the auditor, who refused to draw his warrant under the indicated circumstances. It was held that mandate should issue, that the appeal by Anderson stayed the operation of the judgment, and that the certificate of election continued unimpaired during the pendency of the appeal; therefore, that Anderson occupied the position of incumbent who held a certificate of election, and, under section 936 of the Political Code, was entitled to draw the salary. *Page 174 Wilson v. Fisher, 140 Cal. 188, [73 P. 850], was in principle and in decision identical with the last-cited case. Collectively, then, these cases decide that under the proviso of section 936 of the Political Code the incumbent, who has received the certificate of election, is entitled to draw the salary of the office, and the state, or county, or municipality, is compelled to pay that salary until final determination of the right upon appeal, even though the trial court may have decided against his claim of title to the office. But in none of these decisions, it will be noticed, is there a single word touching the right of private action which exists against one who is a usurper of office. And an officeholder who continues to hold office after judgment by the superior court, notwithstanding that his appeal may suspend the operation of that judgment, is a usurper from the date of that judgment, if the decision upon appeal shall be adverse to him. Such has been the settled law of this state sinceDorsey v. Smyth, 28 Cal. 21, where it is said: "It was the duty of defendant when judgment was rendered against him in the contest, to have surrendered the office. He was presumed to know the law, and acted at his peril." So in People v. Potter, 63 Cal. 127, it is said: "After the judgment in the superior court there was no legal obligation upon him to hold; on the contrary, the law made it his duty to surrender the office to his successor. If he did not he acted at his peril."
What then is the meaning of the amendment to section 936 of the Political Code? Before that amendment, while a contest over an office was pending and until the final decision of such contest, the disbursing officers could draw no warrant in favor of either party without peril of becoming themselves liable in case, ultimately, title should be found in another, for the rule of law was that the salary was an incident, not to the tenure, but to the legal title, and in whomsoever the legal title should be shown to exist, to him belonged the salary. So far, therefore, as the disbursing officers were concerned, since they could not pay, excepting at their own peril, the result was that no payments were made at all, and this resulted in injury to the service of the state, since it must often follow that service would not be performed well, if at all, by one who would have to look elsewhere than to the salary for his very living expenses during a protracted period of litigation. In *Page 175 contemplation of this situation, which had actually arisen, the amendment was passed, and, for the good of the public service, it declared that, as between the state and the incumbent holding a certificate, the state would pay to him the salary of the office, and the disbursing officers, upon such payment, would be relieved from all liability. (Wilson v. Fisher, 140 Cal. 188, [73 P. 850].) It nowhere said that as between such incumbent and the legal and rightful claimant of the office such rightful claimant would not have this action against the incumbent for the illegal and unlawful withholding. The government is keenly interested, as a matter of fundamental principle, in seeing that its duly elected officers shall have and hold their offices. But to deprive such a duly elected officer from ever receiving the emoluments of an office by ordering the salary paid to an incumbent holding unlawfully, and then to say that the legal officer should have no right of action for a recovery against such an incumbent, would be to put a premium upon frivolous appeals, and be a declaration that the state was not interested in seeing that its legally elected and qualified officers were seated, but, to the contrary, that it designed the emoluments of an office to go to him who, by hook or crook, could get possession of it with a certificate of election. Moreover, as we have seen, section 807 of the Code of Civil Procedure does make provision for the recovery of damages by the one who proves his legal title against an intruder, and these damages are, of course, the cost of his litigation, with the salary or fees of the office which the intruder has received. An action for usurpation of office can be brought as well against one holding the certificate of election and drawing the salary as can an election contest pure and simple. Shall it be said that this private right to damages depends merely upon the form of action, and that if the claimant adopts the expeditious mode of an election contest, he shall not have a right to recover damages, while if he adopts the more circuitous proceeding of obtaining permission of the attorney-general to proceed in quo warranto, if successful in this litigation, he may recover these damages? There is neither logic, nor common sense, nor yet the mandate of the law, to compel such a conclusion.
As we have seen, the defendant became an intruder by holding possession of the office after the judgment of the superior *Page 176 court. He had, of course, the right to appeal, and he had the right to draw the salary until the appeal was determined. Upon the other hand, he could have surrendered the office and still have prosecuted his appeal. Acting as he did, he acted at peril of the result.
It is, therefore, ordered that the judgment be reversed and the demurrer be overruled with leave to the defendant to answer.