In the case of Coughlin v. McElroy,72 Conn. 99, this court held, in effect, that the plaintiff in the present case had been elected as tax collector of the city of Bridgeport for the term beginning April 10th, 1899, and judgment in his favor to that effect was rendered in the Superior Court. Pending that contest, McElroy was in possession of the office and performed the duties thereof from April 10th, 1899, to August 8th of the same year. During this period, upon the facts found, it is clear that the plaintiff was the *Page 401 tax collector de jure, and the defendant McElroy was the tax collector de facto. While holding said office as de facto collector, McElroy received and still retains certain sums of money, which the plaintiff seeks to recover from the city, or from McElroy, as the fees and emoluments of said office belonging to him as collector de jure.
The record presents for consideration two main questions: 1. Is the de jure officer, upon the facts found, entitled to recover from the city the sums so received and retained by the de facto officer? 2. Is he entitled to recover them from the de facto officer?
Although questions of this kind have frequently been considered and passed upon elsewhere, they are, so far as we know, questions of first impression in this State; and as we have no statute upon the subject, they are to be decided by the rules and principles of the common law applicable thereto. The decision of the first question involves the decision of a subordinate one, namely, whether upon the facts found the city can be considered as having legally paid to McElroy the fees retained by him as collector de facto.
The plaintiff claims that under the city charter and ordinances it is the duty of the tax collector to pay over to the city the full amount collected, without deduction, and to present his claim for fees to the proper authorities; and that McElroy having failed to comply with the provisions of the charter and ordinances in this respect, the money retained by him for fees cannot be regarded as having been paid to him by the city. Assuming, without deciding, that the plaintiff is right in his construction of the charter and ordinances of the city in regard to this matter, still we think that upon the facts found, and for the purposes of this case, the city must be regarded as having paid to McElroy the sums by him retained.
The sums retained from time to time were the precise sums fixed by law as the fees of the collector, and for aught that appears of record they were due at the very time they were so retained, upon collections then turned over to the city; they were retained with the full consent and allowance of the *Page 402 city, upon the understanding between it and McElroy that they were payments; and they were so retained and allowed in the utmost good faith on the part of both, and in the full belief, on what then appeared to be reasonable grounds, that the payee was de jure, as he was de facto, the incumbent of said office. Payments of this kind to de jure collectors had been made in this way by the city for twenty years, and with full knowledge of the facts no one had questioned their validity. Fees retained by de jure tax collectors, under circumstances quite similar to those in the case at bar, have by our courts, in favor of sureties and taxing communities, been treated and regarded as payments; and we see no good reason in the present case why the fees retained by a de facto officer should not be regarded, in favor of the city, as having been paid to him by it. We think the evidence objected to was admissible to show such a payment, and that it was made in good faith; and that the city, as against the plaintiff, must be regarded as having paid to the de facto collector, in good faith and before he was ousted, the sums retained by him.
This being so, the question is whether the city having in good faith paid to the de facto officer, before judgment of ouster, the fees of the office, is liable to the de jure officer for such fees.
Upon this question the decisions of the courts of this country are in direct conflict. Quite a number of courts of high authority, among which may be mentioned those of California, Maine, Tennessee, Wyoming, and Pennsylvania, hold that such a payment does not protect the community against the claims of the de jure officer. Dorsey v. Smyth,28 Cal. 21; Andrews v. Portland, 79 Me. 484; Memphis v.Woodward, 12 Heisk. (Tenn.) 499; Rasmussen v. CarbonCounty, 8 Wyo. 277, 45 L.R.A. 295; Philadelphia v. Rink, 2 Atl. Rep. (Pa.) 505. On the other hand, the courts of a majority of the States that have had occasion to pass upon this question hold that such a payment does protect the community. Among the courts holding this doctrine may be mentioned those of the States of Michigan, New York, Missouri, Ohio, Kansas, Nebraska, and New Hampshire. Wayne *Page 403 County v. Benoit, 20 Mich. 176; Dolan v. Mayor, 68 N.Y. 274; McVeany v. Mayor, 80 id. 185; State v. Clark,52 Mo. 508; Westberg v. Kansas, 64 id. 493; Steubenville v. Culp,38 Ohio St. 18, 23; Commissioner of Saline County v. Anderson,20 Kan. 298; State v. Milne, 36 Neb. 301, 19 L.R.A. 689; Shannon v. Portsmouth, 54 N. H. 183.
It seems to us that the rule laid down in this last class of cases is in reason the better one. It rests upon the familiar and reasonable rule that persons having the right to do business with a de facto officer like the one in question, have the right to regard him as a valid officer, and the right to make payments to him without the risk of having to pay a second time. This is the rule that protected the taxpayers in making payments to McElroy, and there appears to be no good reason why it should not be applied to payments made by the city to him in good faith and before judgment of ouster. Our conclusion is that the city is not liable to the plaintiff for the fees paid by it to the de facto collector.
With regard to the plaintiff's fees due for collections made by him since he took possession of the office, he is of course entitled to them. It is admitted by the pleadings that he duly presented his claim and demanded payment from the city. It is true that the claim so presented was for the fees for the entire year; but the greater includes the less, and we think his claim and demand included the fees earned by and due to him since he took possession.
The next question is whether the plaintiff is entitled to recover from the de facto officer the fees paid to such officer by the city; and the answer to this depends upon the answer to the further question, whether this can be done at common law and without the aid of a statute.
The courts of this country that have had occasion to pass upon this last question have almost unanimously answered it in the affirmative. That, in cases like the present, the legal right to the office carries with it the right to the salary and emoluments thereof, that the salary follows the office, and that the de facto officer though he performs the duties of the office has no legal right to the emoluments thereof, are propositions *Page 404 so generally held by the courts as to make the citation of authorities in support of them almost superfluous. Nearly all, if not all, cases hereinbefore cited upon both views as to the liability of the city, hold that the de facto officer, for fees and emoluments of the office received by him, is liable at common law to the officer de jure. So far as we are aware the only well-considered case taking a contrary view of the law is that of Stuhr v. Curran, 44 N.J.L. 181, 186, and that was decided by a divided court standing seven to five. We think the able dissenting opinion of Chief Justice Beasley in that case shows conclusively that at common law, in a case like the present, the de jure officer is entitled to recover from the de facto officer. Another well-considered case directly in point in favor of this view is that of Kreitz v.Behrensmeyer, 149 Ill. 496, 24 L.R.A. 59. As before intimated, this court has not heretofore had occasion to decide a question similar to the one now under consideration, but in two cases at least the judges who wrote the opinion of the court have expressed views in harmony with what we hold to be the law. Thus, CHIEF JUSTICE SEYMOUR, in Samis v.King, 40 Conn. 298, 310, said: "The right to the salary of an office (as such, independent of actual and valuable services rendered) must on principle depend upon the legal possession of the office." It is a grave question whether a merely de facto officer, even when he actually performs the whole duties of the office, can enforce the payment of the salary. The authorities seem to be that he cannot. CHIEF JUSTICE BUTLER, in State v. Carroll, 38 Conn. 449, 471, says that a de facto officer "cannot collect his fees, or claim any rights incident to his office, without showing himself to be an officer de jure."
That this law will at times operate harshly against the defacto officer, and that it will so operate in the case at bar, must be conceded; and the seeming injustice of it is forcibly stated in the majority opinion of the New Jersey court before cited; but the courts must enforce the law as it is and not the law as they think it ought to be. If the law requires to be changed that must be left to the legislature. *Page 405
Our conclusion is that upon the facts found in this case the plaintiff is entitled to recover from McElroy the fees retained by the latter as an officer de facto.
The Superior Court is advised (1) to render judgment in favor of the plaintiff against the city of Bridgeport for the sum of $887.50 with interest from the date of demand, (2) to render judgment in favor of the plaintiff against McElroy for the sum of $4,775.02 with interest from the date of demand.
Costs in this court will be taxed in favor of the plaintiff.
In this opinion the other judges concurred.