ON MOTION FOR REHEARING. Relator insists that it is entitled to a rehearing for the reason, among others, that our original opinion herein is contrary to the overwhelming weight of authority to the effect that payment to a de facto officer of the salary incident to the office is a complete defense to an application of the dejure officer, upon his restoration to office, for mandamus to compel the payment of the salary to him. The efficacy of such defense was not considered, because not raised by either pleading or brief on behalf of relator. The contention was, that to compel Kansas City to pay Pickett and others for services which they had not performed, but which had been performed by others who had been paid therefor, would violate designated provisions of the State and Federal Constitutions; and all that is said in Paragraph III of the opinion is with reference to that *Page 553 contention. We still adhere to the views there expressed touching the alleged constitutional questions.
The question now raised is whether payment to a de facto officer of the salary incident to the office, during the time he is in possession of the office and discharging all the duties thereof, is a defense to a suit by the de jure officer, upon his restoration to office, to recover the same salary from the municipality, county or state, as the case may be. This precise question, so far as we have been able to ascertain, has never been passed upon by this court. The earliest case in which we find any direct reference to it is State ex rel. v. Clark, State Auditor, 52 Mo. 508. That was a suit in mandamus to compel the State Auditor to issue a warrant for salary to an officer whose right to the office had been called in question by a pending proceeding in quo warranto instituted by the Attorney-General. The Auditor's refusal to issue the warrant was based on a statute which made it the duty of the Auditor, when an office was contested by two or more persons claiming a right thereto, to withhold salary warrants, unless the contestee gave bond to the contestor, conditioned that if, upon a final determination of the rights of the contestants, the obligor was found not entitled to the office, he would pay over to the obligee the amount of salary, etc. The matter in decision was the proper construction to be put upon the statute, but in the course of the opinion it was said:
"It is also insisted that, as the primary object of the act was to protect the Treasury against what is claimed to be unjust and illegal demands, it therefore applies to a contest by the State, as well as to a contest by an individual. This view results from the erroneous assumption, that the State would incur a double liability if the proceeding now pending against the relator should result in ousting him from the office, and that he is not entitled to the salary received in the meantime. The commission issued to the relator invested him with the title, and is prima-facie evidence of his right to the office. It gave him the possession and the power to exercise its functions, of which he could be deprived only on due process, in the manner prescribed by law. [State ex rel. Vail v. Draper, 48 Mo. 213.] He alone is entitled to the emoluments of the office, until the State, by a proper proceeding, has revoked the authority with which it has invested him. Meanwhile the auditor cannot rightfully withhold the salary. There could therefore be no legal claim against the State for the salary so paid on the part of one who might hereafter establish a better right to the office. His recourse, if he has any, would in such case be against the relator, not the State. [Auditor of Wayne Co. v. Benoist and the authorities there cited, 20 Mich. 176; Hunter v. Chandler. 45 Mo. 452.]" *Page 554
In State ex rel. Chapman v. Walbridge, 153 Mo. l.c. 203, it was said: "The legal right to the office carried with it the right to the salary. The board by its wrongful act could not deprive him of this legal right. The right of a public officer to the salary of his office is a right created by law, is incident to the office, and not the creature of contract, nor dependent upon the fact or value of services actually rendered." This language was used in passing upon the contention that the relator, who had been wrongfully removed from the office of policeman by the Board of Police Commissioners of the City of St. Louis, had after his removal rendered no actual services and had not offered to do so.
In Gracey v. St. Louis, 213 Mo. l.c. 397, we find this: "Here plaintiff was not `removed' as that term is understood in the law. What was done was not legally done and therefore had no legal effect. Another was assigned his duties and that other was paid by the city. That was the city's affair, if it chose to take such course with its attending consequences. Plaintiff remained in office, and the point is controlled by the general proposition of law that his right to the salary during his term, until legally removed, was independent of his actual performance of any duties whatever."
In that case the plaintiff had been wrongfully removed as inspector of boilers and the specific language just quoted was used in discussing and passing upon the defendant's contention that plaintiff had "abandoned his office; resigned by acquiescing in his removal, taking no steps to oust his successor, try title, etc."
In State ex rel. Hamilton v. Kansas City, 303 Mo. l.c. 74-5, the foregoing excerpts from the Chapman and Gracey opinions were quoted approvingly, but in answer to "the argument that relator has not performed the duties of the office since his removal, and that another has done so and has been paid for so doing."
In none of the cases to which reference has just been made does it appear that the question, whether payment to a de facto officer constitutes a defense pro tanto to a suit by the dejure officer to recover the salary which accrued during the time the latter was deprived of the office, was considered or passed upon.
According to the overwhelming weight of authority elsewhere: "Disbursing officers charged with the duty of paying official salaries have, in the discharge of that duty, a right to rely upon the apparent title of an officer de facto, and to treat him as an officer de jure, without inquiring whether another has the better right; and payment of the salary of an office to ade facto public officer, made while he is in possession is a good defense to an action brought by the de jure officer to recover the same salary after he has acquired or regained possession: Shaw v. Pima County, 2 Ariz. 399; Board of Commrs. of El Paso County v. Rhode, 41 Colo. 258; Coughlin v. McElroy, *Page 555 74 Conn. 397; Saline County Commrs. v. Anderson, 20 Kan. 298; Bradley v. City of Georgetown, 118 Ky. 735; Walters v. City of Paducah (Ky.), 123 S.W. 287; Wayne County Auditor v. Benoist,20 Mich. 176; Parker v. Board of Supervisors of Dakota County,4 Minn. 59 (Gil. 30); State v. Clark, 52 Mo. 508; State v. Milne,36 Neb. 301; Dolan v. City of New York, 68 N.Y. 274; Terhune v. City of New York, 88 N.Y. 247; Demarest v. New York, 147 N.Y. 203; Chandler v. Hughes County, 9 S.D. 24; Samuels v. Town of Harrington, 43 Wash. 603."
For a statement of the underlying reasons for the rule we quote at length from Dolan v. City of New York, supra, a leading case:
"We are of opinion that payment to a de facto public officer of the salary of the office, made while he is in possession, is a good defense to an action brought by the de jure officer to recover the same salary after he has acquired or regained possession. . . .
"If fiscal officers, upon whom the duty is imposed to pay official salaries, are only justified in paying them to the officer de jure, they must act at the peril of being held accountable in case it turns out that the de facto officer has not the true title; or, if they are not made responsible, the department of the government they represent is exposed to the danger of being compelled to pay the salary a second time. It would be unreasonable, we think, to require them, before making payment, to go behind the commission and investigate and ascertain the real right and title. This, in many cases, as we have said, would be impracticable. Disbursing officers, charged with the payment of salaries, have, we think, a right to rely upon the apparent title, and treat the officer who is clothed with it as the officer de jure, without inquiring whether another has the better right.
"Public policy accords with this view. Public offices are created in the interest and for the benefit of the public; such, at least, is the theory upon which the statutes creating them are enacted and justified. Public and individual rights are, to a great extent, protected and enforced through official agencies, and the State and individual citizens are interested in having official functions regularly and continuously discharged. The services of persons clothed with an official character are constantly needed. They are called upon to execute the process of the courts and to perform a great variety of acts affecting the public and individuals. It is important that the public offices should be filled, and that at all times persons may be found ready and competent to exercise official powers and duties. If, on a controversy arising as to the right of an officer in possession, and upon notice that another claims the office, the public authorities could not pay the salary and compensation of the office to the de facto officer, except at the peril of paying it a second time, if the *Page 556 title of the contestant should subsequently be established, it is easy to see that the public service would be greatly embarrassed and its efficiency impaired. Disbursing officers would not pay the salary until the contest was determined, and this, in many cases, would interfere with the discharge of official functions.
"It is well settled that the acts of an officer de facto are valid so far as they concern the public or the rights of third persons who are interested in the things done. [People v. Hopson, 1 Denio 574, and cases cited.] `Society,' says BRONSON, C.J., in that case, `could hardly exist without such a rule.' The principle is, that those dealing with officers clothed with an apparent title should be protected, and that they should not be compelled to go beyond that and trace the title to its source. The case of the government paying a salary to an officer defacto is, we think, within the same protection, and that such payment is a defense to an action by the officer de jure against the officer or body charged with the duty of paying salaries to recover it. This does not deprive the person who has been wrongfully deprived of his office of a remedy. He may recover his damages for the wrong against the usurper; and the amount of salary, if not the fixed measure, may be considered by the jury in assessing the damages."
And the rule applies in suits for salary by persons in the civil service who have been wrongfully deprived of their offices just as it does in the case of suits by other de jure public officers. [People v. Schmidt, 281 Ill. 211; State ex rel. v. Shook, 283 Ill. 124.]
In this State a de facto officer, that is, one in possession of the office and discharging all the duties pertaining thereto, under color of right, can compel by mandamus the payment of the salary incident to the office; and in such proceeding his right and title to the office cannot be inquired into. [State ex rel. v. Gordon, 236 Mo. 159; State ex rel. v. John, 81 Mo. 13; State ex rel. v. Clark, supra; State ex rel. v. Draper, supra; Hunter v. Chandler, 45 Mo. 457; Dickerson v. City of Butler,27 Mo. App. 9.] If therefore the person who was appointed to succeed Pickettwas a de facto officer, he could, so long as he continued to be a de facto officer, have compelled the disbursing officers of Kansas City to pay the salary of the office to him, notwithstanding they might have had every reason to believe that Pickett had been wrongfully removed. Could Pickett then stand by during such time — he waited five years it appears — and then compel the city to pay the same salary to him? If he and the two or three hundred others could, and can do that, then there is just ground for the apprehensions, amounting almost to hysteria, which have been manifested here and there on the part of official Kansas City.
Some of the cases hold that, in order for payment of salary to a de facto officer to absolve the municipality, county or state from liability *Page 557 to the one legally entitled to the office, such payment must be made in good faith. This qualification is well enough, if by it is meant that the government cannot relieve itself of liability to the de jure officer by payment of salary to a mere interloper who has intruded himself into the office without any color of right; or to a de facto officer after it has been judicially determined that he is not also the de jure officer. [Jones v. City of Buffalo, 178 N.Y. 45.] Nor can fault be found with the decision of the Kansas City Court of Appeals in Luth v. Kansas City, 203 Mo. App. 110, on the facts of that case, that payment of salary to a de facto officer is not a defense to a suit by the de jure officer, where such payment was made during the pendency of a proceeding to determine the title to the office, and in bad faith for the purpose of forestalling the decision of the court therein. But for the reasons pointed out in the preceding paragraph mere knowledge on the part of disbursing officers that a third person is claiming title to an office should not prevent payment to a de facto officer from effectually discharging the municipality's liability for salary.
However, the defense which we have just been considering, if it exist, is one which must be pleaded and proved in each individual case in order to be available. Its potential existence does not deprive the circuit court of jurisdiction, and for that reason cannot be made a ground for prohibition here.
Other matters urged in connection with the motion for a rehearing have been heretofore fully considered and passed upon.
The motion is overruled. White and Atwood, JJ., concur;Graves and Walker, JJ., concur in part and dissent in part in a separate opinion by Graves, J.; Blair, C.J., concurs in overruling motion for rehearing; Gantt, J., not sitting.