The opinion of the court was delivered by The plaintiff filed his complaint in the probate court of Oklahoma county, in which he alleged that on the 1st day of May, 1889, the defendant was organized as a municipal corporation and the voters thereof elected a mayor, city recorder, city treasurer, police judge and common council, who qualified before a United States commissioner and entered upon the discharge of their duties as such officers; that they continued to act as a municipal corporation and perform all the powers and duties as such until the 22d day of July, 1890, when said acting corporation was organized as a village corporation under and by virtue of the laws of the state of Nebraska, which had been adopted and extended over the Territory of Oklahoma by the act of Congress approved May 2, 1890, and said de jure corporation succeeded to all the property, rights, franchises, improvements and assets of the former municipality; that said village corporation maintained its corporate existence and exercised its powers and authority *Page 294 until the 9th day of August, 1890, at which time the defendant was reorganized as a city of the second class, under the laws so adopted as aforesaid, and succeeded to all the property, improvements, rights, franchises and archives of its predecessor, and the said city of Oklahoma City exercised all the powers and authority, and performed all the duties of ade jure municipal corporation until the 7th day April, 1891, when said city was again re-organized under the laws of Oklahoma as adopted by her first legislature, and that said municipal corporation as last organized still exists and has succeeded to all the rights, franchises, powers, property and improvements of the original several corporations.
The plaintiff further alleges that he was elected recorder of said corporation and clerk of the common council at its first election in May, 1889, and continued to serve said corporation and its successors in said capacity, and performed all the duties required of him by the law and ordinances of said corporation until the 15th day of August, 1890, when he ceased to act in such capacity.
That the said provisional government agreed to pay him for said services as city recorder the sum of $50 per month, and an additional sum of $50 per month for his services as city clerk, and that he has advanced money for the said provisional municipal corporation, all of which was due and unpaid.
That he had presented his claims and demands to the mayor and council of the city of Oklahoma City, and the same had been rejected, disallowed and payment thereof refused.
To this complaint the city interposed a demurer, on the grounds that the complaint did not state facts sufficient to constitute a cause of action against the defendant. The demurrer was sustained. To which ruling an *Page 295 exception was saved, and the cause comes here on appeal.
The only error assigned is the sustaining of the appellee's demurrer to the appellant's complaint.
The demurrer admits all the allegations of the complaint, which are well pleaded.
The original provisional municipal government of Oklahoma City was not a de facto corporation and had no powers or authority to contract or bind herself or her successors by any agreement. There was no law in Oklahoma authorizing municipal corporations prior to the act of Congress approved May 2, 1890, and where there is no law authorizing de jure corporations a defacto corporation cannot exist. Municipal corporations can only exist in this country by legislative authority. (Losey v. Cityof Guthrie, decided September, 1892, and authorities there cited.)
The act of Congress approved May 2, 1890, made provision for the organization and existence of de jure municipal corporations in Oklahoma, and the provisional government of Oklahoma City, as described in the complaint, became and was ade facto corporation from and after that date.
A de jure successor of a de facto corporation which acquires all the property, franchises, rights and improvements, and embraces the same territory and is composed of the same people as its de facto predecessor is liable for the valid contracts and legal liabilities of the de facto corporation. (Broughton v. Pensacola, 93 U.S. 269; Mobile v. Wattson,116 U.S. 289.)
The complaint alleges that the de facto corporation existed from May 2, 1890 to July 22, 1890, when it became a de jure corporation.
It is further alleged that both during the time said city was a de facto corporation, and after she became a de jure corporation, the plaintiff acted as recorder and *Page 296 clerk of the common council until the 15th day of August, 1890. For this period of time, from May 2, 1890, to July 22, 1890, under the allegation of the complaint, the law would hold the present city liable for his services, provided the laws of Nebraska, under which they were acting, make provision for any such officer or office.
The laws in force in this Territory from May 2 1890 to the date of the taking effect of the laws adopted by the first legislature, made general provision for city and village corporations. And for villages and cities of the second class, provided for the office of city clerk; No such office as that of recorder was authorized or recognized by said laws, and as there cannot be a de-facto officer of the corporation for an office that does not exist and is not authorized, there could not have been either a de-jure or de-facto recorder for the defendant during the period mentioned in the complaint, after there was competent authority for a de-jure government, and no liability could attach to the defendant for services as such officer. But as the laws then in force did provide for a city clerk the defendant was a de-facto officer of thede-facto city government from May 2, 1890 to July 22, 1890 at which latter date the de-jure municipality succeeded thede-facto corporation. From and after this date the complaint alleges that plaintiff continued as such officer until August 15, 1890. If the plaintiff was the de-facto city clerk, or thede-jure clerk, during this period, the present city government would be liable for the services rendered, subject to the statutory limitation on the salaries of city officers in force at that date, provided there was not at that date a de-jure city clerk acting for said city. For it is well settled that there cannot be a de-facto officer for a de-jure office which is filled by a de-jure *Page 297 officer. It does not appear from the complaint that there was a de-jure clerk during the latter period and this question can only be presented by answer. Our conclusion is that for the period from May 2, 1890 to July 22, 1890 the defendant is liable to the plaintiff for his services as city clerk. That after the the organization of the de-jure government the defendant is liable to the plaintiff for the services alleged in the complaint to have been rendered, unless there was, during that time, a de-jure city clerk performing the duties of such office.
It follows that the court below erred in sustaining the demurrer to the complaint.
The cause is remanded to the court below with directions to over-rule the demurrer to complaint and for further proceedings in accordance with this opinion.
The judgment is reversed at the costs of appellee.
All the justices concurring.
On petition for rehearing in the foregoing case the opinion of the court was delivered by