Drach v. Leckenby

Mr. Justice Bailey

delivered the opinion of the court.

The action was in mandamus by E. E. Drach to compel the State Auditor to issue warrants for salary earned while acting as State Bank Commissioner. In response to the alternative writ the Auditor filed an interpleader which set out that one McFerson claimed to be the de jure Bank Commissioner for the period in question, and entitled to the salary, and prayed that he be brought in in order that the court might determine to whom the warrants should issue, and he was accordingly made a party.

In his answer to the alternative writ McFerson set up a final judgment in quo warranto which declared him to be the de jure Bank Commissioner, and to have been such officer from May 6th, 1915, to July 5th, 1916, the time for which petitioner demanded pay, and during which period Drach was held disentitled to the office. The court entered judgment against Drach, and the auditor was directed to issue warrants for the salary during the period in question to McFerson. This decree is here for review on error. In the opinion the parties will be designated as in the trial court.

It will be necessary to consider only those assignments which relate to the right of Drach as de facto Bank Com-, missioner to recover salary. The question is whether a de facto officer, who performs the duties of an office to which there is a judicially ascertained de jure claimant after surrender of the position to such officer,' recovers salary.

It is urged that there is no property right in a public office; that it is not a franchise, and that the one who performs the duties is entitled to the pay. Cases holding that the salary of an officer may be increased or reduced at the will of the legislature, or that, in the absence of constitutional inhibition, it may lawfully abolish an office, or that the salary is deemed an equivalent for the services rendered, or that a person is not entitled to the salary unless he both hold and discharge the duties of the office, are cited in support of the claim of petitioner. These principles may be conceded to be correct, but they have not the remotest application to this case.

Henderson v. Glynn, 2 Colo. App. 303, 30 Pac. 265; El Paso County v. Rhode, 41 Colo. 258, 95 Pac. 554,16 L. R. A. (N. S.) 794, 124 Am. St. 134, and Thompson v. City of Denver, 61 Colo. 470, hold that payment to a de facto officer is a defense to the State in an action by the de jure officer to recover the salary. From this sound doctrine petitíonér attempts to extract the premise that because he might have compelled payment of his salary while performing the duties of the office, he may after the de jure officer has been disclosed by court decree, still enforce his claim against the State. It is true, as urged by petitioner, that such payment to him while he occupied the office would have barred McFerson from recovery from the State, but he, however, ignores the proposition that McFerson, after having been declared the de jure officer, could have maintained an action against the de facto officer for the emoluments of the office, even though the latter had discharged the duties attached to the place. Drach while serving might have compelled payment ”to him, not because the salary attaches to the person who performs the service, but because as matter of sound public policy, the business of the State must go forward in an orderly manner, and the question of the right to the office not having been determined the de facto officer, in the interest of the public, and because the question of title to the office cannot be determined in mandamus, is permitted to perform the service and get the salary. But when the de jure officer has been ascertained, the de facto incumbent must respond to him for such salary. That the de jure officer can compel such repayment is almost unanimously held. The only well considered case, which we have been able to find, holding otherwise, is Stuhr v. Curran, 44 N. J. L. 191, 43 Am. Rep. 353.

In Eubank v. Montgomery County, 127 Ky. 261,105 S. W. 418, 128 Am. St. 340, reported in 16 A. & Eng. Ann. Cas. 483, at page 484, it is said in discussing the rights of a de facto officer to salary:

“* * * We are satisfied that in the case at bar Eubank was standing on his legal rights with notice that his right was disputed, and that he took the risk of his right being upheld. A man cannot be allowed to hold on to an office to which he is not entitled when he knows his right to the office is denied and then claim compensation for his services after it has been held that he had no right to the office. By holding on to the office under such circumstances he takes the risk of his right being established. * * * We have held that he could not be punished for usurpation of office, and if we should now adjudge him entitled to the emoluments of the office, he would be in the same status as if he had been adjudged the office. It is a sound rule of public policy that those who hold public offices without right are not entitled to the emoluments of the office. Their acts are valid as to third persons for the benefit of the public, but they are invalid as to themselves. If their acts are invalid as to themselves, they cannot be adjudged compensation from the public for their acts.”

In United States v. Addison, 6 Wall. 291, 18 L. Ed. 919, the court passed upon the refusal to give an instruction to the effect that if the jury should find that the de facto incumbent of an office had received the salary thereof, the de jure officer was entitled to recover from him that amount with interest, providing the jury also found the de jure officer was ready and willing to discharge the duties, and was prevented only by the interference of the de facto incumbent. This instruction was declared to correctly state the law, and its refusal was adjudged reversible error.

In People v. Tieman, 30 Barb. 193, it is said at page 195:

“The salary and fees are incident to the title and not to the usurpation and colorable possession of an office. An officer de facto may be protected in the performance of acts done in good faith in the discharge of the duties of an office under color of right, and third persons will not be permitted to question the validity of his acts by impeaching his title to the office. Public interests require that the acts of public officers, who are such de facto, should be respected and held valid as to third persons who have an interest in them, and as concerns the public, in order to prevent a failure of justice. (2 Kent’s Com. 295.) It does not follow that a right can be asserted and enforced on behalf of one who acts merely under color of title without legal authority, as if he were an officer de jure, when an individual claims by action the office, or the incidents to the office, he can only recover upon proof of title. Possession under color of right may well serve as a shield of defense, but cannot, as against the public, be converted into a weapon of attack, to secure the fruits of the usurpation and incidents of the office.”

Speaking to the same question the Supreme Court of West Virginia in Bier v. Gorrell, 30 W. Va. 95, 3 S. E. 30, 8 Am. St. 17; at page 97, said:

“It seems to be well settled that a de jure officer who has been kept out of his office by the intrusion of another person, may by action recover from such person for the injury sustained by him, and that in such action the lawful perquisites which the plaintiff would have received if he had exercised the office are the proper measure of his recovery. * * * It seems to be a principle of natural justice, as well as law, that where one person has injured another, or received the compensation which in equity and good conscience belongs to another, he may be required by action to account to such other for the injury done him. In like manner will an intruder in office be required to account to the legal officer for injury done by the intrusion. The legal right to an office confers the right to receive and appropriate the fees and perquisites legally incident thereto. When such officer performs the duties of his office, he may demand and receive the compensation therefor allowed by law, and he is as fully entitled to such compensation as he would be in any other case entitled to pay for skill and labor done for another at his request. The legal fees and emoluments of an office are a part thereof, and belong to the rightful incumbent; and, where a person receives such fees and emoluments on the pretense of title to the office, the de jure officer may recover the profits from him by an action in assumpsit for money had and received to his use. * * * Where the office is one with a fixed salary attached to it, the officer will be entitled to recover the entire official salary, without any deduction for the services of the incumbent, or for what he may have earned himself while ousted.”

In discussing the right of a de facto officer to compel payment by the State of his claim for services while wrong* fully in office, the court in Matthews v. Supervisors, 53 Miss. 715, 24 Am. Rep. 715, said:

“The question at issue here is whether he can assert against the State, or against a county, which is the constituent part of a State, a demand for office fees, which he claims to have earned by a violation of her constitution. If he can do so, there is an end at once of all distinctions between a de jure and a de facto officer, since it is impossible to perceive how the latter, while undisturbed by quo warranto, occupies a position at all inferior to the former. The acts of both are alike valid, both would be protected from the assaults of private persons, and each would have án equal claim upon the State for compensation. Such a • construction of the law would be a direct encouragement to usurpation of office. The intruder or the incumbent wrongfully holding over, would be liable, indeed, to be ejected at the end of a long and costly litigation, but in the meantime he would have grown rich by the fees and salaries which he would have extorted from the State, whose laws he had violated in holding the position.”

The principle that the emoluments of the office belong to the de jure officer is asserted and approved in Coughlin v. McElroy, 74 Conn. 397, 50 Atl. 1025, 92 Am. St. 224:

“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 so generally held by the courts as to make the citations 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, 43 Am. Rep. 353, 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. * * * That this law will at times operate harshly against the de facto 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.”

Speaking to the same question, Throop on Public Officers, as section 659, says:

“It is recognized in several of the cases hereinbefore cited, and directly in those contained in the note, which hold, that where an officer claims any right, by virtue of his office, he must show that he is an officer de jure as well as officer de facto. * * * Thus, as was said by a learned judge of the Court of Appeals of New York: ‘Where a person sets up a title to property, by virtue of an office, and comes into court to recover it, he must show an unquestionable right, that it is not enough that he is an officer de facto, that he merely acts in the office; but he must be an officer de jure, and have a right to act.”

And at section 661:

“A person, who sues to recover from a municipality or other public body, the salary or other emoluments attached to an office which he claims to hold; or who sues a private person, to recover fees allowed by law for official services; must, if his right to the salary, fees or other emoluments, is put in issue, show, not only that he has acted as such officer, but also that he did so as an officer de jure.”

And Mechem on Public Officers, section 331, states this:

“But while the acts of the de facto officer are thus valid as to third persons, he cannot himself acquire rights based upon his defective title. It is well settled, therefore that he cannot maintain an action to recover the salary, fees or other emoluments attached to the office.”

The rights and duties of de facto officers are discussed in 29 Cyc. 1393, as follows:

“As the rule regarding de facto officers has been adopted merely with the idea of protecting the public, the de facto officer is not permitted to benefit personally from what is technically a usurpation of the office. He thus has no claim to the emoluments of the office. As a necessary consequence the de facto officer is liable to the de jure officer for the emoluments of the office obtained during the time he has wrongfully occupied the office.”

Henderson v. Glynn, supra, El Paso County v. Rhode, supra, and Thompson v. City of Denver, supra, are cited by petitioner in support of his claim. These cases are not in point. They hold only that payment by the State of the salary to a de facto officer is a defense in a suit by the de jure officer to recover the same salary from the State. Such payment by the State, and such defense, is permitted upon the principle of public emergency and necessity as already pointed out in this opinion.

There are Colorado cases, however, directly supporting the doctrine that the emoluments of the office may be recovered from a de facto officer by the de jure claimant.

Morris v. People, 8 Colo. App. 375; Church v. Mullins, 10 Colo. App. 318. This principle is also affirmed in Arnold v. Hiltz, 61 Colo. 8, which, although upon an entirely different state of facts from those here involved, is in principle authority for the views herein expressed.

That the salary is attached to the office, and is not the property of one who unlawfully holds the office and performs the duties thereof, is announced and.approved in following additional cases;

Cobb v. Hammock, 52 Ark. 584, 102 S. W. 382; McCue v. Wapello County, 56 Iowa 698, 10 N. W. 248, 41 Am. Rep. 134; Stott v. Chicago, 205 Ill. 281, 68 N. E. 736; Phelon v. Granville, 140 Mass. 386, 5 N. E. 269; Fylpaa v. Brown County, 6 S. D. 634, 62 N. W. 962; Dolliver v. Parks, 136 Mass. 499; State v. Schram, 82 Minn. 520, 85 N. W. 155; Luzerne County v. Trimmer, 95 Pa. 97; Com. v. Slifer, 25 Pa. 23, 64 Am. Dec. 680; Riddle v. Bedford County, 7 Serg. & R. 386; Vicksburg v. Gromme (Miss.) 24 South. 306; Christian v. Gibbs, 53 Miss. 314; Ermston v. Cincinnati, 9 Ohio Sup. & C. P. Dec. 657; State v. Newark, 8 Ohio Sup. & C. P. Dec. 344; Dolan v. New York, 68 N. Y. 274, 23 Am. Rep. 168; In re Berger, 152 Mo. App. 663, 133 S. W. 96; Russell v. Lyon, 90 S. C. 5, 72 S. E. 496; Lawrence v. Wheeler, 90 Kan. 669, 136 Pac. 315; Mayfield v. Moore, 53 Ill. 428, 5 Am. Rep. 52; Kreitz v. Behrensmeyer, 149 Ill. 496, 36 N. E. 983, 24 L. R. A. 59; Douglas v. State, 31 Ind. 429; Sigur v. Crenshaw, 10 La. Ann. 297; Nichols v. McLean, 101 N. Y. 526, 5 N. E. 347, 54 Am. Rep. 730; Wenner v. Smith, 4 Utah 238, 9 Pac. 293; Fulgham v. Lightfoot, 1 Call (Va.) 250; Booker v. Donohoe, 95 Va. 359, 28 S. E. 584; Rule v. Twit, 38 Kan. 765, 18 Pac. 160; Hogan v. County, 132 Tenn, 554, 179 S. W. 128; Sandoval v. Albright, 14 N. M. 345, 93 Pac. 717; State ex rel. Evans v. Gordon, 245 Mo. 12, 149 S. W. 638; Jones v. Dunsman, 246 Pa. 513, 92 Atl. 707, Ann. Cas. 1916D, 472; Comstock v. Grand Rapids, 40 Mich. 397; Whitaker v. Topeka, 9 Kan. App. 213, 59 Pac. 668; Scott v. Crump, 106 Mich. 288, 64 N. W. 1, 58 Am. St. Rep. 478; Andrews v. Portland, 79 Me. 490, 10 Atl. 458, 10 Am. St. Rep. 280; Tanner v. Edwards, 31 Utah, 80, 86 Pac. 765, 120 Am. St. Rep. 919, 10 Ann. Cas. 1091; Kendall v. Rayboud, 13 Utah, 226, 44 Pac. 1034; State v. Carr, 129 Ind. 44, 28 N. E. 88, 13 L. R. A. 177, 28 Am. St. Rep. 163; Meagher v. Storey County, 5 Nov. 244; O’Brien v. St. Paul, 72 Minn. 256, 75 N. W. 375; Stephens v. Campbell, 67 Ark. 484, 55 S. W. 856.

The leading ease upon which petitioner relies is Stuhr v. Curran, supra, in which it was held that one who had received a certificate of election to a public office, and was subject to a statutory penalty, which distinguishes it from the present and other similar cases, if he failed to qualify and perform the duties thereof, might retain the salary of the office when he had performed the duties as against one who later was declared to be legally elected. This opinion, as pointed out in Coughlan v. McElroy, supra, was by a divided court, seven to five, with a strong and persuasive dissenting opinion by Chief Justice Beasley, in which four other Justices concurred. And it is to be further noted that in a recent case, Gaskill v. Atlantic City, 89 N. J. L. 269, 98 Atl. 385, upon facts quite like those here involved, it was held by the same court that a de facto officer could not recover the emoluments of the office from the State.

It is conceded that petitioner occupied the office under a mistaken claim of right. But such mistake, even coupled with actual performance of the duties of the place, gives no right to the salary as against the de jure officer. The emoluments follow, and are inseparable from, the legal title. No motive, however worthy, can protect the de facto incumbent from the consequences of his. intrusion, so far as payment for services be concerned. The fact that he labored under a mistake of law, and was free from bad intent, does not detract from the damage done to the rightful claimant. Drach took the risk of the validity of his title, and the loss should fall upon him rather than upon the one who holds the true title.

Upon practically unanimous authority it is settled that a de facto officer cannot recover compensation for services rendered, after the de jure claimant, as here, has been judicially ascertained and declared, and a plea by the Auditor in his return to the alternative writ that McFerson had been finally declared to be the de jure officer would have been a complete bar to recovery of salary by Drach from the State.

The question of the right to the office having been determined against Drach, the matter of awarding the salary to McFerson by decree in mandamus becomes immaterial and will not be disturbed. Under a different state of facts this question might present legal difficulties of a serious nature.

The judgment of the trial court should be affirmed and it is so ordered.

Judgment affirmed.

Decision en banc.

Mr. Chief Justice Hill, Mr. Justice Teller and Mr. Justice Scott dissent.