dissenting:
I cannot agree with the majority opinion that the question presented on this record has, in principle, been determined in this state. It is, in my judgment, a case of first impression, and should be decided on sound principle; by which statement I eliminate all precedents which are not founded on established legal principles, or which do not follow cases so founded.
A considerable part of the majority opinion is devoted to cases which hold that a de jure officer may recover from a de facto officer fees or salary which he has received, though that is not the question here presented.
This cause involves only the right to the salary of an office by one who has, in good faith, and under the color of right, discharged for a time the duties of such office. It may be said, of course, that, if a de facto officer cannot retain the salary paid him, it results that he had no right to it in the first instance. The cases on that point may, then, fairly be open for consideration .in this case.
It is not to be questioned that the great majority of cases, in which the right of a de, jure officer to the salary was in issue, support the majority opinion. My objection to following them is that they are based, either directly or indirectly, on English cases which do not apply in this country; or on an erroneous view of the ground on which the right is claimed.
*557In England public offices are incorporeal hereditaments, the subject of grant, and the holder has an estate in them to him and his heirs, for life, for a term of years, or at pleasure. 2 B. Com. 36. In other words, an office is property.
From that fact it follows that one entitled to an office is entitled to the emoluments thereof, even though he does not have possession of it, as fully as the owner of land of which he has been wrongfully dispossessed is entitled to the rents and profits of it. Many American cases announce this doctrine, regardless of the facts which make it inapplicable here.
In this country a public office is an agency for public purposes, and can not be sold or transmitted to heirs.
It is not a matter of grant or of contract, and is in no sense property. The majority opinion concedes this, and then proceeds to cite and approve a line of cases based wholly on the English doctrine to the contrary. Take away the common law ground of the rule which is announced in the majority opinion, that “the emoluments follow, and are inseparable from the legal title,” and there is nothing to support-it.
The salary is no part of the office, as has been many times held, and the very word contradicts the assertion that it belongs to the holder of the title to an office, regardless of services. Salary is compensation for services rendered, and has no similarity to income and rents from property. It does not grow out of the office, but is attached to it upon a condition implied that the officer will perform the duties of his office. Under the constitution of this state (Art. 12, Sec. 2), no person can hold a public office “without devoting his personal attention to the duties of the same.”
If an office can not be held without a discharge of its duties, how can any right to the salary of it accrue to any one who has not discharged those duties?
Before one entitled to an office has qualified and entered upon its duties, he has only the right to obtain possession of it and earn the salary.
*558The rights of a de jure officer are thus defined in Nichols v. McLean, 101 N.. Y. 526, 5 N. E. 347, 54 Am. Rep. 730, and that is the only reasonable definition that can be given. If one has no property in an office, he can derive pecuniary benefit therefrom only by doing something to earn it. This, however, is not to say that a de jure officer may not have a right to damages because excluded from the office, and the opportunity to earn the salary. That rests upon other grounds.
-The opinion rightly limits the decisions in this state to the rule that a de facto officer, while still in office, may recover his salary from the state, but fails to note that such rule is in conflict with many of the cases cited, which hold that to recover from the state the officer must establish his title as a basis of his right. So far as our cases throw any light upon this question, it would seem that they are against the conclusion of the majority opinion, since they recognize a right to compensation as resulting from possession and services in the office.
Expressions not called for by the facts in those cases can not be regarded as controlling.
This case well illustrates the danger of following precedents without considering the grounds upon which they are based. The majority opinion quotes at length from People v. Tieman, 30 Barb. 193, a case determined by a single judge, at nisi prius, on an application for a mandamus. The matter quoted is pure dictum, since the office which the relator claimed to have exercised was found by the court to have been abolished by statute prior to the time of the alleged incumbency. It may be said in passing that this also was the ground for the decision by this court in the case of Arnold v. Hilts, cited in the majority opinion; that is, that the office had been abolished. This New York case is also the basis of the decision in Dorsey v. Smith, 28 Cal. 21, which is itself the foundation of a line of decisions in that state and of other states. On such worthless foundation does the rule rest.
The next case from which quotation is made is Bier v. *559Gorrell, 30 W. Va. 95, 3 S. E. 30, 8 Am. St. 17, an action for damages against a de facto officer. This case cites as authority Boyter v. Dodsworth, 6 Term R. 681; Auditor v. Benoit, 20 Mich. 176, 4 Am. Rep. 382, and Mayfield v. Moore, 53 Ill. 428, 5 Am. Rep. 52. The English case involved an office held by patent, to which no fees were attached, and the right of recovery by the patentee was denied. Lord Kenyon there said:
“With regard to natural justice, the person who performs the duty is entitled to the money given for such duty. Here the defendant in fact performed the services and on principles of natural justice he is entitled to the reward.”
In the Michigan case the court, after citing with approval Smith v. Mayor, 37 N. Y. 518, and pointing out that an office is not one of contract relation, said:
“There can be no consistent theory except that which regards official rewards as the recompense for actual or implied official work. Nor would it be possible in most cases to have the work done without some certainty of pay for it. An officer is not to be expected to work for nothing so long as it may please his enemies to assume to doubt his title. * * * The laws assume that the laborer is worthy of his hire, and the person who is required to be recognized for the time being as the legal incumbent for the purpose of doing the work should be recognized for remuneration also, so far as those are concerned with whom he deals officially, and who have no personal interest in the contest for the office.”
In the New York case above mentioned it is said:
“An office in this country is not property, nor are the prospective fees of an office the property of the incumbent (Conner v. Mayor, 1 Seld. 285). The incumbent can not sell his office or purchase it or incumber it. It will not pass by an assignment of all his property, nor will such an assignment affect his right to prospective fees. (Id. and eases cited.) * * * The same authority holds, and it is conceded by the appellants here, that the right to fees *560or compensation does not grow out of any contract between the government and the officer, but arises from the rendition of the services (citing cases). An office is simply an appointment or authority on behalf of the government to perform certain duties, usually at and for a certain compensation. * * * There can be neither property nor contract in such a subject. It is but a deputation for the benefit and advantage of the government.”
It was accordingly held that, since the plaintiff had no contract with the city, he had no right of recovery.
The Illinois decision is founded upon the English doctrine above discussed, quotes from Blaekstone the definition oí an office above given, and says:
“The fees of an office are incident to it as fully as are the rents and profits of land or the increase of cattle” — a statement impossible of acceptance without holding that an office is property.
An examination of the large number of cases cited in support of the majority opinion discloses the fact that a great majority of them follow the English precedents, regardless of their inapplicability under the conditions in this country. The rest of the cases are based upon the proposition that the principle which renders the acts of a de facto officer valid, as concerning the public and third parties, does not apply when he is claiming something for himself. If by this is meant that he can not rely upon the principle when, for his own benefit, he asserts that some particular official act performed by him is valid because done while he was a de facto officer, there is no reason to question it. The right of a de facto officer to recover for his services does not, however, depend in the least degree upon the validity of his acts. The claim is for compensation for public services which are valid on grounds of public policy. He is making no claim upon any specific act whose validity is open to question. The right of a de facto officer to such compensation has been recognized many times, as is shown by quotations heretofore made, and it has often been judicially recognized that until one has performed *561the duties of an office he can not recovery the salary thereof.
In Steubenville v. Culp, 88 Ohio St. 18, 43 Am. Rep. 417, the court held that an officer while wrongfully suspended can not recover salary, “for the reason that salary and . perquisites are the reward of express or implied services, and therefore can not belong to one who could not lawfully perform the services (citing Smith v. Mayor, supra).”
The court adds:
“Offices are held in this country neither by grant nor contract, nor has any person a vested interest or private right or property in them.”
This case repudiates the English rule, because it recognizes that it does not apply here, and it also recognizes that salary results only from services, and not from title.
In Jayne v. Drorbaugh, 63 la. 711, 17 N. W. 433, a state in which the English rule is adopted, and based upon English cases, it is recognized that a salary does not necessarily go with the title. The court said:
“The right to compensation depends upon the performance of the duties, or at least there must be possession of the office in fact as distinguished from the mere right of possession.”
In Farell v. Bridgeport, 45 Conn. 191, the court said that, as a rule, those only are entitled to salary who both obtain and exercise their offices, and that payment follows the actual discharge of the duties.
In McAfee v. Russell, 29 Miss. 84, it is said that a claimant having rendered no services has no right to compensation.
The majority opinion finds the dissenting opinion of the Chief Justice in the New Jersey case (Stuhr v. Curran) very persuasive, regardless of the fact that it is avowedly based on English cases, which, as has been pointed out, can not be authority on the question in this country. The Chief Justice says:
“These English adjudications are entirely uniform, and run through three or four centuries.”
In many of the cases which form the basis of the rule *562adopted in the majority opinion it is held that no one holds an office to which he knows he has no title has no right to compensation; which must be conceded; but these cases are used as authority in cases in which it can not be said that there is such knowledge, either actual or presumed.
The holder of an election certificate is not presumed to know the facts upon which his right to it rests, yet the rule is applied to such cases, as if he were wilfully usurping the office. The injustice of so doing is recognized in Michigan, though the English rule has been adopted there (State v. Miller, 24 Mich. 459, 9 Am. Rep. 131), in Scott v. Crump, 106 Mich. 288, 64 N. W. 1, 58 Am. St. 478, where it is held that an officer with a certificate of election is not an intruder or usurper, so that his salary could be denied him.
My objection is that a correct rule for some cases is made general and applied to other cases when there is no reason for its application.
Neither is it just to assume that an officer holding over, or claiming to have been appointed, under circumstances in which there is fair ground for his action, knows or should be presumed to know that he has no title.
This is illustrated in the instant case. The bank commissioner is a bonded officer, whose duties include the winding up of insolvent banks, and the performance of other important duties, and the public interest requires him to withhold the office from any demandant of whose right there is any doubt. A legal presumption is not indulged in to the injury of any one, unless it be necessary to the advancing of justice, and there is here no ground for presuming that plaintiff in error knew that he had no title to the office.
The hypothesis in this case is that the claim to the office is made in good faith; and that eliminates many of the cases whose basis is the bad faith of claimant.
In Stuhr v. Curran, supra, the New Jersey court recognized that the common law cases were not authority, and made clear the propriety of Stuhr’s action, the injustice of denying him compensation, and the evil results of a rule *563which denies to an incumbent, in good faith, all right to compensation, if another subsequently establishes title to the office. It shows that the evils suggested, in some cases, growing out of an allowance of fees to a de facto officer, are fairly offset by the dangers resulting from the contrary rule.
One of the grounds which has been given for holding a de facto officer entitled to recover for his services is that the public interest requires that the duties of an office be discharged; but, if an incumbent is-subjected to the risk that, after having held the office in good faith, the compensation is going to another who has done nothing whatever, there would be little encouragement for a man to perform official duties in case of a dispute as to the right to the office.
If the right to compensation grows out of the title, regardless of everything else, it results that an officer de jure might with profit permit an officer de facto to perform the duties of the office. The former might engage in profitable business during the entire term, and be entitled to the salary in addition, while the other in good faith will have been acting in his official place.
This majority opinion calls attention to Gaskill v. Atlantic City, 89 N. J. L. 269, 98 Atl. 385, the facts in which it says “are quite like those here involved,” holding that a de facto officer could not recover from the state. That case is not in conflict with Stuhr v. Curran, nor does it support the majority opinion in this case. The facts are radically different. The ground of the decision, as stated by the court, was that “an unauthorized person, who gains possession of an office by force, with full knowledge that his title thereto is disputed by the lawful' incumbent, has no right of action against the public for the prescribed salary during such usurpation.”
If it is true, as the opinion states, that “emoluments follow and are inseparable from the legal title,” how can the state refuse salary to the de jure officer on the ground that it has paid a de facto officer?
*564If the right to salary is vested in the holder of the title, it can not be divested by payment to any one else. It follows that our decisions repudiate the doctrine stated in this opinion and just quoted.
A public officer is an agent of the state, and his acts, within the sphere of his official duties, are valid upon the same basic principle as that upon which the acts of agents within the apparent scope of their authority are held binding upon their principals. The reasons which relieve the public from inquiry as to the title of de facto officers do not apply in the case of a demand of the state for salary. The principal must be resumed to know whether or not one acting as his agent has right to do so, if that question is in issue. Moreover, the state has the means, and may take the time, to determine the question, the absence of which circumstances on the part of individuals is the principal ground of holding acts valid as to them.
It has been said that:
“The de facto doctrine is one of those legal makeshifts by which unlawful or irregular corporate or public acts are legalized for certain purposes on the score of necessity/’ In the Matter of Ringier & Co., 204 N. Y. 30, 97 N. E. 593, Ann. Cas. 1913C 1036.
Obviously, there is no necessity for applying it in an action against the state for salary or fees.
Therefore, the only logical basis for paying salary to one in office, without determining his title, is that he has discharged the duties of the office. This is recognized in El Paso County v. Rhode, 41 Colo. 258, where the court gives as the reason for holding that the de jure officer could not recover from the county the fees allowed to the de facto officer that “the people can not be compelled to pay twice for the same services.” Certainly there is here no recognition of any right to compensation without services, and merely because of title to office.
Hence, our cases sustain the principle for which I am now contending, and which many courts have recognized, as above shown.
*565I can conceive of no ground of public policy upon which, of two claimants for an office, the one who has, in good faith, and with reasonable basis for his claim, discharged the duties of the office, should be denied compensation, and it be given to the other, who has done nothing.
In every case the question of good faith may be determined in an action by the de jure officer against the de facto officer for damages.
A rule of law which punishes the innocent as well as the guilty, when the cases are easily distinguishable, ought not to be adopted, and this is especially true when the rule has no real foundation in either reason or authority.
The judgment should be reversed.