Dissenting:
Regardless of the conclusion of the majority, which the opinion states is supported by the weight of authority, I am not convinced of its justness or that all the declarations therein contained will stand the test of time as the law of this state. As I view it, Mr. McFerson has no place as a party in this action of mandamus. McAffee v. Russell. 29 Miss. 84. It is conceded that Mr. Drach, plaintiff in error, had possession of the office and performed the services during the period for which he sought the salary. It is also conceded that he was acting in good faith, and that, had this suit been instituted and tried during the period he was holding the office, the writ would have issued in his favor as a matter of course. Per former decisions of this court, as well as our Court of Appeals, the auditor has no right to question the de facto officer’s right to the salary. Thompson v. Denver, 61 Colo. 470, 158 Pac. 309; El Paso County v. Rhode, 41 Colo. 258, 95 Pac. 551, 16 L. R. A. (N. S.) 794,124 Am. St. 134; Henderson v. Glynn, 2 Colo. App. 303, 30 Pac. 265. I do not think that the de jure officer, after having been so declared by this court, has the right to do so by intervening in a mandamus action between the de facto officer and the auditor. In making this declaration, I am not claiming that Mr. McFerson has no cause of action against Mr. Drach for damages upon account of *566having been kept out of the office, or, that he might not, in a proper proceeding, by showing that Mr. Drach was insolvent, or attempting to place his property beyond the jurisdiction of the court, or something that way, have the warrants withheld until the question of his damage was determined, but no such conditions are even hinted at here. However, as I' view it, these questions of procedure are of but minor importance.
That portion of the opinion which I think is fundamentally wrong is the declaration, in substance, that under all such conditions the de jure officer is entitled to all of the emoluments of the office, even though its duties have been discharged by the de facto officer during the time the office was unlawfully held by him. This, as I take it, means all fees or salary, as the case may be. When I say “unlawful,” I mean to distinguish it from wrongful, so far as the moral viewpoint is concerned. There certainly have been many cases, and as certain will be many more, where an office is retained by the bolder of a certificate of election pending the result of a contest, and thereafter a review by this court, thus held in the utmost good faith, yet where the ultimate outcome was against him, and in some cases where even then it was the incumbent’s duty to thus continue. Take a case where the result hinges upon the right of certain electors to vote at that election in certain precints, or counties, depending solely upon questions of fact, is it right to hold that the party holding the certificate must determine in advance of a judgment whether he was elected, or, at his peril, as a penalty for holding on, to lose all compensation for the services rendered, pending its determination, even though it can be shown that the contestor during said period earned a larger amount than the fees or salary of the office? To put it another way, suppose he holds onto the certificate of election, yet arranges with the contestor to take possession pending the decision, with the understanding that the contest suit continue, and it is ultimately adj udged that the contestee was entitled to the office, should the contestor be thus penalized? If this illustration is not *567practical, suppose the contestor for a county office wins, and the contestee brings it to this court, but surrenders the office, and does not ask for a supersedeas, yet wins in the long run, is it just and right that the contestor be subject to this penalty for taking what is given to him by a judgment of a court of competent jurisdiction, although thereafter reversed? Likewise, as here, where able counsel and even members of this court disagree over the effect of an appointment by the governor. If this rule announced by the majority is to remain as the law of this state, it means that where any person runs, say, for a county office, receives the certificate of election, and thereafter a contest is -filed against him, and determined in his favor by the trial court, is brought to this court by writ of error and reversed, say two years thereafter, and he is held not entitled to the office, that, although acting in the best of faith, he performs the duties during this entire period on the strength of the certificate of election, and judgment of the trial court that, nevertheless, he is liable to the de jure officer for the entire amount of the salary or fees earned, and this regardless of the damage to the other person, and even though the de jure officer, during the entire time, was getting a salary elsewhere, greater than he would have received had he held the office. To bring the facts within this case, the record discloses that Mr. Drach was regularly appointed on January 6, 1914, to fill a vacancy in the office of state bank commissioner, which appointment was approved by the Senate; that he qualified and continuously performed the duties until July 5th, 1916. It is not claimed that he was not acting in the best of faith in assuming that the civil service law entitled him to the office, or that in any event he was entitled to hold under his appointment until the first Wednesday of April, 1916, as set forth in the quo warranto action. It is also conceded that he was acting under the advice of able counsel. In addition, this court, or at least some of its members, expressed a question concerning the correctness of this judgment, which is evidenced by granting him a supersedeas, yet regardless of *568all this, the ruling is to the effect that the warrants are not to be issued to him, although he performed the services, but are to be issued to Mr. McFerson, whom it is conceded did not perform the services, without any credit being given to Dr. Drach for their performance, and in a mandamus action between Mr. Drach and the auditor, wherein Mr. Drach was given no opportunity to show anything, in mitigation of Mr. McFerson’s damages. Is it not proper to assume that one possessed of the ability of either of these gentlemen along banking lines has more than an average earning capacity? Our statute requires a bank examiner to give his time to the performance of the duties of the office, and who can say, when the question was not allowed to be litigated, what Mr. McFerson earned during this period, or that he may not have been earning a salary greater than what he- would have received from the state had he devoted this time to the office? If such is the case, or in case he received any compensation for any part of his time during said period, in equity and good conscience ought not such fact to be taken into consideration in an adjustment of the matter between them?
Under my assumption that Mr. McFerson had an earning capacity during this period, and that he used it for at least a part of this time, or if he did not, he ought to, is it fair, just, right or equitable to allow Mr. Drach nothing for the services rendered, and thereby place Mr. McFerson in a better position financially than he would have been had he held the office? I do not think so, and can not agree that this arbitrary declaration is supported by all the well reasoned authorities. In Mayfield v. Moore, 55 Ill. 428, 5 Am. Rep. 52, the court followed the English rule in holding that the person entitled to the office has a property right in it, in the nature of a franchise, but when it came to a question of fees during the period it was held by the de facto officer, in good faith, it declined to follow the English doctrine by recognizing that the equity of the parties were entitled to be taken into consideration. In passing upon this phase of the case, at page 433, the court said:
*569“Inasmuch, however, as appellee obtained the certificate of election, and a commission was issued to him, he was acting in apparent right, and, so far as this record discloses, he resorted to no fraudulent or improper means to produce that result, he does not occupy the position he would had. he resorted to such a course. He should only be required to account for the fees and emoluments of the office received by him, after deducting reasonable expenses in earning them. This being an equitable action, it should be governed, in this respect, by the same rules that would obtain had this been a bill for an account, instead of an action for money had and received. He should have only a reasonable allowance for the necessary expense.”
This principle is recognized in The Auditors v. Benoit, 20 Mich. 176, 4 Am. Rep. 382. The same rule is laid down in Havird v. County Commissioners of Boise County, 2 Idaho 687, 24 Pac. 542; Sandoval v. Albright, 14 N. M. 345, 93 Pac. 717, and Bier v. Gorrell, 30 W. Va. 95, 3 S. E. 30, 8 Am. St. 17. While these cases involved fees, and not salaries, in my opinion there is no difference in principle between the two. In this respect, I agree with the Supreme Court of Washington in Samuels v. Harrington, 43 Wash. 603, wherein, at page 605, 86 Pac. 1071, 1072, 117 Am. St. 1075, in passing upon this question, the court says:
“On principle there can be no difference between the fees of an office and the salary of an office with respect to the property rights of the officer de jure therein. If the right to an office carries with it a property right in the salary of the office, so does the right to the office carry with it a property right in the fees of the office, and the payment of the one to an officer de facto is no more a wrongful payment than is the payment of the other.”
Inasmuch as my views are in the minority, I have not felt justified in giving to the damage phase of this question the time I otherwise would. As at present advised, I am' of the opinion that an office in Colorado is not a franchise or property right, but that the person duly elected or regularly appointed has a legal right to possession of such *570office, which, includes the opportunity of earning and receiving its fees or salary, and that he has a cause of action against any one who prevents him from so doing, and that the measure of the damages, when applied to a case of this kind, should be the amount actually sustained, not exceeding the maximum amount of the salary, and that the proof should be the same as in any other case where a person has a contract of employment for a certain term, and is ready and willing to perform, yet is unlawfully kept from doing so. This to include, as in other cases, the showing of seeking other employment, the success, if any, in so doing, the result and the deduction in damages, if any, as the result of such other employment. This would be fair and equitable, and would not tend to prohibit a timid person, or one who lacks finances, from honestly and in good faith asserting his right to an office given him by a certificate of election, or by the judgment of a trial court, for fear of the heavy penalty to follow, per the rule announced by the majority, should the contest against him be ultimately sustained.
I appreciate that my views on this phase of the case are not in apparent harmony with The People v. Miller, 24 Mich. 458, 9 Am. Rep. 131, and Comstock v. Grand Rapids, 40 Mich 397; however, I can not agree with the reasoning in the first of these cases, upon which both are based. Of course, if this reasoning, announced in 1872, which is to the effect that a public office is intended as a sinecure, that there are very few duties which can not be performed by deputies to be paid by the county outside of the incumbent’s salary, and that the salary is not dependeiit upon the work, and that the office does not require the personal services of the incumbent, and that lie would not forfeit it or the salary by having the bulk or all of his duties performed by deputies, and paid therefor by the county, are sound, and that an office is to be likened unto a pedestal upon which a person is to be elevated, with the salary as a gift or donation by the people for the privilege of being allowed to elevate the incumbent to the office, then I might be com*571pelled to concede that one would be entitled to all the salary, although earned by another; but such is not the case here. Per our statute, this office calls for the time and individual attention of the appointee; besides, according to former rulings of this court, there is nothing specially sacred about an office of this kind. It can be abolished and the salary discontinued. In such case, as I view it, there is no reason for a rule which fixes the measure of damages any different concerning compensation for the performance of its duties than applies to any other case where one is unlawfully prevented from performing certain services which he has the right to perform and to receive the compensation therefor.
Decided April 1, A. D. 1918. Rehearing denied May 6, A. D. 1918.