There are serious, if not fatal, objections made by the defendant to this controversy being consid-. ered by us as having been submitted as an agreed case, under section 3700, Revised Statutes. But, under the view of the law applicable to this controversy had by us, we do not deem it necessary to pass upon such objections, .and we yield, therefore, to the plaintiff’s contention, and shall consider this controversy as having been submitted to the circuit court, as an agreed case, under the statute, on December 22, 1885.
Prom July to December 4, 1885, the plaintiff was acting, under color of right, as marshal of the defendant city, during which time one Morgan claimed to be the rightful marshal of said city, by virtue of an election then recently held for said office, under color of which election the plaintiff was acting as marshal. In a proper proceeding of mandamus, at the relation of said Morgan, *14two of the judges and one of the clerks of said election, for the first ward of said city, were directed and commanded to respectively sign and attest the poll-books, theretofore sent to and then in the office of the clerk of the county court of Bates county, and also to make a certificate, showing all of the votes cast at said election, and for whom they were cast, and for what office, and containing the number of votes giveu each candidate, and that all this be done on or before December 2, 1885.
On December 4, 1885, Morgan took possession of the office of marshal, and has ever since been acting as such officer. No proceeding has ever been instituted to try the title to said office. In this agreed case, on December 22, 1885, was submitted the question of right of plaintiff, as the de facto marshal during the time mentioned under the facts stated, to the fees and salary of said office earned during said time, i. <?., from July 1 to December 4, 1885. The circuit court held against the plaintiff’s right, and he has appealed to this court.
The rule contended for by defendant, that an officer de facto can not, unless he is also the officer de jure, on the ground that he is the officer defacto, recover the fees of the office, or set up any right of property, is affirmed by the many authorities cited in the brief filed by counsel for defendant. The reason of the rule, and the ground for the distinction between that rule and the other rule, which gives validity to the acts of a de facto officer, so far as they concern the public and the rights of third persons, are clearly set forth in those authorities.
Whatever may be our opinion as. to the soundness of the rule invoked by the defendant, we cannot recognize it. We are governed by the decisions of our Supreme Court. A rule, contrary to the rule contended for by the defendant, has long been established by our Supreme Court. It must be considered as the settled law of this state that, in an action for fees, the title to the office cannot be decided, and that a de facto *15officer, while in possession of the office, can recover the fees of the office. State ex rel. v. John, 81 Mo. 13; State ex rel. v. Draper, 48 Mo. 213; State ex rel. v. Clark, 52 Mo. 508. In Hunter v. Chandler (45 Mo. 457), cited by defendant’s counsel, it was said: “I am aware that there are very respectable authorities holding that the title to an office may be determined in a suit for fees. The old English cases strongly sustain this view, but I think that the better doctrine and reason is to the contrary.”
The rule in this state is, of course, founded upon the prima facie title of the officer de facto. In any case, therefore, where such prima facie title does not exist, the rule cannot apply. It does not affirmatively appear, from the agreed case, that the plaintiff, after the judgment in the mandamus proceeding, abandoned and surrendered the office of marshal to the claimant, Morgan ; but still we think that the fact that plaintiff did so is fairly inferable. At any rate, it does clearly appear that Morgan, with or without plaintiff ’ s consent, by reason of such judgment, entered into the office and was discharging the duties of the office, at the time of the submission of the agreed case. At that time, therefore, Morgan was the marshal defacto, ynSsi prima facie title to said office. As two persons cannot, at the same time, have the defacto title to the same office, neither can they have the prima facie title at the same time to the same office. There cannot be two officers de facto at the same time. As at the time of the submission of the agreed case, Morgan was the officer de facto, the plaintiff was not then the officer de facto. The plaintiff’s former prima facie title to the office had been destroyed by the subsequent prima facie title of Morgan,
Hence, as the plaintiff’s claim was entirely based upon such former prima facie title to the office, the court properly denied said claim.
Judgment affirmed.
All concur.