The first assignment of error, questions the decision of the Circuit Court in sustaining a demurrer to appellant’s sixth plea. It was filed as a defense to the first and second counts of the declaration, and avers that appellant Russell, was, as city collector, wholly and solely authorized by law to collect as well the special assessments for improvements and other municipal purposes, levied and assessed by said city for the year 1855, as the regular assessed taxes for that year; and was by law entitled to the fees and commissions for the collection of such special assessments. That he was at all times ready and willing to collect all special assessments, as well as the taxes for that year, and gave the city notice thereof, but the city refused to permit him to collect such special assessments, and unlawfully appointed and empowered other persons, not having legal power so to do, to collect such special assessments. And that $3,188.13, was the amount of fees and commissions upon the amount of the special assessments, so collected by other persons for the year 1855. And that appellant, Russell, kept and retained of moneys collected by him, the sum of $3,188.13, the amount of the fees and commissions upon the special assessments, so levied and collected.
The first question raised by this plea, is whether the Common Council by their charter had legal authority to appoint collectors of special assessments. By the first section of chapter two of the amended city charter of 14th February, 1851, it is enacted that the officers of the city shall be, “A clerk; an attorney ; a treasurer; a school agent; a marshal; a board of school inspectors; a board of health; one chief, and a first and second assistant engineers of the fire department; one or more collectors ; etc.” It is also enacted by the third section, that “ At the annual election, there shall be elected by the qualified voters of said city, a mayor; marshal; treasurer; collector; surveyor; attorney; and chief and assistant engineers. * * At the same time the electors in their respective wards shall vote for one alderman, and one police constable, etc.” The 5th section provides, that “ The officers elected by the people under this act, (except aldermen), shall respectively hold their offices for one year, and until the election and qualification of their successors respectively. All other officers mentioned in this act, (except aldermen and firemen,) and not otherwise specially provided for, shall be appointed by the Oommon Council by ballot, on the second Tuesday of March in each year, or as soon thereafter as may be, and respectively continue in office one year, and until the appointment and qualification of their successors.” The third section only provides, as it will be perceived, for the election of one collector, while the first authorizes “ one or more collectors.” Under this enactment, the city was required to have at least one collector, and he was required to be elected by the people, but they were authorized to have more, and the further number was not limited. And by the fifth section, the Common Council was empowered to appoint by ballot that further number. This authority was given when power was conferred upon them to appoint all officers not required to be elected by the people. There being but one collector required to be elected, it necessarily follows that when the city determined to have more, they were authorized to appoint such additional number. And when appointed, they succeeded to all the rights, privileges and duties, in collecting the dues of the city, so far as authorized by the city, as appertained to the collector elected by the people. No objection is perceived to limiting them, when thus appointed to a specified division of the city, or to the collection of a specified branch of the city revenue. We are therefore of the opinion, that the Common Council had the right to appoint collectors to collect the special assessments, and that by so doing, they deprived appellant, Russell, of no legal right.
But if we are mistaken in this view of the question, we are at a loss to comprehend by what right the appellant, Russell, may retain these fees and commissions. If it were true that the Common Council had no authority to appoint such special collectors, it would not follow that the city had thereby become his debtor for these fees. It might be in case they had no authority, that a recovery could be had against those special collectors, for money had and received to his use, or an action maintained against the individuals composing the Common Council, if the appointment had been unauthorized by the charter, but the city surely could not have incurred any obligation to pay anything to him. It might as well be contended that the State or county incurs a liability for the payment of fees and commissions to persons deprived of office by an intruder, yet it is believed that such a doctrine has never been advanced, and would hardly be seriously contended for by any one. In all such cases the law holds the intruder liable to the person legally entitled to the office, for fees and emoluments received, by the person thus intruding into it. The collector, is claiming fees for services which he has not rendered for the city, and they have no authority under their charter to pay him, even if they were so disposed and were to attempt it. But in either point of view, the plea presented no defense, and the court committed no error in sustaining the demurrer.
It is also urged, that the court below erred, in finding the damages at $3,611.09, when the declaration only claimed one thousand. It has been repeatedly and uniformly held by this court, that in actions of debt on penal bonds, assigning breaches under the statute, that it is error, if the jury fail to find both the debt and damages. And that it is not form but substance, and the omission cannot be supplied by the court. And no rule of practice is better established, than that in an action of debt, the plaintiff cannot recover damages beyond the amount claimed in his declaration. And this rule has been applied by this court to recoveries on penal bonds for the performance of covenants or conditions ; Fornier v. Faggott, 3 Scam. R. 347 ; Stephens v. Sweeney, 2 Gilm. R. 375. In these cases upon penal bonds, the judgments were reversed, because the damages found on the trial exceeded the ad damnum laid in the declaration, and they are in point and decisive of this case. Whatever our opinion might have been, were the question an open one, we regard the practice too long and too well settled by our adjudications to be now disturbed. To do so, would lead to more inconvenience than benefit. It is only a question of pleading and practice, and if we were to reverse the former decisions of this court because they do not conform to the English decisions, it is believed that it would lead to more inconvenience than benefit. These decisions have long been recognized and acted upon by our courts and the profession, and in a matter so easy to be complied with, we can perceive no urgent necessity for overruling decisions repeatedly and deliberately made, simply to make them conform to those of another country.
The judgment must be reversed and the cause remanded, with leave to amend the declaration and writ.
Judgment reversed.