delivered tbe opinion of tbe court.
On May 20, 1909, this plaintiff was the duly qualified and acting chief of police of tbe city of Butte, appointed to such office under tbe Metropolitan Police Law (Laws 1907, p. 344). In disregard of tbe provisions of that statute, tbe mayor assumed to appoint, and tbe city council to confirm, John J. Quinn as chief of police, and thereupon tbe name of this plaintiff was stricken from tbe pay-roll of tbe city. On June 21 tbe plaintiff instituted proceedings in quo ivarranto against Quinn to test bis right to tbe office. Tbe district court sustained a demurrer to *422bis complaint and rendered judgment in favor of Quinn. Upon appeal that judgment was reversed. (State ex rel. Wynne v. Quinn, 40 Mont. 472, 107 Pac. 506.) On June 28, 1910, a final judgment was entered restoring Wynne to the office. This action was thereupon commenced to recover from the city the. salary for the period of time during which the plaintiff was prevented from discharging the duties of the office. The city attempted to defend upon the theory that the salary had been paid to Quinn, who was a de facto officer, and as a further partial defense it is alleged that during the time Wynne was kept out of office he was able to, and did, earn a considerable sum of money in other employment. The trial resulted in a judgment in favor of plaintiff for the full amount claimed, and the city has appealed.
1. Whether, in the absence of statute, payment to a de facto officer discharges the employing municipality is a question upon which the courts are divided. Those holding the affirmative rest their conclusion upon the ground of public policy; but a review of the decisions is unnecessary, for in this state we have a statute which declares the public policy here. Section 375, [1] Revised Codes, reads as follows: “When the title of the incumbent of any office in this state is contested by proceedings instituted in any court for that purpose, no warrant can thereafter be drawn or paid for any part of his salary until such proceedings have been finally determined. ’ ’ If, then, after the quo warranto proceeding was instituted, the city disregarded the statute and paid the salary to Quinn, it did so at its peril. Between May 20 and June 21 the plaintiff was attempting to discharge the duties of the office.
2. But it is insisted that the city was entitled to notice of the pendency of the proceeding, and that since it did not receive [2] such notice it cannot be bound. Section 376, Revised Codes, provides that the clerk of the district court shall' certify to the disbursing officer the fact that the title to an office is contested; but the failure of the clerk to perform his duty cannot *423operate to deprive this plaintiff of the salary attached to the office from which he was wrongfully excluded.
3. The city is not entitled to have credited upon plaintiff’s [3] claim for salary the amount he earned in other employment during the time he was wrongfully excluded from his office. His claim does not rest upon contract. He was not an employee, but an officer. The salary is an incident to the office, and, if entitled to the office, his right to the salary follows. (Reising v. City of Portland, 57 Or. 295, 111 Pac. 377, and cases cited.)
4. It was not necessary for Wynne to file with the city a [4] verified claim for the salary due him. The auditing statute (Rev. Codes, sec. 3288) does not have any reference to a claim for salary which is fixed by ordinance. (Dawes v. City of Great Palls, 31 Mont. 9, 77 Pac. 309; State ex rel. Dudley v. Daggett, 28 Wash. 1, 68 Pac. 340.)
5. The right of action given by section 6959, Revised Codes, [5] cannot refer to one for salary; for to assert that it does presupposes a violation of section 375, above.
Most of the questions presented upon this appeal were determined adversely to appellant in Peterson v. City of Butte, 44 Mont. 401, 120 Pac. 483.
The judgment and order are affirmed.
Affirmed.
Me. Chief Justice Brantly and Mr. Justice Smith concur.