(dissenting.) The legal question presented by the facts of this case is whether an officer de jure can maintain an action against an officer de facto, by reason of the intrusion of the latter into the office and the receipt by him of the emoluments.
In the opinion of the majority of the court the law does not afford such a redress, unless it is made to appear that such intruder was aware at the time of his taking possession of such office that he had, in point of fact, no legal title to it. In that conclusion I find myself, after a careful examination of the subject, unable to concur, the grounds of my dissent being *193that it seems to me opposed to settled authority and inconsistent with established legal analogies and principles.
First, then, with regard to the subject considered in the light of authority. After the investigation I have given this matter, not .a doubt is left in my mind that, at the era of the American revolution, it was conclusively settled by the common law decisions that an officer de jure was possessed of the right of action in question, and these judgments are as authoritative as would be similar decisions in our own courts. These English adjudications are entirely uniform, and run through three or four centuries. Indeed, the rule was so indisputable that we find it stated as the settled law in legal treatises of distinction and in the ordinary books of practice. The following is the statement of the law as expressed by Jacob in his Law Dictionary, title, “ Office:” “ An action by a person claiming an office against the person in actual possession and receiving the fees, is, perhaps, the most eligible method that can be pursued to try the question of right.” This work was published as early as 1729. To the same effect is the language of Selwyn. 1 N. P. 81. He says: “ That where a person has usurped an office belonging to another, and taken the known and established fees of office, an action for money had and received will lie at the suit of the party really entitled to the office, against the intruder, for the recovery of such fees.” So, Chitty, (1 Pl. *100,) speaking of the action of assumpsit, says such action will lie “ against a person who has usurped an office and received the known and accustomed fees of office.”
A reference to the following cases, beginning with one as ancient as the reports of Dyer, will amply suffice to show that these writers have correctly interpreted and expressed the law as it is contained in the judicial opinions and judgments of the English courts: Vaux v. Jefferen, 2 Dyer 114; Pybus v. Mitford, 1 Mod. 122; Howard v. Wood, 2 Lev, 245; Arris v. Stukeley, 2 Mod. 260; Lee v. Drake, 2 Salk. 468; Boyter v. Dodsworth, 6 T. R. 681; Webb’s Case, 8 Rep. 45; Green v. Hewitt, Peake 182.
*194For the purpose of elucidating the views hereinafter to be •expressed, I will refer particularly to but one of the cases ■above cited, that is, to the decision in Arris & Arris v. Stukeley, 2 Mod. 260. This suit was in indebitatus assumpsit for moneys received for the use of the plaintiffs. The controversy related to the fees of an office—the comptrollership of the customs—which had been received by the defendant under a claim that he held such office, as a right, by virtue of a grant to himself and another, which latter grantee having died, and the question was whether such office survived. The plaintiff in the case had been appointed after the death of such grantee. The decision was that as the grant was to two persons during their lives, there was no survivorship, and that as the defendant had no title, and had received the official fees, he must pay them to the plaintiff, who was the officer de jure.
It is to be noted that in this case the only fault of the defendant was his continuing in this office under a mistaken claim of right; there was no pretence that he acted oppressively, or deceitfully, or even carelessly, or was conscious of wrong-doing. He had executed the office supposing he had the right to do so, and had by his labor earned the fees, and they had been paid to him; and yet it was held that the plaintiff, as the de jure officer, was entitled to recover them from him. I am unable to distinguish this and similar cases from the controversy now pending; they seem to me authorities directly in point, and in my judgment they cannot properly be either disregarded or overruled by this court.
I am aware that it is insisted that a distinction is to be drawn between these offices as they exist in England and as they exist in this country. This position is founded on the alleged fact that these common law offices are property, incorporeal hereditaments, and that such a quality is not attributable to their American counterparts. But if we look a little closely into the matter we will discover that this supposed difference is more nominal than real. It is true that most English offices run for longer terms than is usual with us, but it is only offices for life, or for longer terms, that are hereditaments, and for which an assize at common law would lie. It would, I *195think, be difficult to point out the proprietary characteristic by which one of these foreign offices which endure only for a period of years is to be discriminated from a domestic one of the same extent. Even those which are hereditaments, when we look at them in the light of being technical property, present in this aspect but a mutilated appearance, for most of them can neither be bought, nor sold, nor encumbered, nor assigned; and yet these capabilities are the principal advantages and incidents of property, so that an office destitute of them appears to be nothing more than a franchise to hold possession of the station, and, upon the performance of its duties, to receive its emoluments. When, therefore, it has been asserted in judicial discussion that offices are not property in this country, such remark, admitting its correctness, does not point to any radical difference between such offices and those of foreign origin. It is granted that, with respect to the public authority, a right to an office in this country is not a vested right, or one dependent on contract, and that, consequently, an incumbent of such a situation cannot legally complain, on general principles, if such office be abolished or the salary diminished during his term. ' There are a number of decisions to this effect, and there can be no question as to their correctness. But because the sovereign power can destroy or impair such official rights, is it a logical consequence that they therefore can be destroyed or impaired by individuals? And even in the respect just designated, are not English offices held by a similar tenure, for will it be asserted that such public interests may not at any time be modified or abolished by act of parliament ? In the light of this interrogatory, let us look at the most recent case among the decisions above cited. It is that of Lawlor v. Alton, 8 Ir. R. 160. The plaintiff and defendant were candidates for the office of surgeon to the infirmary of the county of Kerry, and the governors of that institution, by mistake, declared the defendant elected, and he thereupon executed the office for a time and received the salary appertaining to the post. On quo warranto, the defendant’s title having been adjudged to *196be bad, the plaintiff, who was thus shown to be the officer de jure, brought suit against the intruder. A judgment was rendered in his favor. There was in this case neither allegation nor pretence of malajides in the defendant. He received a salary, payable in instalments, for his services.
Now, is it reasonable to say that there is any real distinction between the rights of the plaintiff in this reported case and those of the plaintiff in the present case ? I have failed to perceive even the faintest line of demarkation between the two instances. There seems no ground to believe that there was any more property, in the strict sense of the term, in the office in the one case than in the other. In every respect the parties appear to stand on the same footing; in each case the plaintiff had been legally elected; in each the defendant, unconscious of wrong-doing, had intruded and taken the fees. That is the situation, and how different results from these same premises are to be justified is to me a problem not to be solved.
But, in reality, I do not consider the question whether or not a difference in the proprietary rights to office exists in the two countries, as of the least importance to the present discussion. Granted that such a discrimination can reasonably be made, how does it affect the pending question ? So far as relates to the matter in hand, it is a distinction without a difference. The only point of inquiry is, does the office-holder at common law, with respect to an intruder, have a greater right to the possession of his office than an American officeholder does ? Can this be reasonably contended for ? Can anything be more complete than the right of the holder of an office in this country to the enjoyment of his office and to its emoluments ? If he possessed the capacity to sell or encumber the office, or was the proprietor of the office in the largest sense, such incidents could not add anything to his title to the immediate enjoyment of the position and its products. The remedies which exist in this state for the enforcement of the right of possession of the office-holder, show the perfection and completeness of such rights; if admission into his post be re*197fused him, he has his remedy by the prerogative writ of mandamus, and in case of an intrusion he can cause the usurper to be expeled by the force of the writ of quo warranto. Nor do I see any reason, except the obsoleteness of the method, if the office be for the term of the incumbent’s life, why he could not, in order to gain possession, resort to a writ of assize. Is it even plausible to contend that the plaintiff, in the case just cited from the Irish Reports, who was elected to the position of surgeon in the infirmary, had a more absolute or perfect right to enter into such office and take its profits than the plaintiff in this case had to take possession of and enjoy the office to which he was legally elected ? With respect to such a point, the assertion that in the one case the office is property and in the other that it is not, even admitting the assertion to be founded in fact, conveys no meaning whatever to my mind. Eor the question is not whether the plaintiff had a right of property in the office, but whether he had a right to its occupation and its profits ? If he had that right, such right can no more be invaded with impunity than can a right of property be so invaded. The English decisions rest entirely on the ground that the officer de jure has the right to the possession and proceeds of the office; and I find no allusion whatever in any of them to the so-called proprietary right.
Eor these reasons I am of opinion that the rule of law, being entirely established at the time of the separation of this state from the mother country, cannot be here overthrown except by legislative enactment. ' In concluding my comments on the force and operation of this train of judgments on the question under consideration, I will remark that in none of the numerous American decisions that have been examined by me do I find it anywhere declared or intimated that such judgments rest on grounds that render them inapplicable in this country; but, so far as I have observed, they have been on all occasions looked upon, with respect to the right of the de jure officer to sue an intruder, as controlling precedents, to be implicitly followed. It is singular, indeed, if there be any such fundamental difference as is now *198supposed to exist between foreign and domestic offices, that such, difference has never before been discovered.
With regard to the American cases, I can say, after an extended research, that not one of them that has come to my attention, denies the right of the de jure officer to recover, in some form, for an intrusion into his office. Kor is there in such judgments any distinction recognized between an intrusion originating in venial error or in • unlawful design. Among these cases it is true' there is some contrariety of opinion as to what should be the measure of damages in such suits, but touching the right of action, they are in complete accord with the common law decisions already cited, and they refer to such decisions as authority. In this line of cases the decision in Dolan v. Mayor of New York, 68 N. Y. 274, is worthy of particular notice. The plaintiff, Dolan, was lawfully elected an assistant clerk of the Sixth District Court of the City of New York, but was excluded from the office by one Keating, who claimed under an appointment of a justice of that court. By virtue of a judgment of ouster in an action of quo warranto, the plaintiff came into possession. During the time of this unlawful occupancy of Keating, part of the salary of the office had been paid to him, and part of such salary earned . by him remained unpaid. The plaintiff sued the city for both parts of such salary—that part which had been paid to Keating and that part which remained unpaid. The decision of the court was that the plaintiff was not entitled to recover from the city the moneys which had been actually paid to the intruder, on the ground that the city had the right to make such payments, as such intruder was a de faoto officer, but that the moneys earned by the services of such intruder, and which remained in the hands of the city, were lawfully due to the plaintiff, and for such sum judgment was rendered in his favor. The case, in principle, is directly applicable, and if it was regularly decided, the plaintiff in the pending action has the right to a decision in his favor. In the reported case there was no pretence that the defendant had done anything with knowledge of its unlawfulness; on the contrary, the *199judge who read the opinion entirely exonerates him in that respect, for he says: “ The appointment of Keating was not a plain usurpation without legal pretext or color of right. The statute was obscure; the power of the justice to remove an incumbent at pleasure and make a new appointment was a question upon which the courts differed.” Standing in this posture of innocence, so far as intention was concerned, it was nevertheless held that the moneys earned by him went legally to the de jure officer. This result is reached by the Court of Appeals on the ground of the prevalence of the common law doctrine already stated, and 'both English and American decisions are cited in support of such doctrine. The statement of this rule of. law is made with great directness. “ Actual incumbency merely,” says the opinion, “ gives no right to the salary or compensation. The right of the intruder to recover is denied, not upon the ground of actual fraud on his part, for it often happens that he is in not only under a claim of right, but under a prima facie title, which he cannot or may not know to be invalid; nor upon the ground that he is a mere volunteer and that the government should not be obliged to pay him for his services, for in most cases they are rendered in good faith, and under the expectation, both on his part and on the part of the public, that he is to receive the emoluments of the office. The principle is, that the right follows the true title, and the courts will not aid the intruder by permitting him to recover the compensation which rightfully belongs to another. That an officer merely de facto has no right to the compensation of the office, also clearly appears from the consideration that if he obtains it he is liable on an action for money had and received by the officer de jure to recover it.” This case undeniably acknowledges and adopts the common law doctrine in its entirety.
The same view of this subject was taken by the Supreme Court of Missouri, in Hunter v. Chandler, 45 Mo. 452. It was an action by a lawfully-elected city attorney against an intruder, who was in under a color of right, for the perquisites of the office; and, although the suit failed of its object, *200in consequence of the plaintiff having omitted to have his right to the office previously settled, the general principle of law warranting a recovery was affirmed. The defendant was in the office under a commission, so that there was no ground to assert that he was holding mala fides, and the case was not decided on any such consideration, but, on the contrary, the English cases were cited and their doctrine maintained. The language of the court is this: “ The question has been mooted whether an action of this kind was maintainable. About this I have no doubt. The authorities abundantly establish the principle that an action for money had and received will lie in favor of a person really entitled to an office, against one who has usurped and intruded into the same, for the recovery of the known and fixed fees that such intruder may have received.” The opinion then cites some of the English and American cases, and continues: “ The doctrine which underlies these cases, and upon which the rule rests, is that, if one man receives money which ought to be paid to another, or belongs to him, the action for money had and received will lie in favor of the party to whom of right the money belongs.” This is very plainly an adoption of the common law rule in its full vigor.
Nor does it appear to me that the decision of the Supreme Court of the United States in the case of United States v. Addison, 6 Wall. 291, can be made to harmonize with any other doctrine. The facts were these : Crawford was elected mayor of Georgetown, but Addison was returned as elected by the judges of election, and was sworn into office. On a quo warranto, judgment of ouster was given against Addison, who thereupon brought a writ of error, giving the customary bond, with a condition “ to prosecute the said writ of error with effect, and to answer all damages and costs, if he shall fail to make his plea good.” On the trial of a suit on this bond, the judge was asked in behalf of the plaintiff to charge the jury, “ that if they should find that, during the time in which Addison acted as mayor, he received the salary, and that he did not prosecute his writ of error with effect, then *201that the plaintiff was entitled to recover the amount so received, and interest on it, provided they should also find that Crawford was duly elected and qualified as mayor, and that he continued, and was ready and willing to discharge his duties, and was only prevented from so doing by the interference of Addison, and by his assuming to exercise the functions of his office.” This instruction the judge refused to give, but, on the case coming before the Supreme Court, it was decided that such refusal was erroneous. I do not understand on what legal basis that conclusion is to be placed, if it be not the common law doctrine above stated. The bond was conditioned to pay the damages, but how were the moneys received by the incumbent for services performed to be deemed such, except upon the theory that he was a usurper, and that the officer de jure was entitled in law to the proceeds of the office ? Legal damages are such losses or detriments as the law compensates in consequence of a wrong committed • and the only wrong committed by the defendant in question was his taking possession of an office to which, as it eventually appeared, he had no title; for it would be contrary to all true principle to hold that his carrying up his case to a court of review was, per se, a legal wrong. The injury to the plaintiff was the receipt by the defendant of moneys which should have come to him, the plaintiff, and it was that injury which the Supreme Court maintained was to be compensated in damages ; and this, as I understand it, is the exact theory of the common law. I may add that this case appears to have been understood in this sense by all the judges in this country who have referred to it.
I shall not pursue my examination of the cases decided in the courts of this country in further detail. In my opinion, the decisions in the States of Indiana, California, Michigan and Louisiana all rest for their vindication on the doctrine that the de facto officer is liable in an action to the de jure officer for his intrusion, irrespectively of the consideration whether such intrusion was perpetrated in the consciousness of doing an unlawful act. I am aware that in each of these *202states- there is a statute relating to the subject, but it does not seem to me that such provisions touch or affect the question under consideration, for they provide merely a mode by which the lawful officer can, in an easy manner, assert his rights, leaving the point with respect to the damages to be ascertained on common law principles ; and that point, as I have already remarked in my reference to the case of United States v. Addison, embraces the whole subject of the controversy. That such was the opinion of the judges in these several slates is, it seems to me, undeniably clear, from their treatment of the subject, for they cite the English cases, and take them as their guides. The cases to which I refer are the following: Glascock v. Lyons, 20 Ind. 1; Douglass v. State, 31 Ind. 429; People v. Miller, 24 Mich. 458 ; Dorsey v. Smith, 28 Cal. 21; Pettit v. Rousseau, 15 La. Ann. 239; Sigur v. Crenshaw, 10 La. Ann. 297.
The foregoing are the decisions in this country which, according to my understanding, very plainly sanction and maintain the rule in regard to this matter, which, I have said, is considered by me to be the clearly-established doctrine of the common law. Nor have I met a single case, or even dictum, having a contrary tendency. Under such circumstances, even if I disapprove of the rule in question, I should feel constrained to follow the authorities which are so consistent, weighty, and long-continued.
Having concluded my review of what I conceive to be the adjudged law of cases like the present one, I shall conclude my remarks with a brief exposition of my convictions with respect to the legal principles which are necessarily involved in this inquiry.
It will be conceded that a person duly elected to office has a legal right to the possession of such office, and to the opportunity of earning its emoluments. Unless this be conceded, it will be impossible to justify the assumption of a right of action existing in such person for any violation of his official privileges; for, even if he should be prevented by fraud or force from entering into such office, he would be remediless *203with regard to such wrong, unless the right to enter and hold such office be a legal one. The law affords no remedy whatever, except for the violation of that which itself deems a legal right. Standing, then, upon the ground that the officer de jure has this legal right to the possession of his office, it necessarily follows that the intrusion of another into such possession is a wrong in law, for it would be absurd to assert that the de facto officer has the legal right thus to intrude. Contradictory rights of possession cannot co-exist, and, as the lawful officer has the conceded right, the intruder’s act must be wrongful. So far, it is to be presumed, no one will dispute these legal premises. But it is asserted that, unless the intrusion be consciously wrongful, it is, in a sense, excusable, and no action will lie by reason of it. But by what course of reasoning is such a result to be reached ? How can the right of the de jure officer be imperiled or lost by the mistakes of another person ? Such a doctrine seems to me to be opposed to everything that has the semblance of legal science. The universal rule is, that the law repairs the damage of the person injured, irrespectively of the motives of the wrongdoer. This is not a case in which the reciprocal rights of two persons are in conflict, for if it were, then indeed the intention of the doer of the act, resulting in damage, would enter into the problem of legal responsibility. But the case is the instance of a clear legal right on the one side, and a clear legal, though an unintentional wrong, on the other. The position that apparently must be maintained, in order to decide this case in favor of the defendant in the action is, that the officer de jacto, reasonably believing that he has title, may, without being subject to legal liability, destroy the admitted rights of his opponent. I cannot think that, under any possible circumstances, a legal right is put out of the protection of the law when its destruction is the result of unconscious error. The only reason that suggests itself for the maintenance of such a theory is the hardship of casting the loss resulting from an act on the person who, when he did it, believed it was lawful. But, in law, a person must bear the *204consequences of his own mistakes; he cannot claim to be erroneous at the expense of others. The maxim is, that when one of two innocent persons must suffer a loss, he must bear it through whom it occurred. Let us take an apposite example : A and B are rival candidates for an office. A is elected, and, as a preparation to going into such office, yields up some lucrative position held by him; B, in the persuasion that he was elected, gets a commission and takes possession of the post, and so continues for several months, until ousted by legal proceedings. During this time A has been out of occupation, and thus a loss has been occasioned by the mistake of B. Upon legal rules, who is to bear such loss ? How is it to be paid ? Is it not to be B, whose mistake has been the cause of such damage ? The fact is, it is obvious that the principle that, under the given circumstances, will exempt the officer de facto from a suit by the person damnified, must be that if an unsuccessful candidate honestly believes, on reasonable grounds, that he is chosen to the office, he has a lawful right to take possession of it. Such a title would be constituted of a man’s belief, plus reasonable grounds for such belief. Where can it be found that, in law, such a title was ever permitted to override the legal title?
I am not unmindful of the fact that in many of these cases of the class under consideration, instances of real hardship will occur. That one person shall do all the labors of an office, and that the remuneration for such labors shall pass to another person, who has performed no services, is, undoubtedly, in some instances, an undesirable result. But such injustices are not peculiar to this one class of cases; they obtain in that vast field embracing those innumerable instances in which persons, from erroneous conclusions as to their own rights, do acts detrimental to the legal interests of others. The man who believes he has the legal title to land, cultivates and improves it at great expense, loses his labor and his money, if turned out of possession under a paramount title. So the same result follows, if an article be purchased and paid for, if the title of the seller prove invalid. The man who does *205labor in improving the property of another, in the mistaken belief that he is authorized to perform such services, cannot claim compensation for such work. Under all such conditions there is a hardship, but such incidents are the inevitable consequence of the necessity that exists of establishing general regulations for the government of society. Laws, for the most part, in their operation, must comprehend a great number of transactions, and it is safe to say that there is no such law which, under some circumstances, does not produce inequitable situations. Such results are regarded as unavoidable imperfections in the law, and which, in reality, are insignificant in comparison with the benefits which, as a general rule, are effected by it. The general legal principle, which takes in the present case and so many others in various departments of the law, is the proposition that the legal rights of one person cannot, without a right to redress, be affected injuriously by the mistakes of others, is one of obvious utility, which could not be abolished without materially impairing our legal system. Even as applied to such instances as the one now before the court, it does not appear that the rule has ever been deemed impolitic. It has existed and been enforced in England for over three hundred years, and I have not met any censure or complaint with respect to its effect; and by the courts of this country it has been adopted without any intimation that it was oppressive in its operation. Indeed, its reception here has been so far from being attended by any marks of disfavor, that the contrary seems to have been the case, for in at least three of the states new methods for its enforcement have been created, and the further utility of the principle is thus vindicated by the Supreme Court of Louisiana. After deciding that an action similar to the present one would lie in the ease referred to, it says : “We may add that a contrary conclusion would be clearly against public policy; for it would be an encouragement to the usurpation or wrongful retention of public offices, thus frustrating the will of the people, or those to whom they have delegated the appointing power. It is no excuse against such a claim that *206the constitutional question on which the right to office turned was res nova, and divided the opinions of the public and the judiciary. Such considerations may shield any defendant from the moral imputations, but does not touch the legal liability to account for the fees received.”
From the considerations above expressed, I am constrained to vote to reverse the judgment in the present case.
For affirmance—The Chancellor, Magie, Parker, Yan Syckel, Clement, Green, Whitaker. 7.
For reversal—The Chief Justice, Dixon, Reed, Scudder, Cole. 5.