OPINION UPON MOTION FOR REHEARING. Upon consideration of the original opinion by Judge RAGLAND and the dissenting opinion by Judge WALKER, I concurred in the dissenting opinion, and reserved the privilege of writing further views. Judge RAGLAND'S opinion upon motion for rehearing has simplified matters somewhat, and really makes the question of remedy the vital question. I concur in that part of the opinion written upon the motion for rehearing which rules that if the municipality has, in good faith, paid the salary to the defacto officer, such payment is a complete defense to an action against the municipality by the de jure officer. This was the early rule in Missouri, and I do not believe that the later cases, relied upon by respondent, when the facts are considered, undertake to change the rule. But, be that as it may, the weight of well-reasoned cases is *Page 558 against the rule contended for by the claimant (plaintiff in the lower court) in this case, and if the latter cases establish such a rule they should not be longer followed. I understand the opinion upon the motion, to rule that payment to the de facto officer, if made in good faith, is a complete defense to an action by the de jure officer for the salary. It rules further, however, that the question is not pleaded and hence not in the present case. Of this question later.
II. I had intended, when I dissented, to discuss the status the claimant occupied with the city, under the charter, and the question whether or not he was an officer at all, as well as another question or two, but in view of the modified opinion upon the motion for rehearing, I shall discuss only the question of whether or not prohibition is the remedy.
III. I do not agree to that portion of the present opinion that rules prohibition will not lie in this case. Hence, notwithstanding the concurrence as to part of the opinion, I dissent as to the ruling that prohibition is not the proper remedy, and the result of the opinion.
My views of the Hamilton case were much shaken by the argument in this or a companion case. But this is adrift and foreign to the question now in hand.
It is said that the question of payment to the de facto officer as a defense to the action by claimant is not pleaded. The exact words are not used in the pleading, but facts are stated from which the charge of payment as a defense may be fairly inferred. The pleader says that to require this second payment to claimant would violate the Constitution, so that we have the fact pleaded of an unlawful demand for a repayment of a claim, already paid. This is a fair inference to be drawn from the language used.
I think the question is fairly lodged in the case, but the opinion does not stress this point, but goes further and rules that even had it been pleaded, yet our preliminary rule should be quashed, on the ground that prohibition would not lie in the case. So we have the direct issue. In so ruling my learned brother overlooks a long line of cases in Missouri. These cases are to the effect that prohibition will lie, and is the properremedy in all cases where appeal, writ of error, or other remedies are wholly inadequate and would be oppressive. [State ex rel. v. Jones, 274 Mo. l.c. 394 et seq.; State ex rel. v. Elkin, 130 Mo. l.c. 109; State ex rel. v. Aloe, 152 Mo. l.c. 483; State ex rel. v. Eby, 170 Mo. l.c. 526.] These are some of the cases. In the Jones case, supra, they will be found cited, and excerpts (to the point in hand here) given. *Page 559
In this case it is clearly charged that there are now pending three hundred cases in which the same question is involved, i.e. that payment has been made to de facto officers, and to compel another payment (by mandamus) to the de jure officer, would be unlawful. The status of the cases is not seriously questioned. The facts of this case brings it squarely within the rule of the cases, supra.
It would be oppressive and wrong to require the city to defend in these three hundred cases, and then appeal. Even the trial expense would be enormous. No remedy, save and except prohibition, would be at all adequate. Even if the pleading here is not as clear as it should be, to use that as a reason for refusing our writ, would mean for the city to go back and amend the pleadings, stating in plainer terms the fact of payment as a defense, then to make a new application here for a writ, to place before us the ultimate question as to whether the writ should go under the facts. The opinion rules that it should not issue even though payments were duly pleaded.
Under the line of cases cited, supra, that ruling is wrong. The Jones case is the latest on the question. For these reasons I dissent as to the result of the opinion. Walker, J., concurs herein.