Andrews v. City of Portland

Libbey, J.

The plaintiff was duly appointed city marshal of Portland, March 31, 1883, was duly qualified April 2, 1883, and performed the duties of the office till May 1, 1884, when by proceedings had before the mayor and aldermen of said city, he was formally removed. May 14, 1884, one Decelle was appointed by the mayor, with the advice and consent of the board of aldermen, to said office, to fill the assumed vacancy. He performed the duties of the office under that appointment till March 6, 1885.

The salary of the city marshal was fixed by the city council of Portland, at $1,300 a year, payable quarterly, on the first days of January, April, July and October, and he was required to provide at his own expense a horse and carriage for his official use.

On May 6, 1884, the plaintiff protested to the board of aider-men against his removal, claimed the right and offered to continue to perform the duties of the office.

He refused to surrender the keys to the marshal’s office, held himself ready to perform the duties of marshal, keeping his team therefor till he was reinstated. During the time of his suspension he earned by his personal labor $495.

May 17, 1884, the plaintiff filed his petition for a writ of certiorari to quash the proceedings of his removal, and on proceedings duly had thereon, this court held that the proceedings were not in conformity to law and void, and that the plaintiff was legally entitled to the office of marshal. This decision was announced May 1, 1885. Andrews v. King & als. 77 Maine, 224.

From May 14, 1884, to March 7, 1885, the salary was paid by the city to Decelle.

The question in contention in this action is, whether the *490 plaintiff can recover of the city his salary from May 14, 1884, to March 7, 1885, while the duties of the office were performed by Decelle, and the salary paid to him. We think he can.

The plaintiff was marshal de jure. His salary was fixed by law. The legal right to the office carried with it the right to the salary or emoluments of the office. The salary follows the legal title. This doctrine is so generally held by the courts, that authorities hardly need be cited. Dolan v. The Mayor, 68 N. Y. 274 ; McVeany v. The Mayor, 80 N. Y. 185 ; Fitzsimmons v. Brooklyn, 102 N. Y. 536 .

A de facto officer has no legal right to the emoluments of the office, the duties of which he performs under color of an appointment, but without legal title. He cannot maintain an action for the salary. His action puts in issue his legal title to the office, and he cannot recover by showing merely that he was an officer defacto. In Nichols v. McLean, 101 N. Y. 526 , the court says : "It is abundantly settled by authority, that an officer defacto can as a general rule assert no right of property, and that his acts are void as to himself unless he is also an officer de jure.” In Cro. Eliz. 699, the doctrine is tersely stated as follows : "The

act of an officer de facto, when it is for his own benefit, is void ; because he shall not take advantage of his own want of title which he must be conusant of; but where it is for the benefit of strangers, or the public, who are presumed to be ignorant of such defect of title, it is good.” Pooler v. Reed, 73 Maine, 129; State v. Carroll, 38 Conn, 449; McVeany v. Mayor, 80 N. Y. 192 ; Dolan v. The Mayor, 68 N. Y. 274 ; Nichols v. Maclean, 101 N. Y. 526 ; McCue v. County of Wapello, 56 Iowa, 698 ; The People v. Potter, 63 Cal. 127 . Hence it was held in Nichols v. Maclean, supra, after a careful examination of authorities, that the de jure officer, who was prevented from performing the duties of the office by an illegal removal, might recover of the de facto officer who performed the duties under color of an appointment, the salary which he had drawn while performing them. This result can be reached only on the ground that the defacto officer has no right to the emoluments of the office.

But it is contended by the learned counsel for the defendant that, admitting the foregoing propositions to be well founded, still *491 Decelle was exercising the duties of the office in fact, under color of title upon which the defendant might well act, before his legal right was decided, and be legally protected in paying the salary to him. We think this contention, when tested by the facts of the case and well established legal principles is unsupported by logic or sound reason. The city had full notice of the plaintiff’s claim as the legal officer, and that the title to the office was in litigation. It must be held that it knew that the legal title to the office would draw with it the salary. May it assume to determine the question of legal right between the parties before decided by the court, pay to the one having no legal title, and then successfully set up its action in defence of the claim of the one having the legal right? May A, who holds a fund claimed by B and by C, with full notice of the claim of each, elect to determine between them, and pay to B, who has a prima facie right, and set up the payment as a defence to the claim of C, who has the legal title? It is perfectly well settled that he cannot. If he elects it is at his peril. He is not required to do so. He may await an action at law and then bring both claimants into court by bill of interpleader to litigate their title ; or he may bring the bill at once without waiting for the commencment of an action at law. Here the city was in no peril. It might have refused to pay to either till the title to the office was determined; or by bill of interpleader, it might have brought the parties into court to litigate their title to the salary.

It is well settled that an office which has attached to it emoluments, has a pecuniary value although primarily it is an agency for public purposes, and that the right to the emoluments follows the legal title to the office. Nichols v. McLean, supra ; Andrews v. King, 77 Maine, 231. The officer cannot be deprived of his office without due process of law. Can it be, that, while the action of the mayor and aldermen of Portland, in the attempted removal of the plaintiff, was illegal and void as effecting his title to his office, it deprives him of his salary, all that was of pecuniary value to him? Such a contention has no support in well established legal principles. It would give the mayor, having the power of removal for cause, by the consent of the aldermen, the opportunity by unauthorized proceedings, to *492 deprive the legal officer of his salary, and bestow it upon a favorite.

We are aware that courts of high authority have sustained the doctrine contended for by the defendant. The doctrine of the court of appeals of New York, now seems to be that a payment of the salary by the city to the officer tie facto, before the title to the office is determined, is a good defence to a claim by the legal officer: but that the legal officer may recover-all of the salary not, in fact, paid before the right to the office is determined, although it accrued before the determination of the title. We do not find that that court has noticed the element of notice to the city by the legal officer of his claim before payment. Courts in some other states have followed the New York doctrine. Courts of high authority in several of the states have held that the officer, having a legal title to the office, may recover of the city the salary, notwithstanding it has been paid to the officer tie facto. We have not attempted to analyze the cases and to try to reconcile them. They appear irreconcilable. Our court is uncommitted and we have come to the conclusion which seems to us best supported by reason and sound legal principles.

There is another question involved in the case, although not before us on the exceptions, arising on the special finding of the jury of the amount earned by the plaintiff by his personal labor during the time involved. It is claimed that the defendant has the right to recoup and have that amount deducted from the salary. The right of recoupment exists when the plaintiff claims damages for the breach of a contract; and then the sum to be recouped must arise out of the contract or the execution of it. The right to a salary, fixed by law, is not by contract. It is by statute, and unless there is some inhibition of the power, the tribunal establishing it, may change it at pleasure. Farwell v. Rockland, 62 Maine, 301. This precise question was settled in Fitzsimmons v. Brooklyn, 102 N. Y. 536 .

The result is that the plaintiff is entitled to recover his salary as claimed, with interest from the time of demand.

Exceptions sustained.

Peters, C. J., Walton, Virgin, Emery and Haskell, JJ., concurred.