People ex rel. Sullivan v. Weber

Per Curiam : This is a petition for a writ of mandamus, presented by John M. Sullivan, claiming to be the city treasurer of the city of East St. Louis, the purpose of which is to compel Herman Gr. Weber, county collector of St. Clair county, to pay over to him as treasurer of the city the sum of $15,351.45 of the city taxes which Weber had collected by virtue of his office of county collector, the same being part and parcel of the city tax levy of 1876.

From the pleadings in the cause it appears the right to exercise the office of city treasurer is denied, and we are not satisfied the petitioner has a clear title to the office. It would seem the mayor, in the performance of his duty and in obedience to the law, at the regular meeting of the city council next after the removal of Franz and the appointment of petitioner, submitted his actings and doings in this regard to the council, accompanied by the nomination of petitioner to the office of city treasurer to supply the vacancy. The council, in a full meeting, disapproved of the removal of Franz, and, by yeas and nays entered upon its records, refused to consent to the appointment of petitioner as city treasurer, and no person has been since appointed to that office. And it further appears the city council has not approved of the bond of petitioner, and have constantly refused to recognize him as city treasurer. We are of opinion the nomination of petitioner by the mayor having-been rejected by the city council had the effect to nullify the appointment by the mayor and to render it of no effect. He was not from that time forth the city treasurer.

But it is said he was de facto such officer. We believe the rule to be, when one claims rights as an officer by virtue of his office he must show that he is legally entitled to act that he is an officer de jure as well as de facto. The acts-of the former are valid and effectual everywhere, for he is clothed with all the power and authority appertaining to the-, office, and his acts, within the limits of his authority, can not be questioned anywhere. The acts of a de facto officer-are valid only so far as the rights of the public, or of third persons having an interest in such acts, are involved.

But such officer can claim nothing for himself. The title,of such officer can not be inquired into in a collateral way between third parties, but it may be inquired into when he is suing in his own right—as, when he is suing for money had and received, to recover the fees of an office against a. wrongful intruder. Glascock v. Lyons, 20 Ind. 1 ; United States v. Addison, 22 How. 174 . So in this case, the petitioner claiming rights, his claim can be inquired into in this application.

We fail to see any just ground on which this application, can be sustained. .

The writ of mandamus is not now, as formerly, a preroga— tive writ; it is nothing more, under our statute, than an ordinary action at' law in cases where it is the appropriate remedy. Yet it is to be issued in the discretion of the-court. In the exercise of this discretion we do not feel-justified, by the facts in this case, to award the writ.

It appears the city council, by resolution, notified the defendant, Weber, the county collector, not to pay oveithose moneys in his hands to the petitioner, or to any one else, until requested by the city council, but to retain them in his possession. This resolution, although vetoed by the mayor, was passed by a vote of two-thirds of all the members elected to the city council, and was duly published, and a certified copy thereof was duly served upon the defendant; and he was also notified that he would be held by the council strictly to account for this money.

It is said by petitioner the council had no right to interfere in this matter; that he, being treasurer, was entitled'^ to receive and hold this money. As treasurer de facto, merely, he had no right to ask that the collector be compelled to pay this money to him; and under the circumstances the orders and direction of the city council to defendant not to pay over this money to the petitioner was a sufficient justification to defendant, and is a complete answer to the petition.

Judgment will be entered against the petitioner for the costs.

Mandamus refused.