7 A.2d 357 | Pa. | 1939
Lead Opinion
This appeal is from the refusal of a mandamus to require the Auditor General to approve and the City Treasurer of Philadelphia to pay $6,614.59, claimed by appellant for services as de facto mercantile appraiser from January 5, 1938, to March 24, 1938.
The circumstances in which appellant came into the office are stated in Com. ex rel. v. Marinelli et al.,
Order affirmed at appellant's costs.
Dissenting Opinion
I cannot concur in the majority opinion because I am convinced that appellant is entitled to the compensation which he seeks for the services rendered by him, pending the determination of his appeal to this Court from the judgment of ouster entered against him in the court of common pleas.
While it is true that in a number of our cases it has been stated that "one who is merely a de facto and not a de jure officer cannot claim compensation for official services"(Jones v. Dusman,
Appellant occupied for a time the office of mercantile appraiser for the city and county of Philadelphia under color of appointment. There is no doubt that he performed the duties of the office during the period for which he claims compensation. Under such circumstances he would have been entitled, prior to his ouster, to compel the payment of compensation by mandamus. In Com. ex rel. Shoemaker v. Thomas,supra, it was held that title to an office cannot be placed in issue as a defense to such proceedings. While this is not, strictly, an exception to the general rule, because it proceeds upon the theory that an incumbent is entitled to the presumptive status of an officer de jure *564 until deprived thereof by a competent adjudication, nevertheless it affords a practical illustration of a situation in which a de facto officer may assert the right to payment for his services. And, in Jones v. Dusman, supra, despite the dictum that only an officer de jure can recover for his official services, it was held that a municipality cannot recover compensation paid to a de facto officer under a claim of right, although the de jure officer may do so.
Assuming, therefore, that appellant could have maintained proceedings to enforce the payment which he seeks during the time the action of quo warranto was pending in the common pleas court, let us examine the effect of that action upon his rights. The case of County of Luzerne v. Trimmer,
Did the judgment of the court of common pleas in the action of quo warranto terminate appellant's incumbency of the office of mercantile appraiser? The answer to this question is to be found by reference to the statutes governing such proceedings, and also by taking into consideration the effect of the order of supersedeas granted by this Court, pending the determination of the appeal. The Act of June 14, 1836, P. L. 621, Section 11, provides for the entry of judgment of ouster against a defendant in quo warranto. Such a judgment *565 is not self-executing in this state, for Section 13 of that Act provides as follows: "If judgment of ouster and exclusion, as aforesaid, be given against any defendant, execution thereof shall be had by a writ of injunction. . . .; such injunction shall recite the judgment of the court, and shall enjoin the defendant, or defendants, from exercising the office, franchise, privilege or power mentioned therein, and obedience thereto may be compelled by attachment and sequestration, in like manner as in other cases of injunction."
Before the execution of the judgment of ouster, appellant filed his appeal to this Court (Com. ex rel. v. Marinelli etal.,
The supersedeas was not granted to indulge appellant, but in the best interest of the state and the taxpayers. *566
It was in effect a direction to appellant to continue to perform the duties of the office of which he was still the incumbent. For its duration it accomplished a preservation ofthe status quo ante, pending the determination of the appeal:New Brighton etc. R. R. Co. v. Pittsburgh, etc. R. R. Co.,
Appellant's continuance in office did not merely enable him to perform the duties of a mercantile appraiser; itcompelled him to do so. The supersedeas order was deliberately granted by this Court to permit him to participate as a member of the Board in the completion of its pressing task of making appraisements. During this period it was obligatory upon him to do this work. There can be no doubt that he relied upon the supersedeas order of this Court as safeguarding his right to remuneration for the performance of these duties.
In view of these circumstances can it justly be asserted, as the majority opinion holds, that "when he did that [applied to this Court for the order of supersedeas] he made an election; he acted with knowledge that if the judgment against him was ultimately affirmed, he, having meanwhile been an incumbent de facto, would have rendered services subject to the rule that he could not recover the compensation which the law attached to the office. . . ."?
This question is definitely answered in our decision inSuermann v. Hadley,
The question of the validity of the provision abolishing the office of assessor was not raised, but the gravity of the situation compelled us to make provision for the carrying on of the assessment. Accordingly we said (p. 203): ". . . if the services of all the assessors are dispensed with as proposed in Act 'A,' it would be utterly impossible to finish the task on which they are engaged. Interruption of, or interference with, the assessment at the present stage of its progress would doubtless result in a grave and serious breach in the financial life of the city. It would imperil its credit and greatly injure its people." In further discussing the importance of permitting the assessors to continue their work, it is stated (p. 204): "The assessors, as lawful or de facto officers with their knowledge of the details of assessment, will thus be able to complete their work and act in appeals taken after theirreturns to the Board, as required by law." Although theassessors were not parties to the action, the final judgment of this Court contained the following order (p. 208): ". . . the current work of assessment shall continue to completion, and the real and personal property assessors of Philadelphia shallbe paid their salaries during their continued employment."
The majority opinion says "the assessors were not parties to that proceeding; their right to office was not at issue." That is true, but can there be the slightest *568 doubt that this Court intended that they should be paid their salaries regardless of that question? It is clear that there we recognized that equity and the public interest required that compensation be paid to the assessors, even as de facto officers, in order that the work of assessment should not be interrupted.
Upon what basis can the facts here present be distinguished from the situation there presented? As stated, at the institution of the quo warranto proceedings appellant was engaged in making mercantile appraisements. The public interest demanded that this work proceed without interruption. Appellant, like the assessors in the Suermann case, supra, was familiar with the details of the work; like them, he and his fellow Board members were to act in appeals from their appraisals. The task of the Board would have been immeasurably complicated by his removal. Recognizing all this we issued asupersedeas continuing him in office for the pendency of theappeal. His case is, therefore, even stronger than that of the assessors in the Suermann case, who were not parties to the record. He faithfully performed his share of the work of the Board, which made 50,651 appraisals during the period involved in this appeal. Appellees concede the justice of his claim2 and there is no dispute as to the amount of compensation to which he would be entitled for the work performed. In a case where the equities are so clear as here, it should require a strong precedent, indeed, to defeat recovery. Not only has no such precedent been found, but those of our decisions closely analogous support appellant's contentions. Under these circumstances, I am of opinion that it is manifest injustice to deny his claim. *569
For these reasons I am compelled to record my dissent to the opinion of the majority of the Court. I would reverse the judgment of the court below, and here enter judgment upon the record for appellant in the sum of $6,614.59, the stipulated amount of his compensation, with interest and costs.
