106 Mich. 288 | Mich. | 1895
At the charter election in West Bay City held April 3, 1893, James A. Scott, relator, was a candidate for comptroller. The returns of the election inspectors gave him 14 votes over Charles Glaser, the opposing candidate. Mr. Glaser filed a petition for a recount, which was had, and Glaser was declared elected, and was inducted into the office in April, 1893, and performed the duties of that office until January 11, 1895. Quo warranto proceedings were instituted July 11, 1893, which ultimated in a judgment of ouster, in favor of Scott, January 8, 1895. The city paid the salary to Glaser while he occupied the office, and this is a proceeding to compel payment to relator of the salary for the period during which he was excluded from the office.
It was held in Board of Auditors v. Benoit, 20 Mich. 176, after very full consideration, that payment of a fixed salary to a de facto officer while he is holding the office and discharging its duties is a complete answer to an action brought after a judgment of ouster. Counsel for relator, however, insist that the city was notified of relator’s claim of right to the office and of the proposed contest, and that any payments to the incumbent would be at the city’s peril; that the council must be presumed to have known that the rejected ballots were legal ballots, and that Glaser was not in office under color of title; that in the present case the authority by virtue of which Glaser was inducted into office proceeded from the council; and that the council was a party to the usurpation.
It is insisted, however, that the salary was paid to Glaser without the proper action bf the council thereupon, under the charter of the city; but it has nevertheless been paid, and Glaser was entitled to its payment at the time made. The salary paid to an officer, to which he was entitled when paid, could not be recovered back simply because certain provisions of the charter had not been observed in making the payment.
It appears, however, that the last payment to' Glaser was made after the judgment of ouster had been rendered. Such payment was unwarranted. Comstock v. City of Grand Rapids, 40 Mich. 397; McVeany v. Mayor, etc., of New York, 80 N. Y. 185; Dolan v. Mayor, etc., of New York, 68 N. Y. 274.
The judgment will be affirmed with respect to the amount of the last payment so made, and a mandamus will issue directing the payment over to relator of such amount. In other respects the determination of the court below is reversed. No costs will be awarded.