14 Or. 243 | Or. | 1886
The appellant commenced an action in the circuit court of Multnomah County against the respondent, to recover an amount of salary alleged to be due him as a police
The respondent interposed the following matters of defense to the complaint: That the salaries sued for were paid to parties other than the appellant and his assignors, without any knowledge on its part that they claimed the offices or the salarios ; that appellant and his assignors were removed from their offices, and acquiesced in the removal; that appellant and their assignors abandoned the said offices, and neglected to perform the duties pertaining thereto ; and that the appellant and his assignors were duly dismissed and discharged from their offices.
The city charter in force at the time of these attempted removals provided that the mayor, with the consent of a majority of the common council, might appoint a chief of police, one or more captains of police, and a suitable force of regular policemen; and remove or suspend any member of the police, including the chief and captains, for any cause which they might deem sufficient, to be stated in the order of removal or suspension. (Charter, 1884, Chap. 8, Sec. 72, and the prior charter’s of the city.)
To the instruction referred to the appellant’s counsel took an exception, which is the main point relied upon in the case. Whether the instruction was correct or not, depends upon the evidence bearing upon the question of such abandonment. The appellant’s counsel claimed that there was no evidence tending to prove an abandonment upon the part of the appellant and his assignors of the said offices; and I confess that I was very skeptical as to the probability of there being any such evidence. I presume instances have occurred in which officers have abandoned their offices, but they have been so rare that it requires cogent proof to establish them as matters of fact. An officer, doubtless, might legally abandon his office when wrongfully ousted therefrom; his permanent removal from the territorial jurisdiction of the office would necessarily have that effect; but his failure to keep up a clamor for reinstatement could not certainly be urged as evidence of abandonment.
But the respondent’s counsel contends that the mayor and council had the right to remove appellant and his assignors from the offices held by them, without cause stated in the order of removal; that such office belongs to the class provided for in Sec. 2, Art. 15 of the constitution of the state, and is to be “ held during the pleasure of the authority making the appointment.” It is questionable who “ the authority making the appointment ” is in this case. The authority itself is derived from the legislative department of the state, and the mayor and common council are restricted in the manner of its exercise; and the question is, Whose pleasure is to be consulted —the legislative, or mayor and common council ? The latter are intrusted with the appointment, but the authority emanates from the former, and it has expressed its pleasure by requiring the mode in question to be pursued when the authority is exercised. The mayor and common council are mere agents in
It looks very much to me as though the public confidence was abused in the transaction, and that the appellant and his assignors were shamefully trifled with ; but it occurs to my mind that they neglected to take proper steps in the matter, and have lost the remedy they could have invoked successfully. They might have commenced an action in the nature of a quo warranto against the persons designated to succeed them, and been reinstated in their positions: or, probably, they might have sued out a writ of review, obtained a reversal of the action of the mayor and common council in the affair, and been restored to their positions in that way. It was held by the court of appeals in New York, in Fitzsimmons v. City of Brooklyn, 102 N. Y. 536 (S. C. 7 N. E. Rep. 787), where a policeman of that city, who had been duly appointed to that office and entered upon the performance of his duties, was attempted to be removed by the police commissioners, and upon certiorari, the order of removal was reversed, and he was restored to his office, that he could recover against the city his salary which accrued between the time of the order of removal and the restoration, and without any abatement on account of earnings realized from bis former trade, resumed during the interim. Under that decision, these parties could possibly have recovered their salaries after a successful prosecution of a writ of review. I cannot, however, believe that they can maintain an action therefor while other parties occupy their places, have qualified as policeman, and are recognized'by the city government as such. It seems very evident to me, that their right 'to the office would have to be judicially determined in a proper proceeding, before such an action could he sustained.
The appellant’s counsel have cited a number of authorities
The appellant’s counsel claim that the salary is attached to tlie office, and does not depend upon contract. It is fixed by law. But it does not follow that the title to the offiee can be tried in a collateral action. Dillon, in his work on Municipal Corporations, 3d ed.,- Sec. 831, says: “ Thus the salary or fees of an officer of a municipal or public corporation may, like other debts, be recovered by an action at law against the corporation. This, ordinarily, is the remedy, and not mandamus ; but if the officer cannot sue the corporation, he may, where entitled, compel payment by means of this writ, unless another is in possessson under color of right; in which case the title to the office cannot ordinarily be determined on mandamus, or in a collateral proceeding.”
It may be said that the action of the mayor and common council in the premises was a flagrant violation of the law, and of the rights of these officials; but, nevertheless, other persons were nominated in their places, confirmed by the common council, took the oath, were regularly inducted into their places, and became officers da facto in their stead. The title to the office had to be tried, as preliminary to the right of action which could have been brought in the lowest court of the state having civil jurisdiction. The parties ousted could, as their salaries accrued monthly, have sued therefor in a justice’s court, whose jurisdiction to try the title to the office would have to be conceded, the same as that of the circuit court, under the same form of action, not only in cases where the question as to the title is a simple one, but where it is complicated and doubtful. Courts will not entertain a case in favor of a party to recover for the use and occupation of real property against one who is in possession thereof adversely, but remit such per
It has long been a mooted question, whether the payment of a salary, or fees, or emoluments of an office to a de facto incumbent would exonerate the government or political body from the payment thereof to the de jure officer. Numerous authorities have been cited upon both sides of that question, though it is not before the court as the case stands. Those cited by the respondent’s counsel go, in the main, to show that it will not. They maintain that the compensation is attached to the office, and carry it out to its logical sequence by holding that the salary must be paid to the de jure officer; while the ones which maintain the contrary doctrine generally concede that the salary is attached to the office—yet hold that the disbursing officer is not compelled to look beyond the certificate of election or appointment of the person who is in the discharge of the duties, and that payment to such party discharges the obligation of the political body in regard to the matter; but neither class of cases sanctions the right of the de jure officer to recover the salary while out of possession of the office, until he obtains a determination of a competent tribunal in favor of his title, in a direct proceeding instituted for that purpose.
Dorsey v. Smyth, 38 Cal. 21, one of the cases cited by the respondent’s counsel, was an application for a mandate to compel the county auditor of Tuolumne County, California, to audit and allow the salary of the relator as district attorney of said county. He had been kept out of office by an intruder, who held it under color of office. The court granted the writ, but, before the application was made, the relator had instituted
Douglass v. State, 31 Ind. 429, another of the cases, was a direct proceeding under the statute of the State of Indiana upon the relation of Wright against Douglass, in which the latter was charged with having usurped the office of auditor of Harrison County, in that state. It was to try the title to the office, and recover the fees and emoluments thereof, as incidental to the proceeding.
City of Philadelphia v. Rink, 2 Atl. Rep. 505, another of the cases, was an action brought by Rink against the city to recover his salary as magistrate thereof. One Barr had intruded into the office, and held it for some time under color of office. Kink was allowed to recover for full time, but before the action was commenced, his right to the office had been determined by the Supreme Court of Pennsylvania, in a direct proceeding instituted for that purpose.
Carroll v. Siebenthaler, 27 Cal. 193, another of the cases, was a mandamus, upon the relation of Carroll, to compel the board of supervisors of Amador County to allow his salary as supervisor of a district of that county, to which one Ingalls had been declared elected, and for some time had held the office. The writ was allowed, but Carroll had commenced the suit to try the right to the office, and had obtained a decision in his favor, before the mandamus proceedings were begun.
People v. Potter, 63 Cal. 127; Meagher v. County of Storey, 5 Nev. 244 ; Matthews v. Supervisors of Copiah Co., 24 Amer. Rep. 715, and City of Philadelphia v. Given, 60 Pa. St. 136 —four other of said cases—merely hold that a de facto officer cannot recover compensation for services while occupying the office, a point upon which none of the authorities disagree, as I am aware of.
Mayor etc. of Memphis v. Woodward, 12 Heisk. 499, another of the cases, was a suit by the latter party against the former, to recover a salary as physician to the city hospital,
Mayor etc. of Macon v. Hays, 25 Ga. 590, another of the cases, was an action to recover compensation as city marshal. That case was tried several times, and will be found reported in 19 Ga. 468, and 21 Ga. 280; and whether it has ever yet been determined or not I am not advised. The right to institute such an action was conceded, although the marshal had been removed from the office by the mayor and common council of the city ; but he had, before its commencement, obtained a judgment of the Supreme Court of the state quashing- their proceedings in the matter.
Dolan v. Mayor, 68 N. Y. 274, another of the cases referred to, was an action to recover a salary as assistant clerk of the district court for the sixth judicial district in the City of New York, and the plaintiff was allowed to recover for a portion of time during which he liad been excluded from the office 63^ another party who was holding under color of office, but not for any portion of the time covered by payment to the defacto officer; nor was the action to recover the salary commenced until after judgment of ouster was obtained against the incumbent in quo warranto proceedings.
Bryan v. Cattell, 15 Iowa, 538, is also cited by the respondent’s counsel. That was a proceeding by mandamus, to compel the auditor of the State of Iowa to issue to the plaintiff in the proceeding warrants on the state treasurer for the salary of
None of the cases referred to indicate that an action to recover the salary of an office could be maintained while occupied by a defacto officer, until the right to the office has been determined by pi-oper adjudication. Such a determination could not properly be had in this case, as it would determine the rights of parties not before the court. It would be a determination that the incumbents who succeeded the appellant and his assignors were intruders and usurpers, when they were not before the court. Upon this ground, the appellant was not entitled to recover, and the circuit court should have dismissed the complaint, instead of trying the case upon the merits. To that extent, the judgment appealed from will be modified. Costs will not be allowed to either party upon this appeal.