192 Ind. 547 | Ind. | 1922
Appellant’s relator brought an action of mandamus against the eight appellees, alleged to be the mayor and common council of the city of Marion, Indiana, asking that the defendants (appellees) be required “to pay the relator his salary” as a patrolman of said city from July 15, 1914, to August 15, 1918, a period of four years and one month. Neither the city of Marion as a corporation nor any of its officers other than the mayor and councilmen was made a party to the action. A demurrer to the complaint was overruled, and demurrers to each of the third, fourth, fifth, sixth and eighth paragraphs of answer were sustained, to each of which rulings appellee excepted, and has assigned them as cross-errors. Issues of fact were formed by an answer in denial of the complaint, and a reply in denial of the second and seventh paragraphs of answer. On proper request the court made a special finding of facts, and stated four conclusions of law thereon, to the general effect that appellant (the plaintiff) was not entitled to recover anything, and must pay the costs. Appellant excepted to each conclusion of law, and the assignment of errors presents them for review.
Of the facts alleged in the complaint and affirmative paragraphs of answer, the court found the following, among others: On July 15, 1914, the relator was a patrolman of the city of Marion, serving under an appointment by the board of metropolitan police commissioners; that he received no salary as patrolman from July 15, 1914, to August 15, 1918, and the salary of a patrolman for that time at the established rate would be $3,892.50. In June, 1914, the members of said board, being city officers other than the appellees or their
The population of Marion was 19,859 inhabitants and in each of the years 1914 to 1918, inclusive, the common council appropriated for the salaries of the metropolitan police force and persons performing such services more than $20,000, all of which was paid out and disbursed by the disbursing officers of Marion to persons performing the duties of patrolmen in said city, serving under appointment as such by the police board of the city, upon pay rolls certified to the city clerk by the chief of police of said, city, on none of which payrolls did the name of appellant appear; and all of such payments were made by said clerk as disbursing officer in good faith, and under the belief that the person to whom the salary claimed by appellant was paid had the right to receive it. Demand was made before suit. No fraud on the part of the city or of these appellees was found.
But while it appears that appellant' was prevented' from serving as a patrolman, the finding does not state what was his occupation, if any, nor what income, if any, he derived from work done in time which would have been devoted to serving on the police force, except for his unlawful dismissal.
A paragraph of answer alleged that he was employed and engaged in the performance of services for others than the city during the period for which he was demanding a salary, and thereby earned and received $4,000 as compensation. But a demurrer was sustained to that answer, and no facts were found tending to show whether or not appellant’s earnings were less during the period of his dismissal than the salary of a patrolman. Many questions of law are discussed by counsel in their briefs, but we shall consider
But appellant insists that his relation to the city was that of a public officer, and that his rights are those of an officer wrongfully excluded from his office. The great weight of authority is to the effect that, where a de facto officer of a municipal corporation has received from the proper disbursing officers in regular course the salary attached to the office held by him for the time he occupied such office and performed the duties thereof, the municipal corporation is not thereafter liable to the de jure officer for such sal-’ ary, though he may obtain possession of the office and show that he has been kept out of it by wrongful acts of other officers of the municipality. City of Terre Haute v. Burns (1917), 69 Ind. App. 7, 116 N. E. 604; Id., 70 Ind. App. 712, 117 N. E. 519, and authorities cited; Thompson v. Denver (1916), 61 Colo. 470, 158 Pac. 309, Ann. Cas. 1918B 915; Samuels v. Town of Harrington (1906), 43 Wash. 603, 86 Pac. 1071, 117 Am. St. 1075; People, ex rel., v. Burdett (1918), 283 Ill. 124, 118 N. E. 1009, overruling People v. Coffin (1917), 279 Ill. 401, 117 N. E. 85; People v. Schmidt (1917), 281 Ill. 211, 117 N. E. 1037, L. R. A. 1918C 370.
This doctrine, as declared by the Appellate Court of Indiana in the case first cited, was approved by .the Supreme Court upon denying a petition for the transfer of that case, and we see no reason to depart from it. Applied to the facts found in this case, upon the assump
The judgment is affirmed.