State ex rel. Hatton v. Babcock, 106 Mo. App. 72

State ex rel. Hatton v. Babcock

106 Mo. App. 72 | Mo. Ct. App. | 1904

BROADDUS, J.

This is a mandamus proceeding by the appellant against the mayor and board of aider-men of the city of Sedalia to compel them to allow the appellant his salary as city assessor for eight months from June 1, 1900, to February 1, 1901, at the rate of $50 per month.

At the general city election held in Sedalia in April, 1898, relator Hatton was duly elected city assessor for the term of two years and until his successor was duly elected and qualified; on April 9,1898, he duly qualified as such city assessor and was thereupon commissioned by the mayor of said city as such assessor for the term of two years and until his successor was duly elected and qualified. Under said commission he took charge of said office June 1, 1898, and performed all the duties pertaining thereto until June 1, 1900. At the general city election on April 3,1900, relator was a candidate for reelection to said office and one Mathew Meyer was also a candidate. At this election the latter received more votes than any other candidate and a certificate of election was issued to him and he afterwards subscribed to the oath of office and gave bond and the mayor issued him a commission for the term of two years from June 1, 1900, and until his successor was duly elected and *76qualified. At the time said Meyer claimed to have teen elected and subscribed to the oath of office and was so commissioned, he was in arrears to the city for his personal taxes. The relator Hatton at the time said Meyer qualified insisted and contended that Meyer was not eligible to hold said office for the reason of his being in arrears for said taxes and insisted that he, relator, was the legal and regular city assessor, and thereupon took possession of the blank assessment lists to be used for the year 1900 by procuring them out of the city clerk’s office; thereupon said city clerk went before the police judge of Sedalia and swore out a complaint against Hat-ton, charging him with the crime of petit larceny by stealing said city assessment lists. A warrant was issued and Hatton, to avoid arrest, gave up the city assessment lists to the city clerk. On June 1, 1900, relator Hatton instituted quo warranto proceedings against said Meyer in the circuit court of Pettis county, to which Meyer duly entered his appearance. After-wards the cause was taken by change of venue on application of Meyer to the circuit court of Cooper county where it was duly heard and tried on February 15, 1901, and said Meyer was ousted from office by said court. Hatton received no part of the salary of $50 per month from June 1,1900, till February 1, 1901, and performed no services as city assessor during this time; but at all times was shown to have been ready and willing to perform such services. He demanded the salary of city assessor from the city council of said city from the first day of June, 1900, till the first day of February, 1901, and made such demand before any part of said salary was paid to said Mathew Meyer. The court denied said Hatton a peremptory writ of- mandamus and he brings the case here by appeal.

This case falls within the rule laid down in Mechem on Public Office and Officers, sec. 332: “If payment of the salary or other compensation be made by the government in good faith to the officer de facto while he *77is still in possession of the office, the government can not be compelled to pay it a second time to the officer de jxore when he has recovered the office, at least when the officer de facto held by color of title.” In State v. Walbridge, 153 Mo. 194, the court distinguished - a case of this kind from one where there had been no intrusion into the office and no de facto officer and where the government paid no salary during the time for which it was claimed, and held that the claimant was entitled to his salary. Here, the city paid the salary of the de facto assessor holding under color of title in good faith. As the relator did not occupy the office he can not recover a salary from the city, it having paid the same to Meyers while he occupied the office and rendered the services. There has been much said and many authorities cited by the respective parties but the matter is too plain for further discussion.

Cause affirmed.

All concur.