87 Wis. 181 | Wis. | 1894
This is an appeal to the circuit court from an order of the board of supervisors of Bayfield county 'disallowing the plaintiff’s claim for $820 of his salary as
The county board had fixed the salary of the county treasurer at $1,200 a year. The plaintiff’s term of service commenced from the 24th day of January, 1891, the time of his qualification for said office, and his salary for that jmar was therefore only $1,120. The board allowed him $300 for the fourth quarter of the year, which, being deducted, left said sum of $820, for which he had filed his claim. The incumbent of the office for the previous term was one Alonzo Knight, who held over until said 24th day of January, 1891, when the plaintiff qualified and took possession of the office. On that day, the plaintiff, as such treasurer, appointed, in writing, the said Knight as his deputy, and he (the said Knight) filed the same, together with his official oath, which he had sworn and subscribed as such deputy, in the office of the county clerk of said county. Very soon thereafter, the said Knight expelled the plaintiff from said office, and usurped the same, and took possession of said office and the books, papers, moneys, and effects thereof, and commenced the discharge of the duties thereof, and continued such usurpation until excluded therefrom by the judgment of this court on the 2d day of December, 1891, in the case of State ex rel. Warden v. Knight, 82 Wis. 151. All the material facts stated in the pleadings in this case in respect to the title to said office were stated and considered in that case, and the judgment in that case must be held conclusive of the plaintiff’s title to said office for the term beginning on the first Monday of January, 1891. The matters of that case may not be strictly res adjudieaiw in this case, but that judgment is the highest and most conclusive evidence of the plaintiff’s title to said office, in this case.
1. The learned counsel of the respondent still insists in
2. The learned counsel contends that the said Knight was the officer by color of right and de faeto. By accepting the office of deputy under the plaintiff as treasurer, Knight is estopped to deny that the plaintiff was lawfully and rightfully such treasurer, and to claim that he was the treasurer de faeto, or in any other sense. Allegans con-traria non est audiendus. He cannot be heard to claim that he was in that office in any other capacity, character, or right than as the plaintiff’s deputy. He cannot claim title to the office, or contest the plaintiff’s title to it, until he resigns his office of deputy treasurer and thereby disclaims such title. 3Je is as much estopped to deny the title of his principal under whom he holds as a tenant is estopped to deny the title of his landlord, and by the same principle. Strain v. Gardner, 61 Wis. 1J4; Perry v. Williams, 39 Wis. 339. Knight cannot claim that he had any color of right to the office, or that he was such officer de facto, for that would be inconsistent with his deputyship under the plaintiff. The case of La Povnte v. O’Malley, 46 Wis. 35, effectually disposes of Knight’s claim to hold by color of right or de faeto. Knight was a mere deputy, and undertook to turn his principal out of the office. That is the attitude in which he has voluntarily placed himself. He was an intruder and an usurper without the color of right. When he found that the county board would recognize and
3. The learned counsel of the respondent contends that the county board had a right to pay the salary, to the extent of $900 which it paid, to the said Knight as the treasurer de facto, and is not now bound to pay the salary to the plaintiff as treasurer de jure. As we have already seen, Knight was not treasurer de facto or in any sense. lie was an intruder without color of right, and color of right is essential to make an officer defacto. In re Burke, 76 Wis. 357; In re Manning, 76 Wis. 365, and cases cited. The county board made itself a party to the faithless conduct of Knight, and paid the salary to Knight as a part of the corrupt scheme to defraud the plaintiff of his office and the emoluments thereof, and the county should not be allowed to allege such a fraud in defense of this action. The learned counsel saj^s in his brief that the chairman of the county board had a right to rely upon Knight’s apparent title, and issue the orders to him for salary, etc. The chairman of the board did not rely upon his apparent title to the office, for he knew he had no title, and paid the salary to him to aid him in his usurpation of the office. The authorities cited by the learned counsel have no application
By the Court.— The judgment of the circuit court is reversed, and the cause remanded with direction to render' judgment in favor of the plaintiff and against Bayfield County for the amount demanded in the complaint.
