Board of Auditors v. Benoit

• Decision Date: 19 April 1870
• Citation: 20 Mich. 176
• Court: Michigan Supreme Court
• Parties: The Board of Auditors of the County of Wayne v. Emil P. Benoit, et al

20 Mich. 176

The Board of Auditors of the County of Wayne v. Emil P. Benoit, et al

Supreme Court of Michigan

April 19, 1870

Heard October 26, 1869 [Syllabus Material]

Case made from Wayne Circuit.

Emil P Benoit and George Miller were candidates for office of Treasurer of Wayne County, at the general election held in November, 1866. Miller was declared elected by the Board of County Canvassers, and entered upon the performance of the duties of his office on the first day of January, 1867, and continued in such performance until November, when he was ousted by the judgment of this Court upon an information filed against him by Benoit; who then became the incumbent of the office and so continued until January 1, 1869. In settling his account as County Treasurer, at the close of his term of office, Benoit claimed the right to the salary for the whole term for which he was elected, including that portion of the time during which the duties of the office were performed by Miller. The Board of County Auditors having settled with Miller and allowed him the salary for the period of his actual incumbency, at the rate previously fixed,--$ 3,000 per annum,--refused to allow the salary for the same period to Benoit; and they bring this action on his bond as County Treasurer for the sum withheld by him, namely; $ 2,583.33--that being the amount of salary from January 1 to November 10, 1867. The Circuit Judge rendered a judgment for this sum in favor of the Board of Auditors, which judgment is brought into this Court for review upon a case made.

Decision affirmed with costs.

Theo. Romeyn, for the plaintiffs.

Miller, having received the certificate of election, was, until ousted, entitled to be recognized as legally in office, and the County Auditors could not withhold his salary from him. There can be no doubt upon the authorities that Benoit had a legal claim against Miller for whatever fees or salary may be equitably his due.

There would seem to be as little doubt, upon principles of equity, that the county officers, having paid the actual incumbent, as by law they were bound to do, ought not to be compelled to pay to the party who failed to receive the certificate.

The single point which we make is, that an office in this country is not property, nor are the prospective fees or salary the property of the incumbent. The right to fees or salary does not grow out of any contract between the officer and the government, but from the rendition of the services.

If officers of the government act fraudulently and willfully in excluding a party from an office to which he has been lawfully elected, then they would undoubtedly be personally liable to him in an action upon the case. But the government or body politic cannot be made liable for services rendered.--Sigur v. Crenshaw, 10 Lou. An., 298. Petit v. Rousseau, 15 ib. 239. Smith v. Mayor of New York, 37 N. Y., 518.

In the case of Stadler v. The City of Detroit, 13 Mich. 346, this point was not made by the counsel for the city.

G. V. N. Lothrop, for defendants.

I. A mere de facto officer cannot set up the office for his own protection, or as the ground of any rights or benefits to himself. While his acts are valid as to third persons, they are of no validity whatever as to himself. This is now elementary.--Green v. Burke, 23 Wend. 502; People v. White, 24 Wend. 529; People v. Hopson, 1 Denio 579; Riddle v. County, 9 Serg. and R., 386; 10 Serg. and R., 249; Fowler v. Bebee, 9 Mass. 231; Venable v. Curd, 2 Head 582; Patterson v. Miller, 2 Met. (Ky.), 493; Gourley v. Hawkins, 2 Clarke, (Iowa), 175

II. The compensation of a public officer is incident to the true title, and not to mere occupancy. -- People v. Tieman, 30 Barb. 193; S. C., 8 Abb. Pr. R., 359; 4 Abb. Dig., 206; People ex rel. Dorsey v. Smith, 28 Cal. 21.

It was also ruled in People v. Brennan, 30 How. Pr. R., 417, (7 Abb. Dig., 484), that a payment of salary to a de facto officer was no defense to the claim of a de jure officer. It is quite clear that an usurper of an office could not compel by law payment to him of his salary; and we insist that it is the duty of the proper officers, in all cases of contest to withhold payment till the matter is decided. Otherwise they pay at their peril.

It is true, that the relator in a quo warranto proceeding may look to the usurper for damages.--2 Comp. Laws, § 5297.

This may, in cases where the public do not pay a salary and the compensation is limited to fees, be the only remedy; or where fees constitute a part of the compensation, be the only remedy as to that part of the compensation. But where there is a salary the officer may look to those whose duty it is to pay the salary. The usurper may be wholly irresponsible. Shall the lawful officer lose his salary through the wrongful payment by the Auditors? The loss, if any, arises from their wrongful act, not his. Let the loss, then, follow the fault. And if the usurper is responsible, the Auditors can recover the money so erroneously paid.

The case of Smith v. Mayor, I am aware, seems to hold that official compensation attends not the true title, but actual occupancy of office.--Smith v. Mayor, 1 Daly 219; Smith v. Mayor, 37 N. Y., 518.

But this ruling, we contend is unsound in principle, and against sound public policy. It ought not to be followed here.--See Stadler v. City of Detroit, 13 Mich. 347.

Campbell, Ch. J. Graves, J., Christiancy, J. concurred. Cooley, J. dissenting.

OPINION

Campbell, Ch. J.

Benoit was sued for not paying over the monies in his hands as Treasurer of Wayne County. The sum which he retained was an amount claimed to be due to him for his salary, during the pendency of proceeding in quo warranto, against George Miller, who held the office in fact, but who was decided not to have been lawfully elected.

The case shows that Miller was declared and certified by the county canvassers to have been duly elected, and that he took the legal oath and gave bond and assumed the office, and held it and performed its duties and received its emoluments until ousted; and that Benoit was finally by the judgment of this Court declared entitled to the office, and has still pending his claim on suggestion of damages under the statute.

The Court below held that Benoit could not claim his salary against the county, when Miller had received it as Treasurer, actually holding office in the manner mentioned.

It seems very well settled that as against the person who has kept him out of office by the intrusion, an action would lie for the injury, under which the lawful perquisites, which he would have received in the office, will be the proper subject of inquiry. Our statute has recognized the right to this redress, and has substituted a suggestion instead of the old action on the case of the assize. The precise measure of damages it would not be proper for us, on this hearing, to consider. But the right is unquestionable, and is put on the same footing with actions for disseizin of lands. See Petit v. Rousseau, 15 La.Ann. 239; Sigur v. Crenshaw, 10 La.Ann. 297; Boyter v. Dodsworth, 6 T. R., 681; U.S. v. Addison, 6 Wall. 291; same v. same, 22 How. R., 174. In the latter case the jurisdiction of the Court to try the cause depended upon the amount of money involved in the issue, and it was held that the quo warranto proceedings the salary received and receivable by the defendant, was for this purpose, a governing consideration.

It cannot be possible that a county can be liable to pay the same salary twice over; and if the present claimant can demand the money, it must be because the payment to Miller was not warranted. And this can only be upon the assumption, that the county authorities were bound to know who was lawfully entitled to the fees, or else, that they were bound to prevent the defeated party from getting the salary until the suit was decided.

Whatever may be the case in regard to a mere intruder, without any claim or color of title, there can be no doubt that a person actually obtaining office with the legal indicia of title is a legal officer until ousted, so far as to render his official acts as valid as if his title were not disputed.

And it is equally plain that there can never be two incumbents at once. If one is in, the other claimant is out, and the law has never tolerated any other theory. The proceeding by quo warranto will not lie when an office is vacant. (Rex v. Whitwell, 5 T. R., 85.) And whenever a mandamus has been sought which would in any way involve an inquiry into the right to an office, it has been held that if the office is actually full, there can be no inquiry except upon quo warranto, and until the incumbent is thus ousted, no one else can have any enjoyment of the office. (Rex v. Mayor of Colchester, 2 T. R., 259; Rex v. Mayor of Oxford, 6 A. & E., 349; Reg. v. Mayor of Winchester. 7 A. & E., 215; Reg. v. Phippen, 7 A. & E., 966.)

It was also held in People v. Head, 25 Ill. R., 325, that mandamus will lie in favor of a party who has the proper title or certificate, against a prior officer who claims to hold over, under a new election, to compel him to respect the official certificate, and seek his remedy as a relator in proceedings by quo warranto. And in Queen v. Blizard, L. R. 2. Q. B. 55, it was held that a resignation of a defendant in quo warranto, was no answer to the application for a writ, because without judgment of ouster the relator could not get in.

The position of a person who has a right to claim an office, but has not yet assumed it, is in no sense an incumbency. (The King v. Swyer, 10 B. & C 486.) Under our statutes the party, however well entitled, loses his right, unless he files his oath and bonds. (C. L. § 475.) We held in People v....