Andrews v. City of Portland

• Citation: 79 Me. 484,10 A. 458
• Parties: ANDREWS v. CITY OF PORTLAND.
• Decision Date: 02 August 1887
• Court: Maine Supreme Court

10 A. 458

79 Me. 484

ANDREWS

v. CITY OF PORTLAND.¹

Supreme Judicial Court of Maine.

August 2, 1887.

On exceptions by plaintiff from supreme judicial court, Cumberland county.

Action of assumpsit brought by the plaintiff to recover his salary as city marshal after his illegal removal from office. The opinion states the facts in full.

Wm. L. Putnam and C. W. Goddard, for plaintiff. Joseph W. Symonds, for defendant.

LIBBEY, J. The plaintiff was duly appointed city marshal of Portland March 81, 1883, was duly qualified April 2, 1883, and performed the duties of the office till May 1, 1884, when, by proceedings had before the mayor and aldermen of said city, he was formally removed. May 14, 1884, one Decelle was appointed by the mayor, with the advice and consent of the board of aldermen, to said office, to fill the assumed vacancy. He performed the duties of the office under that appointment till March 6, 1885. The salary of the city marshal was fixed by the city council of Portland at $1,300 a year, payable quarterly, on the first days of January, April, July, and October, and he was required to provide at his own expense a horse and carriage for his official use. On May 6, 1884, the plaintiff protested to the board of aldermen against his removal, claimed the right and offered to continue to perform the duties of the office. He refused to surrender the keys to the marshal's office, held himself ready to perforin the duties of marshal, keeping his team therefor until he was reinstated. During the time of his suspension he earned by his personal labor $495. May 17, 1884, the plaintiff filed his petition for a writ of certiorari to quash the proceedings of his removal, and, on proceedings duly had thereon, this court held that the proceedings were not in conformity to law, and void, and that the plaintiff was legally entitled to the office of marshal. This decision was announced May 1, 1885. Andrews v. King, 77 Me. 224. From May 14, 1884, to March 7, 1885, the salary was paid by the city to Decelle.

The question in contention in this action is whether the plaintiff can recover of the city his salary from May 14, 1884, to March 7, 1885, while the duties of the office were performed by Decelle, and the salary paid to him. We think he can. The plaintiff was marshal ds jure. His salary was fixed bylaw. The legal right to the office carried with it the right to the salary or emoluments of the office. The salary follows the legal title. This doctrine is so generally held by the courts, that authorities hardly need be cited. Bolan v. Mayor, etc., 68 N. Y. 274; McVeany v. Mayor, etc., 80 N. Y. 185; Fitzsimmons v. Brooklyn, 102 N. Y. 536, 7 N. E. Rep. 787. A de facto officer has no legal right to the emoluments of the office, the duties of which he performs under color of an appointment, but without legal title. He cannot maintain an action for the salary. His action puts in issue his legal title to the office, and he cannot recover by showing merely that he was an officer de facto. In Nichols v. MacLean, 101 N. Y. 526, 5 N. E. Rep. 347, the court says: "It is abundantly settled by authority that an officer de facto can as a general rule assert no right of property, and that his acts are void as to himself, unless he is also an officer de jure." In Cro. Eliz. 699, the doctrine is tersely stated as follows: "The act of an officer de facto, when it is for his own benefit, is void; because he shall not take advantage of his own want of title which he must be conusant of; but where it is for the benefit of strangers, or the public, who are presumed to be ignorant of such defect of title, it is good." Pooler v. Reed, 73 Me. 129; State v. Carroll, 38 Conn. 449; McVeany v. Mayor, etc., 80 N. Y. 192; Dolan v. Mayor, etc., 68 N. Y. 274; Nichols v. MacLean, 101 N. Y. 526, 5 N. E. Rep. 347; McCue v. County of Wapello, 56 Iowa, 698, 10 N. W. Rep. 248; People v. Potter, 63 Cal. 127. Hence it was held in Nichols v. MacLean, supra, after a careful examination of authorities, that the de jure officer, who was prevented from performing the duties of the office by an illegal removal, might recover of the de facto officer, who performed the duties under color of an appointment, the salary which he had drawn while performing them. This result can be reached only on the ground that the de facto officer has no right to the emoluments of the office.

But it is contended by the learned counsel for the defendant that, admitting the foregoing propositions to be well founded, still Decelle was exercising the duties of the office in fact, under color of title upon which the defendant might well act, before his legal right was decided, and be legally protected in paying the salary to him. "We think this contention, when tested by the facts of the case and well-established legal principles, is unsupported by logic or sound reason. The city had full notice of the plaintiff's claim as the legal officer, and that the title to the office was in litigation. It must be held that it knew that the legal title to the office would draw with it the salary. May it assume to determine the question of legal right between the parties before decided by the court, pay to the one having no legal title, and then successfully set up its action in defense of the claim of the one having...