Bier v. Gorrell
| Decision Date | 29 June 1887 |
| Citation | 3 S.E. 30,30 W.Va. 95 |
| Parties | BIER v. GORRELL. |
| Court | West Virginia Supreme Court |
Submitted June 13, 1887.
Syllabus by the Court.
A de jure officer, who has been excluded from his office by a person not legally entitled to it, may, in an action on the case, recover from such person for the injury sustained by such exclusion.
Where a person exercised the duties of the office of sheriff under an apparent claim of right, and it was subsequently judicially determined that the office did not belong to him, the rightful officer may recover from such person the fees and perquisites received by him while in office, after deducting the necessary expenses of earning them.
In such case, if the action is brought more than five years after the intrusion commenced, but within less than that time before it ended, the plaintiff cannot recover for the profits of the office, received more than five years before, but may for those received within that period.
Error to circuit court, Pleasants county.
Trespass on the case. The opinion states the facts.
John A Hutchinson and D. D. Johnson, for plaintiff in error.
J. B Jackson and Geo. Loomis, for defendant in error.
Action of trespass on the case, commenced April 30, 1884, in the circuit court of Pleasants county, by W. E. Bier against Oliver Gorrell. In September, 1877, the defendant was duly appointed and qualified as sheriff of Pleasants county, to fill the vacancy in said office until the election and qualification of a sheriff to fill said office for the unexpired term, which ended December 31, 1880. At the general election held October 8, 1878, the plaintiff was elected to fill said unexpired term, and on October 21, 1878, he qualified by taking the oath and filing the bond required by law. The defendant continued to hold and exercise the duties of said office, and by legal proceedings contested the right of the plaintiff to hold the office. In December, 1878, the county court reappointed the defendant to fill the office for the unexpired term. In the contest the county court decided that the plaintiff, Bier, was ineligible, and his election void. The circuit court reversed the said judgment of the county court, and decided that Bier was entitled to the office. Upon a writ of error, taken by Gorrell, this court on July 9, 1879, affirmed the said judgment of the circuit court. Gorrell v. Bier, 15 W.Va 311. On August 2, 1879, Gorrell surrendered the office to the plaintiff, Bier. The present action is brought to recover from the defendant the damages sustained by the plaintiff by reason of the defendant's withholding from the plaintiff the said office during the period from October 8, 1878, to August 2, 1879. There was a verdict and judgment in the circuit court in favor of the plaintiff for $466.91, and the defendant obtained this writ of error.
1. There was a general demurrer to the declaration, which the court overruled, and this is the first error assigned. The declaration is irregular and quite informal; so much so that it is difficult to determine whether the pleader intended it for one count only in case, or for two counts,--one in case and the other in assumpsit. In its first paragraph it avers that the defendant illegally and fraudulently exercised the duties of the office, and received the fees, commissions, and perquisites thereof, to the amount of $2,000, which of right belonged to the plaintiff, and which on demand he refused to pay to the plaintiff; and in the second paragraph it avers that the plaintiff demanded of the defendant to desist from the exercise of the duties of the office, and to turn over to him the books and papers belonging thereto; that the defendant failed to do so, but, well knowing the premises, he continued to exclude the plaintiff from said office, and to exercise the duties, and to appropriate to himself the fees, commissions, and perquisites thereof to the amount of $2,000; whereby the plaintiff has sustained damages, etc.
Taking the whole declaration together, I think it must be regarded as consisting of but a single count in case. Neither of its paragraphs avers any promise on the part of the defendant. Such an averment is essential in assumpsit. If the declaration did, in fact, contain two counts, one in case and the other in assumpsit, it would be clearly bad, because actions founded on tort can never be joined with actions on contracts. 4 Rob. Pr. 875. It seems to me, however, that there is no such misjoinder in this case.
The question then arises, does this declaration state a legal cause of action? It seems to be well settled that a de jure officer, who has been kept out of his office by the intrusion of another person, may by action recover from such person for the injury sustained by him, and that in such action the lawful perquisites which the plaintiff would have received if he had exercised the office are the proper measure of his recovery. The common-law form of action in such cases was on the case of the assizes. Boyter v. Dodsworth, 6 Term R. 681; Auditors, etc., v. Benoit, 20 Mich. 176, 4 Amer. Rep. 382.
It seems to be a principle of natural justice, as well as law, that where one person has injured another, or received the compensation which in equity and good conscience belongs to another, he may be required by action to account to such other for the injury done him. In like manner will an intruder in office be required to account to the legal officer for injury done by the intrusion. The legal right to an office confers the right to receive and appropriate the fees and perquisites legally incident thereto. When such officer performs the duties of his office, he may demand and receive the compensation therefor allowed by law, and he is as fully entitled to such compensation as he would be in any other case entitled to pay for skill and labor done for another at his request. The legal fees and emoluments of an office are a part thereof, and belong to the rightful incumbent; and, where a person receives such fees and emoluments on the pretense of title to the office, the de jure officer may recover the profits of the office from him by an action of assumpsit for money had and received to his use. Arris v. Stukely, 2 Mod. 260; Mayfield v. Moore, 53 Ill. 428, 5 Amer. Rep. 52.
Where the office is one with a fixed salary attached to it, the officer will be entitled to recover the entire official salary, without any deduction for the services of the incumbent, or for what he may have earned himself...
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