Coughlin v. McElroy

• Decision Date: 09 January 1902
• Court: Connecticut Supreme Court
• Parties: COUGHLIN v. McELROY et al.

50 A. 1025

74 Conn. 397

COUGHLIN

v. McELROY et al.

Supreme Court of Errors of Connecticut.

Jan. 9, 1902.

Action by Patrick Coughlin, to recover salary as city tax collector, against James H. McElroy and the city of Bridgeport. Questions reserved from superior court. Judgment advised for plaintiff.

This is an action by the tax collector de jure of the city of Bridgeport against the city and McElroy, the de facto collector, for the fees and emoluments of said office. The material facts found are, in substance, these: McElroy filled said office for the term ending April 10, 1899, and was a candidate for election for the term succeeding this, as was also the plaintiff. As a result of said election in 1899, McElroy was regularly declared elected; and in good faith, believing he had been so elected, he qualified anew, and entered upon the duties of said office for said succeeding term. The plaintiff made no demand for said office at this time, nor did he qualify for it; but he at once brought suit in the superior court to determine whether he had been elected, and upon a full hearing that court decided against him. He then appealed to the supreme court of errors, and that court set aside the judgment of the superior court, and judgment was ultimately rendered in his favor. Immediately thereafter, to wit, on the 8th of August, 1899, he qualified and took possession of said office. McElroy, as an officer de facto, occupied the office from April 10, 1899, to August 8th of the same year, and during this period he collected taxes to the amount of $630,670.65. It had been for 20 years the invariable custom in said office to retain from the taxes collected the fees due to the collector therefor, and to turn over to the city the amount collected, less said fees; and McElroy, as de facto incumbent of said office, followed said custom. These lastmentioned facts were found upon evidence to which the plaintiff objected, and the question of its admissibility is one of the questions reserved. No objection to the course thus pursued by the tax collectors was ever made by the city or any one else. McElroy, as collector de facto, retained in this way, and still retains, as his compensation for his work, the sum of $4,775.02. which was the percentage allowed to the collector by law. The amount of taxes collected for the entire year aforesaid was $755,009.45, and the percentage due the collector thereon was $5,662.56. The city has never paid the plaintiff this sum; nor has McElroy paid to the plaintiff any of the money retained by him as aforesaid, although due demand was made upon him therefor. McElroy, as de facto collector, made out all the tax bills for the year 1899, about 9,000 in all, — work of some magnitude, a portion of the benefit of which inured to the plaintiff after he took the office. It is the duty of the collector to enter upon the rate book all taxes paid. It has been the custom of the office to enter such payments first upon a blotter, and afterwards upon the rate book. The payments made to McElroy between April and August, 1899—about 8,000 in number, —were entered by him on the blotter, but not on the rate book. The entries of these payments upon the rate book were made by the plaintiff. It took about two months' time to do this,—a longer time than it took to make out the tax bills. McElroy performed all the other duties of said office during the period last aforesaid. The ordinances of the city provide that the annual compensation of the tax collector shall be "for all moneys collected three quarters of one per cent." Neither the city nor McElroy had any reason to believe that McElroy had not been legally re-elected to the office of tax collector; and whatever they did in this matter was done not to forestall or defraud the plaintiff, but in good faith, and in the belief that McElroy was entitled to hold the office. Between the time he qualified and the bringing of this action, the amount due the plaintiff for collections was $887.54, which has not been paid. The city has not demanded from McElroy the abovementioned sums retained by him. The city charter provides that the tax collector shall hold his office till his successor is chosen and qualifies. McElroy never presented a claim for the moneys retained by him as aforesaid, as required by the cityordinances in the case of claims made against the city; nor has the city paid McElroy anything for his services as collector between April 10 and August 8, 1899, "except in so far forth as the retention of the moneys collected by said McElroy as hereinbefore set forth may operate as such payment." The plaintiff claims compensation for the entire year ending April 10, 1900. From August 10, 1899, to April 10, 1900, the plaintiff gave his entire time to the duties of said office, and also, of necessity, employed a deputy, to whom he paid $25 per week, and another assistant, to whom he paid $18 per week.

Daniel Davenport and Henry E. Shannon, for plaintiff.

John C. Chamberlain, for defendant McElroy. Alfred B. Beers, for defendant city of Bridgeport.

TORRANCE, C. J. (after stating the facts). In the case of Coughlin v. McElroy, 72 Conn. 99, 43 Atl. 854, 77 Am. St. Rep. 301, this court held, in effect, that the plaintiff in the present case had been elected as tax collector of the city of Bridgeport for the term beginning April 10, 1899, and judgment in his favor to that effect was rendered in the superior court. Pending that contest McElroy was in possession of the office, and performed the duties thereof, from April 10, 1869, to August 8th of the same year. During this period, upon the facts found, it is clear that the plaintiff was the tax collector de jure, and the defendant McElroy was the tax collector de facto. While holding said office as de facto collector, McElroy received, and still retains, certain sums of money, which the plaintiff seeks to recover from the city, or from McElroy, as the fees and emoluments of said office, belonging to him as collector de jure. The record presents for consideration two main questions: (1) Is the de jure officer, upon the facts found, entitled to recover from the city the sums so received and retained by the de facto officer? (2) Is he entitled to recover them from the de facto officer? Although questions of this kind have frequently been considered and passed upon elsewhere, they are, so far as we know, questions of first impression in this state; and, as we have no statute upon the subject, they are to be decided by the rules and principles of the common law applicable thereto. The decision of the first question involves the decision of a subordinate one, namely, whether, upon the facts found, the city can be considered as having legally paid to McElroy the fees retained by him as collector de facto. The plaintiff claims that, under the city charter and ordinances, it is the duty of the tax collector to pay over to the city the full amount collected, without deduction, and to...