Drach v. Leckenby

Decision Date01 April 1918
Docket Number9100.
Citation64 Colo. 546,172 P. 424
PartiesDRACH v. LECKENBY et al.
CourtColorado Supreme Court

Rehearing Denied May 6, 1918.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Mandamus by E. E. Drach against Charles H. Leckenby, substituted as State Auditor for Harry E. Mulnix, and another. Decree for defendants and plaintiff brings error. Affirmed.

Hill C.J., and Teller and Scott, JJ., dissenting.

Barnett & Campbell, of Denver, for plaintiff in error.

Goss &amp Kemp and Harold H. Healy, all of Boulder, for defendants in error.


The action was in mandamus by E. E. Drach to compel the State Auditor to issue warrants for salary earned while acting as State Bank Commissioner. In response to the alternative writ the Auditor filed an interpleader which set out that one McFerson claimed to be the de jure Bank Commissioner for the period in question and entitled to the salary, and prayed that he be brought in in order that the court might determine to whom the warrants should issue, and he was accordingly made a party.

In his answer to the alternative writ McFerson set up a final judgment in quo warranto which declared him to be the de jure Bank Commissioner, and to have been such officer from May 6th, 1915, to July 5th, 1916, the time for which petitioner demanded pay, and during which period Drach was held disentitled to the office. The court entered judgment against Drach, and the Auditor was directed to issue warrants for the salary during the period in question to McFerson. This decree is here for review on error. In the opinion the parties will be designated as in the trial court.

It will be necessary to consider only those assignments which relate to the right of Drach as de facto Bank Commissioner to recover salary. The question is whether a de facto officer who performs the duties of an office to which there is a judicially ascertained de jure claimant, can, after surrender of the position to such officer, recover salary.

It is urged that there is no property right in a public office; that it is not a franchise, and that the one who performs the duties is entitled to the pay. Cases holding that the salary of an officer may be increased or reduced at the will of the legislature, or that, in the absence of constitutional inhibition, it may lawfully abolish an office, or that the salary is deemed an equivalent for the services rendered, or that a person is not entitled to the salary unless he both hold and discharge the duties of the office, are cited in support of the claim of petitioner. These principles may be conceded to be correct, but they have not the remotest application to this case.

Henderson v. Glynn, 2 Colo.App. 303, 30 P. 265, El Paso County v. Rohde, 41 Colo. 258, 95 P. 551, 16 L.R.A. (N. S.) 794, 124 Am.St.Rep. 134, and Thompson v. City of Denver, 61 Colo. 470, 158 P. 309, hold that payment to a de facto officer is a defense to the State in an action by the de jure officer to recover the salary. From this sound doctrine petitioner attempts to extract the premise that because he might have compelled payment of his salary while performing the duties of the office, he may after the de jure officer has been disclosed by court decree, still enforce his claim against the State. It is true, as urged by petitioner, that such payment to him while he occupied the office would have barred McFerson from recovery from the State, but he, however, ignores the proposition that McFerson, after having been declared the de jure officer, could have maintained an action against the de facto officer for the emoluments of the office even though the latter had discharged the duties attached to the place. Drach while serving might have compelled payment to him, not because the salary attaches to the person who performs the service, but because as matter of sound public policy, the business of the State must go forward in an orderly manner, and the question of the right to the office not having been determined the de facto officer, in the interest of the public, and because the question of title to the office cannot be determined in mandamus, is permitted to perform the service and get the salary. But when the de jure officer has been ascertained, the de facto incumbent must respond to him for such salary. That the de jure officer can compel such repayment is almost universally held. The only well considered case, which we have been able to find, holding otherwise is Stuhr v. Curran, 44 N. J. Law, 181, 43 Am.Rep. 353.

In Eubank v. Montgomery County, 127 Ky. 261, 105 S.W. 418, 128 Am.St.Rep. 340, reported in 16 Ann.Cas. 483, at page 484, it is said in discussing the rights of a de facto officer to salary:

'* * * We are satisfied that in the case at bar Eubank was standing on his legal rights with notice that his right was disputed, and that he took the risk of his right being upheld. A man cannot be allowed to hold onto an office to which he is not entitled when he knows his right to the office is denied and then claim compensation for his services after it is held that he had no right to the office. By holding onto the office under such circumstances he takes the risk of his right being established. * * * We have held that he could not be punished for usurpation of office, and, if we should now adjudge him entitled to the emoluments of the office, he would be in the same status as if he had been adjudged the office. It is a sound rule of public policy that those who hold public offices without right are not entitled to the emoluments of the office. Their acts are valid as to third persons for the protection of the public, but they are invalid as to themselves. * * * If their acts are invalid as to themselves, they cannot be adjudged compensation from the public for these acts.'

In United States ex rel. Crawford v. Addison, 6 Wall. 291, 18 L.Ed. 919, the court passed upon the refusal to give an instruction to the effect that if the jury should find that the de facto incumbent of an office had received the salary thereof the de jure officer was entitled to recover from him that amount with interest, providing the jury also found the de jure officer was ready and willing to discharge the duties and was prevented only by the interference of the de facto incumbent. This instruction was declared to correctly state the law, and its refusal was adjudged reversible error.

In People v. Tieman, 30 Barb. (N.Y.) 193, it is said at page 195:

'The salary and fees are incident to the title and not to the usurpation and colorable possession of an office. An officer de facto may be protected in the performance of acts done in good faith in the discharge of the duties of an office under color of right, and third persons will not be permitted to question the validity of his acts by impeaching his title to the office. Public interests require that the acts of public officers, who are such de facto, should be respected and held valid as to third persons who have an interest in them, and as concerns the public, in order to prevent a failure of justice. (2 Kent's Com. 295.) It does not follow that a right can be asserted and enforced on behalf of one who acts merely under color of office without legal authority, as if he were an officer de jure. When an individual claims by action the office, or the incidents to the office, he can only recover upon proof of title. Possession under color of right may well serve as a shield for defense, but cannot, as against the public, be converted into a weapon of attack, to secure the fruits of the usurpation and the incidents of the office.'

Speaking to the same question the Supreme Court of West Virginia in Bier v. Gorrell, 30 W.Va. 95, at page 97, 3 S.E. 30, at page 32 (8 Am.St.Rep. 17), said:

'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. * * * 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 from him by an action in assumpsit for money had and received to his use. * * * 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 while ousted.'

In discussing the right of a de facto officer to compel payment by the State of his claim for services while wrongfully in office, the court in Matthews v. Supervisors, 53 Miss. 715, 24 Am.Rep. 715, said:

'The question at issue here is whether he can assert against the

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