Howard v. City of St. Louis

• Decision Date: 30 April 1886
• Citation: 88 Mo. 656
• Parties: HOWARD v. THE CITY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

88 Mo. 656

HOWARD

v.THE CITY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

April Term, 1886.

Appeal from St. Louis Court of Appeals.

REVERSED.

Leverett Bell for appellant.

This is an action to recover the salary of the plaintiff as physician of the insane asylum for the months of February, March and April, 1877. The agreed case admits that during all of said period, except the last ten days of April, 1877, said position was filled by Dr. Charles W. Stevens, and that said Stevens was paid from the public treasury the salary attached to the office for the time served by him as aforesaid. The plaintiff, therefore, is not entitled to recover for the term during which Dr. Stevens held the office and received the salary. Westburgv. Kansas City, 64 Mo. 493; Terhune v. Mayor, 88 N. Y. 247. It is of no importance whether Dr. Stevens was rightfully or wrongfully in office. The plaintiff was not actually in office during the period mentioned. Another person held the position and received from the public treasury the salary attached to the office. The public cannot rightfully be charged with the payment of a salary to two persons for one office, during the same term of service. The instruction offered by the defendant, limiting the plaintiff's recovery to the ten days of the month of April, 1877, is the law of the case. The judgment should be reversed and a new trial ordered.

T. K. Skinker for respondent.

(1) If Dr. Stevens had been paid by the city for the whole period in dispute, that would not prevent plaintiff's recovery in this action. Scheme and Charter, section 9. It is well settled that the emoluments of office are incident to the title, and not to the usurpation or colorable possession; and the fact that they have been paid to the usurper is no bar to recovery by the person legally entitled to the office in an action against the municipality. State v. Carr, 3 Mo. App. 7; People v. Tieman, 30 Barb. 195; 8 Abb. Prac. 359; Dorsey v. Smith, 28 Cal. 21; People v. Oulton, Ib. 44; Carroll v. Siebenthaler, 37 Cal. 195; Memphis v. Woodward, 12 Heisk. 499; McCue v. Wapello County, 56 Iowa, 698, 703; Auditors v. Benoist, 20 Mich. 176; dissenting opinion of Cooley, J.; Matthews v. Supervisors, 53 Miss. 721. Where a lieutenant-governor has improperly intruded into the govnership and exercised the functions of governor, the latter officer has, in two cases, been allowed to draw the salary, notwithstanding it has already been paid to the former. State ex rel. Warmoth v. Graham, 26 La. An. 568; State ex rel. Crittenden v. Walker, 78 Mo. 139, 144. The fact that plaintiff did not actually render any services during most of the period does not deprive him of the right to compensation. He was excused by the express command of the mayor. O'Leary v. Board of Education, 93 N. Y. 1, 6; People v. French, 43 Am. Rep. 418, note; Sleigh v. U. S., 9 Ct. of Claims, 375. The cases of Terhune v. The Mayor, 88 N. Y. 247; and Westburg v. Kansas City, 64 Mo. 493, cited by appellant, are clearly distinguishable from the case at bar. (2) Dr. Stevens was, in point of fact, paid by the city only for four days of the time; for the remainder he was paid by the county. The city can, under no rule, avail itself of a payment by the county.

HENRY, C. J.

Prior to the adoption of the scheme and charter by which the city was separated from the county of St. Louis, Howard was appointed by the county court of the county resident physician of the insane asylum. After the vote on the scheme for separation there was a controversy in regard to its adoption, and pending litigation to determine that question the county court of the county, ordered plaintiff to obey its orders in relation to the management of the asylum, and about the same time he was ordered by the mayor of the city to obey the city authorities in its management. If the scheme and charter was adopted the asylum fell within the limits, jurisdiction and control of the city.

The plaintiff, it seems, was loyal to the city, and signified his willingness to obey its authority, and was directed by the mayor to “hold the fort,” the county court having prepared to take forcible possession of the asylum, and place Dr. C. W. Stevens in charge as resident physician. Preparations were made on the other side to resist such attempt, and pending these preparations...