Kendall v. Raybould

• Decision Date: 31 March 1896
• Docket Number: 642
• Citation: 13 Utah 226,44 P. 1034
• Court: Utah Supreme Court
• Parties: ALMA S. KENDALL v. ALBERT W RAYBAULD

44 P. 1034

13 Utah 226

ALMA S. KENDALL v. ALBERT W RAYBAULD

No. 642

Supreme Court of Utah

March 31, 1896

Original application for mandamus by Alma S. Kendall relator, against Albert W. Raybauld, auditor of public accounts of Salt Lake City, to compel the defendant herein to issue a warrant on the city treasurer for money in payment of a salary to which the relator by judgment of the Third judicial district was entitled Respondent answered and at the same time filed a general demurrer to the jurisdiction of the court, whereupon the relator gave notice that he would call up the demurrers for disposal, and on account of the insufficiency of the return, move for a judgment on the pleadings.

Writ awarded.

N. W Sonnedecker and Frank Pierce, for relator.

E. D Hoge and W. G. Van Horne, for respondent.

Section 3535, C. L. U. 1888, gives a specific remedy at law to the person found entitled to office, by an action for damages. Not only is the remedy given specific, but it is the exclusive remedy. Expressio unius exclusio alterius. As the remedy given is an action for damages sustained by reason of the usurpation of office by the defendant, the reasonable construction of the statute is that it contemplates this action in tort to be brought against the tort feasor, i. e., the usurper.

If such was the intention of the legislature, it is but a statutory enactment of the principle set forth in the long line of decisions, holding that payment to an officer dc facto relieves the municipality of liability to officer de jure for salary. 1 Dillon Mun. Corp., § 236, p. 318, note; Conner v. Mayor, 5 N.Y. 285; Hadley v. Mayor, 33 Id. 603; Smith v. Mayor, 37 Id. 518; Dolan v. Mayor, 68 Id. 279; McVeany v. Mayor, 80 Id. 185; Nichols v. McLean, 101 Id. 526-528; People v. Nolan, 101 Id. 539; Kessel v. Zeiser, 102 Id. 114-118; People v. Brennan, 1 Abb. Pr. 184; People v. Brennan, 45 Barb. 457; Benvit v. Wayne Co., 20 Mich. 126; People v. Miller, 24 Mich. 458; Hoboken v. Gear, 3 Dutcher 265; Steubenvillc v. Culp, 38 Ohio St. 18; Farwell v. Bridgeport, 45 Conn. 191; Brunswick v. Fahn, 60 Ga. 109; Paluic Co. v. Anderson, 20 Kan. 298; Philadelphia v. Given, 60 Pa. St. 136; High Ex. Leg. Rem., § 341, p. 242; Memphis v. Woodward, 27 Am. 750, note.

It is true there is upon this question a conflict of authorities, which, as the court justly remarks, in Andrews v. Portland, is irreconcilable. But the weight of authority is clearly against holding the municipality liable after having paid the officer de facto.

But whether the action for damages be against the usurper or against the municipality, it is, under our statute, a usual, ordinary, and adequate remedy at law, which will preclude the resort to mandamus.

Mandamus would be also precluded in such case under the common law. High Ex. Leg. Rem., §§ 339, 340, 341 and 342, p. 240; Mansfield v. Fuller, 50 Mo. 338; Ward v. Co. Court, 50 Mo. 401; Commonwealth v. Commissioners Allegheny Co., 16 S. & R. 317; Lexington v. Milliken, 7 Gray 280; People v. Clark Co., 50 Ill. 213; Johnson Co. v. Hicks, 2 Ind. 527; People v. Chenango Co., 11 N.Y. 563; People v. Mayor, 25 Wend. 680; Ex parte Lynch, 2 Hill 45; People v. Thompson, 25 Barb. 73; People v. Wood, 35 Barb. 653; People v. Booth, 49 Barb. 31; Crandall v. Amador Co., 20 Cal. 72; State v. Co. Judge, 5 Iowa 380; Bennett v. Auditor, 12 Ohio 54; State v. Supervisors Sheboygan, 29 Wis. 79; State v. Kansas City, 17 P. Rep. 185.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This is an application made originally in this court for a writ of mandate against the respondent, who is the auditor of public accounts of Salt Lake City, to command him to issue his order in favor of the relator, on the treasurer of said city, for $ 1,000, which he claims is the amount of salary due him as inspector of provisions of said city for the period of 10 months from the 18th of January to the 18th of November, 1894. It is alleged in the petition, substantially, that the relator was appointed to, confirmed, and qualified for the office of inspector of provisions of Salt Lake City on the 18th day of November, 1892, for a term of two years; that he was entitled to hold the same, and receive the emoluments thereof, for the 10 months from the 18th of January to the 18th of November, 1894; that his salary for said term was fixed by ordinance of said city at $ 100 per month; that the salary due him for said 10 months is $ 1,000; that in the case of People v. McAllister, 10 Utah 357, 37 P. 578, the supreme court had decided that he was entitled to hold the office and receive the emoluments, until lawfully removed, or until the expiration of said term; that the Third judicial court, pursuant to the direction of this court in said case of People v. McAllister, rendered judgment that this relator was entitled to hold his said office, and receive the emoluments thereof, as provided by law during the said 10 months; that the respondent herein is the auditor of public accounts of said city, and that said auditor neglected and refused to issue his order in favor of the relator for said 10 months' salary, on the treasurer of said city, after demand made therefor. The respondent denies, in substance, that the relator was entitled to hold the office for the 10 months, or any greater time than from January 18 to April 3, 1894, or to receive the emoluments thereof; that the salary was provided in the ordinance of 1892, but alleges that it was fixed for the office, by the one passed on January 19, 1894, at $ 1,080 per annum; that $ 1,000 is due the relator, or any greater sum than $ 90 per month from January 18 to April 3, 1894; that the relator has not a plain, speedy, or adequate remedy at law; that the decision in the case of People v. McAllister entitled him to hold the office until November 18, 1894; that the relator ever made demand according to law, or that the respondent ever refused to issue to him an order for any amount according to law, and avers that he is ready and willing to issue an order for such amount as the city may allow or appropriate. It is then affirmatively alleged in the answer that one McAllister has held and performed the duties of said office, and received from said city the emoluments thereof each month from the 19th of January, 1894, down to the present time; that the city council, though requested by the relator to allow his claim for $ 1,000, refused to allow or pay the same, or any part thereof, having paid the emoluments of the office to the said McAllister; and that the respondent, as auditor, can lawfully draw orders on the treasurer only to pay claims allowed or appropriations made by the city council, and, it not having allowed the relator's claim, he could not draw the order. At the time of filing the answer the respondent also demurred to the complaint on the ground that the court had no jurisdiction of the subject of the action. Thereafter the relator moved for judgment on the pleadings. The arguments and briefs of counsel are based on the merits of the case, and include both the demurrer and the motion, and therefore we will consider both together as presented.

Counsel for the respondent insist that the supreme court, under the territorial government, had no jurisdiction to entertain this proceeding. This is no longer an open question in this court. It was considered and decided in the case of People v. Spiers, 4 Utah 385, 10 P. 609, and 11 P. 509, and we see no good reason to depart from the doctrine of that case on this point at this time, and the same is reaffirmed. Original jurisdiction in mandamus was also assumed by this court in the case of Bartch v. Cutler, 6 Utah 409, 24 P. 526. But even if we were at present disposed to hold otherwise, it could avail the respondent nothing in the end, because original jurisdiction in mandamus has been conferred upon the present supreme court by the constitution of the state, and therefore the same application could now be made, subject to no valid and binding objection.

It is also insisted that mandamus is not the proper remedy in this case. This identical question was decided by this court in the case of Williams v. Clayton, 6 Utah 86, 21 P. 398, 21 P. 398. In that case, which originated in the district court, the relator, Williams, who was territorial superintendent of district schools, sought by mandamus to compel the defendant, who was the auditor, after refusal to do so after demand made, to issue his warrant upon the treasurer for the payment of salary which the relator claimed to be due him. The district court ordered judgment in favor of the relator, and, upon appeal, in affirming the judgment, speaking through Mr. Justice Boreman, this court said: "The warrant could only be issued by the auditor, and mandamus was the only means left to the plaintiff to secure this action, and it is consequently proper." So in the case at bar, mandamus is the only plain, speedy, and adequate remedy, and therefore proper, to compel the respondent, who is the auditor, to issue an order on the treasurer to pay a salary, after demand and refusal to do so, if it be shown that such salary is justly due the claimant; and that it was so due him was determined by the decision of this court, of which the respondent was bound to take notice.

It is further insisted that the salary for the office in question was fixed by the ordinance of 1894, and not that of 1892, and that the claim of the relator was greater than the salary fixed by ordinance. To determine the points here made reference must be had to the law governing the question of salaries. Section 1772, Comp. Laws 1888, after stating what compensation the mayor and councilmen shall receive, provides that "all other officers may receive a salary, fee,...