Kreitz v. Behrensmeyer

• Decision Date: 02 April 1894
• Citation: 149 Ill. 496,36 N.E. 983
• Parties: KREITZ v. BEHRENSMEYER.
• Court: Illinois Supreme Court

149 Ill. 496

36 N.E. 983

KREITZ

v.BEHRENSMEYER.¹

Supreme Court of Illinois.

April 2, 1894.

Appeal from appellate court, third district.

Charles F. A. Behrensmeyer filed a claim against the estate of John B. Kreitz, deceased, and obtained judgment thereon, which was affirmed by the appellate court. Rosalie E. Kreitz, administratrix of said decedent, appeals. Affirmed.H. S. Davis and Carter, Govert & Pape, for appellant.

William McFadon and Sprigg, Anderson & Vandeventer, for appellee.

PHILLIPS, J.

At the election in November, A. D. 1886, John B. Kreitz and one Behrensmeyer were candidates for election to the office of county treasurer of Adams county, Ill., and, on the canvass of the returns, Kreitz was declared elected by a plurality of 14 votes; and, a certificate being made, a commission was issued to him by the governor, as the duly-elected county treasurer of Adams county, whereupon he qualified, and entered upon the discharge of the duties of that office,-continuing to occupy the office, and discharge its duties, until his death, in 1890. Appellee, by proper notice and petition, contested the election of Kreitz, which, after extended litigation, finally resulted in appellee being declared duly elected to the office of county treasurer of Adams county, by the judgment of this court, reported as Behrensmeyer v. Kreitz, 135 Ill. 591, 26 N. E. 704. Kreitz having died before the filing of this opinion, such proceedings were had in this court that the judgment of reversal was entered nunc pro tunc as of the 11th day of June, A. D. 1890, which declared Behrensmeyer elected to said office. On the 6th of April, 1892, appellee filed a claim against the estate of John B. Kreitz in the county court of Adams county, seeking to recover the sum of $10,000 for fees and salary received by Kreitz for Behrensmeyer's use, and interest thereon. On the petition of appellant, the venue on this claim so filed was changed from the county court to the circuit court of Adams county, where a trial was had which resulted in a finding and judgment in favor of appellee, and against appellant, for the sum of $7,333, to be paid in due course of administration, as a claim of the seventh class. Appellant prosecuted an appeal from that judgment to the appellate court of the third district, where the judgment was affirmed; and she now brings the record to this court by appeal, and urges that appellee has no cause of action, and asks that this case may be considered as one of first impression, regardless of what was said by this court in Mayfield v. Moore, 53 Ill. 428,-arguing that that case was decided under the constitution of 1848, and that by the provisions of the constitution of 1870 a different rule must prevail, inasmuch as, by the provisions of the latter, the fees of the office belong to the county, from which a salary is paid for the discharge of the duties of the office, while under the former the fees belonged to the officer.

It is conceded that no statute exists in this state, declaring the rights of a de jure officer to recover from a de facto officer the salary paid such de facto officer, who has discharged the duties of the office under a wrongful or a mistaken purpose. There is no legislation on that subject in this state. The right of recovery, if it exists, depends, therefore, on the principles of the common law. The common law is a system of elementary rules and of general judicial declarations of principles, which are continually expanding with the progress of society, adopting themselves to the gradual changes of trade, commerce, arts, inventions, and the exigencies and usages of the country. Judicial decisions of common-law courts are the most authoritative evidence of what constitutes the common law. By chapter 28, Starr & C. St. Ill., the common law of England is declared in force in this state. By reference to the decisions of the commonlaw courts of England, the common law of that country is to be found. An examination of the decisions of the courts of that country shows a uniform declaration of the principle that a de jure officer has a right of action to recover against an officer de facto by reason of the intrusion of the latter into this office, and his receipt of the emoluments thereof. Among others, the following opinions of English courts may be referred to as sustaining this right of recovery: Vaux v. Jefferen, 2 Dyer, 114; Arris v. Stukely, 2 Mod. 260; Lee v. Drake, 2 Salk. 468; Webb's Case, 8 Coke, 45. By the adoption of the common law of England, the principle announced in these cases was adopted as the law of this state, for the principle is of a general nature, and applicable to our constitution. On the basis of a sound public policy, the principle commends itself, for the reason that one would be less liable to usurp or wrongfully retain a public office, and defeat the will of the people or the appointing power, as loss would result from wrongful retention or usurpation of an office. The question has frequently been before the courts of the different states and of the United States, and the great weight of authority sustains the doctrine of the common law, as shown by the opinions of the judges in different states; and in most of the states these are based on the common law, without reference to any statute. The following cases are in point: U. S. v. Addison, 6 Wall. 291;Dolan v. Mayor, 68 N. Y. 274;Glascock v. Lyons, 20 Ind. 1;Douglass v. State, 31 Ind. 429;Currey v. Wright, 9 Lea, 247;Kessel v. Zeiser, 102 N. Y. 114, 6 N. E. 574;Nichols v. MacLean, 101 N. Y. 526, 5 N. E. 347;People v. Miller, 24 Mich. 458;Hunter v. Chandler, 45 Mo. 452;People v. Smith, 28 Cal. 21;Petit v. Rousseau, 15 La. Ann. 239. And the only case enunciating a different rule is that of Stuhr v. Curran, 44 N. J. Law, 181, where the conclusion was reached by a divided court. While it is true that in this state a public office is not a franchise nor an incorporeal hereditament, but a mere public agency created for the benefit of the state, yet the salary or emoluments annexed to a public office are incident to the right to the office, and not to the mere exercise of its duties, or its occupancy; and whether the compensation of the officer is by fees, or a salary, the rule is the same. People v. Smith, supra; McVeany v. Mayor, 80 N. Y. 185;Comstock v. Grand Rapids, 40 Mich. 397.

Such being the rule, the constitution of 1870 did not change the law, in this respect, from what it was under the constitution of 1848. The purpose of section 10, art. 10, of the constitution of 1870,-providing that county boards should fix the compensation of county officers, with their necessary clerk hire and other expenses, to be paid, in all cases where fees were provided for, out of the fees collected,-was to limit the amount of compensation an officer was to receive to a certain sum, if the fees amounted to that sum, and the residue to be paid in the county treasury. And section 12, art. 10, which provided that all laws fixing fees of certain officers should terminate with the terms of those who might be in office at the first meeting...