Mayfield v. Moore

• Decision Date: 31 January 1870
• Citation: 1870 WL 6227,53 Ill. 428,5 Am.Rep. 52
• Parties: MILTON MAYFIELDv.SYLVESTER L. MOORE.
• Court: Illinois Supreme Court

53 Ill. 428

1870 WL 6227 (Ill.)

5 Am.Rep. 52

MILTON MAYFIELD

v.SYLVESTER L. MOORE.

Supreme Court of Illinois.

January Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Morgan county; the Hon. CHARLES D. HODGES, Judge, presiding.

The opinion states the case.

Messrs. KETCHAM & DELEUW, for the appellant.

Messrs. MCCLURE & STRYKER, Mr. HENRY CASE and Mr. H. E. DUMMER, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by appellant, in the Morgan circuit court, against appellee, to recover fees received by the latter as sheriff, and collector of the State, county, and other revenue. It appears that, on the sixth of November, 1866, appellant and appellee were opposing candidates for the office of sheriff of Morgan county, in this State. On a canvass of the vote of the county, a certificate of election was given to appellee, who afterwards received a commission, and entered upon and discharged the duties of the office, from the seventeenth day of November, 1866, till the thirteenth day of January, 1868. Soon after the canvass of the vote was had, appellant gave appellee notice that he should contest the election, upon the ground that illegal votes were cast for appellee more than sufficient to change the result, and give appellant the office.

Justices of the peace were selected in the mode pointed out by the statute. A trial was had, which resulted in favor of appellant, and finding him, on the evidence adduced, to be entitled to the office. From this decision, appellee removed the case to the circuit court of Morgan county, by appeal. A trial was there had, with a similar result. To reverse the judgment of the circuit court, appellee sued out a writ of error to the supreme court, which was subsequently dismissed by the court, and appellant was duly commissioned, and entered upon the duties of the office. He then brought this suit to recover the fees and emoluments of the office received by appellee while acting as sheriff. A trial was had in the court below, where appellant recovered a judgment for thirty-four dollars fifty-five cents, the amount of fees received after the rendition of the judgment by the circuit court, and before the office was surrendered to appellant.

On the trial below, appellant offered to prove to the jury the sum of money received by appellee while he exercised the office, as fees, allowances, and emoluments, but on the objection of the attorneys for appellee, the court refused to permit the proof to be made, and confined him to the receipt of fees, commissions and profits which were received after the decision of the case by the circuit court. This ruling of the circuit court is urged as ground of reversal, and is the point upon which the whole controversy turns.

It is urged by appellant, that, he being entitled in law to the office, the fees and emoluments incident to it followed the title, and were vested in him, on the familiar rule that, where one person has received the money which, in equity and good conscience, belongs to another, he may sue for and recover the same in an action for money had and received. We presume it will not be questioned that the legal right to an office confers the right to receive and appropriate the fees and emoluments legally incident to the place; that, when such an officer performs the duties of the office, he may demand and receive the compensation allowed by the law. It can not be that, in such a case, another person can legally claim such compensation. An officer, having rendered services, is as fully entitled to the compensation fixed by law as is any other individual entitled to a reasonable compensation for labor and skill rendered for an individual. The fees and emoluments are legally his.

We also find that the authorities have gone still further, and held that where a person has usurped an office belonging to another, and received the accustomed fees of the office, money had and received will lie at the suit of the person entitled to the office, against the intruder. Aris v. Strekely, 2 Mod. 260; 1 Sel. Nis. Pri. 68. The same rule was announced and enforced in the case of Croskie v. Hurley, 1 Alcock & Napier, 431. In this last case there was a contest as to the title to the office, and the person recovering the title to it sued the other who had acted, and recovered the fees and emoluments received while in possession and exercising the duties of the place. The same rule has been adopted in this country, and seems to be based in common law rules.

It is said by BLACKSTONE, in his Commentaries, Vol. 2, p 36, that offices are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, and are also incorporeal hereditaments, whether public, as those of magistrates, or private, as baliffs, receivers, or the like; for a man may have an estate in them, either to him...