Mayor v. Woodward

• Decision Date: 31 October 1873
• Citation: 59 Tenn. 499
• Parties: Mayor and Aldermen of Memphis v. Woodward
• Court: Tennessee Supreme Court

59 Tenn. 499

Mayor and Aldermen of Memphis

v.Woodward

Supreme Court of Tennessee.

October Term, 1873.

FROM SHELBY.

From the First Circuit Court of Shelby County, September Term, 1872. C. W. HEISKELL, J.

W. M. RANDOLPH for Plaintiff.

L. D. MCKISSICK for Defendant.

NICHOLSON, C. J., delivered the opinion of the Court.

Woodward sued the Mayor and Aldermen of Memphis, in the Circuit Court of Shelby County, for his salary as physician to the City Hospital from October 23, 1866, to April, 1867, when the office was discontinued.

The facts were agreed on, and submitted to Judge Heiskell, without the intervention of a jury. He found in favor of the plaintiff below, and the defendant has appealed.

The facts on which the questions arise are as follows:

Lynch was physician to the hospital until October, 1866, when his office became vacant, and Woodward was duly elected, gave bond, which was accepted, and took the prescribed oath.

The Mayor went with Woodward to put him in possession of the paraphernalia of the office, and finding Lynch in the office, informed him of the object of the visit, when Lynch asked for a few hours time to move his family, which being conceded to him, thereupon, instead of moving his family, he applied for and obtained an injunction from Judge Hunter, requiring the Mayor and Woodward absolutely to desist and refrain from interfering with him in the enjoyment of the office.

Upon final hearing, this injunction was perpetuated by the Chancellor; but upon an appeal by Woodward to the Supreme court, the decree of the Chancellor was reversed at the April term, 1867.

Judge Milligan, giving the opinion of the court, said: “So it follows that in either event the office of City Hospital Physician was vacant at the election of Dr. Woodward in October, 1866, and that he was lawfully elected to the office by a competent and lawful board, and as such is entitled to all the privileges and emoluments of the office.” Lynch v. Lafland et als., 4 Col., 103.

Lynch continued in the enjoyment of the office, receiving its salary, $225 per month, until the office was discontinued in April, 1867.

So that Woodward, although entitled to the office, never actually performed any of its duties, though he was ready and willing all the time to do so, and he never received any of the salary, though he frequently demanded it.

The injunction continued in force until the office was discontinued.

The question upon these facts is, whether the Mayor and Aldermen were liable to pay the salary of Dr. Woodward, although they had paid Dr. Lynch for the same term of service, during which Dr. Woodward was entitled to the office and its salary?

The decision in the case of Lynch v. Lafland et als. is conclusive as to Woodward's title to the office and to the emoluments.

The right to exercise a public office is a species of property, equally with any other thing capable of possession, and the law affords adequate redress when the enjoyment of it is wrongfully prevented. 3 Kent, 454; 2 Ala. (N. S.), 31.

The same doctrine is recognized in Dodd v. Weaver, 2 Sneed, 673.

But the right to the office does not entitle the officer to the compensation as under a contract: he takes it subject to the authority of the creating power to modify the compensation, or to discontinue the office. Haynes v. The State, 3 Hum., 480;Hoke v. Anderson, 4 Dev., 1.

With this qualification, the officer is entitled to the office and to its emoluments, and to redress for interference with his rights.

It is conceded in the argument, that Woodward is entitled to his remedy against Lynch, for holding the office and receiving the salary to which Woodward was entitled.

It is conceded, also, that if the Mayor and Aldermen had placed Woodward in a position in which he could not perform the duties of the office, he could then recover his salary.

We may add, that it is equally clear that, as Woodward was in reality entitled to the salary of the office, if the Mayor and Aldermen declined to pay it to him, but actually paid it to Lynch, who was wrongfully holding the office, this payment was wrongful, and did not discharge the liability of the Mayor and Aldermen to Woodward.

If Lynch was wrongfully in the office, could the Mayor and Aldermen have been compelled to pay him the salary?

In Pearce v. Hawkins, 2 Swan, 89, the court said: “It is true, that being invested with the forms of office, his official acts will be deemed good and valid as to third persons in the same manner as if he had been an officer de jure. But when put on his own defense he can not justify under his office, if it appear that he is not a legal officer, but only an officer de facto.”

If such an officer could not defend on such an office, it seems to be a legitimate conclusion that if he seeks to rest his claim to compensation upon his rights under such office, he will be repelled if he can not show his title...