Ness v. City of Fargo

• Decision Date: 18 December 1933
• Docket Number: No. 6205.,6205.
• Citation: 251 N.W. 843,64 N.D. 231
• Parties: NESS v. CITY OF FARGO (HILDRETH, Intervener).
• Court: North Dakota Supreme Court

64 N.D. 231

251 N.W. 843

NESS

v.CITY OF FARGO (HILDRETH, Intervener).

No. 6205.

Supreme Court of North Dakota.

Dec. 18, 1933.

Syllabus by the Court.

1. The salary of a public officer is an incident to the office, and the legal right to receive or enforce payment thereof goes with the legal title to the office.

2. In absence of estoppel or waiver, payment by a city to a de facto officer is no defense to an action brought by a de jure officer for the salary of an office to which he has been declared legally entitled and from which he has been wrongfully excluded.

3. Where a city assessor is wrongfully dismissed from office, he may recover his salary from the city for the period of the wrongful ouster, notwithstanding the fact that the salary for such period was paid by the city to a de facto officer, unless he has waived his right to such salary or by his conduct has estopped himself from claiming it.

Appeal from District Court, Cass County; Grimson, Judge.

Action by John G. Ness against the City of Fargo, wherein M. A. Hildreth intervened. From an adverse judgment, plaintiff appeals.

Judgment reversed, and cause remanded, with directions.

M. A. Hildreth, of Fargo, for appellant and intervener.

M. W. Murphy, of Fargo, for respondent.

CHRISTIANSON, Judge.

The plaintiff brought this action to recover salary as city assessor for the period between August 10, 1931, and November 4, 1931. The material and undisputed facts are substantially as follows: In 1929 the plaintiff, Ness, was appointed assessor of the city of Fargo. On April 21, 1931, he was reappointed for a term of two years. Section 3614, C. L. 1913. The salary of the city assessor was fixed at $2,200 per annum. The plaintiff duly qualified by taking and filing an oath of office and an official bond and continued to discharge the duties of the office of city assessor. On August 5, 1931, certain charges were filed against him, and on August 10, 1931, the city commission of the city of Fargo adopted a resolution based upon such charges purporting to “discharge” the plaintiff, Ness, from his office. The resolution directed Ness forthwith to surrender to the city auditor all property in his possession belonging to the city and all records or papers compiled or used by him in connection with his office. The city commission at the same meeting adopted a resolution that “Ella Bendickson be appointed acting city assessor pending the appointment of a city assessor.” The plaintiff was excluded from his office, and was not permitted to perform any of the duties thereof, He immediately instituted a proceeding in the district court of Cass county for a review of the action of the city commission, with the result that the action of the city commission removing the plaintiff from office was held to be void and was set aside. An appeal was perfected from this decision, and this court sustained the ruling of the district court, and held that the order of removal was null and void. State ex rel. Ness v. Board of City Commissioners of the city of Fargo et al. (N. D.) 245 N. W. 887. On October 30, 1931, after the decision of the district court had been rendered, charges were again presented against the plaintiff, Ness, and hearing was had thereon before the city commission on November 3, 1931, and on that day the city commissioners entered an order removing the plaintiff, Ness, from office. The validity of such order of removal was upheld, first, by the district court and, again, on appeal by this court. State ex rel. Ness v. Board of Commissioners of the city of Fargo et al. (N. D.) 246 N. W. 243.

The question in this case is the right of the plaintiff to recover salary during the time that he was excluded from his office by virtue of the void order of discharge or removal entered August 10, 1931.

The question thus presented is one on which there is a square conflict in the authorities, and frequently a lack of harmony in the adjudicated cases even in the same jurisdiction. Generally speaking, there are two rules. One is to the effect that, if a person is illegally excluded or suspended from office, and a de facto officer occupies and performs the duties of such office for a time, and the salary is actually paid to the de facto officer up to the time of the restoration of the de jure officer, the de jure officer cannot recover the salary during the period of his wrongful exclusion. The other rule is to the effect that a de jure officer who is wrongfully excluded from his office, upon his restoration, is entitled to recover the salary incident to his office during the time that he was wrongfully excluded,although during the time of such exclusion the office was occupied by a de facto officer who performed the duties thereof and was paid the salary.

The first rule is sustained by the greater number of adjudicated cases. Both rules invoke, and purport to give effect to, the principle of public policy. The contrariety in the adjudicated cases is indicative that the question is one of difficulty, and that powerful arguments may be advanced in support of either of the two rules. We have carefully considered both and the reasons announced by the various courts for their adoption and application, and have come to the conclusion that the second rule, while adopted only by a minority of the courts, is more in accord with the principles of logic and gives voice to a public policy that is more in accord with the fundamental principles of our jurisprudence than does the so-called majority rule.

[1][2] The salary of a public official is an incident to the office, and the legal right to receive or enforce the payment thereof goes with the legal title to the office. This principle is not denied by any of the authorities. Even the cases which deny to a de jure officer the right to recover salary during the time such officer has been excluded from the office, where the salary has been paid to a de facto officer who has performed the duties of the office during the time of exclusion, recognize that the de facto officer has no legal right to the salary. They all admit that, notwithstanding he has performed the duties of office, he may not sue and recover pay for the services which he has performed. And these authorities, almost unanimously, hold that, if the salary has not been paid to the de facto officer, the de jure officer may recover; or, if it has been paid to the de facto officer, the de jure officer may recover it from him.

In short, the very authorities which deny to a de jure officer the right to recover salary where the salary has been paid to a de facto officer recognize that the de facto officer has no legal right either to recover or to retain the salary if it has been paid, but that the legal right thereto is in the de jure officer. Hence the majority rule is clearly illogical. It can be justified, if at all, only on the ground of public policy, for the rule applied therein has never been applied to any other claim against a state or municipality. If payment is made by the state or a municipality of a claim for services rendered, or for goods furnished to a person who is not entitled to such payment, it does not constitute a bar to the right of the person lawfully entitled thereto to recover the same. The illogical basis of the majority rule was well pointed out in Freeman's Note to Andrews v. Portland, [79 Me. 484, 10 A. 458], 10 Am. St. Rep. 280. He said:

“These decisions have been placed partly upon the ground that the officer de jure had no property rights in the office, and partly upon the ground that his right to the salary or emoluments of his office was not dependent upon the office, but upon the actual performance of his services as a public official; and further, that while there was an officer de facto in...