Nichols v. MacLean

• Decision Date: 02 March 1886
• Citation: 5 N.E. 347,101 N.Y. 526
• Parties: NICHOLS v. MACLEAN.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 526

5 N.E. 347

NICHOLS

v.MACLEAN.¹

Court of Appeals of New York.

Filed March 2, 1886.

Appeal from special term, supreme court, rendering judgment for plaintiff for amount of salary received by defendant.

Saml. Hand and Malcolm Graham, for appellant.

John D. Townsend, for respondent.

ANDREWS, J.

The facts upon which this controversy depends are few, and substantially undisputed. The plaintiff was duly appointed police commissioner of the city of New York for a term of six years from May 7, 1876, and duly qualified, and entered upon and discharged the duties of the office until April 18, 1879. On that day the mayor of the city appointed the defendant, MacLean, police commissioner for the unexpired term of the plaintiff, Nichols; the certificate of appointment reciting that the appointment was made by the mayor in pursuance of chapter 300 of the Laws of 1874, in place of Sidney P. Nichols, removed. Prior to the appointment of the defendant, MacLean, the mayor had preferred charges against Nichols of official delinquency, upon which such proceedings were had that on the fifth day of April, 1879, the mayor made a certificate in writing, removing the plaintiff from his office of police commissioner, which certificate, with the reasons therefor, he transmitted to the governor, who on the seventeenth day of April, 1879, approved in writing of such removal. The plaintiff in June, 1879, applied for a writ of certiorari to review the proceedings removing him, which was issued August 12, 1879, addressed to the mayor, who made return thereto, and on February 11, 1880, judgment was rendered in the proceeding, declaring that the proceedings of the mayor for the removal of Nichols, and his judgment of removal, ‘be, and are hereby, reversed, and in all things held for naught.’ The judgment, as appears from the opinion delivered by the court, proceeded upon the ground that no evidence was given before the mayor to sustain the charges made against Nichols, and that he was denied the right to be heard by counsel.

The defendant, MacLean, on the eighteenth day of April, 1879, on presenting his certificate of appointment, was recognized by the board of police commissioners as commissioner in place of Nichols, and thereupon assumed the duties of the office, and continued to act as police commissioner until February 7, 1880, on which day, the decision of the court in the certiorari proceedigs having been called to the attention of the board, Nichols was officially recognized as commissioner, and on that day resumed, and thereafter continued to discharge, the duties of the office. During the period between the seventeenth of April, 1879, and the seventh of April, 1880, the defendant drew and received from the city of New York $4,700, the salary for that time of the office of police commissioner. It is found that the plaintiff, during the time he was excluded from office, was ready and willing to perform the duties thereof, and it was proved that the plaintiff, on the eighteenth day of April, 1879, upon presentation by the defendant of his certificate of appointment, protested to the defendant that his removal was unauthorized, and that there was no vacancy to be filled by the mayor. This action is brought to recover the salary received by the defendant during the time he served as police commissioner under the appointment of the mayor, and the sole question is whether, upon the facts found, the action lies.

It is convenient to consider in the outset what right the plaintiff acquired by virtue of his appointment as police commissioner in May, 1876. The term and salary of the office were fixed by statute. The plaintiff was entitled, by virtue of his appointment, to a term of six years, and to an annual salary of $6,000, subject, however, to removal from office by the mayor for cause, after an opporiunity to be heard. Laws 1873, c. 335, § 25. The plaintiff could not be deprived of his office or his salary, except under authority of law. His right to the possession and emoluments of the office, unless forfeited by his misconduct, or his office was voluntarily abandoned, or taken away by law, was ‘as perfect a right as the title of any individual to his property, real or personal.’ SANFORD, J., Conner v. City, etc., 2 Sandf. 370. It is true that in this country offices are not hereditaments, nor are they held by grant. The right to hold an office, and to receive the emoluments belonging to it, does not grow out of any contract with the state, nor is an office property in the same sense that cattle or land are the property of the owner. It is therefore the settled doctrine that an officer acquires no vested right to have an office continued during the time for which he was elected or appointed, nor to have the compensation remain unchanged. The legislature may abolish an office during the term of an incumbent, or diminish the salary, or change the mode of compensation, subject only to constitutional restrictions. Conner v. Mayor, etc., 5 N. Y. 285. But within these acknowledged limits the right to an office carries with it the right to the emoluments of the office. An office has a pecuniary value, although primarily it is an agency for public purposes. The doctrine that the right to the emoluments of an office follows the true title has been repeatedly declared in this state, (ALLEN, J., People v. Tieman, 30 Barb. 193;Dolan v. Mayor, etc., 68 N. Y. 274;McVeany v. Mayor, etc., 80 N. Y. 185;) and these decisions are enforced by the cases which hold that in an action by an officer to recover fees, his title may be put in issue, and that an action therefor cannot be maintained by an officer de facto only, (BRONSON, J., People v. Hopson, 1 Denio, 579, and cases cited; Riddle v. County of Bedford, 7 Serg. & R. 392.) The plaintiff, therefore, by his appointment, acquired a right to hold the office of police commissioner for six years, and to receive the salary, subject to removal upon a hearing, for cause, which right, although not technically property, was valuable, and is under the protection of the law. From a very early period of the law, the invasion of a right to hold and exercise the duties of a public office has been recognized as a legal wrong, for which the law affords a remedy. The writ of quo warranto was an ancient writ to try the right of one holding a public office, (2 Bl. Comm. 263;) and in England, from an early day, an action for money had and received would lie in bahalf of one entitled to an office to recover the accustomed fees of the office received by an intruder, ( Howard v. Wood, 2 Lev. 245; Green v. Hewett, Peake, N. P. 243; Boyter v. Dodsworth, 6 Term R. 681; S. C. 1 Selw. N. P. 81.)

That the action of the mayor in removing the plaintiff was wrongful, was adjudicated in the certiorari proceedings, and from the judgment therein no appeal was taken. This court also decided in People v. Nichols, 79 N. Y. 582, which was a proceeding for prohibition, that a certiorari was a proper remedy to review the action of the mayor. The effect of the judgment in the certiorari was to annul the mayor's proceedings, and was followed by a reinstatement of the plaintiff in the office, from which he had been unlawfully removed. Whether the judgment, ipso facto, worked a reinstatement of the plaintiff, we need not consider. The defendant voluntarily surrendered the office to the plaintiff, or, at least, he acquiesced in his resuming possession. The record in the certiorari proceedings was admitted in evidence on the trial in this case, against the objection of the defendant, and it is claimed that the ruling is erroneous, for the reason that the defendant was not a party to the proceedings, and that, as to him, the judgmenttherein did not establish that the removal was wrongful.

The general rule that the estoppel of a judgment extends only to parites and privies is well settled. It is not always easy to determine who are privies within the rule. The certiorari, as this court held, was a proper proceeding. The mayor, under the statute, was vested with the power of removal, to be exercised in a particular manner, and under certain limitations affecting the right of the person whose removal was contemplated. These limitations were not observed, and the removal was therefore held to be unauthorized. The defendant held the office under an appointment by the mayor, which on its face declared that he was appointed to fill a vacancy caused by the removal of Nichols. The defendant derived his title from the mayor, and the mayor, as was adjudged in the certiorari proceedings, had at the time no power to make an appointment, because there was then no vacancy.

It has been held that, where the title to a corporate office has been determined in a litigation between conflicting claimants in a proceeding by quo warranto, the adjudication is competent evidence against the corporation in an action for salary, or to compel the corporation to certify an election, and also that, where the title to office of a person exercising the power of appointment has been adjudged against him, the judgment is admissible against his appointee, on the ground that his title must abide by that of the person from whom he derives title. McVeany v. Mayor, etc., supra; Rex v. Hebden, Andrews, 388; Rex v. Grimes, 5 Burr. 2598; Lord KENYON in Rex v. Mayor of York, 5 Term R. 66. These cases, although not precisely in point, are analogous to the one before us. The defendant derives title under an appointment by the mayor. It has been adjudged, in a proper proceeding against the mayor, that he had no authority to make the appointment, and that the plaintiff was improperly removed. The proceeding had some of the characteristics of a proceeding in rem. It was an investigation made under competent authority, in the name of the people, concerning matters of public as well as private interest, and to ascertain the status of the plaintiff. We think the record...