People ex rel. Sartison v. Schmidt

• Decision Date: 19 December 1917
• Docket Number: No. 11770.,11770.
• Parties: PEOPLE ex rel. SARTISON v. SCHMIDT et al.
• Court: Illinois Supreme Court

281 Ill. 211

117 N.E. 1037

PEOPLE ex rel. SARTISON

v.SCHMIDT et al.

No. 11770.

Supreme Court of Illinois.

Dec. 19, 1917.

Appeal from Circuit Court, Sangamon County; E. S. Smith, Judge.

Petition for a writ of mandamus by the People, on the relation of Franz Sartison, against Walter E. Schmidt and others. Writ issued, and respondents appeal. Reversed

INSPECTION k4-SALARY OF ‘DE FACTO EMPLOYÉ OR OFFICER’-RECOVERY BY DE JURE EMPLOYÉ.

Where relator, having a position as grain helper in a grain inspection office of the state, was wrongfully discharged by the state civil service commission, but later reinstated under a decision of the superior court in another case, a person eligible under the Civil Sercie Law (Hurd's Rev. St. 1915-16, c. 24a) for grain helper, who was appointed to fill the vacancy and acted as grain helper for the time that relator remained discharged, was a ‘de facto employé or officer,’ and where the salary provided to be paid relator was paid to such person in good faith, relator could not recover such salary.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, De Facto Officer.]

Edward J. Brundage, Atty. Gen., and Clarence N. Boord, of Chicago, for appellants.

P. K. Johnson, of Belleville, and Stevens & Herndon, of Springfield, for appellee.

CARTER, C. J.

Franz Sartison, the relator, filed his petition for a writ of mandamus in the circuit court of Sangamon county in November, 1916. A demurrer being sustained, the relator thereafter filed an amended petition. Answers were filed by appellants, and the relator filed a general demurrer to said answer. This demurrer was sustained by the court, and, the appellants having elected to abide by their answer, the court ordered the writ of mandamus to issue. From that decretal order this appeal has been taken to this court.

The amended petition sets up, among other things, that on and prior to July 1, 1911, the relator held a place or position as grain helper in the East St. Louis grain inspection office of the state, and continued to hold that position until September 1, 1915, under the classified civil service of the state; that during said time he performed his duties in said position in a satisfactory and efficient manner; that on August 25, 1915, he received a letter from the deputy chief inspector informing him that he was discharged from the service, and that charges had been filed against him by the state civil service commission; that thereafter he reported daily for work, but from and after September 1, 1915, he was not allowed to work as grain helper; that on September 15, 1915, he received from the state civil service commission a copy of the charges against him, charging that he had failed to obey the orders of superior officers and submit to certain examinations held by the state civil service commission; that on October 23, 1915, he received a notice that he was discharged from said position; that on January 28, 1916, he received from the state civil service commission a copy of an order stating that, on account of the decision of the superior court in People ex rel. Estelle S. Baird v. Stevenson, he had been reinstated and would be allowed to resume his work as grain helper on February 1, 1916. The relator prayed that the respondents be required to place his name upon the pay roll and pay him for the time he was illegally laid off as a grain helper.

The respondents in their answer admitted the facts as to the discharge and restoration of the relator as grain helper, and also averred that from September 1, 1915, until February 5, 1916, Jmaes A. Routh, who was eligible under the state Civil Service Law (Hurd's Rev. St. 1915-16, c. 24a) for grain helper in the state grain inspection department at East St. Louis, was appointed to that position by the proper officials of the state and worked and received pay for his work in said position from September 1, 1915, to February 6, 1916. Respondents further alleged in their answer that there was no money appropriated in the appropriation bill for the year 1915 other than the money paid to Routh for service in said office that could be used for the payment of relator.

It is clear from the allegations of the petition and answer that the salary provided to be paid to the relator as grain helper in the East St. Louis grain inspection office was paid to James A. Routh during the time for which relator is now seeking to recover pay, and the principal question to be decided here is whether the payment of a salary provided for an office or position to a de facto employé or officer in said position is a good defense to a claim against the public corporation making such payment in an action against such corporation by a de jure officer or employé to recover such salary. This court in People v. Lieb, 85 Ill. 484, cited with approval Brown v. Lunt, 37 Me. 428, where a de facto officer is described as one who actually performs the duties of the office with apparent right, under claim or color of appointment or election. This court also in the same case quoted from Ex parte Strang, 21 Ohio St. 610, where it is said:

‘The true doctrine seems to be, that it is sufficient if the officer holds the office under some power having color of authority to appoint; and that a statute, though it should be found repugnant to the Constitution, will give such color.’

See, also, as to a definition of de facto officer, Lavin v. Cook County Com'rs, 245 Ill. 496, 92 N. E. 291. We think, under these decisions, there can be no question that Routh was holding the officer or position in question de facto. The general rule is that, if the payment of the salary or other compensation to be made by the government is made in good faith to the officer de facto while he is still in possession of the office, the government cannot be compelled to pay a second time to the officer de jure when he has recovered the office-at least where the officer de facto held the position by color of title. Mechem on Public Offices and Officers, § 332; McQuillin on Mun. Corp. § 518. This rule, however, is not followed in all jurisdictions. 1 Dillon on Mun. Corp. (5th Ed.) § 429. This author also says in this last cited section:

‘For reasons of public policy, and recognizing payment to a de facto officer while he is holding the office and discharging its duties as a defense to an action brought by the de jure officer to recover the same salary, it is held in many jurisdictions that an officer or employé who has been wrongfully removed or otherwise wrongfully excluded from office cannot recover against the city for salary during the period when his office was filled and his salary paid to another appointee. In some jurisdictions, too, this rule is applied to payments made to de facto occupants of positions which are mere employments and do not rise to the dignity of offices.’

In our judgment the rule governing payments to a facto officer is founded in public policy, and applies with the same force to payments made to a de facto occupant of a position of public employment although not an officer, and this is the rule laid down in Martin v. City of New York, 176 N. Y. 371, 68 N. E. 640.

The authorities are in hopeless conflict...