Samuels v. Town of Harrington

• Decision Date: 10 September 1906
• Citation: 43 Wash. 603,86 P. 1071
• Court: Washington Supreme Court
• Parties: SAMUELS v. TOWN OF HARRINGTON.

86 P. 1071

43 Wash. 603

SAMUELS v. TOWN OF HARRINGTON.

Supreme Court of Washington

September 10, 1906

Appeal from Superior Court, Lincoln County; W. T. Warren, Judge.

Action by Cook Samuels against the town of Harrington. From a judgment for plaintiff, defendant appeals. Reversed.

A. J Grant, J. T. Mulligan, and H. N. Martin, for appellant.

H. A. P Myers, for respondent.

FULLERTON J.

On June 20, 1904, the respondent was appointed marshal of the town of Harrington by the authority in whom rested the power of appointment. On August following he qualified for the office by filing his bond and taking the required oath. At that time one James A. Snyder held the office under some claim of right which he thought paramount to the respondent's right, and refused to surrender it on respondent's demand. The respondent thereupon instituted quo warranto proceedings against Snyder, praying that he be ousted and excluded from the office, and that the respondent have judgment against him for the salary of the office he had drawn during the time of his wrongful incumbency. The case was not tried until the following December, practically at the end of the term during which the respondent was entitled to hold the office by virtue of his appointment, and the court allowed him a judgment for the salary accruing during the entire term which amounted to $300. In April, 1905, the respondent began the present action to recover the same salary from the respondent town. The town for answer denied its liability and by way of affirmative defense pleaded the proceedings and judgment against Snyder as an estoppel. The case was tried without a jury and resulted in a judgment for the respondent. The town appeals.

The principal question suggested by the record, namely, is a municipality, which has, before judgment of ouster, paid to a de facto officer the salary of an office due at the time of payment, liable to the de jure officer for such salary, has been a frequent subject of controversy in the courts. Where the emoluments of the office have been the fees for the services rendered, the courts have had no difficulty. They hold with substantial uniformity that neither the municipality nor the person who paid such fees to the de facto officer is liable to the de jure officer for their repayment, but that the sole remedy of the officer de jure is against the de facto officer; and in some jurisdictions it is even held that he cannot recover of the de facto officer anything more than the reasonable profits of the office allowing that officer to retain the actual value of the services rendered. But where the emoluments of the office is a salary, the decisions are not so uniform.

There is a well-considered line of cases which maintain the doctrine that the officer de jure has a property right in the salary of the office, and that in consequence any payment to another person is a wrongful payment in no way binding upon him. One of the best of these perhaps is Rasmussen v Com'rs Carbon County, 8 Wyo. 277, 56 P. 1098, 45 L. R. A. 295, where the cases are collected. See, also, Mr. Freeman's note to the case of Andrews v. Portland, 10 Am. St. Rep. 284. But the weight of authority, and, we think, the better reason, is the other way. On principle there can be no difference between the fees of an office and the salary of an office with respect to the property rights of the officer de jure therein. If the right to an office carries with it a property right in the salary of the office, so does the right to the office carry with it a property right in the fees of the office, and the payment of the one to an officer de facto is no more a wrongful payment than is the payment of the other. If the premise is sound, the payment in either case is wrongful and in effect no payment, and the person entitled to the fees or salary may at his election pursue either the person making the payment or the person receiving it. But we think reasons of public policy require that such payments be held valid as to the person or municipality making them. These reasons cannot be better stated than in the language of Andrews, J., in Dolan...