State ex rel. School District of Orrick v. Dorton

• Decision Date: 28 June 1898
• Citation: 46 S.W. 948,145 Mo. 304
• Parties: State ex rel. School District of Orrick, Appellant, v. Dorton et al
• Court: Missouri Supreme Court

46 S.W. 948

145 Mo. 304

State ex rel. School District of Orrick, Appellant, v. Dorton et al

Supreme Court of Missouri, Second Division

June 28, 1898

Appeal from Ray Circuit Court. -- Hon. E. J. Broaddus, Judge.

Reversed and remanded.

J. W Garner, Jas. E. Ball and Joseph E. Black for appellant.

(1) Dorton was a de facto officer, although he may never have taken the oath or given a bond as required by statute. State v. Carroll, 38 Conn. 471; Troop on Pub Officers, secs. 629 and 630; State v. Dieberger, 90 Mo. 373; Montry v. Muir, 20 Mo. 303; Cole Co. v Dallmeyer, 101 Mo. 57; Mechem on Pub. Officers, sec. 909; Clark v. Slunly, 66 N.C. 63; Wilson v. Kimmel, 109 Mo. 260; Watkins v. Inge, 24 Kan. 612; Thompson v. State, 21 Ala. 54; Flournoy v. Clemants, 7 Ala. 535. (2) The facts that Dorton was present at the time of his appointment; made no objection to the same; received the check for the moneys from Parish as treasurer, payable to him as treasurer; received the pass book with a credit thereon to him as treasurer; the transfer of the funds on the books of the bank from the credit of Parish as treasurer to himself as treasurer; his instructions to the clerk in the bank, have estopped Dorton from denying he was an officer, when it is sought to hold him responsible for acts done under the color of office. Throop on Pub. Officers, secs. 169 and 664; Mechem on Pub. Officers, sec. 252; Johnston v. Nelson, 2 N.H. 202; Greenl. on Ev., sec. 1, p. 194; State v. Stone, 40 Iowa 547; McKee v. Montery Co., 51 Cal. 276; Borden v. Houston, 2 Tex. 594; Morris v. State, 47 Tex. 58; U. S. v. Maurice, 2 Brock, 96. (3) A person who undertakes an office and is in office, though he might not have been duly appointed, and therefore may have a defeasible title, and not have been eligible to serve therein, is from the possession of its authorities, and the enjoyment of its emoluments, bound to perform all of its duties, and is liable for their omissions in the same manner as if the appointment were strictly legal and his right perfect. U. S. v. Maurice, 2 Brock, 96; Bank v. Eureka, 109 Cal. 504; Mechem on Pub. Officers, sec. 300; State v. Moore, 74 Mo. 413; State v. Pomele, 67 Mo. 395. (4) The fact that Dorton, instead of demanding coin or currency from his predecessor, accepted Parish's check as treasurer, payable to him as treasurer and in lieu of getting the money thereon, deposited the same in bank to his credit as treasurer and permitted the same to remain in such bank, makes him liable for the money. Bush v. Johnson Co., 48 Neb. 1; Modisett v. Governor, 2 Blackford, 135; Armstrong v. Garrow, 6 Cowen, 465; Heald v. Bennett, 1 Douglas (Mich.) 371; Elliott v. Miller, 8 Mich. 132; State ex rel. v. Gates, 67 Mo. 139; Welch v. Frost, 1 Mich. 30; 19 Am. and Eng. Ency. Law, pp. 544 and 546.

J. L. Farris & Son and Garner & Divelbiss for respondent.

(1) Where there is but one office, there can not be an officer de jure and an officer de facto at the same time. Throop, Pub. Officers, sec. 641, p. 605; Boardmen v. Halliday, 10 Paige, 223; Cohn v. Beal, 61 Miss. 398; Cronin v. Gundy, 16 Hun. 524. (2) The actual possession of an office by an officer de jure renders it impossible for another claimant to constitute himself an officer de facto by any performance of official acts, however, unequivocal they may be. Throop, Pub. Officers, sec. 642, p. 606; Auditors v. Benort, 20 Mich. 176; State v. Blossom, 19 Nev. 312. (3) In order to treat a person as an officer de facto he must not only act as such, but he must act, under claim, that he is the rightful officer. And there must be a public office or he must be clothed with some symbol or outward token of public position that the public has a right to look upon as a legal investiture of official authority. This office is somewhat analogous to the office of notary public, and would be governed by the same principles in determining the question of de facto officer. Throop, Pub. Officers, secs. 624, 645 and 646. (4) Parish knew that his term of office had not expired, and that Dorton was not, and could not be treasurer until on and after the fifteenth day of July, 1895. He therefore can claim no credit under the law for disbursements, if any had been made by him to John M. Dorton, nor would such an improper disbursement, relieved either he or his bondsmen from liability therefor in the event of loss. The principle of de facto officers is to be invoked by the public or innocent parties dealing with a person who is invested with all the insignia of official authority and to facilitate public business. Throop, Pub. Officers, sec. 650; R. S. 1889, sec. 8093. (5) Appellant failed to establish its incorporation; which fact was put in issue by the affidavit of John M. Dorton. This particular district has been declared by our Supreme Court to have no legal capacity for suing and such decision becomes the special law for this district. Orrick School District v. Dorton, 125 Mo. 439. (6) Even if Dorton is to be treated as a de facto officer, and even if appellant is to be considered as legally incorporated, yet Dorton received no money, was guilty of no neglect and the district was in no worse condition on the morning of the thirteenth of July, than it was on the evening of the sixth.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is a suit begun by the Orrick school district, against John M. Dorton, as treasurer of said district, to recover from him the sum of $ 5,120.61, alleged to have been received by him as treasurer of said district which he failed and refused to account for, or pay over to said school district.

Defendant recovered judgment in the court below, from which plaintiff appealed. Since the appeal has been pending in this court John M. Dorton died and the suit was revived in the name of and against James G. Dorton and William H. George, his administrators.

Defendant put in issue the organization of plaintiff as a school district, and its right to sue as such.

The facts as disclosed by the record are as follows:

On the fifth day of July, 1895, one L. T. Parish was treasurer of said school district. His term of office expired on the fifteenth day of said month. On the date first named the board of directors appointed John M. Dorton treasurer of said board for the ensuing year, his term to commence on the expiration of the term of Parish. On the day that Parish's term of office expired he filed his settlement as treasurer with the board of directors showing a balance in the treasury of $ 5,260.61. At this meeting a warrant was drawn on the treasurer in favor of one J. A. Settle for $ 20 and one in favor of Ball & Hamilton for $ 150. Dorton was required by the board to give bond as treasurer in the sum of $ 7,000.

On the sixth day of July, 1895, before his term of office was to begin, Dorton was induced by Parish, who was then cashier of the Farmers' Bank of Orrick, as well as treasurer of the school district, to execute his receipt to him as such treasurer for the sum of $ 5,260.61, the amount which he then had to his credit in the bank. With respect to this transaction, Dorton testified as follows:

"You will state if you know where you were on the sixth day of July, 1895. A. I was up at Orrick late in the evening between four and five o'clock. I was at home that morning not feeling very well. It was after banking hours; both banks were closed. Q. State what took place after you got up there between you and Mr. Parish and the other parties. A. I will state it the best I can; I'm not a very good hand to give in evidence; I goes up to Orrick and walking along and as I goes by the bank door Mr. Parish steps out and says 'John come in here directly, want to see you.' I went on and directly as I comes back I called in there; he had closed up the bank and he says, we have got to have a meeting here this evening, and we will get all the directors here. I didn't say anything or speak anything about it. Q. What position did Mr. Parish occupy at that time? A. I might say that he was the whole thing; he was cashier at the time. Q. What position did he occupy in relation to the school district? A. He was treasurer of what was called the Orrick school district. Q. Did you meet and have a meeting that evening? A. The directors and we had a little meeting. Nothing said about this school matter until we got through with this other business. Q. What other business? A. He wanted to go off and attend to some other business and put me in as cashier. Q. Were you elected cashier that evening? A. Yes, sir. Q. What reason did he give for wanting you to become cashier? A. He wanted to go to Archie, if I mistake not, and attend to some business there. Q. What else took place between you and Mr. Parish that evening? A. Very little, if anything. Q. Did you give him a receipt? A. For this $ 5,260.61? Yes, sir. Q. State how you happened to give him that receipt; did Mr. Parish ever pay you any money? A. I never saw a dollar of that school money while I was in the bank; if I did I never knew it. Q. Never gave you a dollar? A. No, sir. Q. State then how you happened to give him this receipt for $ 5,260. A. He and Mr. Ogg, Mr. Ogg was in the bank clerking at that time; he stated to us that everything was all right, and he stated he was on this bond for so many dollars and he was going to get off this bond if he could. We believed everything he said that evening; I never doubted his word before and never did until after that evening; I had always taken his word for everything. Q. He asked you to give him a receipt? A. Yes, sir, said he wanted to go down there; said he would be back in a few days; he says, 'I want you to give me a receipt;' I says, 'I don't want to do it, I have no bond.' Afterwards, at...