Stearns v. Sims

• Decision Date: 14 September 1909
• Docket Number: Case Number: 105
• Citation: 104 P. 44,24 Okla. 623,1909 OK 235
• Parties: STEARNS, Mayor, v. SIMS.
• Court: Oklahoma Supreme Court

1909 OK 235

104 P. 44

24 Okla. 623

STEARNS, Mayor, v. SIMS.

Case Number: 105

Supreme Court of Oklahoma

Decided: September 14, 1909

Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Officers--Compensation--Payment to to Officer De Facto. Where a de jure chief of police is, pending suit on charges against him in the district court, wrongfully suspended by order of the judge thereof at chambers which said order is later set aside and said suit dismissed, and where said city pays a chief of police de facto, during his incumbency, the salary provided by law, said officer de jure after obtaining possession of the office cannot recover from the city the salary for the same period.

2. MANDAMUS--Right to--Discretion of Court. The writ of mandamus is a discretionary writ, and, while it may issue where there is a clear legal right, a court should always refuse it where the record shows the injustice of plaintiff's claim.

Pendleton, Abernathy & Howell, for plaintiff in error, citing: Bayard v. U. S., 32 L. Ed. (U. S.) 116; Territory ex rel. v. Crum (Okla.) 73 P. 297; 26 Cyc. 151, 152; Com'rs Saline Co. v. Anderson, 20 Kan. 298; Martin v. New York, 81 N.Y. Supp. 412; Terhune v. Mayor, 88 N.Y. 247; Dolan v. Mayor, 68 N.Y. 278; Michel v. New Orleans, 32 La. Ann. 1094; Scott v. Crump, 64 N.W. 1 (Mich.); Westberg v. City of Kansas, 64 Mo. 493; Steubenville v. Culp, 38 Ohio St. 18; Walton v. McPhetridge, 52 P. 731; Sawyer v. Colgan, 36 P. 580; Chalk v. White, 29 P. 979.

McKenzie, Saunders & McKenzie and F. H. Reily, for defendant in error, citing: Bridge Co. v. Wheeler, 35 Wash. 40; 26 Cyc. 315; Ward v. Marshall (Cal.) 30 P. 1113; Memphis v. Woodward, 12 Heiskell (Tenn.) 499; Andrews v. Portland (Me.) 10 A. 458; Davenport v. City of Los Angeles, 80 P. 684; Dorsey v. Smyth, 28 Cal. 21; Carroll v. Seibenthaler, 37 Cal. 193; Rasmussen v. Board of Com'rs, 56 P. 1098; Tanner v. Edwards, 86 P. 765; Fitzsimmons v. Brooklyn, 7 N.E. 787; Blydenbur v. Carbon Co., 56 P. 1106 (Utah); State v. Carr (Ind.) 28 Am. St. Rep. 163.

Error from District Court, Pottawatomie County; W. N. Maben, Judge.

Mandamus by W. F. Sims against F. B. Stearns, as mayor of the city of Shawnee. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Pendleton, Abernathy & Howell, for plaintiff in error

McKenzie, Saunders & McKenzie and F. H. Reily, for defendant in error

TURNER, J.

¶1 On December 7, 1907, W. F. Sims, defendant in error, plaintiff below, brought suit in the district court of Pottawatomie county to mandamus F. P. Stearns, as mayor of the city of Shawnee, plaintiff in error, defendant below. The petition substantially states that on April 2, 1907, plaintiff was duly elected chief of police of said city, and by ordinance theretofore passed his salary as such was fixed at $ 1,200 per year; that on July 3, 1907, Hon. B. F. Burwell, judge of the Third judicial district of the territory of Oklahoma, at chambers in said city unlawfully suspended plaintiff from said office on complaint sworn to by a private citizen of said city charging him with violating sections 12, 13, art. 56, c. 25, St. Okla. 1893 (sections 2530 and 2531), the allegations of said complaint being supported by the affidavits of three adult witnesses; that on November 22, 1907, Hon. W. N. Maben, judge of the district court for the Tenth judicial district of the state of Oklahoma at chambers in Tecumseh, state of Oklahoma, set aside said order of suspension on the ground that the same was illegal; that on December 3, 1907, said plaintiff duly presented his bill to the city council of the city of Shawnee, verified as by law required, for his salary, $ 500, including the period of his suspension; that the city council of said city duly allowed the same; that on December 5, 1907, the district court for said district in and for Pottawatomie county on motion of plaintiff dismissed said cause against him; that during his said suspension the county commissioners appointed another to fill said office who received from the city the salary during plaintiff's suspension; that thereupon plaintiff caused the clerk to draw a warrant for $ 500, and presented same to defendant as mayor of the city of Shawnee for his signature as by law provided, who refused and still refuses to sign or issue the same, and prays that a peremptory writ of mandamus issue compelling defendant to sign said warrant and for general relief. On the same day there was filed a waiver of summons and a statement of facts substantially as set forth in said petition, which it was agreed was submitted to the court as the evidence in the case upon which to base its judgment, and which said cause on said date the court took under advisement. On December 9, 1907, there was a demurrer to the petition which was later overruled and exceptions saved, and, defendant electing to "stand on his demurrer," the cause coming on to be heard upon "the petition of plaintiff, the return thereon, and the agreed statement of facts," the court found, in effect, that plaintiff's suspension from office was illegal, that he was entitled to his salary during that time, and ordered defendant to sign the warrant for the amount thereof as drawn by the city clerk. To review which said judgment defendant brings the case here.

¶2 Inasmuch as it appears by stipulation of counsel attached to the agreed statement of facts that it is the desire of both sides to get "this question before the court purely and solely upon its merits," we pass all questions of pleading, and go directly to the main contention. The question for us to determine is whether an official salary which has been paid by a municipality to a de facto officer and due at the time of payment can be recovered from the municipality the de jure officer after he regains possession of the office. The trial court held that it could, but therein we think the court erred. There is, however, great conflict of authority, but the general rule is as stated. 8 Am. & Eng. Enc. of Law, 813, lays it down thus:

"The general rule is that a state, county, or municipality which, before judgment of ouster against a de facto officer, has paid him the salary of the office due at the time of payment, is protected against any liability to the de jure officer for such salary. * * *"--and cases cited.

¶3 29 Cyc. 1430 says:

"The payment of the official salary to a de facto officer is, however, a defense to a claim against the public corporation or disbursing officer making such payment in an action brought against it, or him by the de jure officer"--and cases cited.

¶4 One of the latest and leading cases adhering to the rule as stated is Nall v. Coulter, State Auditor, 117 Ky. 747, 78 S. W. 1110. In that case Nall and Throckmorton were opposing candidates for the office of commissioner of agriculture in the November election of 1899 for state officers. On the face of the returns Throckmorton was declared elected by the canvassing board whose duty it was to count the votes, and determine for whom the greater number were cast. They had nothing to do with determining the legality of those votes. On January 1, 1900, Throckmorton took the oath of office, and entered upon the discharge thereof. After the result of the election had been declared, Nall instituted a contest claiming title to the office, and the contest board decided in his favor. Upon this finding Nall brought proceedings to oust Throckmorton, and prevailed in the action, after which Throckmorton vacated and Nall entered and assumed the duties of the office. The then auditor, Sweeney, paid Throckmorton his salary for the months of January and February, and the instant suit was brought by Nall against the appellee Coulter as auditor to compel him to issue his warrant on the Treasurer of the commonwealth for the sum of $ 382.25, the amount of salary due him from January 1 to February 25, 1900, the date when the contest board declared Nall entitled to the office. The claim of Nall was that by reason of his being entitled to the office on February 25th, he was entitled to the salary due from the state beginning January 1, 1900. The auditor claimed that the state had rightfully paid the salary sued for to Throckmorton, who had been duly declared elected, which contestant discharged the duties of the office and apparently held the legal title thereto, and that Nall's remedy, if any, was against Throckmorton for the amount sued for. In passing the court said:

"We are of the opinion that appellee's contention is the correct one. We have not been referred to, nor have we been able to find, any case decided by this court directly in point; but the courts of many states, as well as the English courts, have passed upon the question. The decided weight of authority, both in numbers and reason, uphold the principles contended for by the appellee. We have been referred to many cases apparently holding the opposite rule, but upon a close examination of them it appears that many are not in conflict. Some few of them apply to usurpers, having no color of right or title to the office. Some few have reference to cases where the appointment or election of the person who held the office and performed its duties was void."

¶5 And, the court after distinguishing the instant case from certain cases theretofore decided by that court, continued:

"The case at bar is different. Throckmorton was at least a de facto officer, and not a usurper, and it is not charged that the state board of canvassers committed any illegal or void act with reference to granting Throckmorton a certificate. In 8 Am. & Eng. Enc. of Law (2d Ed.) p. 783, it is said: 'To constitute a person an officer de facto there must be some facts, circumstances, or conditions which would reasonably lead persons who have relations or business with the office to recognize him as the lawful incumbent, and submit to or invoke his official action, without inquiry as to his title.' Again on page 794. 'Color of title to an office is

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