The State ex rel. Kansas City v. Coon

• Citation: 296 S.W. 90,316 Mo. 524
• Decision Date: 15 February 1927
• Docket Number: 27367
• Parties: The State ex rel. Kansas City v. Fred Coon et al., Judges of Circuit Court of Jackson County
• Court: United States State Supreme Court of Missouri

296 S.W. 90

316 Mo. 524

The State ex rel. Kansas City v. Fred Coon et al., Judges of Circuit Court of Jackson County

No. 27367

Supreme Court of Missouri

February 15, 1927

Reported at 316 Mo. 524 at 552.

Original Opinion of February 15, 1927, Reported at 316 Mo. 524.

John T Barker, City Counselor, E. F. Halstead, Marcy K. Brown, Jr. and Wm. H. Allen, all of Kansas City, for relator.

John I Williamson, John G. Park, and Darius A. Brown, all of Kansas City, for respondents.

Ragland, J. White and Atwood, JJ., concur; Graves and Walker, JJ., concur in part and dissent in part in a separate opinion by Graves, J.; Blair, C. J., concurs in overruling motion for rehearing; Gantt, J., not sitting.

OPINION

RAGLAND

On Motion for Rehearing.

Relator insists that it is entitled to a rehearing for the reason, among others, that our original opinion herein is contrary to the overwhelming weight of authority to the effect that payment to a de facto officer of the salary incident to the office is a complete defense to an application of the de jure officer, upon his restoration to office, for mandamus to compel the payment of the salary to him. The efficacy of such defense was not considered, because not raised by either pleading or brief on behalf of relator. The contention was, that to compel Kansas City to pay Pickett and others for services which they had not performed, but which had been performed by others who had been paid therefor, would violate designated provisions of the State and Federal Constitutions; and all that is said in Paragraph III of the opinion is with reference to that contention. We still adhere to the views there expressed touching the alleged constitutional questions.

The question now raised is whether payment to a de facto officer of the salary incident to the office, during the time he is in possession of the office and discharging all the duties thereof, is a defense to a suit by the de jure officer, upon his restoration to office, to recover the same salary from the municipality, county or state, as the case may be. This precise question, so far as we have been able to ascertain, has never been passed upon by this court. The earliest case in which we find any direct reference to it is State ex rel. v. Clark, State Auditor, 52 Mo. 508. That was a suit in mandamus to compel the State Auditor to issue a warrant for salary to an officer whose right to the office had been called in question by a pending proceeding in quo warranto instituted by the Attorney-General. The Auditor's refusal to issue the warrant was based on a statute which made it the duty of the Auditor, when an office was contested by two or more persons claiming a right thereto, to withhold salary warrants, unless the contestee gave bond to the contestor, conditioned that if, upon a final determination of the rights of the contestants, the obligor was found not entitled to the office, he would pay over to the obligee the amount of salary, etc. The matter in decision was the proper construction to be put upon the statute, but in the course of the opinion it was said:

"It is also insisted that, as the primary object of the act was to protect the Treasury against what is claimed to be unjust and illegal demands, it therefore applies to a contest by the State, as well as to a contest by an individual. This view results from the erroneous assumption, that the State would incur a double liability if the proceeding now pending against the relator should result in ousting him from the office, and that he is not entitled to the salary received in the meantime. The commission issued to the relator invested him with the title, and is prima-facie evidence of his right to the office. It gave him the possession and the power to exercise its functions, of which he could be deprived only on due process, in the manner prescribed by law. [State ex rel. Vail v. Draper, 48 Mo. 213.] He alone is entitled to the emoluments of the office, until the State, by a proper proceeding, has revoked the authority with which it has invested him. Meanwhile the auditor cannot rightfully withhold the salary. There could therefore be no legal claim against the State for the salary so paid on the part of one who might hereafter establish a better right to the office. His recourse, if he has any, would in such case be against the relator, not the State. [Auditor of Wayne Co. v. Benoist and the authorities there cited, 20 Mich. 176; Hunter v. Chandler, 45 Mo. 452.]"

In State ex rel. Chapman v. Walbridge, 153 Mo. l. c. 203, it was said: "The legal right to the office carried with it the right to the salary. The board by its wrongful act could not deprive him of this legal right. The right of a public officer to the salary of his office is a right created by law, is incident to the office, and not the creature of contract, nor dependent upon the fact or value of services actually rendered." This language was used in passing upon the contention that the relator, who had been wrongfully removed from the office of policeman by the Board of Police Commissioners of the City of St. Louis, had after his removal rendered no actual services and had not offered to do so.

In Gracey v. St. Louis, 213 Mo. l. c. 397, we find this: "Here plaintiff was not 'removed' as that term is understood in the law. What was done was not legally done and therefore had no legal effect. Another was assigned his duties and that other was paid by the city. That was the city's affair, if it chose to take such course with its attending consequences. Plaintiff remained in office, and the point is controlled by the general proposit on of law that his right to the salary during his term, until legally removed, was independent of his actual performance of any duties whatever."

In that case the plaintiff had been wrongfully removed as inspector of boilers and the specific language just quoted was used in discussing and passing upon the defendant's contention that plaintiff had "abandoned his office; resigned by acquiescing in his removal, taking no steps to oust his successor, try title, etc."

In State ex rel. Hamilton v. Kansas City, 303 Mo. l. c. 74-5, the foregoing excerpts from the Chapman and Gracey opinions were quoted approvingly, but in answer to "the argument that relator has not performed the duties of the office since his removal, and that another has done so and has been paid for so doing."

In none of the cases to which reference has just been made does it appear that the question, whether payment to a de facto officer constitutes a defense pro tanto to a suit by the de jure officer to recover the salary which accrued during the time the latter was deprived of the office, was considered or passed upon.

According to the overwhelming weight of authority elsewhere: "Disbursing officers charged with the duty of paying official salaries have, in the discharge of that duty, a right to rely upon the apparent title of an officer de facto, and to treat him as an officer de jure, without inquiring whether another has the better right; and payment of the salary of an office to a de facto public officer, made while he is in possession, is a good defense to an action brought by the de jure officer to recover the same salary after he has acquired or regained possession: Shaw v. Pima County, 2 Ariz. 399; Board of Commrs. of El Paso County v. Rhode, 41 Colo. 258; Coughlin v. McElroy, 74 Conn. 397; Saline County Commrs. v. Anderson, 20 Kan. 298; Bradley v. City of Georgetown, 118 Ky. 735; Walters v. City of Paducah (Ky.), 123 S.W. 287; Wayne County Auditor v. Benoist, 20 Mich. 176; Parker v. Board of Supervisors of Dakota County, 4 Minn. 59 (Gil. 30); State v. Clark, 52 Mo. 508; State v. Milne, 36 Nebr. 301; Dolan v. City of New York, 68 N.Y. 274; Terhune v. City of New York, 88 N.Y. 247; Demarest v. New York, 147 N.Y. 203; Chandler v. Hughes County, 9 S.D. 24; Samuels v. Town of Harrington, 43 Wash. 603."

For a statement of the underlying reasons for the rule we quote at length from Dolan v. City of New York, supra, a leading case:

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