Wynne v. City of Butte

• Decision Date: 17 April 1912
• Citation: 123 P. 531,45 Mont. 417
• Parties: WYNNE v. CITY OF BUTTE.
• Court: Montana Supreme Court

123 P. 531

45 Mont. 417

WYNNE v. CITY OF BUTTE.

Supreme Court of Montana

April 17, 1912

Appeal from District Court, Silver Bow County; John B. McClernan Judge.

Action by E. W. Wynne against the City of Butte. From judgment for plaintiff, defendant appeals. Affirmed.

H. L Manry, John A. Smith, and N. A. Rotering, all of Butte, for appellant.

W. E Carroll, W. R. Kirk, and Geo. M. Bourquin, all of Butte, for respondent.

HOLLOWAY J.

On May 20, 1909, this plaintiff was the duly qualified and acting chief of police of the city of Butte, appointed to such office under the Metropolitan Police Law (Laws of 1907, p 314). In disregard of the provisions of that statute, the mayor assumed to appoint, and the city council to confirm, John J. Quinn as chief of police, and thereupon the name of this plaintiff was stricken from the pay roll of the city. On June 21st the plaintiff instituted proceedings in quo warranto against Quinn to test his right to the office. The district court sustained a demurrer to his complaint and rendered judgment in favor of Quinn. Upon appeal that judgment was reversed. State ex rel. Wynne v. Quinn, 40 Mont. 472, 107 P. 506. On June 28, 1910, a final judgment was entered restoring Wynne to the office. This action was thereupon commenced to recover from the city the salary for the period of time during which the plaintiff was prevented from discharging the duties of the office. The city attempted to defend upon the theory that the salary had been paid to Quinn, who was a de facto officer, and as a further partial defense it is alleged that during the time Wynne was kept out of office he was able to, and did, earn a considerable sum of money in other employment. The trial resulted in a judgment in favor of plaintiff for the full amount claimed, and the city has appealed.

1. Whether, in the absence of statute, payment to a de facto officer discharges the employing municipality is a question upon which the courts are divided. Those holding the affirmative rest their conclusion upon the ground of public policy; but a review of the decisions is unnecessary, for in this state we have a statute which declares the public policy here. Section 375, Revised Codes, reads as follows: "When the title of the incumbent of any office in this state is contested by proceedings instituted in any court for that purpose, no warrant can thereafter be drawn or paid for any part of his salary until such proceedings have been finally determined." If, then, after the quo warranto proceeding was instituted, the city disregarded the statute and paid the salary to Quinn, it did so at its peril. Between May 20th and June 21st the plaintiff was attempting to discharge the duties of the office.

2. But it is insisted that the city was entitled to notice of the pendency of the proceeding, and that since it did not receive such notice it cannot be bound....