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spondent; whereupon the jury returned a general verdict in favor of the respondent, and against the appellant, and upon which the judgment appealed from was entered.
To the instruction referred to the appellant's counsel took an exception, and which is the main point relied upon in the case. Whether the instruction was correct or not, depends upon the evidence bearing upon the question of such abandonment. The appellant's counsel claimed that there was no evidence tending to prove an abandonment upon the part of the appellant and his assignors of the said offices; and I confess that I was very skeptical as to the probability of there being any such evidence. I presume instances have occurred in which such officers have abandoned their offices, but they have been so rare that it requires cogent proof to establish them as matters of fact. An officer, doubtless, might legally abandon his office when wrongfully ousted therefrom. His permanent removal from the territorial jurisdiction of the office would necessarily have that effect; but his failure to keep up a clamor for reinstatement could not certainly be urged as evidence of an abandonment.
The mayor, with the consent of a majority of the common council, had the appointment of these officers, and could remove or suspend them. He, with the consent of that body, did appoint other persons to supersede them, and they were formally installed and remained in those positions. What, therefore, could the appellant and his assignors do in the premises but submit to the action of those officials, or institute legal proceedings to annul their acts. I have read the testimony contained in the bill of exceptions, and do not think it tends to show an acquiescence in the removal or abandonment of the officers by the appellant and his assignors,—do not find that they ever proposed to relinquish them. It appears that the most that can be said in regard to their conduct is that they did not attempt to contend about going out of their places, or about being let in again. There is certainly nothing to show that they relinquished any right, or did anything to estop them from claiming the offices. If the mayor and common council had offered to restore them to their positions, and they had refused such restoration, there would be grounds upon which to claim an estoppel, but, as the case stood, I am unable to discover that there was any such ground.
But the respondent's counsel contends that the mayor and council had the right to remove appellant and his assignors from the offices held by them without cause, or having to state cause, in the order of removal; that such otlice belongs to the class provided for in section 2, art. 15, of the constitution of the state, and is to “be held during the pleasure of the authority making the appointment.” It is questionable who “the authority making the appointment” is in this case. The authority itself is derived from the legislative department of the state, and the mayor and common council are restricted in the manner of its exercise; and the question is, whose pleasure is to be consulted,-the legislative, or the mayor and common counoil? The latter are intrusted with the appointment, but the authority emanates from the former, and it has expressed its pleasure by requiring the mode in question to be pursued when the authority is exercised. The mayor and common council are inere agents in the matter, and I think, beyond question, are subject to any restrictions their principal may deem proper to impose. I cannot see that the authority to remove or suspend policemen could have been exercised without a special cause, which was required to be stated in the order of removal or suspension. The provision is a salutary measure, and should be observed with strictness.
It looks very much to me as though the public confidence was abused in the transaction, and that the appellant and his assignors were shamefully trifled with; but it occurs to my mind that they neglected to take proper steps in the matter, and have lost the remedy they could have invoked successfully. They might have commenced an action in the nature of a quo warranto against the
persons designated to succeed them, and been reinstated in their positions; or, probably, they might have sued out a writ of review, obtained a reversal of the action of the mayor and common council in the affair, and been restored to their positions in that way. And it was held by the court of appeals of New York in Fitzsimmons v. City of Brooklyn, 102 N. Y. 536, S. C. 7 N. E. Rep. 787, where a policeman of that city hail been duly appointed to that office, and entered upon the performance of his duties, was attempted to be removed by the police commissioners, and upon certiorari the order of removal was reversed, and he was restored to his off , that he could re over against the city his salary which accrued between the time of the order of reinoval and the restoration, and without any abatement on account of earnings realized from his former trade, resumed during the interim. Under that decision these parties could possibly have recovered their salaries after a successful prosecution of a writ of review. I cannot, however, believe that they can maintain an action therefor while other parties occupy their places, have qualified as policemen, and are recognized by the city government as such. It seems very evident to me that their right to the oflice would have to be judicially determined in a proper proceeding, before such an action could be sustained.
The appellant's counsel have cited a number of authorities to show that an action of the character of the one in question can be maintained; but not one of them, as I can discover, was in a case where the plaintiff had been put out of the office, and another person been formally installed, and in the discharge of the duties thereof, unless there had been an adjudication in a direct proceeding declaring him lawfully entitled to it, and the incumbent a usurper.
The appellant's counsel claim that the salary is attached to the office, which is true. It is an incident to the office, and does not depend upon contract. It is fixed by law. But it does not follow that the title to the vilice can be tried in a collateral action. Dillon, in his work on Municipal Corporations, (3d Ed.,) says, in section 831: “Thus the salary or fees of an officer of a municipal or public corporation may, like other debts, be recovered by an action at law against the corporation. This, ordinarily, is the remedy, and not mandamus; but, if the officer cannot sue the corporation, he may, where entitled, cornpel payment by means of this writ, unless another is in possession under color of right; in which case the title to the office cannot, ordinarily, be determined on mandamus, or in any collateral proceeding."
It may be said that the action of the mayor and common council in the premises was a flagrant violation of the law, and of the rights of these oticials; but, nevertheless, other persons were nominated in their places, confirmed by the common council, took the oath, were regularly inducted into their places, and became officers de facto in their stead. The title to the office necessarily had to be tried as preliminary to the right of action which could have been brought in the lowest court of the state having civil jurisdiction. The parties ousted could, as their salaries accrued, monthly, have sued therefor in justice's court, whose jurisdiction to try the title to the office would have to be conceded, the same as that of the circuit court, under the same form of action, not only in cases where the question as to the title to the office is a simple one, but where it is complicated and doubtful. Courts will not entertain a case in favor of a party to recover for the use and occupation of real property against one who is in possession thereof adversely, but remit such party to his remedy by ejectment; and, I think, there would be less reason for entertaining a case of the character of the one in question than in that referred to. To allow an officer in such a case to remain wholly passive for a term of years, and then bring an action, and recover the amount of his salary, which had been all the time accumulating, without attempting to dispossess the incumbent, would result in a pernicious practice, and tend to overturn a wellestablished rule of law, reguiling the trial of the right to an office. No precedent for such a course has been furnished. It has long been a mooted question whether the payment of a salary, or fees and emoluments, of an office, to a de facto incumbent, would exonerate the government, or political body, from the payment thereof to the de jure officer. Numerous authorities have been cited upon both sides of that question, though it is not before the court, as the case stands. Those cited hy the respondent's counsel go, in the main, to show that it will not. They maintain that the compensation is attached to the office, and carry it out to its logical sequence by holding that the salary must be paici to the de jure oflicer, while the ones which maintain the contrary doctrine generally concede that the salary is attached to the oilice,-yet hold that the disbursing oflicer is not compelled to look beyond the certificate of election or appointment of the person who is in the discharge of the duties, and that payment to such person discharges the obligation of the political body in regard to the matter; but neither class of cases sanctions the right of the de jure officer to recover the salary, while out of possession of the office, until he obtain a determination of a competent tribunal in favor of his title, in a direct proceeding instituted for that purpose.
Dorsey v. Smyth, 28 Cal. 21, one of the cases cited by the respondent's counsel, was an application for a mandate to compel the county auditor of Tuolumne county, California, to audit and allow the salary of the relator as district attorney of said county. He had been kept out of the oflice by an intruder, who held it under color of oflice. The court granted the writ, but, before the application was made, the relator had instituted a contest for the office against the incumbent, and had obtained a decision of the supreme court of that state that he was entitled to it of right.
Douglass v. State, 31 Ind. 429, another of the cases, was a direct proceeding under the statute of the state of Indiana, upon the relation of Wight, against Douglas, in which the latter was charged with having usurped the office of auditor of Harrison county, in that state. It was to try the title to the office, and recover the fees and emoluments thereof, as incidental to the proceeding.
City of Philadelphia v. Rink, 2 Atl. Rep. 505, another of the cases, was an action brought by Rink against the city to recover his salary as magistrate thereof. One Barr had intruded into the office, and held it for some time under color of office. Rink was allowed to recover for the full time, but, before the action was commenced, his right to the ofiice had been determined by the supreme court of Pennsylvania in a direct proceeding instituted for that purpose.
Carroll v. Liebenthaler, 37 Cal. 193, another of the cases, was a mandamus upon the relation of Carroll to compel the board of supervisors of Amandor county, to allow his salary as supervisor of a district of that county to which one Ingalls had been declared elected, and for some time had held the office. The writ was allowed, but Carroll had commenced the suit to try the right to the othce, and bad obtained a decision in his favor, before the mandamus proceedings were begun.
People v. Potter, 63 Cal. 127; deagher v. County of Storey, 5 Nev. 196; Matthews v. Supervisors of Copiah Co., 24 Amer. Rep. 715; and City of Philadelphia v. Given, 60 Pa. St. 136,-four other of said cases,-merely hold that a de farto officer cannot recover compensation for services while occupying the oflice, a point upon which none of the authorities disagree, as I am aware of.
Mayor, etc., of Memphis v. Woodward, 12 Heisk. 499, another of the cases, was a suit by the latter party against the former to recover a salary as physician to the city hospital, an oflice created by law for said city. Woodward had been chosen to the office, and the mayor went in company with him to Lynch, the former physician, to turn over the office to Woodward. Lynch asked for time in which to arrange his affairs, and, it having been granted
him, he employed it in suing out an injunction to restrain the mayor and Woodward from interfering with him in the enjoyment of the office. The chancellor perpetuated the injunction, but the supreme court of the state dissolved it, and held that Woodward was entitled to the office, and the suit for the salary was not commenced until after that decision was rendered. Under the circumstances, a recovery was had in favor of Woodward for the salary during the time he was deprived of the office.
Mayor, etc., of Macon v. Hays, 25 Ga. 590, another of the cases, was an action to recover compensation as city marshal. That case was tried several times, and will be found reported in 19 Ga. 468, and 21 Ga. 280; and whether it has ever yet been determined or not I am not advised. The right to institute such an action was conceded, although the marshal had been removed from the office by the mayor and common council of the city; but he had, before its commencement, obtained a judgment of the supreme court of the state quashing their proceedings in the matter.
Dolan v. Mayor, 68 N. Y. 274, another of the cases referred to, was an action to recover a salary as assistant clerk of the district court for the Sixth judicial district, in the city of New York, and the plaintiff was allowed to recover for a portion of time during which he had been excluded from the office by another party who was holding under color of office, but not for any portion of the time covered by payment to the de facto officer; nor was the action to recover the salary commenced until after judgment of ouster was obtained against the incumbent in quo warranto proceedings.
Bryan v. Cattell, 15 Iowa, 538, is also cited by the respondent's counsel. That was a proceeding by mandamus to compel the auditor of the state of Iowa to issue to the plaintiff in the proceedings warrants on the state treasurer for the salary of the plaintiff as district attorney for the Fifth judicial district of said state, claimed to be due him for the quarter ending the first days of April, July, and October, 1862. The plaintiff had been duly elected to said office for the term of four years from the first day of January, 1859; but in July, 1861, he was commissioned a captain in the volunteer service of the United States for three years, or during the war; was mustered into the service, and so continued until after the mandamus proceeding was instituted. The auditor refused to issue the warrants upon the ground that the plaintiff was absent from the state during the whole period for which he claimed the emoluments of the office; and it was contended that he forfeited his office by engaging in a service incompatible with its duties. The court held that the plaintiff did not, by his enlistment in the service, forfeit his office, and that the salary was attached to it, and allowed the writ. It does not appear that any attempt was made to appoint another person to the office during the plaintiff's absence, or that there was any contest regarding it. The only question the court had to decide in the case was whether the plaintiff's engagement in the military service, under the circumstances, operated ipso facto as a forfeiture of it; and, when it was determined that it did not, the court had no alternative but to decide that he was entitled to the salary.
None of the cases referred to indicate that an action to recover the salary of an office could be maintained while occupied by a de facto officer, until the right to the office has been determined by a proper adjudication. Such a determination could not properly be had in this case, as it wonld determine the rights of parties not before the court. It would be a determination that the incumbents who succeeded the appellant and his assignors were intruders and usurpers when they are not before the court. Upon this ground the appellant was not entitled to recover, and the circuit court should have dismissed the complaint, instead of trying the case upon the merits. To that extent the judgment appealed from will be niodified. Costs will not be allowed to either party upon this appeal.
(14 Or. 236)
RUTHERFORD 0. THOMPSON.
(Supreme Court of Oregon. December 6, 1886.) TROVER AND CONVERSION- FOR WHAT AND WHEN IT LIES-ACTION BY PERSONAL REP
When, in an action of trover brought by the executrix of a decedent to recover dam. ages for the conversion of personal property belonging to the estate, the evidence shows that the property came to the hands of defendant, by direction of plaintiff, to be sold by him, and inat he sold the same, and applied the proceeds to the pay. ment of debts of the deceased, it cannot be said that he has converted the property to his own use, but to the use and benefit of the estate. Action to recover damages for the conversion of certain personal property. Judgment for plaintiff. Defendant appeals.
W. H. Adams, for appellant. C. P. Heald, for respondent.
LORD, C. J. This action was brought by the plaintiff, as administratrix of the estate of John Rutherford, deceased, to recover damages for the conversion of personal property belonging to the estate. The complaint, in substance, alleges that the defendant took possession of a stock of unfinished buggies and materials, the property of John Rutherford, after his death, and disposed of a part of them. The defendant, Thompson, after denying the conversion, alleges, in effect, that, after the death of Rutherford, the plaintiff, who is the widow of the decedent, delivered the property to one J. W. Swartz, as her agent, to manufacture into buggies, and to sell the same for her, and that said Swartz delivered a part of said property to the defendant to be sold, and that he did sell the same, and applied the money to the payment of the debts of the deceased; setting forth the amounts and names of the parties to whom paid, etc. Issue being joined as to this, a trial was had, which resulted in a verdict for the plaintiff.
The error alleged, as disclosed by the bill of exceptions, is the refusal of the court to allow the defendant to show what he did with the money received by him as proceeds of the sale of the property of Rutherford, deceased, and in the giving this instruction: “It makes no difference what the agreement was between defendants, or any of them, and Mrs. Rutherford, widow of John Ruth. erford, deceased, about the property in question. Defendant, R. H. Thompson, is liable for the value of the property which you believe from the evidence he took possession of and sold, if any; and your verdict must be for the value of the property so converted, if any has been converted by him;" and in the refusal to give certain instructions asked, which it is not necessary to consider, unless the exceptions noted are error.
It is thus seen by the pleadings and the error assigned that the defendant, Thompson, sought to justify his intermeddling with the property on the ground that what he did was done by the direction of the widow or the plaintiff, and was, in fact, her act; and that he had a right to discharge himself by proving debts paid to the amount of the goods or property received which had belonged to the deceased. The court, evidently, thought that it was immaterial whether he had done these things or not. They constitute no defense, and could not be shown in mitigation of damages. It was formerly considered that, if an individual interfered with the property of the deceased, he thereby made himself an executor in his own wrong, or, as it is generally termed, an executor de son tort. 2 Bl. Comm. 507; Bac. Abr. tit. “Executors,” B; 3 Schouler, Ex’rs, § 184. But this rule has been much modified, if not abolished, by the statute. It is now enacted that“no person is liable, as an executor of his own wrong, for having taken, received, or interfered with property of the deceased, but is responsible to his executors or administrators of such deceased persons for the value of such property so taken and received, and for all injury caused by his interference with the estate.” Code, $ 371. This provision is almost