
    Benoit vs. Auditors of Wayne Co.
    B was elected Treasurer of Wayne County, but the county canvassers awarded a certificate of election to. M, who assumed' the duties of the office. M was subsequently ousted, by judgment of the Court, and B entered upon the discharge of his official duties. M received his salary until he surrendered his office to B. B claimed hie salary from the county for the time he had been deprived of his office by M. Held, that he was not entitled to *uch salary.
    Error to Wayne Circuit.
   Opinion by

Campbell, C. J.

Benoit was sued for not paying over the moneys in his hands as Treasurer of Wayne County. The sum which he retained was an amount claimed to be due to him for his salary, during the pending of proceedings in quo warranto against George Miller, who held the office in fact, but who was decided not to have been lawfully elected.

The case shows that Miller was declared and certified by the county canvassers to have been duly elected, and that he took the legal oath and gave bond and assumed the office, and held it, and performed its duties and received its emoluments, until ousted; and that Benoit was finally, by the judgment of this Court, declared entitled to the office, and has still pending his claim on suggestion of damages under the statute.

The Court below held that Benoit could not claim his salary against the county, when Miller had received it as Treasurer actually holding office in the manner mentioned.

It seems very well settled that as against the person who had kept him out oí office by the intrusion, an action would lie for the injury, under which he was deprived the lawful perquisites which he would have received if in office. Our statute has recognized the right to this redress, and has substituted a suggestion, instead of the old action on the case or the assize. The precise measure of damages it would not be proper for us, on this hearing, to consider. But the right is unquestionable, and is put on the same footing with action for disseizin of lands. See Peit vs. Rousseau, 15 La. An., 239; Segur vs. Cunshau, 10 La. An., 298; Boyter vs. Dodsworth, 6 T. R., 681; U. S. vs. Addison, 6 Wallace, 291; Same vs. Same, 22 Hon. R., 174. In the latter case, the jurisdiction of the Court to try the cause depended upon the amount of money involved in the issue, and it was held that in the quo warranto proceedings the salary received, and receivable, by the defendant, was, for this purpose, a governing consideration.

It cannot be possible that a county can be liable to pay the same salary twice over; and if the present claimant can demand the money, it must be because the payment to Miller was not warranted. And this can only be upon the assumption that the county authorities were bound to know who was lawfully entitled to the fees, or else that they were bound to prevent the defeated party from getting the salary until the suit was decided.

The position of a person who has a right to claim an office, hut has not yet assumed in, is in no sense an incumbency. The King vs. Swyce, 10 B. & C., 486. Under our statutes, the party, however well entitled, loses his right, unless he files his oath and bonds. C. L., § 475. We held in People vs. Mayworm, 5 Mich. R., 146, that a person who had been deprived of his evidences of title by the granting of a certificate to some one else, was not compelled to file his oath and bond until judgment in his favor, because no one was obliged to recognize him as against the one holding the certificate. If, however, the county authorities were compelled ¿o look behind the papers, there could be no reason for any such exception. And nothing but actual incumbency can make a person a legal officer, however much he may be entitled to obtain the office. And, certainly, when a person stands of record as ousted, and demanding the-ouster of another, whom he alleges to be wrongfully in office, as a means of getting his own rights, it could not be claimed', that the acts of the relator would be in any sense official acts. The only valid proceedings in the name of office must be those of the actual incumbent. And his acts are valid to all purposes, except, possibly, his own protection from liability as an--wrong-doer.

The general doctrine in regard to de facto officers is so familiar that no citations are necessary tó show it.

If Courts themselves, when called on for affirmative action in aid of an officer, cannot inquire into his title, it cannot be reasonable to allow us to expect other bodies, or persons to do so.

It was held in Smith vs. Mayor of N. Y, 37 N. Y., 518, that no claim could be brought for salary or perquisites against a. municipal corporation, covering any period when the claimant, was not actually in office; and this was put on the ground that these are the reward of express or implied services, and therefore can not belong to one who conld not lawfully perform. those services, although wrongly hindered from occupying a position in which he might render them. And in the previous-case of Connor vs. Mayor of N. Y., 5 N. Y., 235, the same doctrine as to the nature of official salaries and fees was laid down. Nor does there seem any good reason for doubting this rule. If an office were a contract relation, it is shown by the reasoning that it would not be competent to legislate so as to impair its tenure or its value. Tet it has always been held competent to abolish or modify tenures and profits at the will of the Legislature, when not restrained by the Constitution, and there can be no consistent theory, except that which regards official rewards, as the recompense for actual or implied official work. Nor would it be possible, in most cases, to have the work done without some certainty of pay for it. An officer is not to be expected to work for nothing, so long as it may please his enemies to assume to doubt his title. There is very good reason why he should be compelled to respond to the rightful claimant, who would have been glad to fulfil the conditions. But the laws assume that the laborer is worthy of his hire, and the person who is required to be recognized, for the time being, as the legal incumbent for the purpose of doing the work, should be recognized for the purpose of remuneration also, so far as those are concerned with whom he deals officially, and who have no personal interest in the contest for the office.

The principle involved in the case cannot differ in different offices. It so happened that this is a contest concerning a salary which is payable to himself by the incumbent, as custodian of the county funds, but subject to a settlement of accounts. If, instead of the treasurership, the clerkship or sheriffalty had been in dispute, and the officer dr facto had been compelled to resort to a court to compel payment of his salary, the authorities are uniform that the title to the office could not be tried in that collateral way. The people of the State must be parties to such á controversy.

There is a distinction taken by many authorities between an office held de. facto under color of title, and one usurped without any legal pretext. This distinction is hinted at in Plymouth vs. Painter, 17 Conn., 585, and Wilcox vs. Smith, 5 Wend. R., 231, and is recognized in other cases. .A somewhat similar question was discussed, but not decided, in Carleton vs. People, 10 Mich. R., 250, where there was a difference of opinion as to an incumbency when' the time had not arrived for the full operation of a statute. There is certainly some reason for distinguishing between barefaced usurpation and the assumption of office under the paper title prescribed by statute.

In the case of Stadler vs. City of Detroit, 13 Mich. R., 346, the only question argued or considered was, whether Stadler’s term of office had been ended, and nothing was said, by any one, concerning the right of action in case he remained entitled to the office. That right was conceded, and of course such » decision could be no precedent, except upon the point actually considered and decided. But it may be doubted, at least, whether that case presented any such difficulties as arise here. Stadler, being in office for two years under a State statute, the Council, instead of removing him, which might have been done, assumed that the office was vacant at. the end of one year, without removal, and appointed Mahoney, upon the theory that no one was in office at all. They acted under a mistake of law, which vitiated Mahoney’s appointment on its face; and Stadler remained an officer de facto as well as de jure, there being no ouster in the proper sense of the term. And, moreover, the body he sued was the very body that did the alleged wrong, while the corporation representing the county has nothing whatever to do with the appointment or installation of county officers. It is enough, however, to say, that as the question of liability to suit was not raised in that ease, it does not preclude its decision here as an original question, and it is not important whether the two cases differ in the principle involved upon this point.

We think the decision below was correct, and that it should be affirmed, with costs.

Cooley, J.

Was Miller entitled to claim and demand of the auditors the salary which they allowed him? I think not. The only ground on which he could claim it was, that he had occupied the office and performed its duties, and was an officer defacto. Now, the acts of an officer de facto are unquestionably good for many purposes, but for many others he is regarded in the law as a mere trespasser. Whether they are valid or void, depends on the purpose for which they are considered. The public, who have an interest in the continuous discharge of official duty, and whose necessities cannot wait the slow process of a litigation to try the title, havé a right to treat'as valid the official acts’ of the incumbent, with whom alone, under the circumstances, they can transact business.

But the party himself who has usurped a public office is never allowed to build úp rights, or tó shield himself from responsibility oh no better basis fhah his-usurpation.

As is said by Parsons, Ch. J. in Fowler vs. Beebe, 9 Mass., 234, if an actibh should be commenced ágaiiist Obe claiming to be sheriff, for an act which he does not justify but as sheriff, or if an information should be filed against him, in either case he would be a party, and his title to the office might be tried. The same principle is stated by Bronson, Ch. J., in People vs. Hopson 1 Denio, 579, who adds that “ clearly he cannot recover fees, or set up any right of property, on the ground that he is an officer da facto, unless he is also an officer da jure.’’ And Heath, J., in Lightly vs. Clouston, 1 Taunt., 113, referring, it is supposed, to Howard vs. Wood, 2 Lev., 245, says that “ so long back as the time of Charles the Second.it was held that the title to an office, under an adverse possession, might be tried in an action for the fees of the office had and received.” And see Weeks vs. Ellis, 2 Barb., 325. It was very strongly intimated in People vs. Hopson, Supra, that if one resists an officer de facto, and the' latter prosecutes him for the assault, it would be a good answer to the action that he was not a legal officer, but a wrong-doer; for when one man attempts to exercise dominion over the person or property of another, it becomes him to see that he has an unquestionable title.

The doctrine on this general subject was very clearly a,nd fully stated' by Cowen, J., in Greene vs. Burke, 23 Wend., 502. But we need not pursue this distinction on principle. It is very sensibly settled by a series of cases in Pennsylvania, where most of the authorities have been examined. The result was ’Stated in Riddle vs. Bedford, 7 Serg. and, Rawle, 386, 392. “ The sound distinction,” says Duncan, J., “ is, that the office is void as to the officer himself, but valid as to strangers.” The same distinction has since been recognized there in several cases. Parker vs. Luffborough, 10 Serg. and Rawle, 249; Keyser vs. McKissan, 2 Rawle, 139, 140.

It is evident that Miller had not a shadow of claim to compensation for services- rendered the county during his usurpation, and that he could not have enforced payment by law. When the auditors paid him, they did so without legal compulsion, and without necessity, and the same rule of policy which precluded Miller’s right to the office being tried in a collateral proceeding to which he was a stranger, will also preclude this settlement between Miller and the auditors being used to the prejudice of the plaintiff, who was not, and, from the nature of the ease, could not have been, a party to it.

The general language employed in the eases, that the right to fees grows out of the rendition of the services, is, on all logical rules, to be understood with reference to the particular facts then before the Court, and cannot be applied universally, as claimed by the defence, without coming in conflict with the decision of this court in Stadler vs. Detroit, 13 Mich., 347. We there held that a municipal corporation which had excluded a Salaried officer from the performance of his duties, was bound to pay him tbe salary." We are still, I beli«ve, satisfied with this decision. That the right to fees does not necessarily depend upon the performance of the official duties, is also declared in Glascock vs. Lyons, 20 Ind., 3.

The only case directly in point is that of People vs. Smythe, 28 Cal., 21, and there it was held that the lawfully-elected officer, who had been excluded by one coming in by color of title, might, after recovery of the office, maintain an action against the county for his salary, during the usurpation, notwithstanding it had been previously paid to the usurper. This decision appears to me to be sustainable on the soundest reasons of public policy.

It is said that the plaintiff has' a complete remedy by recovery of damages against Miller. If I am correct in what I have already said, this is no answer to the present action. If one has a remedy against two persons for the same wrong, his action aeainst one cannot be defeated by showing that he might have sued the other.

If the proposition is correct, that he who is rightfully entitled to an office has a property in it, though not, perhaps, strictly in the commercial sense of that term, then we are not able to perceive how a mere intruder, who may perform the duties for a time, can in good conscience retain the fees, etc., for such service. If he could, under such circumstances, be permitted to retain such fees, it would be on the ground that they were a remuneration for his labor, etc.; but that would not justify the retention of any sum over such mere remuneration, if justified to that amount. How could the case be distinguished from one where A. B. may, without contract or request, express or implied, perform ordinary labor for C. D. ? In the latter, it is well settled'there is no right of action accrues to the laborer. How could there be in the former? If not, upon what principle can the labor be set up as a defence to an action for money received to which the plaintiff was entitled ?

This case, it will be seen, is entirely inconsistent with the deduction the plaintiff’s (below) draw from the cases in 5th and 371h New York, but it is in harmony with all those in which it has been held that salary and fees are incident to the title, and not to the usurpation and colorable possession of an office. People vs. Tinman, 30 Barb., 195, and cases before cited.

I thinlf the weight, both of reason and authority, is with the defendant, and that the judgment should be reversed.

Christiancy, J.

I concur in the result in this case with my brother Campbell. But had it affirmatively and satisfactorily appeared that the auditors had actually and voluntarily paid over the salary to Miller, after the judgment against him in the quo warranto proceedings, instead of merely allowing his account for so much retained by him on account of his salary, T should have concurred with my brother Cooley in his view of the ease.  