
    Palmer v. Darby.
    
      Action to recover damages for usurpation of office — Only damages recoverable are emoluments or salary of office during time unlawfully withheld.
    
    In an action to recover damages for the usurpation of an office, the only damages recoverable are the emoluments or salary pertaining to the office during the time it was unlawfully withheld from the rightful claimant.
    (Decided May 7, 1901.)
    Error to tlie Circuit Court of Lucas county.
    The plaintiff sued the defendant in the court of common pleas of Lucas county alleging that on the 12th day of April, 1884, he ivas a resident of the village of Wauseon and eligible to the office of councilman in that village; that on and prior to said date while the plaintiff was a duly appointed, qualified and acting councilman of said village of Wauseon, the defendant wrongfully, oppressively and maliciously, without cause, usurped plaintiff’s said office of councilman, and wrongfully, unlawfully and maliciously, without cause or reason, deprived and kept the plaintiff out of the possession of said office until the 5th day of . November, 1894; that thereafter such proceedings were had in the circuit court of Fulton county and in the Supreme Court of Ohio, that it was adjudged that the defendant was not entitled to the said office, and that he had usurped the same, and the defendant was accordingly ousted therefrom and the plaintiff was restored to said office; and the plaintiff also alleged that by reason of the wrongful and malicious usurpation of said office of councilman by the defendant, the plaintiff was obliged to employ attorneys and was put to great expense of time and money in ousting the defendant from said office, to the damage of plaintiff $1,187.56, no part of which has been paid by the defendant. The plaintiff attached to his petition an itemized account of said damages; and prayed for judgment against the defendant in the sum of $1,187.56, with interest from October 21, 1894, for costs and for all further relief. The defendant demurred to the petition on the ground that the same did not state facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiff. The court of common pleas sustained the demurrer, and, the defendant not pleading further, rendered judgment for the defendant. On a petition in error the circuit court affirmed the judgment of the court of common pleas, and this proceeding in error is prosecuted to reverse the said judgment of the circuit court.
    
      Hurd, BrumbacJc & Thatcher and Orville 8. Brumback, for plaintiff in error.
    The case is prosecuted on the strength of the section of the Revised Statutes, Sec. 6778.
    That the rule of the Common Law thus stated is correct cannot be doubted. The form of action in such cases was on the assize, or an action for money had and received. Boyder v. Dodsworth, 6 Term Rep., 681; Lightly v. Clouston, 1 Taunt., 112; Allen v. McKean, 1 Sumner, 276; Douglass v. State, 31 Ind., 429; Auditors v. Benoit, 20 Mich., 176; Bier v. Gorrell, 30 W. Va., 95; Mayfield v. Moore, 53 Ill., 428.
    We make the very pertinent inquiry: What was the purpose of the statute, if it did not change the rule of the common law? The whole action of the Legislature under such a construction was nugatory and absolutely useless.
    
    
      A wrongful intrusion into an office is a tort. People ex rel. v. Miller, 24 Mich., 458.
    The case is closely assimilated to those in Ohio where counsel fees are allowed in actions sounding in tort by way of compensatory damages. Finney v. Smith, 31 Ohio St., 529; Stevenson v. Morris, 37 Ohio St., 10; Peckham Iron Co. v. Harper, 41 Ohio St., 100.
    The undoubted purpose of the statute is to make good the loss to the party ousted, by the wrongful usurpation of the office.
    The usurper takes the office with full knowledge of the rights of the party ousted. He voluntarily assumes the burden of making good all his loss and damage. He knows when he usurps the office his adversary’s only relief is to resort to law and incur lawyer’s fees, court costs, etc., to obtain the office from which he has been wrongfully ousted. It would seem remarkable if the statute was not intended to make good this loss and damage.
    How far a recovery of salary comes short of doing justice is seen in the case at bar, where there is no salary attached to the office of councilman.
    If such is the law, the rightful occupant of the office had better, and doubtless will, quietly yield up bis office rather than undergo a thousand dollars or more expense to maintain bis right to the office. State v. Taylor, 10 Ohio, 378; Shelton v. Gill, 11 Ohio, 417.
    It is true a statute affixing a penalty or liability will be fairly but strictly construed; but the same rule applies in affixing the liability of sureties upon an injunction bond. Roberts v. Dust, 4 Ohio St., 503; Williamson v. Hall, 1 Ohio St., 190; Hall v. Williamson, 9 Ohio St., 17; Smith v. Huesman, 30 Ohio St., 662; Krug v. Bishop, 44 Ohio St., 221.
    
      And it is settled in Ohio that fees and expenses necessarily incurred in obtaining a dissolution of the injunction may be recovered on the bond. Noble v. Arnold, 23 Ohio St., 264; Riddle v. Cheadle, 25 Ohio St., 278.
    The language of the liability of the surety prescribed by statute is substantially the same as the liability prescribed by section 6778 in question, viz.: binding him to pay “the damages sustained,” etc.
    To the same effect is the liability on an attachment bond construed in connection with the statute governing such bonds. The compensatory damages recoverable include attorney fees. Alexander v. Jacoby, 23 Ohio St., 358; Roberts v. Mason, 10 Ohio St., 278; Railroad Co. v. Bartram, 11 Ohio St., 457; Pope v. Pollock, 46 Ohio St.,367; Smith v. Railway Co., 23 Ohio St., 10.
    Where it is alleged that an office was wrongfully and maliciously usurped and the rightful incumbent ousted therefrom, requiring legal proceedings to be prosecuted through all the courts of Ohio for his removal, it certainly makes a case involving wilful malice, oppression and vexation. State v. Kromer, 38 Wis., 547; Douglass v. State, 31 Ind., 429; Kreitz v. Behrenmeyer, 149 Ill., 496.
    Applying this same principle here, is it not wise to construe the statute so as to make it a menace to any one usurping or wrongfully retaining a public office; in other words, by requiring him to pay the expense of counsel fees which he has unjustly and unlawfully paused the rightful occupant of the office to incur?
    As said in a case where the usurper of an' office was held liable for the salary. Sigur v. Crenshaw, 10 La. Ann., 297; Gates v. Toledo, 57 Ohio St., 105.
    
      The second amended petition pleads that Darby “wrongfully, oppressively and maliciously, without cause, usurped plaintiff’s said office of councilman, and wrongfully, unlawfully and maliciously, without cause or reason, deprived and kept this plaintiff out of said office.”
    We fail to see wherein further facts could be alleged to make the action of Darby malicious. The character of his action in usurping the office is a fact, being a question of purpose and intent on his part, to be alleged the same as any other fact.
    There is no presumption about it. It is purely a question of fact to be alleged and proven whether in committing the tort of usurping the office it was done with “actual malice, oppression or vexation.”
    To plead that such an ingredient of malice and oppression exists is to plead a fact. Sutor v. Wood, 76 Tex., 403; 4 Enc. Pl. & P., 473; VanIngen v. Newton, 12 Dec. Re., 732; 1 Disn., 482.
    It would be most improper to plead the evidence by which such malice is to be established. Work v. Mitchell, 12 Dec. (Re.), 761; 1 Disn., 506; Waller v. Robinson, 2 Dec. (Re.), 16 (1 W. L. M., 90).
    Malice being a fact as to a mental state, is to be plead like any other like fact, e. g., intention. Bartholomew v. Bentley, 15 Ohio, 660; Bank v. Beebe, 6 Ohio, 497; 1 Bates Pl., 114.
    It is like a replevin case where it is sufficient to allege ownership of the goods, not the evidence to show-ownership. Wilmot v. Lyon, 7 Circ. Dec., 394; 11 C. C. R., 238.
    Counsel are simply confused in attempting to draw a distinction in this case relative to malice not being presumed. 1 Kinkead Code PL, 722; Klein v. Thompson, 19 Ohio St., 569.
    
      It follows that our first petition may have been good, although no malice was expressly alleged, since the act of usurping the office was unlawful and so determined in. the quo toarranto case, McCracken v. West, 17 Ohio St., 16; Bartholomew v. Bentley, 15 Ohio, 660.
    The case at bar is closely assimilated to a case of malicious prosecution, where malice is plead in the same manner as we have done in the case at bar, and where under proof to sustain the allegations, attorney fees can be recovered. 1 Kinkead Code PL, 751.
    The damages sought to be recovered were consequential and so proximately caused by the wrongdoing as to render the defendant liable therefor. 1 Sedgwick on Damages, Sec. 111.
    We insist the reasonable expense of employing attorneys and the other expenses sustained in redressing the injury is as proper an element of damages in this case as is the expense sustained in the employment of a physician and purchase of medicines in a personal injury suit. Sedgwick on Damages, Sec. 217.
    Nor are we claiming attorney fees in this “action by way of exemplary damages,” as counsel argue. (Deft’s Brief 3-4.) Upon the contrary, the attorney fees are claimed by way of compensatory damages, well established, as such by the decisions of this court. Finney v. Smith, 31 Ohio St., 529; Railroad Co. v. Bartram, 11 Ohio St., 457.
    An act which if innocently done would not constitute an injury in law, if maliciously or negligently done and damages result, may afford ground for recovery in damages. 8 Am. & Eng. Ency. Law, (2nd Ed.), 549.
    
      ' Of like character is the claim that the word “damages” used in section 6778 means salary or emoluments of office. Grogan v. Garrison, 27 Ohio St., 50.
    To say the word “damages” had acquired a fixed legal signification of salary or emoluments of an office only, is to beg the question. The word has no such fixed legal signification. On the contrary, the fixed legal meaning of the word “damages” is, as stated by Bouvier:
    “The indemnity recoverable by a person who has sustained an injury, either in his person, property or relative rights, through the act or default of another.”
    Counsel assert that statutes similar to ours “have been passed in New York, California, Michigan, Louisiana, Indiana and North Carolina.”
    We do not know Avhere they get authority for this statement. We have been unable to find any similar statute except in NeAv York and Indiana.
    In Nichols v. McLean, 101 N. Y., 526, such a statute is referred to, but in none of the other cases cited is any statute except in New York and Indiana.
    While it is true that in Ohio attorney fees are not ordinarily recoverable, yet it is well settled that where in an action of tort the ingredient of fraud, malice or insult is involved in defendant’s conduct, attorney fees are not against public policy, but on the com t-ary are awarded as compensatory damages. It follows that the Wisconsin case (38 Wis., 547), comes nearer to the case at bar, — since attorney fees were there claimed — than any other case cited.
    The attempt to distinguish this case on the ground that the attorney fees and other expenses sought to be recovered Avere sustained in the quo 'warranto case, and not directly from the usurpation of the office, is not well founded. Kelly v. McKibben, 54 Cal., 195.
    
      This case is for the recovery of damages for the malicious usurpation (conversion) of the office. 1 Sedgwick on Damages, Sec. 216; Merrill v. How, 24 Me., 126; Boomer v. Flagler, 51 N. Y. Super., 208; Sprague v. McKinzie, 63 Barb., 60; Miller v. Garling, 12 How. Pr., 203.
    
      Doyle & Lewis, for defendant in error.
    Counsel have the impression, evidently, that they may make a case for exemplary damages and hence recover attorney fees where there are no actual damages, as there are none in this case. The rule, however, is that there must be actual damages alleged and proved, or legally presumed, before the question of exemplary damages can be considered. This rule will be found stated, with the authorities to support it, in 12 Am. and Eng. Ency. Law (2 ed., pp. 29 and 30). In this case, there being no emoluments of any kind, even nominal damages are not recoverable.
    The claim is made under section 6778,, Revised Statutes. Well, one very manifest purpose of the statute is to limit the time within which the action can be brought to one year after the date of the judgment of ouster. But counsel must know that there are a great many statutes which are merely declaratory of the common law, and it will hardly do now, in this state, to insist upon a forced construction of a statute which declares a right which existed at common law.
    The “damages” which a party might recover for being unlawfully kept out of an office to which he was entitled, had a very well known and established rule at the time this statute was passed. “Damages” meant the salary or emoluments of the office, and the authorities in Ohio well sustain the proposition, that the General Assembly used the word “damages” with that well defined meaning. Gray v. Askew, 3 Ohio, 466; Turney v. Yeoman, 14 Ohio, 207; Grogan v. Garrison, 27 Ohio St., 50; Bank v. Railroad Co., 20 Ohio St., 259.
    Statutes similar to ours, in most cases indentical, have passed in New York, California, Michigan, Indiana, Louisiana and North Carolina. Under these statutes (like our section 6778) many cases have arisen, and the rule of “damages” has been limited to the recovery of the emoluments of the office received by the intruder. In none of them have attorney fees or expenses incurred in recovering the office been allowed. Nichols v. McLean, 101 N. Y., 526; People v. Nolan, 101 N. Y., 539; Kessel v. Zeiser, 102 N. Y., 114.
    The statute in New York is quoted in the opinion in 101 N. Y., at page 536, apd is that the rightful officer might recover “damages sustained by reason of the usurpation of the defendant.” Stoddard v. Williams, 65 Cal., 472; People v. Miller, 24 Mich., 458; Glascock v. Lyons, 20 Ind., 1; Douglas v. State, 31 Ind., 429; State v. Tate, 70 N. C., 161; Bier v. Gorrell, 30 W. Va., 95; United States v. Addison, 73 U. S. (6 Wall.), 291; Mayfield v. Moore, 53 Ill., 428; Sigur v. Crenshaw, 10 La. Ann., 297; Petit v. Rousseau, 15 La. Ann., 239; Cooley on Torts, 351; Throop on Public Officers, Secs. 256, 521, 522, 523, 663 and 786.
   By the Court :

Section 6778 of the Reviséd Statutes provides that, where one recovers a judgment of ouster in quo warranto proceedings against the usurper of an office, “sneh person may, at any time within one year after the date of such judgment, bring an action against the party ousted, and recover the damages he sustained by reason of such usurpation.” At the time this statute was enacted, the measure of damages in such an action, as understood and applied at .common law, was the salary or emoluments pertaining to the office during the time it was unlawfully held by the intruder; and the legal presumption is that the legislature used the phrase, “the damages he sustained by reason of such usurpation,” in this fixed legal signification. Turney v. Yeoman, 14 Ohio, 218. Grogan v. Garrison, 27 Ohio St., 63. Therefore, in the absence of any express change in the rule of damages, the statute must be interpreted as authorizing the. recovery of the salary or emoluments of the usurped office, as damages, but limiting the action to one year after the date of such judgment of ouster. The office has no salary and no emoluments attached. The petition, therefore, does not state a cause of action, and the judgment of the circuit court is.

Affirmed.

MlNSHALL, C. J., WILLIAMS) BURKET, SPEAR, •Davis and Shauck, JJ., concur.  