
    ALBRIGHT v. SANDOVAL. SANDOVAL v. ALBRIGHT.
    ERROR TO THE SUPREMfc COERT OF THE TERRITORY OF NEW MEXICO.
    Nos. 116, 117.
    Argued January 28, 1910.
    Decided February 21, 1910.
    Where the final judgment of the Supreme Court of a Territory-is not based on the power of the legislature to \enact the statute involved but on the construction thereof, this court is not- disposed to disturb that -construction; and so held, following the decisions of the territorial court, that a statute! of New Mexico carving a new county out of an existing one did not create a vacancy in an office of the original county because the incumbent did not reside in that portion of the county which remained.
    
      Querré whether a judgment of ouster in .quo warranto is conclusive^ between the same parties in a suit, brought by the de jure relator against the de Jado incumbent.
    After judgment of ouster in quo warranto a de jure officer may recover the emoluments of the office, less the reasonable expenses incurred in earning the same, where, as in this case, the de fado officer entered the office in good faith and under color of title.
    79 Pac. Hep. 719, affirmed.
    The facts are stated in the opinion.
    
      Mr. E. L. Medler for Albright:
    The entire controversy, including the status of. the parties as to who was d'e jare assessor is before this court, for although the decision in the quo xcarrunlo case may bind the New Mexico courts it does not bind this court. United Stales v. Denver & R. (!. Ry. Co., 191 Y. S. 86; Dxje v. Crary, 208 U. R. 515; Fitzpatrick v. Flanigan, 106 TJ. R. 648; Mendenhall Hall, 134 IT. R. 559¡.Gallagher "v. Jones, 126 IV R. ,193. The judgment in the quo xcarranto case is not res judicata in thijs case as the object' of the judgment is different although the parties are the same. .Gaines v. Hennen,: 24 How. 553; Carey v. Roosevelt, 81 Fed. Rep: 611.
    The acts of the legislature of New Mexico of 1903 creating Sandoval County and .the amendatory act were within the power of tlie legislature. Rev. Stat., § 1851. ■ These acts are not in conflict with the Springer Act and the act of 1886 prohibiting the passage of special dr local bills.
    Where the legislature exercises a power to- create new counties, it creates a vacancy in the old- county and it is germane to the subject to fill that vacancy by the same special act. State v. Piper, 24 N.. W. Rep. 205; Reals v. Smith, 56 Pac. Rep. 690.
    The act creating Sandoval County and the amending-act are not regulations of county affairs. Holliday v. Sweet Grass County, 48 Pac. Rep. 533; Mode v. Beasley, 42 N. E. Rep. 7.27.
    The effect of the acts creating Sandoval County was to create a vacancy in' the office of assessor of Bernalillo' County and to provide for filling the same. Lane v. Kolb? 92-Alabama, 636; State v. Board of Public Lands, 7 Nebraska, 42; Fox v. McDonald, 21 L. R. A. 537; De Guenther 'v.. Douglass, 26 Wisconsin, 428; State v. Davis, 44 Missouri, 129; People v. Haskell, 5 California, 357; Attorney General v. Squires, 14 California, 12; Hoke v. Henderson, 25 Am. Dec.- 703, note; Butler v. Pennsylvania, 10 How. 402; Stewart v. Police Jury, 116 U. S. 133; Taylor v. Marshall-& Beckham, 178 U. S. 548. As to power of removal and control of legislature over offices see Crenshaw v. United States, 134 U. S. 99; Long v. Mayor, 81 N. Y. 426; People v. Hurlbut, 24 Michigan, 44; Denver v. Hobart, 10 Newark, 30; Territory v. Van Gaskin, -6 Pac. Rep. 30.
    ‘ As to the power of a territorial legislature unless restricted by the Constitution and laws of the United States, see • Vin-cennes University v. State, 14 How. 267; Rogers v. Burlington, -3 Wall. 654,; Clinton v. Englebrecht, 13 Wail. 446; and as to power of legislature to name officers temporarily, see People v. Hurlbyt, 24 Michigan, 44; Territory v. Van Gaskin, 6 Pac. Rep. 32; Territory of South Dakota v. Scott, 20 N. W. Rep.. 401; Waterman v. Freeman, 80 California, 233.
    The appointment of Albright by commissioners as provided by the legislature was not void by reason of the act of 1901, providing for appointment by the governor to fill vacancies caused ■ by death, resignation or otherwise. The rule of ejusdem generis doés sustain appellee’s contention. United States v. Bevans, 3 .Wheat. 391; United States v. Chase, 153 • U. S. 255, 260; Moore v. American Trav. Soc., 2. How. 141; Sedgwick on Construction .of Statutes, 360; Cooley on Constitutional Law, 149.
    The legislation was • not- void because it provided for' a • different manner of selection than that provided for other counties. Guild v. Bank, 57 N. W. Rep. 499; Missouri v. Lewis, 101 U. S. 22.
    Residence is á necessary qualification to the office involved- • and the appellee is riot qualified. Meecham on Public Offices," §§ 57, 67, 82, 159; United States v. Johnson, 173 U. S. 363; 23 Anri & Eng. Ency. of Law, 426; Mauk - v. Lock, 70 Iowa, 266; Statey. Hixonr 27 Arkansas, 398; §772"and subs. 15, § 664, Comp. Laws New Mexico, 1897; State v. McMillen, 23 Nebraska, 385.
    The .territorial legislature had the power to declare such a vacancy irrespective of the question of Sandoval’s residence. .Rev. Stat., §§ 1851, 1857;.Meecham, § 1; Campbell v. Moms, 3 Har. & M. (Md.) 535.
    The acts creating Sandoval County went into effect from the date of their passage.
    Albright’s appointment was legal and no recovery could be • had for .the fees and emolumentscollected by him as a defacto officer. 8 Am. & Eng. Encyc of Law, 815; Hussy v. Smith, 99 U. S. 20; McDowell v. United States, 159 U. S. 601; Nofire v. United States, 164 F. S. 661;, Ball v. United States, 140" U. S. 125; Norton v. Shelby County, 118 F. S. 425; Insurance Co. v. Seaman, 80 Fed. Rep. 357.
    A de facto officer is entitled in any event to retain the reasonable expenses of earning the fees and emoluments of the office. 23 Am. & Éng. Ency. of Law, 403; Mayfield v. Moore, 53 Illinois, 428; Re Havird, 2 Idaho, 252; Chowing v. Boger, 9 Am. & Eng. Corp. Cas. 91; Atchison v. Lucas, 83 Kentucky, 451; Arris v. Stukeley, 2 Mod.- 260; Bier v. Gorrell, 30 W. Va. 95.
    There is no property in a public office. Stuhr v. Curran, 15 Vroom, 181; Wayne County v/ Benvit, 4 Am. Rep. 382; Taylor v. Beckham, 178 U. S. 548; Butler v. Pennsylvania, 10 How. 402.
    
      Mr. Neill B. Field for Sandoval:
    An officer de jure may maintain an action for the recovery of the fees and emoluments of an office against a person who has been adjudged in quo warranto not entitled to the office. Stuhr v. Curran, 44 N. J. L. 181; United States v. Addison, 6 Wall. 291. And in such a suit the judgment of ouster is conclusive as to title of the office.
    That judgment cannot ,be attacked collaterally. Neto England Mortgage Security Co..v. Gay,-145 U. S. 123; Washington R. R. Co. v. District of Columbia, 146 U. S. 227; Kimball v. Kimball, 174 U. S/158. '
    Albright is liable to Sandoval for the entire amount received by him. Had it been a salaried office the measure would have been the entire salary and the rule should be -the same as to fees, nor can Albright escape-on the ground of having wronged Sandoval unintentionally. Woodenware■ Co. v. United States, 106 I'. S. 432. As to measure of liability, see Mayfield v. Moore, 53 Illinois, 428; Bear'd v. -City of Decatur, 7 Am. & Eng. Corp. Cases, 145; Chownvng v. Boger, 9 Am. & Eng. Corp. Cases, 91; Atchison v.' Lucas, 83 Kentucky, 451,y Arris v. Stukeley, 2 Mod. 260; Bier v. Gorrell, 30 W. Va. 95; Nichqls v. MacLcan, 101 N. Y. 526; Kreitz v. Behrensmeyer, 149 Illinois, 496; 3 Sutherland on Damages, 3d ed.1, § 093; United Stales v. Addison, 6 "Wall. 291; Michel v. New Orleans, 32 La. Ann.-1094.
   Mr. Justice McKenna

delivered the opinion of the court.

These cases involve controversies over the right to the; fees of the office of assessor of Bernalillo County, New Mexico. Plaintiff- in error received the fees, defendant in error claims the right to them as the duly-elected officer.

There was prior litigation ■ ovei; the right of the office. Proceedings in the nature of quo warranto were instituted against plaintiff in. error, by the Territory, upon the relation-of defendant in error, to try the title of plaintiff in error to tlie office. Judgment went in favor of the latter in the trial court, which was reversed by the' Supreme Court, and’ the case remanded for further proceedings. 78 Pac. Rep. 204.

Upon the subsequent proceedings in the trial court judgment was entered, declaring plaintiff in error not entitled to the office. Th§ judgment also ordered him to.deliver to the relator, -defendant in error here, the records and the equipments of the office, “as the lawful custodian thereof.” This part of the judgment was reversed by the Supreme Court; the other part, as to the title of plaintiff in error to the office, was. affirmed. 79. Pac. Rep. 719. An appeal was taken to this court and dismissed because the matter in controversy was not “measurable.by some sum or value in money.” As to the fees of the office, it was said: “The term of office had expired before, the rendition of judgment by the territorial Supreme Court, and as to the effect of the judgment of ouster in a suit to recover emoluments for the past, that is collateral, even though the judgment might be conclusive in such subsequent action. New England Mortgage Security Co. v. Gay, 145 U. S. 123; Washington & Georgetown R. R. Co. v. District of Columbia, 146 U. S. 227.”

This action was brought for the past fees and emolum'ents of the office, amounting, it is alleged, to the sun: of six thousand one hundred eighty-four dollars and sixteen cents ' (*6,184.16).

The grounds of action are, as alleged, that Sandoval, defendant in error, was duly elected to the office; that Albright, plaintiff in error, on the twenty-seventh of March, 1903, ■“usurped the same, and excluded the plaintiff therefrom, and received and appropriated to his own use the fees and emoluments” of the office until the nineteenth of November, 1904, when the plaintiff (defendant in error here), by a judgment in a “certain proceeding entitled The Territory of New Mexico on the relation of Jesus Maria Sandoval against the. said George F. Albright, was restored to the possession of the said office.” The judgment was made part of the complaint.

A demurrer was filed to. the complaint. It was overruled. An answer was then filed which practically admitted the , allegations of the complaint, except the legal right of the plaintiff to the fees of the office. It admitted that in the quo'warranto proceeding it was adjudged that Albright was not entitled to the office and had usurped the same, and that Sandoval was entitled to it. The answer, however, set up a. right to the office in Albright; That on'the■ twenty-third of March, 1903, he was appointed assessor of the county by the board of county commissioners of the county,...acting under and by virtue of § 3 of an act of the legislative assembly of the Territory, entitled an act to create the county of Sandoval, approved March 10, 1903, as amended March 12, 1903. That the office of assessor of the county, of Bernalillo became vacant by reason of such legislation, Sandoval County having previously been a part of Bernalillo. The validity of such legislation was alleged and that the power of appointment was vested thereby in the board of commissioners created by the .amendatory, act-.of March 12. It is alleged also that “the office was subject to the control of the legislature and that a vacancy thereafter was created by said acts.” That Sandoval, at the time Sandoval County was created, was and had been a long time before a resident of Bernalillo, and ceased, therefore, upon the passage of the acts creating Sandoval County, to be a resident of Bernalillo, and became disqualified from exercising the duties of the office of assessor thereof, to which he had been elected, and that at the time of the appointment of Albright the office was and had been vacant from the time of the creation of Sandoval County.

The answer admitted the receipt of $6,648 on account of fees and emoluments, and alleged that Albright paid out the sum of $2,142.25 for clerical and other expenses nécessarily incurred in administering the office, which amount, he alleged, he was “entitled to receive as a set off against any demand”' against him. And he alleged that the said sum was paid in good faith. There was a demurrer to the answer filed and a replication. The latter accepted the statement of the amount received by Albright, -alleged want of information as to the amount expended as expenses of the office, and denied that Albright wás an incumbent of the office in good faith.

The demurrer was sustained to all parts of the answer except those alleging, receipt of fees and the payment of expenses.. As to them, ■ evidence was submitted to a jury, which, under the. direction of ,the court, returned a verdict for.the plaintiff, .Sandoval, in the sum of $5,360.53, which was the amount sued for less the expenses which had been incurred by Albright. Both parties moved for a- new trial, .the plaintiff on account of the allowance of the expenses, the. defendant on account of the recovery against him of the fees and emoluments received by him. Judgment was entered for the amount of the verdict in favor of the plaintiff, and affirmed by the Supreme Court. 93 Pac. Rep. 717. Both parties sued out writs of error. That of Albright (No. 116) is directed to the judgment against him; that of Sandoval (No. 117) to-redress- the- error, which he contends, was made against him in allowing as a set off against his demand, the expenses that Albright had incurred in administering the office. ‘.

It is clear that the only questions of fact presented by the pleadings were as to the amount received and the amount expended by Albright. This, was the view- taken of them by the Supreme Court. That court said: “The right of• office and that the appellee [defendant in error here] was the de jure officer were fully determined in the former Suits, and cannot be considered in- this, therefore the court below properly 'Sustained the demurrer to all such parts of the answer as sought to raise this issue.” The suits referred to by the court were Albright v. Territory, 78 Pac. Rep. 204; Territory v. Albright, 79 Pac. Rep. 719; Albright v. Sandoval, 200 U. S. 9.

The court, therefore, addressed itself to the two propositions which it conceived were, left in the case, the right of Sandoval to recover the' fees, received by Albright and the right of the latter to set off against them his disbursements •for expenses. The court, passing on the first proposition, found, it said, no statute of the Territory “.governing this subject,” but decided that “the common law, in the absence of a statute, authorizes a recovery by the officer de jure in such cases.”.' On the second proposition it found that there could be no question of Albright’s good faith, and that it considered the cases made good faith “the controlling consideration for the allowances of expenses to an ousted de fado officer,” and affirmed the judgment of the trial court.

• Plaintiff in error, however, goes back of the decision of the Supreme Court, and contends that he is not only a® officer dé facto but an officer de jure. In • other words, he' 'disserts the correctness of the position taken in his answer that by the legislation creating Sandoval County defendant in error ceased to be. the assessor of Bernalillo, tp which he .was duly elected, that therefore a vacancy existed to which plaintiff in error was duly appointed.

The basis of this contention is the power of the legislature to create Sandoval County, and that by the exercise of the power defendant in error was made a resident of Sandoval County and became disqualified to be assessor of Bernalillo. From this it followed, it is argued, a vacancy occurred to which plaintiff in error was appointed under the act amending the act creating Sandoval County. It certainly follows that if the residence of defendant in error in Sandoval County did not create a-vacancy there was none to fill, unless, as it is contended by defendant in error, that the legislature has the power to create a vacancy and actually exercised the power.

In Territory v. Albright, 78. Pac. Rep. 204, the. judgment . of the trial court, which dismissed the quo warranto proceed- j ings, was reversed,, as we-have seen. The. Supreme Court said that the trial court, in considering the section of the acts relied on by plaintiff in error, “arrived at the conclusion that it was the intention of the legislature to declare that office [the office of assessor of Bernalillo County] vacant, and therefore, although those sections did not contain a declaration to that effect, the court was off the opinion that these sections should be given the effect of such a declaration.” But the Supreme Court added, “we cannot concur with the trial court in this conclusion,” and proceeded to analyze the legislation, and decided that it did not have the meaning plaintiff in error 'attributes to it. ' In other words, did not create a vacancy in the office of assessor of Bernalillo County. And considering the laws.of the Territory as to the qualification of county officers, decided that residence was not one of them. The court further decided that when plaintiff in error was appointed the act, under which it is contended that it was done, had not taken effect, and that, therefore, his appointment was unauthorized.

The court, considering the legislation in view of the powers of the legislature as limited by the act of Congress of July 30, 1886 (24 Stat. 170, c. 818), concluded that the legislature had not the power to. remove and appoint county officers as contended, but the decision of the case was put on the other grounds which we have stated. In other' words, put upon the construction of the statutes. And that construction we are not disposed Jo disturb. Fox v. Haarstick, 156 U. S. 674; English v. Arizona, 214 U. S. 359; Dye v. Crary, 208 U. S. 515.

Under these views it is not necessary to decide whether the judgment in the quo warranto proceedings is conclusive of the issues in this case, - as contended by defendant in error. The decision upon the respective rights of the parties arising from-the statute of the Territory may be rested „on the grounds which we have expressed, and .we come to the proposition whether Sandoval can recover the fees and emoluments received by Albright, and whether,'if he can, may the latter set off his expenses. The first proposition is not cohtroverted by Albright, although he suggests that there are some well-considered cases the. other way, and he cites Stuhr v. Curran, 15 Vroom (44 N. J. L.), 181. He also cites Taylor v. Beckham, 178 U. S. 548; Butler v. Commonwealth of Pennsylvania, 10 How. 402, for the. view that there Is no such thing as property in a public office. ' However, his ultimate concession is that the weight of authority is to the effect that a de jtire officer may recover from the de facto officer the- emoluments of the office; less the reasonable expenses incurred in earning such fees, when the de 'facto officer entered into the office in good faith and under color of title.. And this was- the view of the Supreme Court of the Territory. To sustain the first proposition the court reviewed Stuhr v. Curran, supra, and cites against it United States v. Addison, 6 Wall. 291; Dolan v. Mayor of New York, 68 N. Y. 274; Hunter v. Chandler, 45 Missouri, 452; Glascock v. Lyons, 20 Indiana, 1; Douglass v. State, 31 Indiana, 429; People v. Miller, 24 Michigan, 458; Dorsey v. Smyth, 28 California, 21; Nichols v. McLean, 101 N. Y. 538; Kreitz v. Behrensmeyer, 149 Illinois, 503; Vaux v. Jefferen, 2 Dyer, 114; Arris v. Stukeley, 2 Mod. 260; Lee v. Drake, Salk. 467, 468; Webb’s Case, 8 Rep. 45; 1 Selw. N. P. 81; 1 Chil. Pl. 112. It is not necessary to make a review of these cases. Ibis enough to say that they sustain the proposi-, tion for which they are cited.

The second question is more debatable, to wit, whether Sandoval was entitled to the gross receipts of-the office, as contended by him, or to the net receipts as contended by Albright.and as décided by the courts below.

• Counsel for Sandoval sees and admits the difficulties which beset the question, and is not insensible to the justice under the circumstances of this case of the deductions allowed by. the courts below.

• There is 'argument based on the illegality of'-Albright’s occupation of the office, and strength in the contention that a trespasser may not set off the expense he incurred in executing the trespass. It has been held, in a well-considered case, there can be no deduction for the personal services of the intruder: People v. Miller, 24 Michigan, 458. It was said in that case, however, that “There may be reason for deducting from any official earnings the actual cost of obtaining' them which would have been entailed on any person who might have held the office.’-’ This' may be said .of the expénses in controversy-in the case at bar. Mayfield v. Moore, 53 Illinois, 428, is the leading case which sustains the right to deduct such expenses. This case is followed by others in the samé court and the same Anew has been announced by other courts. We think they express the correct rule. - It makes the -measure of recovery the extent of the injury, and the injury, it is clear, is not the gross earnings of an office, but such earnings léss, to use-the language, of Mr. Chief Justice Campbell in People v. Miller, supra, “the actual cost of obtaining them which would have been entailed on any person who might have held the office.”

Judgment affirmed.  