People ex rel. Dennis v. Brennan

By the court, Barnard, J. The relator makes a complete title to the relief he asks for. He was prior to June, 1864, legally appointed a deputy tax commissioner of the city and county of New York, and he has not since been removed. His salary has been fixed in the manner and for the amount provided by law. The money for the salary of the person who was rightfully entitled to this particular office has been paid into the treasury, and it has not been paid to the relator. It is made the duty óf the comptroller to pay the same “ out of the county treasury.” Mandamus [419] is the proper remedy to compel the performance of this duty by him. It is difficult to see how a defence can be made to the granting of this writ, with these facts all remaining unquestioned by the respondent, but such defence is made upon the facts contained in the papers, which are briefly these : On the 5th day of May, 1864, the comptroller, believing that he had the power by law so to do, appointed two men commissioners of taxes and assessments, and reappointed one in the places of those who then held the office. These new commissioners appointed deputies in the place of those who were appointed by the old commissioners, including the relator; that the new commission, with their appointees, entered upon the duties of their several offices, and continued performing the same for a considerable portion of the time for which relator now claims compensation, when the appointment by the comptroller was declared null and void by the court of appeals, and the old commissioners so removed were reinstated by judgment of that court, with a right to the emoluments of the office during the time they had been displaced; that the comptroller paid to the appointees of the new commissioners the salaries belonging to the office, and that, therefore, there is no money in the treasury applicable to the payment of relator’s claim. These facts present three questions. First: Were these commissioners and their deputies defacto officers ? Second: If they were, what defence does that fact furnish to the comptroller in the present case ? and third : What effect has it upon relator’s claim ? I am aware that there are many cases holding the acts of de facto officers when they came to their office by color of title, good as to the public and third persons who have an interest in the act done; but an examination of these cases will show no case like this in principle. The People agt. Collins (7 Johns. R. 549), held that the acts of commissioners of highways,, duly eleeted, could not [420] be collaterally assailed by a town clerk, because they had not taken the oath of office. In McKinstry agt. Tanner (9 J. R. 133), it is only declared that a defendant in a suit before a justice of the peace, duly elected, could not make an issue that the justice was a minister of the gospel. The case of Wilcox agt. Smith (5 Wend. 231), was an action of trespass against a constable, who was protected by his execution, upon proof that the justice had acted as such, and that he had color of title. The case of The People agt. Stephens, decides that a certificate of the canvassers of an election gives color of right to an office, which right could not be assailed collaterally. None of these cases show these commissioners to have had color of title. In The People agt. Coster (29 Barb. 208), it is decided that when a governor had no power to fill a vacancy in an office, he could not bestow the outward signs and symbols of the office, and that the officer appointed by him could not be said to be in office by color of title, and a ministerial officer was not protected by the warrant of such officer. As to the second question—if they were de facto officers, does that protect respondent in this case ? The reason given for the protection of ministerial agents of de facto officers is, that the right to the particular office cannot be assailed except by direct action. There is no such reason here. Salary and fees are incident to the title, and not to the colorable possession of an office. The title-of the persons who have been paid by the comptroller was a fact which he could have put in issue before payment to them (People agt. Tieman, 8 Abb. 359). These commissioners were not de facto officers, and the comptroller could have defended himself from payment to the defacto officers—if they were so—by denying their title to the office; but finally assuming these commissioners to have been defacto officers, and that defendant would be protected in his payment to them as against the city, what has this to do with relator’s claim ? He is the de jure officer. He alone is entitled to the salary. [421] He has done nothing to destroy his right. The money for him was by the city paid into its treasury. He seeks it from the treasury, and not from the comptroller. It is no defence to his claim for the comptroller to say he has made a mistake, and has paid it to the wrong person. . The comptroller could do no act to destroy relator's claim to money put in the treasury for his payment without his consent; as to him the money is yet in the treasury. These consequences, I think, legally flow from the decision of the court of appeals. No one was more strongly convinced than I was of the power of the comptroller to make the appointment of the tax commissioners, but it has been decided otherwise by the highest court, and it is my duty to accept the decision. I therefore think that the order should be reversed, with costs. ‘ e