Morel v. Sylvania & Girard Railroad

Fish, C. J. (After stating the facts.) Fairly construed, we understand the petition to mean that the defendants, after a judg [689] ment had been rendered against them, declaring that they were illegally holding the books, money, and property of! the railroad company and ought to deliver them to the plaintiffs in the former proceeding, brought the case to this court, retained possession of the money and property, gave the bond above indicated in order that they might do so pending the exception to this court, and by virtue of the possession thus retained salaries were paid to the acting president and acting superintendents, who were no longer legal officers of the corporation; and that this was done without the authority of the railroad company. There was no special demurrer, but the defendants relied solely upon a general demurrer. If an illegal appropriation of the funds of the corporation, to pay the salaries of persons acting as officers of the corporation, who were no longer lawfully in office, as had been declared by the judgment of the court, pending an exception to this court, did not fall within the terms of the bond, it is not easy to see just what damages were intended by the presiding judge in requiring it, or by the parties in giving it. According to the allegations of the plaintiffs in the present case, a person claiming to be the president of the company, but who had ceased to be such, and other defendants held the money of the company in their possession while the case was in this court by virtue of the supersedeas bond given, and while the matter was in that condition some of the funds of the company were appropriated, or caused to be appropriated, to the payment of salaries to some of the defendants, who were not entitled thereto. The judgment of the superior court was affirmed, by which it had been directed that the defendants deliver up the books, money, and property of the company, but, pending exception, some of it had been appropriated to salaries for some of the defendants who had been found to be out of office. The present petition alleges that this was without authority of the corporation and contrary to its authority. We think that this makes a case of damages falling within the purpose and intent of the supersedeas bond. Waycross Air-Line Ry. Co. v. Offerman & Western R. Co., 114 Ga. 727 (40 S. E. 738), 119 Ga. 983 (47 S. E. 582). It has been held by a number of courts that a do jure officer can not recover from the government, or its subordinate corporations, the amount of salary paid to a de facto officer while the latter occupied the office and discharged its duties, although he -was subse [690] quently ousted at tlie instance of the de jure officer; but that the de jure officer, after judgment of ouster, might bring an action against the de facto officer for money had and received to his use. It has also been held that if the de facto officer, who is not de jure entitled to the office, brings suit against a municipality or county to recover his salary, the defendant may call in question his right to the office. It is unnecessary to discuss the question whether all the rulings made on this subject are theoretically logical, or the conflict which exists in the authorities in regard to some of these questions. For the present purpose it is enough to call attention to the fact that the basis on which many of the decisions in regard to public officers rest is the necessity for the government to proceed with the exercise of its functions and for the public to be able to deal with some person ajiparently rightfully discharging the duties of the office, and, in order that this may be done, that the organized public in the form of the government itself may, if it sees fit, .recognize the de facto officer and pay his salary while he discharges the duties of the office. See Mayfield v. Moore, 53 Ill. 428 (5 Am. R. 52); McCue v. County of Wapello, 56 Iowa, 698 (41 Am. R. 134); Dolan v. Mayor etc., 68 N. Y. 280 (23 Am. R. 168); Commissioners of Saline County v. Anderson, 20 Kan. 298 (27 Am. R. 171). The present case does not involve a governmental corporation, but a case of an ex-president and ex-officials of a railroad corporation remaining in possession and causing salaries i-> be paid to themselves, without authority of the company, pending an appeal from a judgment commanding them to deliver ujd the custody to their lawful successors. The rights of the public in dealing with de facto officers are not involved. According to the allegations, it is the persons claiming to be de facto officers of this railroad company, while seeking to reverse a judgment commanding them to deliver up its property, who are setting- up their own de facto position as justifying payment to themselves of salaries from the funds of the company without its authority. See Waterman v. Chicago &c. R. Co., 139 Ill. 658 (15 L. R. A. 418, 29 N. E. 689, 32 Am. St. R. 228). We deal with this case as we find it under the allegations of the plaintiffs, which are admitted by the general demurrer, and do not discuss other questions not raised by the demurrer. < Judgment affirmed. All the Justice* concur.