Clausen v. Fond du Lac County

Winslow, C. J. There is much respectable authority to the effect that appointments to office by a de facto officer are as valid and effectual as though made by a de jure officer. 2 Dillon, Mun. Corp. § 519 and authorities cited; 8 Am. & Eng. Ency. of Law (2d ed.) 822. The other view is taken in England and by some authorities in this country. In re Ringler & Co. 204 N. Y. 30, 97 N. E. 593. It is not necessary to decide the question in this case and we intimate no opinion thereon. In the case before us Judge Chadbourne appointed a clerk and phonographic reporter for the supposed superior court, a court which never had a legal existence, but he never appointed a clerk or phonographer for the county court. To hold that a person appointed by a de facto officer to hold a de facto office thereby becomes the de jure holder of an entirely different and de jure office seems not logical. We therefore hold that the plaintiff remained the de jure clerk and phonographer of the county court notwithstanding the appointment of Miss Morse. Another question arises here, however. Under the logic of the decision in the case of In re Woolcott, 163 Wis. 34, 157 N. W. 553, Miss Morse was the de facto clerk and phonographer of the county court from the time of her appointment until February 23, 1916. Miss Morse drew the salary of $75 per month during that time. The county paid her this salary (up to February 1st) in reliance on the fact that she had possession of the office under color of title and was discharging its duties. Can it be compelled to pay these sums again to the de jure officer? This question has not been decided in this court. It was referred to in the case [435] of Kempster v. Milwaukee, 97 Wis. 343, 72 N. W. 743, but was not there decided because it was held that the supposed de facto officer in that case was a mere intruder and hence the question of the effect of payment to a de facto officer did not arise. It was correctly stated in that case that the decided weight of authority favors the rule that the de jure officer cannot recover from the municipality the sums so paid to the de facto officer. See, also, 29 Cyc. 1430 and cases cited. The logic of these decisions is, not that the de facto officer is entitled to the money, but that the disbursing officers of the municipality ought not to be required to try and decide the question as to which claimant is entitled to the salary, at the peril of double payment by the municipality if the question be decided wrongly; that the most important consideration is that the public business shall proceed without interruption, and that this result is most likely to be accomplished by payment to the person in possession of the office under color of title discharging its duties. We think this proposition is correct both upon reason and authority and adopt it. It results that there can be no recovery for the amount of the payments made to Miss Morse for the five months, from September 1st to February 1st, but as these payments were at the rate of $75 per month (while the plaintiff’s salary was at the rate of $83.33 per month) there is left the sum of $8.33 per month which the plaintiff should be allowed for these months. As to the amount paid for the salary for the first twenty-two days of February, it is quite apparent that the county is not protected by the principle above stated. This payment was not made until June 15, 1916, long after the de facto officer had ceased to act and the validity of the plaintiff’s title to the office had been established by this court. Such payments do not come within the reason of the rule. There can be no excuse for paying salary to a de facto officer after the court of last resort has declared his incumbency unlawful to the [436] knowledge of the disbursing officers and he has ceased to act. All unpaid dues or salary pertaining to the office should then be paid to the de jure officer. Scott v. Crump, 106 Mich. 288, 64 N. W. 1; Fylpaa v. Brown Co. 6 S. Dak. 634, 62 N. W. 962; McVeany v. Mayor, etc. 80 N. Y. 185. Manifestly the plaintiff is entitled to recover his salary for the first twenty-two days of February. It results that the action of the county board disallowing the plaintiff’s demand in toto should have been reversed and judgment entered for the plaintiff for $41.66, being the balance of his salary not paid to the de facto officer for the five months beginning September 1, 1915, and for the amount due him for the first twenty-two days of February, 1916. By the Court. — Judgment reversed, and action remanded with directions to enter judgment for the plaintiff as indicated in the opinion.