Summary
In Cox, the court said, as it had in city cases, that "if litigation be unavoidable, a simple action at law will suffice."
Summary of this case from Hardin v. JohnsonOpinion
No. 27509
Decided July 17, 1940.
Office and officer — Payment of salary to do facto officer — Valid defense to action by de jure officer, when — Latter not prevented by governmental body from discharging duties.
Payment of salary to a de facto public officer who holds the office by color of title constitutes a valid defense to an action by a de jure officer to recover the salary when the governmental body responsible for paying the salary in no wise prevented the de jure officer from discharging the duties of the office.
IN MANDAMUS.
One phase of this controversy was considered and decided by this court in the case of State, ex rel. Cox, v. Riffle, 132 Ohio St. 546, 9 N.E.2d 497, in which a writ of quo warranto was allowed, thereby ousting the respondent from the office of county engineer of Adams county, Ohio, and holding the relator entitled thereto.
The present case is an original action filed in this court by the same relator. The respondents are the auditor and commissioners of Adams county. The relief asked is a writ of mandamus to compel appropriation and payment of the $875 salary the relator would have received during the first six months of the year 1937, had Riffle not occupied the office and performed the duties thereof for that period, thereby preventing the relator from so doing. Riffle likewise received the salary for the first five of the six months but the warrant for the sixth month was withheld from him.
The respondents have filed answers alleging four defenses. In the answer of the county auditor it is alleged that he offered and still offers to issue a warrant to the relator for the sixth month but that the offer has not been accepted. Therefore, the dispute between the relator and the respondents is limited to the salary for the first five months. To the answers the relator has filed demurrers on the ground that the facts stated are insufficient to constitute a defense.
Mr. O.E. Young, for relator.
Mr. James W. Lang, Jr., prosecuting attorney, and Mr. Robert L. Barton, for respondents.
Although several questions are presented by the briefs of counsel, there is but one now requiring consideration and decision by this court. That is the fundamental and decisive question as to whether the relator can maintain this action against these respondents. Of course the demurrers search the entire record.
It is the contention of the relator that for a period of six months he was wrongfully prevented from discharging the duties of the office of engineer and that therefore the county should be compelled to pay him the salary for that entire period although the work was performed by another and although the salary for five of the six months already has been paid to that de facto officer without any effort on the part of the relator to prevent such payment.
The relator relies upon the decision in the case of City of Cleveland v. Luttner, 92 Ohio St. 493, 111 N.E. 280, Ann. Cas. 1917D, 1134, an action at law. Without commenting upon the criticism to which the majority view in that case has been subjected, it is necessary to observe the important distinction that those plaintiffs were wrongfully ousted by the defendant city itself, while in the instant controversy the respondent county officials had nothing whatsoever to do with preventing this relator from discharging the duties of the office, inasmuch as Riffle alone was responsible for this; and according to the overwhelming weight of authority this fact gives the relator a complete remedy in the form of an action to recover from Riffle the amount of salary the latter received during his wrongful possession of the office. 32 Ohio Jurisprudence, 1035, Section 179; Restatement of the Law of Restitution, 554, Section 137.
This court is likewise of the view that the county should not be required to twice pay the salary for the five-month period, since it in no wise prevented the relator from discharging the duties of the office, and since the relator took no steps to prevent payment to Riffle. That this is in conformity with the general rule is shown by the following summary in 32 Ohio Jurisprudence, 1034, Section 177:
"The courts taking this view generally agree that upon grounds of public policy the office must be filled and the salary cannot be paid twice, and further, that the de jure officer's sole remedy is against the de facto officer; they also appear generally to consider that the certificate of election, or the commission, or a judgment of a lower court in the incumbent's favor, is itself sufficient justification for paying the de facto officer."
See also 55 A. L. R., 997; 59 A. L. R., 117.
Certainly when, as in this case, the governmental body responsible for paying the salary is not at fault, this is an eminently fair rule. This principle was applied in the case of Steubenville v. Culp, 38 Ohio St. 18, 43 Am. Rep., 417, even when the council of the municipality subsequently declared that the cause for a police officer's suspension was insufficient.
It follows that the relator's petition showing payment of the salary to Riffle for the first five months does not plead a cause of action for that period.
With reference to the salary for the sixth month no further action on the part of the commissioners is necessary, inasmuch as they made an appropriation for the entire six months, and that allocated to the sixth remains unpaid. Furthermore, the auditor offered and still offers to pay that month's salary to the relator. Thus, apparently no suit is necessary to collect this money, but if litigation be unavoidable, a simple action at law will suffice. Williams, Dir., v. State, ex rel. Gribben, 127 Ohio St. 398, 188 N.E. 654; State, ex rel. White, v. City of Cleveland, 132 Ohio St. 111, 5 N.E.2d 331.
The relator's petition states no cause of action and is dismissed at his costs.
Petition dismissed.
DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.