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.
Quaere 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
facto 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 facto officer entered the office in good
faith and under color of title.
79 P. 719 affirmed.
The facts are stated in the opinion.
Page 216 U. S. 335
MR. JUSTICE McKENNA delivered the opinion of the Court.
These cases involve controversies over the right of 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 over the right to 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 the
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. 12 N.M. 293.
Upon the subsequent proceedings in the trial court, judgment was
entered, declaring plaintiff in error not entitled to the office.
The 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. 13 N.M. 64. 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. Co. v. District of Columbia, 146 U. S.
227."
This action was brought for the past fees and emoluments of the
office, amounting, it is alleged, to the sum of six thousand, one
hundred eighty-four dollars and sixteen cents ($6,184.16).
The grounds of action are, as alleged, that Sandoval,
defendant
Page 216 U. S. 336
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 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 ยง 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 as
assessor thereof, to which
Page 216 U. S. 337
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 necessarily 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 was 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 P. 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
Page 216 U. S. 338
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 P. 205;
Territory v. Albright, 79 P.
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 facto 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 an officer
de
facto, but an officer
de jure. In other words, he
asserts 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, to 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
Page 216 U. S. 339
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 P. 204, the judgment of
the trial court which dismissed the
quo warranto
proceedings 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
do not contain a declaration to that effect, the court was of the
opinion that those 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 to disturb.
Fox v.
Haarstick, 156 U. S. 674;
English v. Arizona, 214 U. S. 359;
Crary v. Dye, 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.
Page 216 U. S. 340
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 controverted by Albright, although he
suggests that there are some well considered cases the other way,
and he cites
Stuhr v. Curran, 44 N.J.L. 181. He also cites
Taylor v. Beckham, 178 U. S. 548;
Butler v.
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 jure 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. New York,
68 N.Y. 274;
Hunter v. Chandler, 45 Mo. 452;
Glascock
v. Lyons, 20 Ind. 1;
Douglass v. State, 31 Ind. 429;
People v. Miller, 24 Mich. 458;
Dorsey v. Smith,
28 Cal. 21;
Nichols v. MacLean, 101 N.Y. 538;
Kreitz
v. Behrensmeyer, 149 Ill. 503;
Vaux v. Jeffersen, 2
Dyer 114;
Arris v. Stukely, 2 Mod. 260;
Lee v.
Drake, Salk. 467-468;
Webb's Case, 8 Rep. 45; 1 Sel.
N.P. 81; 1 Chitty, Pl. 112. It is not necessary to make a review of
these cases. It is enough to say that they sustain the proposition
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
decided by the courts below.
Counsel for Sandoval sees and admits the difficulties which
beset the question, and is not insensible to the justice, under
Page 216 U. S. 341
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, supra. 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 expenses in controversy in the case at
bar.
Mayfield v. Moore, 53 Ill. 428, is the leading case
which sustains the right to deduct such expenses. This case is
followed by others in the same court, and the same view 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 less, 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.