Douglass v. the State, on the relation of Wright.

August, had less than four years to run after the adoption of the Constitution; the election being changed from August to October, a successor would have been properly elected in October next preceding the expiration of such term; and if the successor would have been entitled to the office on the first Monday of March next succeeding his election, under the first section of the act of May 31st, 1852, the previous term would be thereby seriously decreased. Both acts, so far as they fix the commencement of the term, involve the same principle, and are alike subject to the same objections, as applied to particular cases, but may be constitutional as applied to others; and hence, the act of 1855, being in direct conflict with that particular provision of the first section of the act of 1852, repeals it by implication.

The act of 1855, as applied to the case under consideration, would not be obnoxious to the Constitution, but as we have seen, the case is, in fact, governed by a different statute.

Having thus determined that Wright was entitled to the office at the time of the demand, on the 11th of November, 1867, it follows that the demurrer to the information was properly overruled.

Wright, being the auditor de jure from and after the 11th of November, 1867, was entitled to exercise the franchises of the office, and to receive the fees and emoluments thereof. The right of Douglass to hold the office ceased at the same time, and he was thereafter a mere intruder, and his subsequent exercise of the office was a usurpation.

The remaining question is as to the measure of Wright's damages. Is he entitled, as was held by the circuit court, to recover the whole emoluments of the office received by Douglass for the time he unlawfully held possession, without any deduction for necessary clerk hire paid out by Douglass for discharging the duties of the office during the same time?

This question was virtually decided adversely to the claims of the appellant in Glascock v. Lyons, 20 Ind. 1. There the parties named were both candidates for the office

Douglass v. The State, on the relation of Wright.

of sheriff of Fountain county, at the October election, 1856. Lyons was declared elected, was commissioned, and, having qualified, entered upon the duties of the office. Glascock contested the election, which was finally determined in his favor, and he recovered the office. He then sued Lyons for the whole amount of the fees of the office received by him during the time he kept Glascock out. The court below sustained a demurrer to the complaint, which, on appeal to this court, was held good. In the decision of the case it is said, in substance, that a person who is rightfully entitled to an office, although not in the actual possession of it, has a property in it, and may maintain an action for money had and received, against a mere intruder who may perform the duties of the office for a time and receive the fees arising therefrom, and such intruder cannot retain any part of the fees as a compensation for his labor. But it is argued by the appellant, that the decision was based on the allegation that Lyons had obtained the certificate of election and commission by deceit, falsehood, and fraud. We do not see how that allegation could effect the question of damages. If Glascock was entitled to the office, then Lyons was a usurper, and every one who usurps an office and thereby excludes the person rightfully entitled to it is guilty of a wrong which operates as a fraud, and the averments in that case amounted to no more.

It is said in 1 Selwyn N. P. 81, that "where a person has usurped an office belonging to another, and taken the known and accustomed fees of office, an action for money had and received will lie at the suit of the party really entitled to the office, against the intruder for the recovery of such fees." The same principle is clearly recognized in Lightly v. Clouston, 1 Taunt. 112, and in Allen v. McKean. 1 Sumner, 276.

And so, in Boyter v. Dodsworth, 6 Term R. 681, Lord KENYON said, "if there had been certain fees annexed to the discharge of certain duties belonging to this office, and the defendant had received them, an assize would have lain; and

Douglass v. The State, on the relation of Wright.

the action for money had and received to recover fees has always been considered as being substituted in the place of an assize."

The principle involved in the case at bar was directly passed upon in Dorsey v. Smyth, County Auditor, &c., 28 Cal. 21. In that case, one Brown was the incumbent of the office of district attorney of the county of Toulumne. Platt and Dorsey were opposing candidates for the same office. Platt was declared elected, but Dorsey contested his election on the ground of illegal votes, and the contest was determined in Dorsey's favor, in December, 1863. Platt, however, appealed to the Supreme Court, where the judgment below was affirmed, at the October term, 1864. The term of office commenced on the first Monday in March, 1864. Dorsey qualified and demanded the possession of the office of Brown at the commencement of the term, but he refused to surrender it until after the final determination of the coutest in the Supreme Court. Brown received the salary for the time he held over, amounting to seven hundred dollars. When Dorsey came into office he claimed the salary for the same time, and demanded of Smith, the auditor of the county, a warrant on the treasurer for the amount, which the auditor refused to issue. Dorsey then applied for a mandate to compel the issue of the warrant. It was held that he was entitled to it; that Brown was presumed to know the law, that he was a mere intruder for the time he held the office against Dorsey, and was not entitled to any compensation for his services.

In the case of the United States, for the use of Crawford v. Addison, 6 Wal. 291, Crawford, being the Mayor of the city of Georgetown, was, in 1859, a candidate for re-election. Addison was the opposing candidate. Crawford was returned as elected. He presented himself to the city council and offered to take the usual oath. The council, on a count of the votes made by themselves, declared that Addison was really elected, and he was accordingly sworn into office and entered upon its duties. On a quo warranto

Douglass v. The State, on the relation of Wright.

against Addison there was a judgment of ouster. He took a writ of error, and executed a bond in the sum of three thousand dollars, to prosecute the writ and to answer all damages and costs, if he should fail to make his writ good. The writ of error was subsequently dismissed, and Crawford came into office, and then brought suit on the bond to recover $1,104, the amount of the salary received by Addison, from the date of the bond to the time that Crawford got possession of the office. It was held, that the amount of the salary received by Addison, during said period, constituted the measure of the damages which the plaintiff was entitled to recover on the bond. It is also said in the decision, that "the rule which measures the damages upon a breach of contract for wages or for freight, or for the lease of buildings, has no application. In these cases the party aggrieved must seek other employment, or other articles for carriage, or other tenants, and the damages recovered will be the difference between the amount stipulated and the amount actually received or paid. But no such rule can be applied to public offices of personal trust and confidence, the duties of which are not purely ministerial or clerical."

We are not aware of any principle of the law that would entitle the appellant to claim a deduction from the amount of the fees received by him during the time he unlawfully held the office against Wright. The official acts of the appellant during that time are held to be valid as to the public and third parties, simply because the public good requires that it should be so, to prevent still greater mischiefs. But as to the appellant himself, they were illegal. Being a mere intruder, the appellant can claim no benefit from his acts; he was not entitled to receive any compensation for the services rendered, either by himself or by those acting under him, and could not maintain an action for the recov ery of the fees appertaining to the office. Bentley v. Phelps, 27 Barb. 524; Riddle v. The County of Bedford, 7. Serg. & R. 386; People v. Tieman, 30 Barb. 193.

Douglass v. The State, on the relation of Wright.

Wright was entitled to the office and to receive the fees and emoluments of it, but by usurpation the appellant unlawfully held the office and received the emoluments without the assent of Wright, either express or implied. The money so received was due to Wright, and the appellant must therefore be held as having received it to his use.

And, as the appellant was an intruder, and held the office and performed the labor against the protest and express will of Wright, the law cannot imply a promise to pay any compensation for such services; and hence he is not entitled to any deduction from the amount of fees received by him, on account of such services or clerk hire.

The judgment is affirmed, with costs.

GREGORY, J.—I disagree with my brother judges on the question of damages involved in this case. This is not an action "for money had and received," but an information under the statute, against the appellant for usurping an of fice to which, it was claimed, the relator was commissioned, qualified, entitled, and of which he had demanded possession. The statute provides, that "whenever an information shall be filed against a person for usurping an office, by the prosecuting attorney, he shall also set forth therein the name of the person rightfully entitled to the office, with an averment of his right thereto; and when filed by any other person, he shall show his interest in the matter, and he may claim the damages he has sustained." 2 G. & H. 323-4, sec. 752. How much damages has the relator sustained by the wrongful act of the defendant? is the question to be solved.

The damages, by the very words of the statute, are compensatory, and not punative; "the damages he has sustained" is the criterion, and not, as in the statutory action of seduction, by the injured party, "such damages as may be assessed in her favor." 2 G. & II. 55 sec. 24. If this is the correct view of the statute, it seems to me plain, that whatever sum of money would compensate the relator for