CHARLESTON.

#### W. R. Webb *v.*City of Williamson Dewey Boaz *v.*City of Williamson

(Nos. 6424, 6425)

Submitted May 7, 1929.

Decided May 14, 1929.

*376
      *William B. Hogg,*for plaintiff in error.

*W. H. D. Preece, James Damron*and *G. R. C. Wiles,*for defendants in error.

Lively, Judge:

In tbese actions, tried by tbe court in lieu of a jury, in' wbicb recovery was sought against tbe defendant, City of Williamson, for salary claimed to be due W. V. Webb, as city street commissioner, and Dewey Boaz, as city patrolman, from June to October, 1927, inclusive, judgment was rendered for $933.34 in favor of Webb, and for $746.67 in favor of Boaz. These writs followed.

Prior to June 10, 1927, one Reynolds as street commissioner and certain others as patrolmen were serving the city under appointments duly made. By resolution enacted on the date last mentioned, the city council voted to remove Reynolds as street commissioner, A. R. Stepp as chief of police, and certain others as patrolmen, and to appoint in their stead W. V. Webb .as street commissioner, Evan Hall as chief of police, and Dewey Boaz and others as patrolmen. These officers qualified by taking oath and giving bond, but the then incumbents of the positions, claiming that they had not been lawfully removed therefrom, continued to carry out their .respective *377duties. This met with tbe approval of tbe mayor, wbo refused to recognize tbe council’s new appointees.

Tbe later set of officers by a mandamus proceeding in this Court attempted to compel tbe mayor to grant tbem official recognition, and to bave tbe old set of officers restrained from assuming to act as sueb. By order entered on September 30, 1927, this writ of mandamus was refused. Subsequently, W. F. Hatfield, mayor of tbe city, and tbe old set of officers secured a temporary injunction in tbe circuit court of Mingo county, under tbe terms of wbicb tbe petitioners bere, *~W.*V. "Webb and Dewey Boaz, and others, were restrained from attempting to act as officers of tbe city, and tbe clerk of tbe city commission was required, upon request, to make out and sign warrants upon tbe city treasurer for tbe payment of tbe salaries of tbe plaintiffs in tbe injunction suit for tbe period sucb salaries were then in arrears. This temporary injunction was dissolved by tbe circuit court of Mingo county on October 11, 1927, and an appeal from that decision was taken to this Court.

By a separate mandamus proceeding, Evan Hall, newly appointed chief of police, sought to bave bis right to that office adjudicated in tbe circuit court of Mingo county. Tbe relief prayed for by him was granted in tbe trial court, but a writ of error to that judgment was allowed. Tbe writ of error in tbe mandamus case and tbe appeal in tbe injunction suit were beard together in this Court, and in a decision rendered on April 24, 1928, we declined to pass upon tbe validity of Hall’s appointment under tbe resolution of June 10, 1927, but did bold be was ineligible to appointment as chief of police because on that date be was still a member of tbe department of public safety. In tbe chancery suit, it was held that as tbe purpose of tbe bill and tbe temporary injunction awarded therein was “not to determine tbe question of tbe right and title to tbe office in question, but to protect tbe possession of tbe officer whether *de facto*or *de jure,*until tbe right shall be established by law, and to preserve tbe welfare and good order of society”, tbe temporary injunction would be reinstated and tbe cause remanded for further proceedings.

*378On July 13, 1928, tbe circuit court of Mingo county made permanent tbe temporary injunction awarded on September 30, 1927, and acting under tbe direction of that court’s order tbe city clerk made up and signed warrants for tbe payment of tbe salary of tbe old set of officers, wbicb was then in arrears. It will be noted that this included tbe months for wbicb tbe salary is now being claimed by tbe plaintiffs Webb and Boaz.

Tbe counsel for the city contends that tbe trial court erred in entering judgment for the plaintiff, because, it baying been determined by tbe proceedings heretofore mentioned, that Reynolds and tbe others were tbe *de jure*officers, then Webb and Boaz could only be *de facto*officers, and as such they would not be entitled to tbe salaries annexed to their respective positions. Defendants in error controvert this contention and say that tbe prior litigation did not establish that they were not *de jure*officers.

Granting that by tbe prior litigation referred to herein no judicial determination has been made that tbe old set of officers are *de jure,*yet plaintiffs Webb and Boaz are not entitled in tbe instant proceeding to recover for tbe salaries alleged to be due them from June to October, 1927, inclusive. They were clearly not *de facto*officers, because at tbe time they attempted to assume office tbe members of tbe old group were still carrying out their duties, and consequently no opportunity was afforded Webb and Boaz to assume tbe status of *de facto*officers. Constantineau on De Facto Doctrine, Secs. 78 and 80. Furthermore, by tbe great weight of authority, since tbe salary annexed to tbe office is an incident to tbe title, tbe right of tbe plaintiffs to recover depends upon their status as *de jure*officers. 46 C. J., sec. 377, p. 1059. And where another is occupying tbe office under a rightful claim, tbe person who sues for tbe salary must, first, in a proper proceeding, establish bis right as a *de jure*officer. This cannot be done in a suit to recover tbe salary to wbicb tbe other claimant is not a party. To bold otherwise would be to permit a collateral attack upon the title to tbe office. As was said in *Leonard*v. *City of Terra Haute,*93 N. E. (Ind.), 872: “We recognize tbe principle of law announced in tbe line of cases *379which hold that when a *de facto*officer is in possession oí an office and discharging its duties nnder a color of right, a person claiming to be a *de jure*officer, and as sneh entitled to the possession of the same office, cannot maintain an action for salaries or fees incident to the office. He must in such ease first establish the right to the office by a *quo warranto*proceeding. To permit him to sue for the salary of the office under such circumstances would be to permit him to try the title to an office in a collateral proceeding to which the person in charge of the office under a color of right was not a party.” This principle of law is approved in *Gorley*v. *City of Louisville,*47 S. W. (Ky.), 263, 265; *Wilkinson*v. *City of Albuquerque,*185 Pac. (N. M.), 547, 548; *Keegle*v. *Hudson County,*122 Atl. (N. J.), 606; *Rush*v. *Philadelphia,*62 Pa. Super. Ct. 80; *Hagan*v. *City of Brooklyn,*27 N. E. (N. Y.), 265, 266.

There is another reason for denying the plaintiffs a recovery. The effect of the circuit court’s order entered on July 13, 1928, and from which no appeal was taken, making permanent the temporary injunction theretofore awarded, was to require the city clerk to pay the present incumbents of the contested offices the salaries then in arrears, which included compensation for the months the plaintiffs herein are now seeking a judgment. The salaries were paid by the clerk as directed, and Webb and Boaz who were parties to that suit are now barred as against the city from asserting any right to the compensation paid thereunder. Furthermore, where the salary of a *de facto*officer has been paid by the municipality, that payment can be set up as a complete defense to a subsequent suit to recover the same salary by another claiming title to the office; and this is true even though the municipality may have known at the time the salary was paid, that the title to the office was in question. Constantineau on De Facto Doctrine, sees. 224 and 225.

The judgment of the lower court will be reversed and judgment entered here for the defendant.

*Reversed and rendered.*