holding, without mention of compensation, that 19 “the Board of Commissioners of the City of Paris was without authority to appoint one of its own members to the office of City Manager of that City, and that the attempted appointment of Thompson was void; therefore, ineffective to place him in that office,” and recognizing that the decisions of other states are “fairly uniform in holding that a council or board which has the power and duty of appointment to an office cannot select one of its own members”
How later courts described this case
- holding, without mention of compensation, that 19 “the Board of Commissioners of the City of Paris was without authority to appoint one of its own members to the office of City Manager of that City, and that the attempted appointment of Thompson was void; therefore, ineffective to place him in that office,” and recognizing that the decisions of other states are “fairly uniform in holding that a council or board which has the power and duty of appointment to an office cannot select one of its own members”
Written by the judges who cited it.
The opinion
Neil, Chief Justice
(dissenting).
I am constrained to dissent from so much of the majority opinion as holds that the complainants are entitled to a judgment against the defendant for the total amount paid him as City Manager of the City of Paris.
I concur in the view that J. J. Thompson, being a City Commissioner, was ineligible to hold the office of City Manager; that under the circumstances his election to that office was in violation of law. But he was a cle facto officer according to any definition of this term that, is to be found in any published report or text book. Moreover no other person claimed any right or title to the office, or the emoluments thereof.
If he had brought suit to recover compensation for his services as de facto officer, I would hold that, by the possible weight of authority, his right of action would *407 fail. He is n.ot here seeking any affirmative relief in that regard.
I base my dissent from the majority opinion upon the following authorities.
In 67 C. J. S., Officers, Section 145, p. 446, it is said: “Since the collection of the salary annexed to the office is an incident to the title, a de facto officer has no legal right to the emoluments of the office. It has, however, been held that an actual incumbent of a public office who is an officer de facto is entitled to the compensation attached to the office, ivhere there is no adverse contestant or de jure officer, and he has acted in good faith with prima facie evidence of a fight to perform the duties.” (Emphasis supplied).
In 43 Am. Jur., Section 491, page 239, it is said: “The courts are agreed that in the absence of statutory permission, salary which has been paid a de facto officer cannot be recovered by the public authorities, at least where, acting in good faith, he actually rendered the services for which he was paid. But where the compensation was received without right or authority of law, it appears that a recovery may be had, as where authorities created an office without statutory authority to do so, or payment was made without authority of law and no services were rendered.” (Emphasis supplied).
In addition to the Federal Court cases cited in support of the text there appears the case of Jones v. Dusman, 246 Pa. 513 , 92 A. 707 , Ann. Cas. 1916D, 472.
In 93 A. L. R., 266, it is said: ‘ ‘ There is considerable authority to the effect that a de facto officer who, pursuant to apparent authority and in good faith, has performed the duties pertaining to the office, may, in the absence of a de jure claimant, enforce payment by the public of *408 the compensation, to which an incumbent of the office is entitled for services performed or duties fulfilled.”
In support of the foregoing statement by the annotator cases are cited from Arizona, Colorado, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, South Carolina, Texas, Utah, Wisconsin, England and Newfoundland. See also McKenna v. Nichols, 295 Ky. 778 , 175 S. W. (2d) 121 ; State ex rel. Witten v. Ferguson, 148 Ohio St. 702 , 76 N. E. (2d) 886.
I think public policy has much to do in forbidding. the election of Thompson to the office of City Manager, but it is not a controlling principle in determining the right of the City of Paris to compel the refund of his salary. He was performing the duties of the office under a mistaken view of the law, and his right to do so was not questioned from any source until the present suit was instituted. With all deference to the view of the majority I cannot agree that the refusal by the.court to require a refund by a de facto officer would “encourage the occupant of the office to continue to hold it in violation of law.” He could hold no longer than the processes and power of the Court could be invoked to effect his ouster from the office, and such power is beyond his control.
I respectfully dissent.