§ 236 (175). Liability of the Officer to the Corporation and to Others. - Public officers (as distinguished from corporate officers), been removed without notice. Rex v. Mayor, &c., 2 Cowp. 523; The King v. The Mayor, &c., 2 Term R. 182." -per McDonald, J.; 25 Ga. 590, 592. See Hoboken v. Gear, 3 Dutch. (N. J.) 265. Aldermen held not to be individually liable for passing an unauthorized ordinance depriving a mayor of his office. Jones v. Loring, 55 Miss. 109; infra, sec. 237, note. An incumbent was appointed by the aldermen and removed by the mayor, who nominated a successor; the incumbent's salary did not cease until his successor was confirmed. White v. Mayor, &c. of New York, 4 E. D. Smith, 563 (1855). A person is not entitled to the salary of a public office unless he both obtains and exercises the office. Farrell v. Bridgeport, 45 Conn. 191. Thus, a city treasurer, being indicted for forgery, the mayor and council elected another in his stead for the balance of his term. Upon his acquittal, Held, that he could not recover the salary for such balance of his term. If the prosecution was malicious, he could recover in tort from the wrongdoer. Brunswick v. Fahm, 60 Ga. 109. So a policeman who has been found guilty of immoral conduct and discharged from his office by a board of police commissioners having jurisdiction, cannot recover from the city his salary for the remainder of his term. It makes no difference that the commissioners may have erred in their judgment on the evidence, no appeal having been taken. Queen v. Atlanta, 59 Ga. 318. By charter, the power to appoint policemen was conferred on a board of police, composed of the mayor and recorders, and this board was authorized to discharge policemen, for cause, and to "decide on all police matters pertaining to appointments, dismis sals, &c., finally and without appeal." In an action for wages, brought against the city by a policeman, who claimed that he had been appointed for a year, and dismissed at the end of a month, without good cause, the Supreme Court decided that the board having dismissed the plaintiff for what it deemed sufficient cause, its decision was final, and the sufficiency of the cause of dismissal was not inquirable into in the action. Nolan v. New Orleans, 10 La. An. 106 (1855). Ante, sec. 200. Declaring an office and the prospective fees of the officer not to be property, and that the right to fees grows out of services performed, it was decided by the Court of Appeals that a municipal officer who had been kept out of his office, and had not performed its duties, could not maintain an action against the city to recover the amount of fees accruing from the office. Smith v. New York, 37 N. Y. 518 (1868), Saline Co. v. Anderson, 20 Kan. 298; Dolan v. Mayor, 68 N. Y. 279; Hadley v. Mayor, 33 N. Y. 603, 607, per Denio, C. J. In a later New York case the court reviewed the previous decisions, and held that the payment of the fees or salary provided by law, to an officer de facto for services rendered before a judgment of ouster, will protect a municipality against the claim of the officer de jure for the same compensation; but after the judgment, the compensation for services rendered, which has not been paid, may be recovered by the officer de jure. McVeany v. New York, 80 N. Y. 185; Steubenville v. Culp, 38 Ohio St. 18. See Benoit v. Wayne County, 20 Mich. 176, Cooley, J., dissenting. It has, however, several times been decided in California that the salary annexed to a public office is incident to the title to the office, and not to its occupancy and exercise, and that the right to compensation is not affected by the fact that an usurper, officer de facto, has discharged the duties of the office. Dorsey v. Smith, 28 Cal. 21; Stratton v. Oulton, Ib. 44; Carroll v. Siebenthaler, 37 Cal. 193 (1869); approved, Meagher v. County, 5 Nev. 244 (1869); where a city physician, who was duly elected, but kept out of his office by the prior incumbent, who drew the salary for some months, was permitted to collect his back salary from the city. Memphis v. Woodward, 12 Heisk. 499. An officer unlawfully deprived of his office may maintain an action against the intruder for damages; in such case the measure of damages is generally the salary or fees re elected pursuant to statute by a municipal corporation, are not the servants or agents of the corporation in such a sense as will enable the corporation, in the absence of a statute giving the remedy, to ceived by the intruder. Nichols v. McLean, 101 N. Y. 526; People v. Nolan, 102 N. Y. 539. "The salary follows the legal title." Libbey, J., in Andrews v. Portland, 79 Me. 484 (holding also that in an action by an officer de jure for his salary during the time of his unlawful removal from office, the city is not entitled to have deducted from the sum due the amount earned by him in other ways during that time. To same effect is Fitzsimmons v. Brooklyn, 102 N. Y. 536). See, further, ante, secs. 215, note; 230, note; People v. Miller, 24 Mich. 458 (1872); Benoit v. Wayne County, supra; Philadelphia v. Given, 60 Pa. St. 136, per Thompson, C. J. Right of municipal officer to retain his salary in his own hands, denied, where it was his duty to pay all sums received into the treasury. New Orleans v. Finnerty, 27 La. An. 681 (1875); s. c. 21 Am. Rep. 569, referred to infra, note. The legal incumbent of a municipal office rendering service is entitled to compensation until he has actual notice of his removal. Jarvis v. Mayor, &c. of New York, 2 N. Y. Leg. Obs. 396. Equity will not ordinarily enjoin the payment of the salary to the incumbent pending a contest; the bill must show grounds for equitable relief. Colton v. Price, 50 Ala. 424 (1874); Bruner v. Bryan (against interloper), 50 Ala. 523 (1874); Field v. Commonwealth, 32 Pa. St. 478 (1849); Ramshay, In re, 83 Eng. C. L. 174 (1852); Hennen, In re, 13 Pet. 230; Queen v. Governors, &c., 8 Ad. & El. 632; Page v. Hardin, 8 B. Mon. (Ky.) 648; Bowerbank v. Morris, Wall. C. C. R. 118. In The City v. Given, 60 Pa. St. 136, the plaintiff acted as city commissioner for some months, when it was decided that he had not been duly elected, and in a suit brought for his salary, it was held that he could not recover, because he had not qualified by giving security. See, ante, sec. 214, note. In an action by the right ful officer on a supersedeas bond given in a quo warranto proceeding by an intruder, the measure of damages is the full amount of the salary (where the office has a fixed salary) received by the intruder pending the operation of the supersedeas. United States v. Addison, 6 Wall. 291. See People r. Miller, 24 Mich. 458 (1872). "It is a grave question," says Seymour, C. J., "whether a merely de facto officer, even when he actually performs the whole duties of the office, can enforce the payment of the salary. The authorities seem to be that he cannot. State v. Carrol, 38 Conn. 471; Riddle v. Bedford County, 7 Serg. & Rawle (Pa.), 386; Bently v. Phelps, 27 Barb. (N. Y.) 524; People v. Tieman, 30 Barb. (N. Y.) 193. However this may be, it is clear, we think, that the salary of an officer is not due to parties who are neither officers de jure, nor de facto." Samis v. King, 40 Conn. 298 (1873). Respecting liability of an intruder to the officer de jure for salary and fees received, and when an action will lie for money had and received, Glascock v. Ly. ons, 20 Ind. 1; Douglas v. State, 31 Ind. 429; Dorsey v. Smythe, 28 Cal. 21; Stratton v. Oulton, Ib. 44; City v. Given, 60 Pa. St. 136; Allen v. McKean, 1 Sumn. 276; State v. Sherwood, 42 Mo.179; Hunter v. Chandler, 45 Mo. 452; s. c. 10 Am. Law Reg. (N. s.) 440, and note; Boyter v. Dodsworth, 6 Term R. 681; Sadler v. Evans, 4 Burr. 1984; People v. Miller, 24 Mich. 458; Nichols v. McLean, 101 N. Y. 526; People v. Nolan, 102 N. Y. 539. The right of set-off in respect of his salary was denied to a municipal officer where it was the duty of the officer to deposit all moneys received in the treasury, and where it was provided his salary was to be paid in a specific manner. The decisions of the Supreme Court of the United States, allowing equitable set-off in such cases, were distinguished. New Orleans v. Finnerty, 27 La. An. 681 (1875); s. c. 21 Am. Rep. 569. If the city is liable at once to suit by the officer, why deny the right of set-off? maintain actions against such officers for negligence in the discharge of their official duty. This principle does not, it is believed, apply where the corporation is injured by the negligence of its own officers; but even in such case the recovery in the absence of statute can only be for want of fidelity and integrity, not for honest mistakes.1 To protect the public, however, officers are usually required to give bonds, in which case they are of course liable, as we have seen, according to the conditions thereof.2 They are also liable on commonlaw principles to individuals who sustain special damage from the failure to perform imperative and ministerial duties.3 § 237 (176). Same subject. In this country the officers of municipal corporations are, in many respects, public officers, being charged by legislative enactment with duties which concern both the corporation and the public at large. The duties and liabilities of such officers to the corporation fall within the scope of this treatise, and have been considered. But their individual rights and their duty and liability to others, upon contracts and for torts, are not, strictly speaking, embraced in the plan of the work. They are, however, so germane to it, and reflect so much light upon the subjects which are herein treated, that it has been thought that a brief reference to some of the more important rules and adjudications was desirable, and this has accordingly been made in the note.1 cover money illegally allowed for claims, the complaint should aver the nature of the claims it should be brought by the legal officer of the county, but if by a taxpayer, the complaint should allege facts showing the officer's neglect or refusal to act. Hedges v. Dam, 72 Cal. 520. Personal liability of municipal councillors to the corporation for misappropriation of its funds; see Municipality of East Nissouri v. Horseman, 16 Upper Can. Q. B. 588; of treasurer for paying money on an illegal order or resolution. Daniels v. Burford, 10 Upper Can. Q. B. 481. 2 Supra, secs. 214-216. 1 Parish in Sherburne v. Fiske, 8 Cush. (Mass.) 264, 266 (1851), opinion by Dewey, J.; cites White v. Philipson, 10 Met. (Mass) 108; Trafton v. Alfred, 3 Shepl. (15 Me.) 258; Kendall v. Stokes, 3 How. 87; Commonwealth v. Genther, 17 Serg. & Rawle (Pa.), 135; Wilson v. Mayor, &c. of New York, 1 Denio (N. Y.), 595; Hancock v. Hazzard, 12 Cush. (Mass.) 112; Lincoln v. Chapin, 132 Mass. 470; Minor v. Bank, 1 Pet. (U. S.) 46, 69. Where a surveyor of highways has, by law, a discretion as to the kind of repairs, and exercises his best judgment and acts in good faith, the corporation for which he acts is bound, and cannot defeat his recovery for the price of materials furnished, by evidence to show that the re- 4 SUITS BY PUBLIC OFFICERS. Pubpairs were not, in fact, necessary. But it lic officers have, in general, a power to sue would be otherwise if fraud or corruption commensurate with their duties. If offiwere shown. Palmer v. Carroll, 4 Fost. cers of a corporate body, suit should be (24 N. H.) 314 (1851). See, also, People brought in the name of the corporation, v. Lewis, 7 Johns. (N. Y.) 73; Seaman v. unless the statute direct otherwise. Shook Patten, 2 Caines (N. Y.), 312. v. State, 6 Ind. 113; State v. Rush, 7 Ind. action against county supervisors to re- 221; Supervisors v. Stimpson, 4 Hill In an 8 Infra, sec. 237, nóte and cases; post, chap. xxiii. § 238 (177). Amotion and Disfranchisement; the two distinguished; English decisions as to Disfranchisement inapplicable in this country. The elementary works treat of Amotion and Dis to (N. Y.), 136, and cases cited; Todd v. Birdsall, 1 Cow. (N. Y.) 260, and cases cited in note; Jansen v. Ostrander, 1 Cow. (N. Y.) 670; Cornell v. Guilford, 1 Denio, (N. Y.) 510; compare Commissioners v. Perry, 5 Ohio, 57; Barney v. Bush, 9 Ala. 345; Van Keuren v. Johnson, 3 Denio, 182; Tecumseh v. Phillips, 5 Neb. 305 (1877); Regents of State University v. McConnell, 5 Neb. 423 (1877). But it has been held that a public officer cannot, without the aid of a statute, maintain a suit in his own name, although he may have taken a note or contract to himself individually, if the consideration for such a note or contract be a liability to the State. The ground of this rule is public policy, discourage public officers from transacting in their own name the business of the public. Hunter v. Field, 20 Ohio, 340 (1851); Irish v. Webster, 5 Greenl. (Me.) 171; Gilmore v. Pope, 5 Mass. 491. If the obligation is taken to the officer as agent, or in his official capacity, the action is properly brought in the name of the government beneficially interested. Dugan v. United States, 3 Wheat. 172; s. P. United States v. Boice, 2 McLean, 352; United States v. Barker, 2 Paine C. Ct. 152; 2 Parsons on Notes and Bills, 451, and other cases cited. An action by a public officer does not abate by the expiration of his term of office. The suit may be continued in his name until its termination, or, by the practice in many of the States, his successor may be substituted. Kellar v. Savage, 20 Me. 199 (1841); Todd v. Birdsall, Cow. (N. Y.) 260; Haynes v. Covington, 13 Sm. & Mar. (21 Miss.) 408; Grant v. Fancher, 5 Cow. (N. Y.) 309; Colgrove v. Breed, 2 Denio (N. Y.), 125; Manchester v. Herrington, 10 N. Y. 164; Upton v. Starr, 3 Ind. 538; Denver. Dean, 10 Col. 375. Officers cannot be impleaded as individuals for acts done in the exercise of their corporate powers. Smith v. Stephan, 66 Md. 381 (injunction against officers, as individuals, to restrain them from issuing funding bonds, as authorized by law, denied). VOL. I. - 21 EVIDENCE; PROOF OF TITLE OR OFFICIAL CHARACTER; ACTS AND DECLARATIONS; RES GESTAE. Where the anthority of an officer of a public corporation comes incidentally in question in an action in which he is not a party, it is sufficient to show that he was an acting officer, and the regularity of his appointment or election cannot be made a question. Proof that he is an acting officer is prima facie evidence of his election or appointment, as well as of his having duly qualified. But if he relies alone on proof of a due election or appointment, such election or appointment must be legally established. Pierce v. Richardson, 37 N. H. 306 (1858); Tucker v. Aiken, 7 N. H. 113; Johnson v. Wilson, 2 N. H. 202; Baker v. Shephard, 4 Fost. (24 N. H.) 212 (1851), and cases cited; Bean v. Thompson, 19 N. H. 290; Blake v. Sturdevant, 12 N. H. 573; Burgess v. Pue, 2 Gill (Md.), 254. Ante, sec. 213. An officer, even when justifying may prima facie establish his official character by proof of general reputation, and that he acted as such officer. Johnson v. Steadman, 3 Ohio, 94; followed, Eldred v. Seaton, 5 Ohio, 215; Berryman v. Wise, 4 Term R. 366; Potter v. Luther, 3 Johns. 431; Wilcox v. Smith, 5 Wend. 233; People v. McKinney, 10 Mich. 54. But it is not enough to show that the officer was acting officially in the particular instance in controversy in the case upon trial, and in which his authority is questioned. Hall v. Manchester, 39 N. H. 295 (1859). "The mere acting in a public capacity is sufficient prima facie proof of proper appointment; but it is only prima facie presumption and is capable of being rebutted." Per Lord Coleridge, C. J., in Regina v. Roberts, 36 Law Times Rep. 690 (1878); s. c. 6 Am. Law Rep. 414. Post, sec. 276, note. An acting officer is estopped to dispute the validity of his own appointment and election. State v. Sellers, 7 Rich. Law, 368; State v. Mayberry, 3 Strob. 144. ACTS AND DECLARATIONS of officers, when evidence for or against the corpo franchisement together: indeed, formerly, the important distinction between the two was not observed. Amotion relates alone to offi ration. Mitchell v. Rockland, 41 Me. 363; Jordan v. School District, 38 Me. 164 (1864); Morrell v. Dixfield, 30 Me. 157; County v. Simmons, 5 Gilm. (10 Ill.) 516; Railroad Co. v. Ingles, 15 B. Mon. (Ky.) 637; Glidden v. Unity, 33 N. H. 577; Toll Co. v. Bettsworth, 30 Conn. 380; Barnes v. Pennell, 2 H. of L. Cas. 497; Curnen v. New York, 79 N. Y. 511. See chapter on Corporate Records and Documents, post. The acts of the officers of municipal corporations in the line of their official duty, and within the scope of their authority, are binding upon the body they represent; and declarations and admissions accompanying such acts as part of the res geste, calculated to explain and unfold their character, and not narrative of past transactions, are competent evidence against the corporation. To render such declarations and admissions evidence, they must acccompany acts, which acts must be of a nature to bind the corporate body. Glidden v. Unity, 33 N. H. 571 (1856); Perkins v. Railroad Co., 44 N. H. 223; Grimes v. Keene, 52 N. H. 330; Harpswell v. Phippsburg, 29 Me. 313; Coffin v. Plymouth, 49 N. H. 173; Hopkinton v. Springfield, 12 N. H. 328; Pittsfield v. Barnstead, 40 N. H. 477; Canaan v. Hanover, 49 N. H. 415; Gray v. Rollinsford, 58 N. H. 253 (1878); s. c. 21 Alb. L. Jour. 76. A municipal corporation may be estopped by the action of its proper officers, when the corporation is acting in its private, as contradistinguished from its governmental, capacity, and has lawful power to do the act." Per Scholfield, J., Chicago v. Sexton, 115 Ill. 230. NOTICE TO OFFICERS. Where the officers or agents of a public corporation have no powers or duties with respect to a given matter, their individual knowledge, or the individual knowledge of the inhabitants or voters, does not bind or affect the corporation. Harrington v. School District, 30 Vt. 155 (1858); Angell & Ames Corp. sec. 239; Hayden v. Turnpike Co. 10 Mass. 397. The mayor is chief executive officer of the city, and notice to him of a nuisance is sufficient, when it would not be to the clerk, who is only a recording officer, not authorized to act upon the notice. Nichols v. Boston, 98 Mass. 39 (1867); ante, secs. 208, 209; post, chap. xxiii. Index, title Notice. INDICTMENT OF PUBLIC AND CORPORATE OFFICERS. -"A public officer," it is declared in North Carolina, "entrusted with definite powers to be exercised for the benefit of the community, who wickedly abuses or fraudulently exceeds them, is punishable by indictment." State v. Glasgow, N. C. Conf. R. 186, 187 (indictment of Secretary of State); State v. Justices, &c., 4 Hawks (N. C.), 194 (when county authorities indictable for nonrepair of jail); see Paris v. People, 27 Ill. 74; State v. Comm'rs of Fayetteville (nonrepair of streets), 2 N. C. Law, 617; Ib. 633; 2 Murph. 371; State v. Fishblate, 83 N. C. 654; State v. Hall, 97 N. C. 474. But see as to street commissioner, Graffins v. Commonwealth, 3 Pa. (Penn. & W.) 502; State v. Comm'rs, Walk. (Miss.) 368. Indictment of municipal officers for violation of charter. People v. Wood, 4 Park. Cr. R. 144; Hammar v. Covington, 3 Met. (Ky.) 494; State v. Shelbyville, 4 Sneed (Tenn.), 176; State v. Shields, 8 Blackf. (Ind.) 151; Lathrop v. State, 6 Blackf. (Ind.) 502; State v. Burlington, 36 Vt. 521. Requisites of indictment for non-performance of official duty. Wattles v. People, 13 Mich. 446; State v. Mayor, 11 Humph. (Tenn.) 217; State v. Comm'rs, 4 Dev. (N. C.) 345; 3 Chitty Crim. Law, 586, 606, for precedents of indictments against corporations. Criminal information against municipal officers. Wille. Corp. 315-318; Rex v. Watson, 2 Term R. 204; Ib. 198. Indictment against municipal corporations. See chapter on Remedies against Illegal Corporate Acts, post, secs. 931, 933. LIABILITY OF OFFICER FOR MONEYS RECEIVED. A public or municipal officer, who is required to account for and pay over money that comes into his hands, is liable though it be stolen without his fault, unless relieved from this responsibility by statute. Halbert v. State, 22 Ind. 125 (1864); Muzzy v. Shattuck, 1 Denio, 233; Morbeck v. State, 28 Ind. |