The salary or fees appurtenant to a public office are said to follow the title to the office. The de jure officer, therefore, is entitled to such salary or fees as against an officer de facto, even though the latter holds under an honest claim of right and faithfully performs the duties of the office.3 On grounds of public policy, however, the payment in good faith of such salary or fees to the de facto officer while still in office, discharges the corporation from liability to the de jure officer.4 In that case, the de jure officer's only recourse is against the officer de facto, from whom he may recover, in an action for money had and received, the full amount of the fees or salary received by him,5 without deducting the value of the services rendered by such de facto officer to the municipality or any sum which the de jure officer has or might have earned in other employment during the period of his wrongful exclusion from office.1 Where the de facto officer performs the duties of the office in the honest belief that he is legally entitled thereto, there would appear to be no injustice in permitting him to retain the reasonable value of the services actually rendered by him. But it is declared that "On the basis of a sound public policy, the principle commends itself, for the reason that one would be less liable to usurp or wrongfully retain a public office, and defeat the will of the people or the appointing power, if no benefit, but a loss would result from such wrongful retention or usurpation of an office." 2
1 Abbot v. Town of Fremont, 1887, 34 N. H. 432.
2 See Thompson v. Bronk, 1901, 126 Mich. 455; 85 N. W. 1084. In this case the fact that the defendant had paid the price agreed upon in his contract with the prison warden was regarded by the court as discharging him from liability to the plaintiff.
3 Mayfield v. Moore, 1870, 53 111. 428; 5 Am. Rep. 52; McCue v. Wapello County, 1881, 56 la. 698; 10 N. W. 248; 41 Am. Rep. 134; Dolan v. Mayor of N. Y., 1877, 68 N. Y. 274; 23 Am. Rep. 168; Commonwealth v. Slifer, 1855, 25 Pa. St. 23; 64 Am. Dec. 680. See Mechem, "Public Officers," Sec. 331, and other cases there cited. Contra: Erwin v. Jersey City, 1897, 60 N. J. L. 141; 37 Atl. 732; 64 Am. St. Rep. 584.
4 Board of Commrs. v. Rhode, 1907, 41 Colo. 258; 95 Pac. 551; 16 L. R. A. (N. S.) 794; 124 Am. St. Rep. 134; Commrs. v. Anderson, 1878. 20 Kan. 298; 27 Am. Rep. 171; Auditors v. Benoit, 1870, 20 Mich, 176; 4 Am. Rep. 382; Dolan v. Mayor of N. Y., 1877, 68 N. Y. 274;
23 Am. Rep. 168; Stearns v. Sims, 1909, 24 Okl. 623; 104 Pac. 44;
24 L. R. A. (N. S.) 475. See Mechem, "Public Officers,': Sec. 332, and other cases there cited; 29 Cyc. 1430, n. 99. Contra: People v. Smyth, 1865, 28 Cal. 21.
5 Arris v. Stukely, 1676, 2 Mod. 260; Mayfield v. Moore, 1870, 53 111. 428; 5 Am. Rep. 52; Rule v. Tait, 1888, 38 Kan. 765; 18 Pac. 160; People v. Miller, 1872, 24 Mich. 458; 9 Am. Rep. 131; Sandoval v.
It should be added, perhaps, that the fees received by a de facto officer which are not payable by law and are consequently in the nature of gratuities, are not recoverable from him by the de jure officer.3 This on the obvious ground that the defendant's enrichment is not at the plaintiff's expense, since the plaintiff, if in office, would not have been entitled to, and perhaps would not have received, the fees in question.