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Buck v. City of Eureka

Supreme Court of California
Oct 10, 1895
109 Cal. 504 (Cal. 1895)


In Buck v. Eureka, 109 Cal. 504, where the action was on a void contract, this court held that an action would lie for services rendered on quantum meruit.

Summary of this case from Whyte v. Rosencrantz


         Appeal from a judgment of the Superior Court of Humboldt County and from an order denying a new trial. G. W. Hunter, Judge.


         The services for which the contract of employment undertakes to provide, and which were covered by the first and second counts of the complaint, were within the sphere of the plaintiff's duties as city attorney, and such contract was therefore ultra vires and void. (Const. art. II, sec. 9; Pol. Code, secs. 4374, 4391; Mechem on Public Offices, sec. 374; 1 Dillon on Municipal Corporations, sec. 233; Decatur v. Vermillion , 77 Ill. 315; Ryce v. City of Osage, 88 Iowa 558; Lancaster County v. Fulton , 128 Pa. St. 48; Detroit v. Whittemore , 27 Mich. 281; Chester County v. Barber , 97 Pa. St. 455; Santa Clara etc. Lumber Co. v. Hayes , 76 Cal. 387; 9 Am. St. Rep. 211.) The court erred in refusing to permit the defendant to show that the plaintiff after his nomination, confirmation, and qualification acted in the capacity of city attorney of the defendant corporation, and was so acting during the time the contract in controversy was made. (1 Greenleaf on Evidence, sec. 92; Code Civ. Proc., sec. 1963; Delphi School Dist. v. Murray , 53 Cal. 29; People v. Otto , 77 Cal. 45; McCoy v. Curtice, 9 Wend. 17; 24 Am. Dec. 113; Colton v. Beardsley, 38 Barb. 29; People v. Clingan , 5 Cal. 389; 19 Eng. Ency. of Law, 51; 1 Greenleaf on Evidence, secs. 83, 195.) The law presumes, under all the circumstances disclosed in this case, that the office of city attorney had been duly created. (Pol. Code, 4408; People v. Bedell, 2 Hill, 196; North v. People , 139 Ill. 81; Delphi School Dist. v. Murray, supra; Code Civ. Proc., sec. 1963, subd. 14.) The respondent is estopped from denying the existence of the office after having accepted the appointment to it and received the emoluments of it. (1 Greenleaf on Evidence, sec. 195.)

         J. W. Gillett, and E. W. Wilson, for Appellant.

          S. M. Buck, and F. A. Cutler, for Respondent.

         As the common council had the power to create the office of city attorney, but never exercised such power, that office never existed; consequently no officer could be appointed to fill it. In order that there may be a de facto officer, there must be a de jure office. (Pol. Code, secs. 4408, 4369, 4386, 4414; 1 Dillon on Municipal Corporations, sec. 276; People v. Toal , 85 Cal. 335, 632; Town of Decorah v. Bullis, 25 Iowa 18; Hildreth v. M'Intire, 1 J. J. Marsh. 206; 19 Am. Dec. 62; In re Hinkle, 31 Kan. 712-15; Achley's case, 4 Abb. Pr. 37, 38.) The duties of the city attorney extend only to such matters as arise within the city. (Herrington v. Santa Clara County , 44 Cal. 506; Jones v. Morgan , 67 Cal. 311, 312, which cites and indorses Huffman v. Board of Commrs, 23 Kan. 281.) The contract of employment of plaintiff is not void as being against public policy. (Jones v. Morgan, supra .)

         JUDGES: In Bank. Henshaw, J. Beatty, C. J., McFarland, J., Garoutte, J., Van Fleet, J., Harrison, J., and Temple, J., concurred.


          HENSHAW, Judge

         Appeals from the judgment entered upon verdict of jury and from the order denying a new trial.

         Plaintiff sued the city of Eureka, and charged in his complaint upon three counts. In the first he pleaded that one Wing Hing, upon January 21, 1886, brought action against the defendant city of Eureka in the circuit court of the ninth judicial circuit to recover damages in the sum of four hundred and thirty-two thousand eight hundred dollars. The city of Eureka on the eighth day of February, 1886, employed and retained plaintiff to act for it as its attorney in the matter of said action, and agreed to pay him a reasonable compensation for his services, under resolution ordering: "That S. M. Buck, Esq., be and he is hereby retained and authorized to act for the city of Eureka as its attorney in defense of said action; and he is also authorized to retain and associate with himself in the defense of said action some able attorney and counselor residing in San Francisco, California, if in his judgment it becomes necessary. And said S. M. Buck, Esq., is instructed to conduct said defense as economically as it can be done consistent with a vigorous and successful defense thereof."

         Plaintiff [42 P. 244] performed all duties imposed upon him by his contract. The case in the circuit court was finally dismissed for lack of prosecution. The value of plaintiff's services is alleged to be thirteen thousand dollars, of which the city paid one thousand dollars and refused to pay more.

         The second count charges in like manner and for like services as the first, asking compensation, however, for so much of the services as was rendered after August 1, 1886. The value of this is alleged to be ten thousand dollars.

         The second count is apparently framed in anticipation of the defense presented by the city, namely, that at the time of the making of the contract plaintiff was, and continued to be until August 1, 1886, the city attorney of the city of Eureka.

         The third count charges for services in a different employment, and does not call for consideration or review.

         Judgment was asked for seven thousand dollars with interest. A verdict in the sum of four thousand two hundred and fifty dollars with interest was rendered, and this verdict, so far as the value of the services is concerned, is supported by the evidence.

         In defense of the action the city of Eureka pleaded and sought to prove that at the time of his employment plaintiff was its city attorney, and that the contract was therefore void as increasing his compensation during his term of office. (Const., art. XI, sec. 9.)

         By respondent it is contended: 1. That the office of city attorney of the city of Eureka was never created; 2. That he was never the incumbent of such office; and 3. That if the office existed, and he was its incumbent, still he is entitled to compensation under the contract, since it was no part of his duty as such officer to defend the suit in question.

         Certain provisions of part IV, title III, of the Political Code were and are a part of the charter of the city of Eureka (Stats. 1873-74, p. 91). Those pertinent to this consideration are as follows:

         " Sec. 4408. The common council has power: 1. To create the office of city clerk, city attorney, assessor, tax-collector, and such other offices as may be necessary, and prescribe their duties and fix their compensation."

         " Sec. 4369. The common council must, during the first year, by ordinance fix the term of office of all elective officers, and the time when they must be elected, and provide for the appointment of other necessary officers, including city clerk and treasurer, and fix their terms and amount of their bonds."

         " Sec. 4386. The mayor has power: 1. To nominate, and, with the consent of the common council, to appoint all nonelective officers of the city provided for by the common council, including city attorney, secretary of the council, and city treasurer."

         " Sec. 4374. All city officers before entering upon their duties must take the oath of office. The marshal, attorney, clerk, assessor, collector, and treasurer must also give a bond with sureties to be approved by the mayor, payable to the corporation by its corporate name in such penalty as may be prescribed by ordinance conditioned for the faithful performance of the duties of their office, and a like bond may be required of any officer whose office is created by an ordinance."

         " Sec. 4391. The city attorney must attend to all suits, matters, and things in which the city may be legally interested; to give his advice or opinion in writing whenever required by the mayor or common council, and do and perform all such things touching his office as by the common council may be required of him."

         The defendant produced its records for the purpose of showing that plaintiff was nominated and confirmed as city attorney for the term of two years from July 12, 1884, to July 12, 1886, and that after such nomination he qualified and acted as such city attorney. The court refused to admit the proofs, and defendant then offered in evidence its records to show the existence of the office of the city attorney of the city of Eureka, and the plaintiff's incumbency therein during the time mentioned, which record evidence was stricken out upon motion of plaintiff.

         The evidence so offered and rejected consisted of various ordinances "fixing official fees and salaries in the city of Eureka," and dating from the year 1876. In each of these the council fixed the salary of the "city attorney ." Finally, in 1882, by ordinance, the council declared that the city attorney shall receive a "salary of twenty-five dollars a month." This ordinance was in force during all the time in question.

         In 1877 the council passed its ordinance "fixing the bonds of city officers," which provided that "the city officers hereinafter named before entering upon the duties of their respective offices shall give a bond," etc. "The penalty of such bonds shall be as follows. .. . the city attorney's bond one thousand dollars." This ordinance remained in full force and effect.

         The minutes of the meeting of the common council for July, 1884, show: "The mayor placed before the council the name of S. M. Buck for the position of city attorney for the ensuing term. Whereupon, on motion, the nomination was confirmed."

         The bonds of the city officers for the terms commencing in 1884 could not be found, but the minutes of the council for August of that year show that "The mayor verbally announced to the council his approval of the bonds of. .. . S. M. Buck as city attorney ."

         There were likewise offered in evidence a document from the mayor's office, under the seal of the city, reciting the especial confidence reposed in the integrity and qualifications of S. M. Buck for the office of city attorney, and appointing him with consent of the council as city attorney for the term as established by law ," etc. To which was appended the oath of S. M. Buck to support the constitution of the United States and of this state, and faithfully discharge "the duties of the office of city attorney of the city of Eureka."

         It was likewise shown that plaintiff drew and received from the city the "salary "fixed by ordinance of twenty-five dollars per month during all of this time, up to July 12, 1886.

         There can be no question upon this evidence, [42 P. 245] assuming for the moment the existence of the office, but that plaintiff was not only de facto city attorney, but that he was the regularly appointed, qualified, and acting city attorney, a de jure officer charged with all the duties and entitled to all the emoluments of the office. There can be no better proof of the acceptance and holding of an office than the qualification of the officer and his drawing of the salary. Here, the plaintiff was appointed as city attorney, filed his bond as city attorney, took the oath of office as city attorney, and drew the fixed salary of city attorney, all duly and regularly as required by law and the ordinances of the city.

         Nor can plaintiff be heard to say (still assuming the existence of the office) that his contract with the city, or his understanding with the council, imposed upon him other or different or lesser duties than those which by law he was obliged to perform. He cannot, for example, be heard to say, as here he undertakes to do, in the face of the ordinance fixing his compensation, that his understanding with the council was that they were to give him twenty-five dollars a month as a "retainer," a "stipend," and were to pay him "extra for all important duties, particularly business in the superior court or business in the higher courts." It was not within the power of the plaintiff, or of the council, to modify by convention the duties which by law were made to pertain to the office of city attorney. (Pol. Code, sec. 4391.) And the plaintiff, after having qualified, filed his bond, and taken his oath to perform the duties of the office, and drawn the salary pertaining thereto, will not be permitted to assert that the duties he swore to perform were not those the performance of which the law made obligatory upon him.

         The contention that he was not city attorney cannot then be based upon any defect in the machinery of appointment, nor upon plaintiff's refusal with proper formalities to accept the appointment.

         It is claimed to rest upon the fact that the council, notwithstanding its repeated recognition of the existence of the office, never in fact created it, and that, therefore, it never existed.

         And the argument is that the council had power to create the office. (Pol. Code, sec. 4408.) That they were required, if they created it, to do so by ordinance. (Pol. Code, sec. 4369.) That the mode is the measure of their power, and that no ordinance was produced wherein and whereby the common council of the city of Eureka did ordain that the office of city attorney of the city of Eureka is hereby created.

         It is a general rule founded upon the dictates of public policy that the acts of a de facto officer are valid, and that those who deal with such an officer are protected. The public is not required to know the terms and tenure upon which one openly holding and claiming the right to hold a public office maintains his position; nor is any person who has dealt with such an officer to suffer loss if the tenure should prove illegal. So, likewise, it is the general rule upon grounds of plain justice and public policy that a de facto officer is forever estopped in civil or criminal actions from denying that he holds the office, and from escaping any of the responsibilities which attach to his incumbency. But the further rule is that the law as to de facto officers applies only where there is a de jure office; the idea of a de facto officer being necessarily founded upon the conception of a de jure office. A de jure office is one having a legal existence, or, rather, one having an existence recognized by law.

         While it is certainly impossible to conceive of an officer, either de facto or de jure, filling or attempting to fill a nonexisting office, there is a marked and well-recognized distinction between such nonexisting offices and those which, while having an irregular or merely potential, or in some instances even an illegal existence, yet do exist, and are recognized by the law.

         Of offices having an illegal existence -- which are nevertheless recognized -- the government of a state in rebellion, and of a municipality acting as such without legal authority, are conspicuous examples.

         The government of a state in rebellion and all offices thereunder are absolutely illegal, yet, upon strong and plain grounds of public policy the government and offices are recognized by law, and the incumbents are treated as de facto officers. "In such a case the acts of a de facto executive, a de facto judiciary, and of a de facto legislature must be recognized as valid. But this is required by political necessity." (Hildreth v. M'Intire, 1 J. J. Marsh. 207; 19 Am. Dec. 62.)

         So a municipal corporation, acting under color of the law, may have no legal existence, and, consequently, no legal municipal offices, yet such a corporation has still an existence recognized by law, and upon plain grounds of public policy the question of its legal existence should be raised only by the state itself upon quo warranto. (Cooley's Constitutional Limitations, 254; Town of Geneva v. Cole , 61 Ill. 397; St. Louis v. Shields , 62 Mo. 247; State v. Carr , 5 N.H. 367.)

         In some states indeed it is the established rule that officers filling offices created by unconstitutional laws are nevertheless de facto officers until under direct proceedings the act has been declared unconstitutional. Thus, in Burt v. Winona etc. R. R. Co ., 31 Minn. 472, it was held that the municipal court of Mankato was a de facto court, and that there can be a de facto office under an unconstitutional act creating it until the act is declared void. In the case of Trumbo v. People , 75 Ill. 561, a school district had been illegally established; the supreme court of Illinois reviewing the case in a later opinion (Leach v. People , 122 Ill. 420) say: "So far as that alleged district was concerned there was no [42 P. 246] such legal district, and there was no de jure office of school director of that alleged district." Yet, upon a proceeding to collect a tax the tax was sustained, it being held that the school directors were officers de facto, and that in collateral proceedings the legality of the formation of the district could not be inquired into. And in Commonwealth v. McCombs , 56 Pa. St. 436, it is said: "An act of the assembly, even if it be unconstitutional, is sufficient to give color of authority to the person acting under it."

         These decisions are in obvious conflict with the authority of the great leading cases of State v. Carroll , 38 Conn. 449, 9 Am. Rep. 409, and Norton v. Shelby County , 118 U.S. 425, in the latter of which Field, J., explains that, while there are many cases deciding that a person holding an office under an unconstitutional law is a de facto officer, in every one it will be found that there was a legal office and that the unconstitutional law went only to the mode or manner of filling it. And they are likewise in conflict with the rule in this state declared in People v. Toal , 85 Cal. 333. They are not here cited in commendation or approval, but as instructive examples of the lengths to which those courts have felt compelled to go in carrying out what they conceived to be the plain mandate of public policy.

         When, however, we come to consider the doctrine as applied to offices having an irregular or potential existence (as distinguished from a nonexisting office, or one void in its creation), the cases are numerous and uniform in treating the incumbents of such offices as de facto officers.

         In Gibb v. Washington, 1 McAll. 430, dealing with the question of the creation of the office of appraiser, the court say: "If such an office has been even colorably created, then any irregularity which does not render the creation of the office void cannot be availed of."

         In In re Ah Lee, 6 Saw. 410, the constitution of Oregon provided that when the population reached two hundred thousand the legislature should district the state into designated circuits, and provided for the election of judges to the circuit courts therein. The legislature passed the act before the state attained the requisite population, and before election the governor, without authority, appointed the judge whose act was under review. The court held that admitting the act to be unconstitutional and the appointment of the governor to be invalid, still the judge was a judge de facto, since the office in effect was created by the constitution.

         In Carleton v. People , 10 Mich. 250, the county officers were elected before the law creating the offices went into effect. They were held to be de facto officers. Though there were no legal offices in existence at the time, still the offices were created, and had a potential existence. And the court in distinguishing between such offices and nonexistent offices aptly says: "Where the law negatives the idea that there can be a legal incumbent, any one assuming to act assumes what any one is bound to know is not a legal office."

         In Yorty v. Paine , 62 Wis. 154, the legislative act creating the town of Pine River provided that the electors should meet upon the first Tuesday of the following April (April 4th), and elect town officers, but the act itself did not become a law until four days afterward -- April 8th. The potential existence of the town was recognized as sufficient for holding the election, and the officers were declared to be de facto, though elected without authority of law to offices then having no more than a potential existence.

         In Fowler v. Bebee , 9 Mass. 231, 6 Am. Dec. 62, the legislature had created a new county and the offices thereof. The governor appointed officers before the law went into effect. It was held that their acts were binding as de facto officers, though the appointments themselves were afterward declared void by the same court when the question was presented upon direct attack. (Commonwealth v. Fowler , 10 Mass. 291.) Here too, therefore, the potential existence of the office was recognized.

         In Leach v. People, supra, an unconstitutional law regulating township organizations provided for the number of members, mode of election, etc., of the board of supervisors, and under this law a board was selected whose acts were under consideration. It was held that notwithstanding the invalidity of the law, there was still "such a legal official body known to the law as the board of supervisors of Wayne county," and the acting board, though in number and in mode of selection illegal, was upheld as a de facto body.

         The case of Smith v. Lynch, 29 Ohio St. 261, is nearly a parallel case with the one at bar. The legislature of Ohio authorized villages and towns to establish boards of health and appoint members. The village of West Cleveland, by a void ordinance, attempted to do this. The members appointed qualified, and entered upon the discharge of their duties, and were accepted and regarded by the public as such members. The opinion of the court, delivered by Welch, C. J., is as follows: "The questions argued by counsel are: 1. Had the superior court jurisdiction? 2. Are the requirements of the statute as to the manner of passing the ordinance mandatory, or are they merely directory? 3. If these requirements are mandatory, are the persons so acting to be regarded as a board of health de facto ? We are satisfied that the last named of these questions must be answered in the affirmative. It is unnecessary, therefore, to consider the first and second questions. In other words, we think that, under the circumstances, the board is to be regarded as a board de facto. Whether it was a board de jure and whether the superior court had jurisdiction of the [42 P. 247] case became, therefore, immaterial questions. It is claimed by counsel for the plaintiff that this is not a case where an office has been filled and its duties performed by parties not legally appointed or qualified, but a case where there was no office to be filled. We do not so understand the law. The statute (60 Ohio Laws, 200) creates the office. It authorizes the council to 'establish' the board, and to fill it by appointment. True, until the council act in the premises it is a mere potentiality in their hands; yet it is none the less an office, known to the law. Where the council assume to establish the board under the law and to appoint its members, there is no good reason why an irregularity or illegality in the act of establishing the office any more than an irregularity or illegality in the appointment of the officers should be held as rendering the acts of the officers void, and themselves mere trespassers. The reasons -- the considerations of public policy -- which exist in one case, exist equally in the other. It is enough that the office is one provided for by law, and that the parties have the color of appointment, assumed to be and act as such officers, and that they are accepted and acknowledged by the public as such to the exclusion of all others. Such was the case here. There was both the color and the fact of office."

         The office under consideration was given a potential existence by the acts of the legislature in the sections of the code above quoted. The plaintiff having accepted the appointment to it, and received the emoluments of it, is estopped from endeavoring to show to his own advantage that the council did not follow a prescribed mode in perfecting that potential existence. It was therefore error for the trial court to strike out the admitted evidence.

         It does not seem to be disputed that if plaintiff's services in the case of Wing Hing v. City of Eureka, supra, were such as under his office he was in duty bound to perform, his contract with the council would be void as an attempt to increase his compensation. And indeed no question can arise upon this point. It is definitely settled by the language of the constitution in the first place (Const. art. XI, sec. 9), and in the second place, even in the absence of such a provision, such a contract would be declared void upon grounds of public policy. "It is a well-settled rule that a person accepting a public office with a fixed salary is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of these duties, even though the salary be a very inadequate remuneration for the services.. .. . Whenever he considers the compensation inadequate he is at liberty to resign. The rule is of importance to the public. To allow changes and additions in the duties properly belonging or which may be attached to an office to lay the foundation for extra compensation would introduce intolerable mischief. The rule, too, should be strictly enforced." (Dillon on Municipal Corporations, 4th ed., sec. 233; Mechem on Public Offices, secs. 324-76.)

         The contention is, however, that these services were not among those whose performance is enjoined on the city attorney, and herein plaintiff relies upon the case of Herrington v. Santa Clara County , 44 Cal. 496.

         As the law stood when that decision was rendered, the district attorney was entitled to receive as compensation ten per cent of all money recovered by him for the county in any action. The county supervisors, ignoring the district attorney, authorized other attorneys to bring suit without the county for the recovery of a large sum of money. Recovery was had in the action and the district attorney sued to recover his percentage. The law made it the duty of the district attorney to prosecute all actions for the recovery of debts, etc., and to defend all suits brought against his county. (Pol. Code, sec. 4256.) The district attorney was not denying that it was his duty to prosecute this suit; but to the contrary, insisted that it was his duty. The defendant county never claimed that it was not the district attorney's duty to prosecute the suit, but insisted that the duty was not exclusively imposed upon and the right not exclusively vested in him, but that the supervisors could, if they saw fit, engage other counsel to perform the service, as in many cases special counsel are employed.

         The language of the court in its opinion, therefore, while not obiter, was not addressed to any contention raised by the parties. The decision of the court was by a bare majority, Chief Justice Wallace being disqualified, and Justice Rhodes expressing no opinion. It was based upon two grounds; the second, which is argued at length, holding that as the district attorney had not collected the money, he was not entitled to his commission; and the first, which is not argued, being a declaration to the effect that it was "not a duty enjoined upon the district attorney by law to prosecute or defend civil actions in which the county is interested which are pending in any other county than his own." This declaration is, however, supported by no reasoning, by no analysis of the statute, and by no citation of authority.

         And it would be difficult so to support it. Says Dillon: "The statutes of the legislature and the ordinances of our municipal corporations seldom prescribe with much detail and particularity the duties annexed to public offices; and it requires but little ingenuity to run nice distinctions between what duties may and what may not be considered strictly official; and if these distinctions are much favored by courts of justice, it may lead to great abuse." (Dillon on Municipal Corporations, 4th ed., sec. 233.)          When the law of the state says that the district attorney shall prosecute and defend all suits, and the city attorney shall attend to "all suits, matters, and things in which the city may be legally interested," it is a most forced and unwarranted construction to hold [42 P. 248] that in the one case it means only such suits as are commenced and finally determined in the county courts, and in the other only such as are in like manner commenced and determined in the municipal courts. If the legislature meant that, it could and would have said so. But when it says "all suits, matters, and things," the language will bear no other construction than that which is patent on its face. No rules of interpretation are necessary to be considered, for no need or room for interpretation exists. Thus the court held in Ryce v. City of Osage, 88 Iowa 558. The law made it the duty of the city attorney "to act as attorney for the city in any suit or action brought by or against the city, and generally to attend to the interests of the city as its attorney." There, as here, plaintiff claimed extra compensation for services rendered under contract with the council for defending an action against the city in the district and supreme court; and there, as here, urged that it was no part of his official duty to defend the suit. Says the court: "It seems to us that a mere reading of that section of the ordinance prescribing the duties of the city attorney is sufficient to show that under it he was required to act for the city in any case brought by or against it.. .. . That the services rendered by plaintiff, and for which he seeks now to recover, were included within his duties as city attorney, is too plain to admit of argument ."

         In Lancaster County v. Fulton , 128 Pa. St. 48, construing a similar statute, say the court: "The services for which the contract in question undertakes to provide are clearly within the sphere of the duties of the solicitor of Lancaster county."

         Russell v. Hallett, 23 Kan. 276, is not in conflict with the authorities upon this question. In that case the county attorney sued his county for compensation for services demanded of him without the duties of his office, as the court decided. He had been compelled to assist in a trial in a county other than his own. The law expressly limited his duty to attending before magistrates and judges in his county. (Kansas Gen. Stats., sec. 137, p. 264.)

         But it is unnecessary to multiply quotations upon this plain proposition.

         We think it must be apparent that the construction given to the statute in Herrington v. Santa Clara County, supra, cannot be supported, and should no longer be maintained; and we believe that the evil results to the public service which must arise under that construction justify and demand a declaration from this court that it be no longer considered as authority.

         It is of the last importance that any and every public officer entering upon the discharge of his duties should know once and for all that, be the duties onerous or be they easy, the compensation for them must be that fixed by law, and that only. If they become too burdensome, the law does not forbid the officer's resignation; but it does emphatically say that he shall not, under any circumstances, by use of the power of his office, by contract express or implied, fair or unfair, or by aid even of legislative enactment, obtain increased compensation for their performance. "The successful effort to obtain office is not unfrequently followed by efforts to increase its emoluments, while the incessant changes which the progressive spirit of the times is introducing effects almost every year changes in the character and addition to the amount of duty in almost every official station; and to allow the changes and additions to lay the foundation of claims for extra services would soon introduce intolerable mischief." (Evans v. City of Trenton , 24 N. J. L. 764.)

         The services here performed by the plaintiff being such as it was his duty to perform as the city attorney of the city of Eureka, the contract was an attempt to increase his compensation, and is in violation of the constitution, against public policy, and therefore void.

         " A promise to pay them [officers] extra compensation is absolutely void under the statute of Ohio. Such promise could not be enforced at common law, being against sound policy and quasi extortion. English judges have declared that such are novel in courts of justice, and that actions founded on such promises are scandalous and shameful (2 Burr, 934); and in the court of errors of New York they meet with no more favor (Hatch v. Mann, 15 Wend. 46)." (Gilmore v. Lewis, 12 Ohio, 281; Vandercook v. Williams , 106 Ind. 345; City of Decatur v. Vermillion , 77 Ill. 315; Hunter v. Nolf , 71 Pa. St. 282.)

         Nor can plaintiff recover under the contract, as by his second count he seeks to do, for such part of the services as was rendered after his term of office had expired. This is not the case of a city attorney carrying on litigation after his term of office had expired, with the knowledge and consent of the authorities, in which case an implied contract and promise to pay might arise after his tenure had terminated. Here plaintiff declares on, and seeks to recover under a contract against public policy, and wholly void. Such a contract will not support any action for recovery.

         As is said by the court in Lancaster County v. Fulton , 128 Pa. St. 48: "There is no pretense that any new agreement was entered into, or the terms of the original in any manner changed, after the expiration of the term of office. Neither the subject of a new contract nor the modification of the original even appears to have been considered by the parties. The services of plaintiff below were no doubt efficient and valuable; but, as far as they were rendered during his term of office, his salary is all the compensation he can claim. As to services rendered after the expiration of his term of office, under and in pursuance of the original illegal and void contract, he cannot, under the pleadings and evidence in this case, recover."          A void contract cannot form the basis of a judicial proceeding. (Santa Clara etc. Lumber Co. v. Hayes , 76 Cal. 387; 9 Am. St. Rep. 211.)

         There are, however, considerations in plaintiff's case [42 P. 249] which appeal with force to a court. In the first place the services rendered, as found by judge and jury, were of great value to defendant. In the second place they were rendered under an early interpretation given to the statute which justified plaintiff in suing upon his contract.

         In now declaring what we believe to be the only tenable construction of the law relative to the duties of the office, it has followed as a necessary consequence that the contract, void as against public policy, will not support a cause of action. Plaintiff, however, if the facts will warrant it, should recover, not upon the original or void contract, but upon an implied one, for services rendered after the expiration of his term of office.

         The judgment and order are reversed, with directions to the trial court to permit plaintiff, if he shall be so advised, to amend his complaint, or file an amended complaint, seeking compensation upon quantum meruit for services rendered after the expiration of his term of office.

Summaries of

Buck v. City of Eureka

Supreme Court of California
Oct 10, 1895
109 Cal. 504 (Cal. 1895)

In Buck v. Eureka, 109 Cal. 504, where the action was on a void contract, this court held that an action would lie for services rendered on quantum meruit.

Summary of this case from Whyte v. Rosencrantz
Case details for

Buck v. City of Eureka

Case Details

Full title:S. M. BUCK, Respondent, v. THE CITY OF EUREKA, Appellant

Court:Supreme Court of California

Date published: Oct 10, 1895


109 Cal. 504 (Cal. 1895)
42 P. 243

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