March 14, 1944. —
April 14, 1944.
APPEAL from a judgment of the circuit court for Vernon county: R. S. COWIE, Circuit Judge. Affirmed.
For the appellant there were briefs by J. Henry Bennett and Olga Bennett, both of Viroqua, and oral argument by Mr. Bennett.
For the respondent there was a brief by Wayne B. Schlintz of Viroqua, attorney, and Hale Skemp of La Crosse of counsel, and oral argument by Quincy H. Hale.
Action commenced May 6, 1943, by Ellis A. Schoonover against the city of Viroqua to recover salary claimed to be due. Judgment was in favor of the defendant. Plaintiff appeals.
Plaintiff alleged an unlawful removal from the office of night policeman by defendant city and seeks damages and reinstatement in the position. The plaintiff had been the night policeman for a considerable time prior to November 1, 1942. On November 1, 1942, the mayor of the city summarily discharged plaintiff for his alleged refusal to install a telephone in his home. An ordinance of the city requires the removal of a police officer to be made pursuant to a three-fourths vote of the council. No such action was taken. Plaintiff turned over his revolver, star, and handcuffs to the city clerk and from that time on has not acted as night policeman. The mayor appointed Mr. Eitland who took the oath of office and performed the duties of night policeman. His appointment, however, was not confirmed until May 19, 1943. In the interval he performed the duties of the office and received the salary of $100 a month formerly received by the plaintiff.
On February 17, 1943, plaintiff duly filed with the city clerk his claim for $400 as salary from November 1, 1942, to February 1, 1943.
Trial was had before a jury. At the close of the testimony both sides moved for a directed verdict with reservations. All material questions of fact were left to the court under sec. 270.28, Stats., and only the following was submitted to the jury:
"After the discharge of the plaintiff Schoonover, on the first day of November, 1942, by the mayor of the defendant city of Viroqua, and before the first day of February, 1943. did the plaintiff Schoonover, with full knowledge of the facts and his rights in the premises, refuse to resume his duties as policeman?"
The question was answered "No" by the jury.
Counsel for the plaintiff moved for judgment for plaintiff on this special verdict. Defendant moved that the court change the answer of the jury from "No" to "Yes" and enter judgment dismissing the action. The court did not consider the verdict as determining any ultimate fact and made findings of fact and conclusions of law. It did, nevertheless, change the answer of "No" to "Yes." The court found as facts:
"That on November 1, 1942, and within several days thereafter two of the aldermen of the defendant city of Viroqua met with the plaintiff Ellis A. Schoonover and requested him to come back and resume his position as policeman for the defendant city of Viroqua but the said plaintiff Ellis A. Schoonover refused such offer and stated emphatically that he would not work for the defendant city of Viroqua as a policeman as long as Johnny Jackson was acting as assistant chief of police.
"That thereafter and during the spring of 1943 the then mayor of the defendant city of Viroqua, Frank A. Chase died and one Fred Rogers was installed as acting mayor of the defendant city of Viroqua; that the said acting mayor Fred Rogers during the month of March, 1943, met with the plaintiff Ellis A. Schoonover and requested him to return to his position as policeman of the defendant city of Viroqua and the plaintiff Ellis A. Schoonover refused to return to his position as long as Johnny Jackson continued as acting chief of police of the defendant city of Viroqua.
"That at the spring election of 1943 one Bernard Lewison was elected mayor of the defendant city of Viroqua and upon his election he interviewed the plaintiff Ellis A. Schoonover about the return of the plaintiff to his position as policeman of the defendant city of Viroqua and again the plaintiff Ellis A. Schoonover stated that he was not interested in his former position and refused to return to work for the defendant city of Viroqua."
And as conclusions of law, the court found that Blaine Eitland was a de facto officer for the defendant from November 1, 1942, to the date of the trial and was paid the salary; that plaintiff by his refusal to return to his position as policeman acquiesced in his discharge on November 1, 1942, and is estopped to recover any salary from the date of his discharge or to be reinstated in his position as policeman of the defendant city of Viroqua.
Thereupon, judgment was entered dismissing plaintiff's complaint.
The question presented on this appeal relates principally to the sufficiency of the evidence to support the trial court's findings of fact that a de facto officer was serving and drawing the salary sought by appellant. Appellant contends that since the jury answered by its special verdict that he did not act as he did with full knowledge of his rights, and since there was testimony to support such an answer, the court did not have the power to make its own findings and render judgment as it did. It appears, however, from a reading of the special verdict that the question as framed was so ambiguous that the answer of "No" does not declare whether the appellant refused to return to work so as to require the filling of his place. The qualifying phrase "with full knowledge of the facts and his rights in the premises" leaves no clear-cut determination of the issue. The record is such that the court was bound to make its own findings of fact, sec. 270.28, Stats., and the finding that appellant on several different occasions on and after November 1st, refused to return to work when requested to do so by individual aldermen was warranted and must be sustained. The only testimony to the contrary was that of the appellant himself, who disputes in part the statements made by these officials. The court was convinced of the fact by the testimony submitted. The contention that some formal action of the city council acting as a body was necessary before the vacancy could be filled is without merit. There were positive declarations that the appellant would not return to work. He did not offer to discharge his duties and the place was filled by another.
The evidence shows that the mayor appointed Blaine Eitland to fill the vacancy. If Eitland was a de facto officer from November to February and was paid the salary, appellant cannot recover. Payment of salary to a de facto officer prevents the collection by another; for the "disbursing officers of the municipality ought not to be required to try and decide the question as to which claimant is entitled to the salary, at the peril of double payment by the municipality if the question be decided wrongly; that the most important consideration is that the public business shall proceed without interruption, and that this result is most likely to be accomplished by payment to the person in possession of the office under color of title discharging its duties." Clausen v. Fond du Lac County, 168 Wis. 432, 435, 170 N.W. 287.
Appellant contends that since Schoonover was unlawfully discharged, no vacancy occurred and hence the mayor was without authority to appoint a successor to the office and Eitland was a mere intruder and not a de facto officer. He cites Logan v. Two Rivers, 227 Wis. 499, 278 N.W. 861. In the Logan Case, however, the appointment of the purported officer was made by the city manager who had no authority to appoint police officers. Under the city ordinances of Viroqua, the mayor has the power to appoint police officers with the confirmation of the council. The city needed the services of a night policeman and was without such services. Blaine Eitland acted as a night policeman during that time, under color of right and under such circumstances was a de facto officer. Clausen v. Fond du Lac County, supra; 43 Am. Jur. p. 230, sec. 476.
"A de facto officer is one who is in possession of an office and discharging its duties under color of authority. McCrary, Elect. (3d ed.) sec. 218; 2 Dill. Mun. Corp. sec. 892. By color of authority is meant authority derived from an election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer. McCrary, Elect. sec. 218." State ex rel. Jones v. Oates, 86 Wis. 634, 638, 57 N.W. 296.
The appellant's successor has now been duly appointed. The fact that the confirmation did not occur until May 19, 1943, does not mean that the mayor was without power in November to appoint an officer to fill a vacancy subject to the council's confirmation. It was the custom for a great many years in Viroqua for the confirmation of officers so appointed to be made at a council meeting in April. The fact that the confirmation was on May 19th, does not change the situation. A vacancy was in fact created as a result of the refusal of appellant to return to work and he acquiesced in his discharge by his course of conduct.
By the Court. — Judgment affirmed.