Michigan Advisory Opinions November 06, 1980: AGO 5812 (November 6, 1980)

AGO 5812.

You have requested my opinion as to whether a township clerk and a township treasurer who served from November, 1976 to November, 1978, without filing a bond with the township for the faithful discharge of the duties of their respective offices, are entitled to the salary they received for their respective terms of office.

The filing of a bond by a township clerk is governed by 1846 RS, ch 16, Sec. 69, as last amended by 1977 PA 33; MCLA 41.69; MSA 5.61, which states, in part:

'Each township clerk, within the time limited for filing the oath of office and before entering upon the duties of the office, shall give a bond to the township in the sum and with sureties as the township board shall require and approve, conditioned for the faithful discharge of the duties of the office according to law, and especially for the safekeeping of the records, books, and papers of the township in the manner required by law, and for their delivery on demand to the clerk's successor in office. . . .'

A similar statute which governs township treasurers is 1846 RS, ch 16, Sec. 77, as last amended by 1977 PA 33; MCLA 41.77; MSA 5.69:

'A township treasurer, within the time limited for filing the oath of office and before entering upon the duties of the office, shall give a bond to the township in the sum and with the sureties as the supervisor shall require and approve, conditions for the faithful discharge of the duties of the office and that the treasurer will faithfully and truly account for and pay over according to law, all moneys which come into the treasurer's hands as treasurer, and the supervisor shall indorse approval on the bond. . . .'

An additional statute which concerns your question is 1954 PA 116, Sec. 368, as amended; MCLA 168.368; MSA 6.1368, which provides for vacancies in township offices and states in part:

'The township offices become vacant upon the happening of any of the following events: Death of the incumbent; . . . his refusal or neglect to give bond in the amount and manner and within the time prescribed by law; . . .'

The above statute and others with similar provisions concerning vacancy in office for the failure to file a bond have been considered by the courts as well as in a number of previous Attorney General opinions. Failure to give a bond may be a cause for removal or a sufficient reason for the proper authority to declare an office vacant. However, a vacancy does not exist until such time as the proper proceedings are taken to declare the office vacant. See People v Payment, 109 Mich 553; 67 NW 689 (1896); Kriseler v LeValley, 122 Mich 576; 81 NW 580 (1900); OAG, 1912, p 290 (February 28, 1912); OAG 1923-1924, p 179 (May 22, 1923); OAG 1939-1940, p 11 (September 15, 1938); II OAG, 1959-1960, No 3508, p 19 (February 16, 1960).

The situation, referred to by you describes a de facto officer. The term 'de facto officer' has been defined as a person who is in possession of an office, performing the duties thereof and claiming possession under color of an election or appointment, but who fails to qualify for the office as a matter of law. Greyhound Corp v Public Service Comm, 360 Mich 578, 591; 104 NW2d 395 (1960). 3 McQuillin, Municipal Corporations (3d ed), Sec. 12.102, p 446, states, in part:

'. . . Where a person is duly elected or appointed but fails to qualify, as by failing to take the oath of office, or give bond, or his bond is not approved, or by not being a resident, he may nevertheless be a de facto officer. . . .'

In Scott v Crump, 106 Mich 288; 64 NW 1 (1895), Plaintiff Scott was a candidate for the office of comptroller of West Bay City, but after the election and a recount, his opponent Glaser was declared elected. Glaser entered into the office and performed the duties thereof until a judgment of ouster was granted. Scott then brought suit against the City for payment of the salary which had been paid to Glasser while proceedings for ouster were pending. In holding that payment of the salary to Glaser, a de facto officer, while holding office and discharging his duties was a complete defense to the suit brought by Scott, the Court stated:

'It was held in Board of Auditors v Benoit, 20 Mich 176, after very full consideration, that payment of a fixed salary to a de facto officer while he is holding the office and discharging its duties is a complete answer to an action brought after a judgment of ouster. . . .

'Counsel are in error in assuming that Glaser could not have compelled payment of the salary pending the quo warranto proceeding, and that the council was in a situation to withhold payment. The Benoit case was expressly put upon the ground that the title to the office could not be tried in a proceeding to compel the payment of the salary. That question could only be tried in the quo warranto proceeding, and until its determination there was no answer to Glaser's claim for the salary. Glaser was not an intruder or usurper, in the sense that the payment of his salary could have been refused. He held the certificate of election granted by the board of canvassers. . . .' 106 Mich 288, 289; 64 NW 1.

63 Am Jur 2d, Public Officers and Employees, Sec. 514, p 940, states, in part:

'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. . . .'

See also: Badeau v United States, 130 US 439; 9 S Ct 579; 32 L Ed 997 (1889); McKenna v Nichols, 295 Ky 778; 175 SW2d 121 (1943). In City of Miller v Sherman, 139 SW2d 1114 (Mo App, 1940), where a de facto municipal mayor, notwithstanding that he may have been disqualified from holding office, had performed the duties of the office for which he was paid, and title to his office was not questioned during his term in office, the court held that no recovery on behalf of the municipality could be had against him for salary paid. For a discussion of this topic and further cases, see 93 ALR 258, 273, and 151 ALR 952, 960.

The above holding has also been set forth by II OAG, 1955-1956, No 2802, p 681 (November 19, 1956), quoting the syllabus:

'A person who vacates office of friend of the court by election to and acceptance of seat in the legislature, an incompatible office, but who nevertheless continues to perform the duties of the former office, is a de facto officer. Salary paid to him during the interval may not now be recovered by the county.'

It is, therefore, my opinion that where a township clerk and a township treasurer were duly elected but failed to file their bonds with the township, were in possession of their respective offices and in good faith performed the duties thereof during their terms, then the public authority may not recover any portion of the salaries paid to the officers during their terms in office.

Frank J. Kelley

Attorney General