People ex rel. Dunn v. Bunker

Action to recover from the defendant moneys received by ,him, as commissioner of immigration, under section 2955 of the Political Code. The court below allowed the defendant for his salary and office expenses actually paid, and rendered judgment against him for the surplus, with damages and interest as specified in section 437 of the Political Code.

1. The defendant, having assumed to act under a *215statute of this state, and having collected moneys according to the letter of that statute, cannot be heard to say that the statute was in conflict with the constitution of the United States, that he was unauthorized to collect them, and that he was not bound to pay them over to the proper officer. Neither was he authorized to retain the moneys collected in excess of his salary and office expenses if the proper authorities failed to provide a suitable lazaretto or lepers’ quarter. In collecting the money, he assumed to act as a state officer, and as between him and the state, he is bound by that assumption. (Placer County v. Astin, 8 Cal. 303; McKee v. Monterey County, 51 Cal. 275.) So one who holds himself out as a public officer, or acts as an officer de facto, is estopped to deny that he is an officer de jure, even on a criminal prosecution for malfeasance in office. (State v. Stone, 40 Iowa, 547; Randall v. Dusenbury, 63 N. Y. 645.)

2. The court did not err in refusing to allow, as items of office expenses, sums not paid to deputies. It is true, section 2969 was added to the Political Code, as a new section, after defendant received the moneys, but under that section there is full provision for compensation to the deputies if they are or shall be entitled thereto.

3. Under the statute, the defendant cannot retain the money because a person of whom money was collected has instituted an action against him to recover it. Having collected it, he should have let it take the regular course, viz., payment to the state treasury.

Judgment and order affirmed.

Boss, J., and McKinstry, J., concurred.