Arnold v. Hilts

• Decision Date: 07 February 1916
• Docket Number: 8535.
• Citation: 155 P. 316,61 Colo. 8
• Parties: ARNOLD v. HILTS.
• Court: Colorado Supreme Court

155 P. 316

61 Colo. 8

ARNOLD v. HILTS.

No. 8535.

Supreme Court of Colorado

February 7, 1916

Error to District Court, City and County of Denver; James H Teller, Judge.

Action by Henry J. Arnold against Hiram E. Hilts. Judgment for defendant, and plaintiff brings error. Affirmed.

Joshua Grozier, of Denver, for plaintiff in error.

Fred W Parks, of Denver, for defendant in error.

BAILEY J.

The plaintiff in error was elected to the office of County Assessor in November, 1910. Defendant in error was appointed to the municipal office of Assessor on December 14th, 1911 by the mayor, and immediately qualified as such. Plaintiff in error seeks to recover from the defendant in error salary which was paid the latter as Assessor of the City and County of Denver from December 14th, 1911, until his retirement from office, February 23rd, 1912, alleging and contending that he and not defendant in error, was during such time the Assessor and entitled to such salary.

There is no dispute as to the facts, and but two questions are presented for consideration and determination: First. Was Arnold the de jure Assessor, and therefore entitled to collect the salary in question? and Section. Are the question involved res judicata?

In people v. Cassiday, 50 Colo. 503, 117 P. 357, it was declared that by the adoption of article 20 of the Constitution and the formation of the municipal corporation of the City and County of Denver, all county offices and all county officers as such within that territory were abolished, except as affected by the decision of this court in People ex rel. v. Johnson, 34 Colo. 143, 86 P. 233, the holding in the latter case being held erroneous in the Cassiday Case. It necessarily follows that upon the adoption of that constitutional amendment and the formation of the City and County of Denver, the office to which Arnold claims to have been elected instantly terminated, but by reason of the erroneous decision in the Johnson Case, supra, such office apparently legally existed until the subsequent declaration of this court in the Cassiday Case, supra, which gave full vigor and effect to the Constitution. Therefore, when the Cassiday decision became effective, which was November 23rd, 1911, it was a judicial pronouncement that the office of County Assessor, which had apparently been in existence up to that time, had been abolished. The general rule is that whenever the office ceases to exist the rights of the incumbent terminate. 29 Cyc., pages 1390, 1391, and cases cited.

It is therefore plain that Arnold, under the state of facts existing at the time Hilts was appointed and qualified, at best was nothing more than a de facto officer of a municipal office. This was in effect held in Arnold v. Hilts, 52 Colo 391, 121 P. 753, Ann.Cas. 1913E, 724. The office to which Arnold had been elected and of which he was the de jure officer was abolished by constitutional amendment, and with the officer went the de jure officer and his rights terminated. 29 Cyc. 1393. It is settled law that only a de jure officer can recover salary. It being clear that Arnold was not such officer, he can therefore in no event recover herein. ...