Blydenburgh v. Board of Commissioners of Carbon County

• Citation: 8 Wyo. 303,56 P. 1106
• Parties: BLYDENBURGH v. BOARD OF COMMISSIONERS OF CARBON COUNTY
• Decision Date: 24 April 1899
• Court: Wyoming Supreme Court

56 P. 1106

8 Wyo. 303

BLYDENBURGH v. BOARD OF COMMISSIONERS OF CARBON COUNTY

Supreme Court of Wyoming

April 24, 1899

RESERVED questions from the District Court, Carbon County HON. DAVID H. CRAIG, Judge.

The material facts are stated in the opinion. With the exception of the seventh reserved question the questions are substantially the same as in the case of Rasmussen v. Board.

N. E Corthell, for plaintiff.

The fact that the incumbent had lawfully held the office during the preceding term can make no difference. After the election in 1896 he qualified anew by taking a new oath and filing a new bond. There can not be two de jure officers in the same office at the same time. If Blydenburgh was the de jure officer, then Chatterton was not. (In other particulars counsel relied upon the briefs in the case of Rasmussen v Board.)

F. Chatterton, for defendant.

Until Blydenburgh qualified, it would, under any circumstances, have been the duty of Chatterton, who was in office the term preceding lawfully, to have held over. A new qualification could not alter the situation; as a holding over even without qualification would have been legal until the qualification of a successor. (People ex rel. v. Henderson, 4 Wyo. 535; Tappan v. Van Horn, 9 Paige, 567; Stratton v. Oulton, 28 Cal. 44; Throop on Pub. Off., 325; 19 Ency. L., 562; 35 L. R. A., 88; 72 Mo. 597; 78 Id., 99; 61 Conn. 287; 45 Minn. 309; 32 W.Va. 419; 64 Mo. 89.) In respect to the other points involved, see brief of counsel in case of Rasmussen v. Board.

KNIGHT, JUSTICE. POTTER, C. J., and CORN, J., concur.

OPINION

KNIGHT, JUSTICE.

The respective parties hereto have at all times agreed that the case of Henry Rasmussen v. the same defendant, presented the same legal contentions, and that a full consideration of that case would virtually determine the issues presented in this, and the cases were presented upon one argument in this court. The questions reserved by the district court and sent to this court for its decision are as follows:

1. Where by reason of illegal votes having been received and counted for him, one who receives a minority of the legal votes cast for county and prosecuting attorney is, by the county canvassing board, declared elected, and receives his certificate of election and qualifies, discharges the duties, and receives the salary of the office pending a contest against him by the candidate who receives a majority of the legal votes, is the latter, upon being adjudged entitled to the office from the beginning of the term, entitled also to receive from the county the salary from the beginning of the term for which he was elected?

2. Where, pending an election contest for the office of county and prosecuting attorney, the several members of the board of the county commissioners, with individual knowledge, but not by reason of any formal notice to them, knew of the pendency of such contest, pays the current salary of the office to the incumbent, who is subsequently adjudged not to be entitled to the office and is ousted therefrom, is the successful contestant, upon being installed in the office, entitled to receive from the county the salary of such office from the beginning of the term for which he was elected, he not having performed any of the duties of said office?

3. Where, pending an election contest for the office of county and prosecuting attorney, the several members of the board of the county commissioners, with individual knowledge of the facts upon which the legality of certain votes cast for the incumbent in number determinative of the right to the office are thereafter declared to be illegal, and the board, under these circumstances, pays the current salary of the office to such...