Board of Com'rs of El Paso County v. Rhode

• Decision Date: 04 November 1907
• Citation: 41 Colo. 258,95 P. 551
• Parties: BOARD OF COM'RS OF EL PASO COUNTY v. RHODE et al.
• Court: Colorado Supreme Court

95 P. 551

41 Colo. 258

BOARD OF COM'RS OF EL PASO COUNTY v. RHODE et al.

Supreme Court of Colorado

November 4, 1907

Rehearing Denied May 4, 1908.

Appeal from District Court, El Paso County; Edward Stimson, Judge.

Action by the board of county commissioners of the county of El Paso against W. E. Rhode and another. From a judgment for defendants, plaintiff appeals. Reversed, and judgment directed for plaintiff.

R. L. Chambers and Robert Kerr, for appellant.

Harvey Riddell, for appellees.

BAILEY J.

Defendant Rhode and one Steinmetz were rival candidates for the office of county treasurer of El Paso county at the election held in November, 1897. The defendant Rhode was by the board of canvassers of said county declared elected for the term beginning January 1, 1898, and received a certificate of election. About the 1st of December, 1897, Steinmetz instituted a contest against Rhode to determine the right to hold such office. Upon the 6th day of January, 1898, the county court of El Paso county, in which the contest proceeding was pending, gave judgment that Steinmetz was elected, and Rhode took an appeal to this court. In July 1898, this court reversed the judgment of the county court and determined that Rhode was elected, instead of Steinmetz. Rhode v. Steinmetz, 25 Colo. 308, 55 P. 814. After this decision was rendered, defendant Rhode came into possession of the office. Steinmetz held the office from the 1st of January until some time in July, and received from plaintiff the salary pertaining to the office for that time, amounting to $1,750. About the 1st of October, defendant Rhode took out of the fees and other emoluments coming into his office the sum of $1,750 as compensation to himself as treasurer during the period from the 1st of January until the 1st of July, and reported his action to the plaintiff. Plaintiff demanded the return of the money to the public funds of the county. Defendant Rhode refused to comply with the demand, and this action was brought against him and his surety the defendant company. The matter was submitted to the district court for judgment upon the pleadings. The district court rendered judgment in favor of the defendants, and plaintiff appeals.

There is only one question presented in the case, and that is as to whether or not an officer de jure can recover from a county salary paid by the county to the officer de facto during the period that the officer de jure was kept from the office. One phase of this question was before the Court of Appeals in the case of Henderson v. Glynn, 2 Colo.App. 303, 30 P. 265. In that case Glynn and Allen were rival candidates for the office of district judge. Glynn received the certificate of election, and Allen instituted contest proceedings. Pending these proceedings Henderson, as State Auditor, declined to draw warrants for the payment of the salary of Glynn; the purpose of resisting the payment being to protect himself and the state against double payment of the same salary. Glynn brought an action of mandamus against Henderson to compel him to draw the warrants. The Court of Appeals said: 'Under existing facts and the authorities, both he and the state would be amply protected in paying the salary to the incumbent. That he is judge de facto, in possession of the office and in the discharge of his duties, under color of an election, and holding all the...