Brown v. Tama County

• Decision Date: 12 February 1904
• Citation: 98 N.W. 562,122 Iowa 745
• Parties: D. E. BROWN, Appellant, v. TAMA COUNTY, Appellee
• Court: Iowa Supreme Court

98 N.W. 562

122 Iowa 745

D. E. BROWN, Appellant, v. TAMA COUNTY, Appellee

Supreme Court of Iowa, Des Moines

February 12, 1904

Appeal from Tama District Court.--HON. G. W. BURNHAM, Judge.

AFFIRMED.

Caldwell & Walters for appellant.

R. P Kepler and C. B. Bradshaw for appellee.

OPINION

The petition states the case.--Affirmed.

WEAVER J.

The petition alleges that, at the general election for the year 1899, plaintiff and one De Long were opposing candidates for the office of superintendent of schools for Tama county; that the board of canvassers declared plaintiff elected by a majority of three votes, and that thereupon De Long instituted a contest as provided by law, which contest was still pending and undetermined on January 1, 1900, on which day "plaintiff had a bond prepared and took the oath of office, but because of the pendency of said contest did not file said bond until April 12, 1900." On January 2, 1900, the court of contest decided that De Long had received a majority of the votes and was duly elected. From this decision plaintiff appealed to the district court, where the finding in favor of De Long was affirmed, but on further appeal to this court the finding of the district court and court of contest was reversed. On being remanded to the district court the case was again tried, and final judgment entered in plaintiff's favor on June 21, 1901. Three days thereafter plaintiff's bond was approved by the board of supervisors, and he entered upon the duties of the office. Plaintiff alleges that from the beginning of his term--January 1, 1901--he was at all times ready and able and willing to take possession of the office and discharge its duties, and was prevented from so doing by the contest aforesaid. He further avers that during this interval De Long was actually engaged in the performance of said duties an aggregate of four hundred and sixty-three days, during all of which time plaintiff was entitled to the fees, salaries, and emoluments of said office, and would himself have performed the labors and duties thereof had he not been prevented by the wrongful contest above mentioned. He therefore demands judgment against the county for the per diem compensation provided by law on the basis of the number of days' services performed by De Long during the term for which plaintiff was elected. Attached to the petition is a copy of plaintiff's bill or claim, as presented by him to the board of supervisors before the institution of this action. It sets out an itemized statement of the time during which De Long is alleged to have been engaged in performing the duties of superintendent of schools after plaintiff became entitled to the office, and is verified by an affidavit as follows:

"The above and foregoing bill shows the number of days in which one C. A. De Long was actually engaged in the performance of the duties of county superintendent of schools of Tama county, Iowa as a de facto officer from January 1, 1900, until June 24, 1901, and is the actual statement of the fees, salary, and emoluments of said office for that period; that during said period this claimant, D. E. Brown, was entitled to said office and was the de jure officer, but was wrongfully excluded from said office by the said C. A. De Long by means of a contest wrongfully instituted by the said C. A. De Long, and carried on in the courts until said contest was finally determined on the 21st of June, 1901. All of which was and is well known to the members of this honorable board of supervisors both severally and collectively.

"State of Iowa Tama county, ss.: I, D. E. Brown, on oath do say that the above account is just and true and the service rendered as herein set forth, and that the same has not been paid, or any part thereof, to said D. E. Brown.

D. E. Brown."

To this pleading the defendant interposed a demurrer substantially as follows: (1) It shows that plaintiff did not qualify or become entitled to the office until June 24, 1901; (2) it shows that, during all the time for which plaintiff demands pay, De Long was the actual incumbent of the office, and performed all its duties, and plaintiff performed no official service whatever; (3) while it shows that plaintiff received a majority of the votes and was given a certificate of election by the board of canvassers, it does not show a sufficient or legal excuse for his failure to qualify and take possession of the office and perform its duties; and (4) it states no fact showing that plaintiff was wrongfully excluded from the office, or prevented from performing the duties thereof.

This demurrer was sustained by the trial court, and plaintiff, electing to stand upon his petition without amendment, judgment was entered against him for costs, and he appeals.

To better define the issue of law thus presented, the parties stipulate that the defendant county had paid De Long the full per diem compensation allowed by law to superintendents of schools for each and every day of service rendered by him in said office during the period between January 1, 1900, and June 24, 1901, and that such payments were made by order of the defendant board of supervisors with full knowledge on their part of the pendency of the contest on appeal. It is also agreed that the demurrer be considered and disposed of as if the stipulated facts were set out in the petition.

I. County superintendents of schools are regularly elected each odd-numbered year, and are entitled to hold office for two years. Code, section 1072. The term of office regularly begins upon the first Monday in January after an election is had. Code, section 1060. Each superintendent is required to give an official bond in a sum to be fixed by the board of supervisors. Except when prevented by sickness or inclemency of weather, he is required to qualify before noon of the first Monday in January after his election by taking the prescribed oath of office and giving the required bond. Code, section 1177. It is made a misdemeanor for any officer who is required to give bond to act in such official capacity without having first given such bond. Code, section 1197. The right to hold a county office to which a person has been declared elected may be contested before a tribunal duly organized for hat purpose. Code, title 6, chapter 7. From the decision of this tribunal an appeal may be taken, but, if the party appealing is already in possession of the office, the appeal will not prevent his ouster under the judgment appealed from, unless he gives bond, in at least double the probable compensation of the office for six months, conditioned that he will prosecute his appeal without delay, and if the judgment appealed from be affirmed he will pay over to the successful party all compensation received by him while in possession of said office after said judgment was rendered. Code, section 1222. The foregoing constitutes all the statutory provisions which need be looked to in determining the legal relations of plaintiff and contestant, in respect to the office, pending the litigation between them. We have cited them, not because they afford any specific remedy for the wrongs of which plaintiff complains, but to make clear that this state has no statute which prevents due consideration by us of the rules and principles which have been recognized in this class of cases by courts of other jurisdictions.

II. With the admitted facts and the statutory provisions applicable thereto thus before us, the central question to be considered may be stated as follows: Where, during the incumbency of a county officer de facto under color of title, the county pays him the salary provided by law, can the officer de jure, after obtaining possession of the office under final judgment of ouster, maintain an action against the county for payment to himself of the salary for the same period? The decision of the courts upon this and cognate questions have developed a marked lack of harmony, and have been said by Mr. Freeman to be "incapable of reconciliation." The same distinguished annotator, while expressing his own dissent from the rule, says: "If, during the incumbency of an officer de facto, and before any judgment of ouster has been rendered against him, the city or county of which he is such an officer de facto pays him the salary of the office, a very decided preponderance of authorities sustains the position that by means of such payments the right of the officer de jure to collect his salary from such city or county is lost." See note to Andrews v. Portland (Me.) 10 Am. St. Rep. 280, which cites: Auditors v. Benoit, 20 Mich. 176 (4 Am. Rep. 382); State v. Clark, 52 Mo. 508; Smith v. Mayor, 37 N.Y. 518; Westberg v. City, 64 Mo. 493; McVeany v. Mayor, 80 N.Y. 185 (36 Am. Rep. 600); Dolan v. Mayor, 68 N.Y. 274 (23 Am. Rep. 168); Steubenville v. Culp, 38 Ohio St. 18 (43 Am. Rep. 417); Shannon v. Portsmouth, 54 N.H. 183; Commissioners v. Anderson, 20 Kan. 298 (27 Am. Rep. 171). The only cases noted by Mr. Freeman as sustaining the opposing view are: Andrews v. Portland, supra; Memphis v. Woodward, 59 Tenn. 499, 12 Heisk. 499 (27 Am. Rep. 750); Savage v. Pickard, 82 Tenn. 46, 14 Lea 46; People v. Smyth, 28 Cal. 21; Carroll v. Siebenthaler, 37 Cal. 193.

It is to be said of several, if not all, of the cases last cited that they present a materially different state of facts than we have here to pass upon. For instance, the plaintiff in the Andrews Case was duly appointed and qualified city marshal, and had long been in the actual possession of the office, when he was wrongfully excluded therefrom by the action of the city officers, after which he not only remained ready to perform, but offered to perform, the duties to which he had been appointed; and it was held that he...