Comstock v. City of Grand Rapids

• Decision Date: 31 January 1879
• Citation: 40 Mich. 397
• Court: Michigan Supreme Court
• Parties: Everett D. Comstock v. City of Grand Rapids

40 Mich. 397

Everett D. Comstock v. City of Grand Rapids

Supreme Court of Michigan

January 31, 1879

Submitted January 29, 1879

Case made from the Superior Court of Grand Rapids. Submitted January 29. Decided January 31.

Judgment reversed with costs.

G Chase Godwin for plaintiff. Salary is incident to the office and follows the title, People v. Smyth, 28 Cal. 21. See Auditors v. Benoit, 20 Mich. 176; People v. Miller, 24 Mich. 458.

Wm Wisner Taylor for defendant. The right to the salary of a public office may be based on actual incumbency and discharge of duties (Conner v. Mayor, 1 Seld. 285; Smith v Mayor, 37 N.Y. 518), de jure right, though excluded by an intruder (Morton v. Tieman, 30 Barb. 193), or lawful right and actual incumbency and discharge of official duties, Riddle v. Bedford County, 7 S. & R., 385. The right of an officer de jure is not based on contract, People v. Warner, 7 Hill 81; Coffin v. State, 7 Ind. 157; Benford v. Gibson, 15 Ala. 521.

Marston, J. The other Justices concurred.

OPINION

Marston, J.

In April, 1878, Comstock was elected clerk of the Superior Court of Grand Rapids. The county clerk of Kent county, claiming to be ex officio clerk of the Superior Court, protested against Comstock's being sworn in or recognized as clerk of the court, and the judge of that court refused to administer the oath to or approve of Comstock's official bond. At the June term of this court a mandamus was granted requiring the judge of said Superior Court to administer to Comstock the constitutional oath of office and approve his official bond, which was done, and Comstock then entered upon the active discharge of the duties of his office. From the time of his election up to the 1st of July, 1878, when the office was turned over to him, he was at all times ready to perform his official duties, but was prevented for the reasons stated. The county clerk who had during this time ex officio performed the duties of clerk of the Superior Court, presented his claim for the salary pertaining to said office during said time. Comstock also presented a claim for the salary during the same period. The common council refused to pay either, and this action is brought to recover the amount thereof.

Comstock was legally elected clerk of the Superior Court, and was upon taking the official oath and filing the requisite bond, entitled to the office with all its emoluments. The county clerk, by...