Devine v. Wonderlich, 62816

• Citation: 288 N.W.2d 902
• Decision Date: 20 February 1980
• Docket Number: No. 62816,62816
• Parties: Francis P. DEVINE, Appellee, v. Raymond James WONDERLICH, Appellant.
• Court: United States State Supreme Court of Iowa

Page 902

288 N.W.2d 902

Francis P. DEVINE, Appellee, v. Raymond James WONDERLICH, Appellant.

No. 62816.

Supreme Court of Iowa.

Feb. 20, 1980.

Timothy F. Gerard of Baumert & Gerard, Sigourney, for appellant.

James P. Reilly of Spayde & Reilly, Oskaloosa, for appellee.

Considered by REYNOLDSON, C. J., and REES, HARRIS, McGIVERIN and LARSON, JJ.

REES, Justice.

Raymond James Wonderlich appeals from an adverse summary judgment granted plaintiff Francis P. Devine for $12,749.94, the amount which Wonderlich received as salary while serving on the Keokuk County board of supervisors pursuant to the decisions of an election contest court and the district court. Devine had been adjudicated the winner of the election for the position in question by this court approximately eighteen months after the defendant Wonderlich assumed the office. We reverse the judgment of the district court and remand this case for dismissal of plaintiff's action.

After a canvass of the votes cast in the November 1976 election for the position of county supervisor, plaintiff was declared the winner by two votes. Defendant Wonderlich, then incumbent in the office, filed an election contest and, pursuant to section 62.19, The Code 1975, the contest court declared Wonderlich the winner of the election, revoked the plaintiff's certificate of election and caused a certificate of election to be issued to the defendant. Wonderlich thereupon assumed office on January 1, 1977. Upon appeal by Devine, the district court affirmed the decision of the contest court. On further appeal to this court, we reversed the district court ruling and held that plaintiff had actually won the election. Devine v. Wonderlich, 268 N.W.2d 620, 630 (Iowa 1978). On July 21, 1978, the district court directed that a certificate of election be issued to Devine.

On August 29, 1978, Devine instituted the present action, seeking from the defendant the amount which Wonderlich had received in compensation for serving on the board of supervisors pursuant to the decisions of the contest court and the district court.

On September 12 Wonderlich filed a cross-petition, naming members of the contest court, the commissioner of elections, members of the county board of supervisors, the county auditor, and Keokuk County as third-party defendants. Wonderlich alleged that said third-party defendants were the parties actually liable to the plaintiff on the salary claim, and sought indemnification from the aforementioned parties. On September 21 the third-party defendants moved to dismiss the cross-petition on the ground that they had been acting in their official capacities and that the cross-petition failed to state a claim upon which relief could be granted. On November 3 the trial court dismissed the cross-petition, a ruling from which the defendant has not appealed. Thus the issue of potential alternative sources for a successful election contestant's salary is not before us at this time.

The plaintiff then moved for summary judgment on his petition. Following hearing and the submission of briefs, the trial court sustained plaintiff's motion for summary judgment on November 3, 1978. While expressing doubt regarding the equity of the result, the trial court found existing case law to be in plaintiff's favor and ruled accordingly. On December 1, 1978 Wonderlich filed a timely notice of appeal to this court.

The sole issue presented by this appeal is whether the eventual loser of an election contest may be found liable to the person to whom the office is ultimately awarded for the amount of salary which he or she received while serving in office pending resolution of the election contest.

We have in the past adhered to the majority position that a de jure officer, the rightful holder of an office, may recover from a de facto officer for the period which the de jure officer was deprived of his or her office. Harding v. City of Des Moines, 193 Iowa 885, 889, 188 N.W. 135, 137 (1922); McCue v. County of Wapello, 56 Iowa 698, 704-05, 10 N.W. 248, 251 (1881). Concomitantly we have held that a governing body cannot be liable to a de jure officer if the salary in question has been paid to a de facto officer. Glenn v. Chambers, 242 Iowa 760, 770-71, 48 N.W.2d 275, 280-81 (1951); McClinton v. Nelson, 232 Iowa 543, 547-48, 4 N.W.2d 247, 248-49 (1942); Harding v. City of Des Moines. The latter position is not without statutory exception. See Hild v. Polk County, 242 Iowa 1354, 1358-59, 49 N.W.2d 206, 207-08 (1951) (general rule abrogated by section 66.9, The Code, as to public officials suspended for misconduct and then restored to office).

Despite Devine's contention, we find no statutory provision applicable to the case at bar. Section 62.20 requires an incumbent who wishes to remain in office And who challenges the decision of the contest court to post a bond which may be forfeited upon an adverse decision upon appeal. As the incumbent Wonderlich was not challenging the decision of the contest court, section 62.20 provides no guidance. Resolution of this dispute depends on this court's continued adherence to the majority position taken in Harding in the context of an election contest.

Before reaching the merits of this controversy, we wish to clarify the parameters of our decision. While the possibility of governmental liability to the de jure officeholder involves considerations interrelated with those relevant to resolution of this dispute, no issue of governmental liability is presented by this case. Some of the cases which we will discuss involve the question of governmental liability. This is a result of the underlying considerations which the issues of de facto official and governmental liability hold in common and not a reflection of the scope of this opinion. We are only determining the liability of Wonderlich, the de facto member of the board of supervisors during the election contest period, to Devine, the de jure member of the board of supervisors for the same period, for the salary received by Wonderlich. Our holding is therefore limited to the election contest context.

We also note, as earlier mentioned, that the legislature has provided a partial solution to salary disputes which may arise from election contests by enacting section 62.20, and that ultimate resolution of the issue before us, as well as consideration of possible governmental liability, would be an appropriate subject for legislative action.

In Brown v. Tama County, 122 Iowa 745, 754, 98 N.W. 562, 566 (1904), a case involving alleged governmental liability to a de jure officeholder following an election contest, we stated that any hardship which devolves upon the de facto officeholder can be traced to the fault of the de facto...