Dotson v. Cassia County

• Citation: 35 Idaho 382,206 P. 810
• Parties: F. B. DOTSON, Respondent, v. CASSIA COUNTY, Appellant
• Decision Date: 25 April 1922
• Court: United States State Supreme Court of Idaho

206 P. 810

35 Idaho 382

F. B. DOTSON, Respondent, v. CASSIA COUNTY, Appellant

Supreme Court of Idaho

April 25, 1922

ELECTION CONTEST-SALARY OF DE JURE OFFICER PENDING APPEAL.

1. The salary of an office is an incident to the title to such office, and not to its occupation and exercise by a de facto officer.

2. The fact that a de jure officer has not performed the duties of his office, because they have been performed by a de facto officer, does not deprive him of the right to recover his salary.

3. Under the provisions of C. S., secs. 408 and 7298, a de jure officer who has been deprived of his office as the result of an election contest pending an appeal, upon the determination of such appeal in his favor is entitled to the salary of the office for the period during which he was so deprived of it.

4. Held, that in paying to the de facto incumbent of the office of probate judge of Cassia county the salary to which respondent was rightfully entitled, appellant county violated the express provisions of C. S., sec. 408, and respondent should not be prejudiced by such action.

APPEAL from the District Court of the Fourth Judicial District, for Cassia County. Hon. Wm. A. Babcock, Judge.

Action by respondent to recover his salary as probate judge of Cassia county during the period for which he was deprived of such office as the result of an election contest pending appeal. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

T. M Morris and W. R. Griswold, for Appellant.

If the ousted incumbent, notwithstanding that he was duly elected fails to furnish the bond provided by sec. 7298, he loses the right to demand the salary. (Chubbuck v. Wilson, 151 Cal. 162, 12 Ann. Cas. 888, 90 P. 524.)

Respondent did not avail himself of the privilege afforded him by statute, but voluntarily surrendered the performance of his duties to another. This debarred his right to recover for the work performed by Harper (18 Cent. Digest, par. 322), and he cannot complain that the salary was earned and enjoyed by another. (15 Cyc. 483, par. 12, notes 26, 27.)

F. B Dotson, pro se.

Unless otherwise specifically provided by statute, the rule that the salary is incident to the title to the office must prevail. (Dorsey v. Smyth, 28 Cal. 21; People v. Oulton, 28 Cal. 44; Burke v. Edgar, 67 Cal. 182, 7 P. 488; Ward v. Marshall, 96 Cal. 155, 31 Am. St. 198, 30 P. 1113; People v. Potter, 63 Cal. 127; Chubbuck v. Wilson, 151 Cal. 162, 12 Ann. Cas. 888, 90 P. 524; Havird v. County Commrs. of Boise County, 2 Ida 687, 24 P. 542.)

Sec. 7298 provides specifically who shall receive or draw the salary pending a contest. No other person can draw such salary during that time. (Bledsoe v. Colgan, 138 Cal. 34, 70 P. 924.)

Payment to the de facto officer was wrongfully made, without regard to the rights of the party legally entitled to the salary. Therefore it is still owing to the rightful claimant. (Tanner v. Edwards, 31 Utah 80, 120 Am. St. 919, 10 Ann. Cas. 1091, 86 P. 765; Rasmussen v. Board of County Commrs., 8 Wyo. 277, 56 P. 1098, 45 L. R. A. 295; Blydenburgh v. Board of County Commrs., 8 Wyo. 303, 56 P. 1106.)

BUDGE, J. Rice, C. J., and McCarthy, Lee and Dunn, JJ., concur.

OPINION

BUDGE, J.

This action was brought by respondent to recover his salary as probate judge of Cassia county for the months of March to December, inclusive, 1919, and January and part of February, 1920.

From the facts of this case, which are stipulated, it appears that respondent was duly elected probate judge at the general election in November, 1918, and qualified as such and assumed the duties of his office on January 13, 1919. About December 2, 1918, Thomas E. Harper began proceedings in the district court to contest the election of respondent and on March 31, 1919, the court rendered its decree to the effect that Harper was the duly elected probate judge. On April 5, 1919, respondent surrendered said office to Harper, who held and performed the duties of the office until February 19, 1920. Respondent appealed from the judgment of the district court about May 6, 1919, and said judgment was reversed by this court on January 9, 1920. (Harper v. Dotson, 32 Idaho 616, 187 P. 270.) Respondent resumed the duties of his office on February 23, 1920. The salary for said office, which is $ 100 per month, was paid to Harper during the year 1919 and for the month of January, 1920.

Respondent duly presented a claim for $ 1,205.10 for salary to the board of county commissioners, which was disallowed by the board on April 12, 1920, from which action by the board he appealed to the district court, where judgment was rendered in his favor on September 11, 1920, for $ 1,166.60.

This appeal is from the judgment. Appellant makes five assignments of error, which raise but one question, viz., whether respondent is entitled to recover the salary of his office during the time the same was held and the duties thereof performed by Harper.

The general rule is that the salary of an office is an incident to the title to such office, and not to its occupation and exercise by a de facto officer. (Anderson v. Lewis, 29 Cal.App. 24, 154 P. 287.) The salary and emoluments of a public office attach to the office itself, and not to the individual discharging the duties of the office, except as he is an officer de jure. (Jones v. Dusman, 246 Pa. 513, Ann. Cas. 1916D, 472, 92 A. 707; Flanary v. Barrett, 146 Ky. 712, Ann. Cas. 1913C, 370, 143 S.W. 38.) The fact that a de jure officer has not performed the duties of his office, because they have been performed by a de facto officer, does not deprive him of the right to recover his salary. (Baker v. City of Nashua, 77 N.H. 347, 91 A. 872.) An officer de facto, acting even in good faith, under a claim of right to an office, is not entitled to recover the compensation provided by law to the exclusion of the officer de jure (People v. Potter, 63 Cal. 127; Cobb v. Hammock, 82 Ark. 584, 102 S.W. 382; State ex rel. Evans v. Gordon, 245 Mo. 12, 149 S.W. 638), unless there is no adverse contestant or de jure officer. (Peterson v. Benson, 38 Utah 286, Ann. Cas. 1913B, 640, 112 P. 801, 32 L. R. A., N. S., 949.)

Our statutes appear to be in entire harmony with the rules above announced. C. S., sec. 408, provides that: "When the title of the incumbent of any office in this state is contested by proceedings instituted in any court for that purpose, no warrant can thereafter be drawn or paid for any part of his salary until such proceedings have been finally determined."

C. S., sec. 409, provides that: "As soon as such proceedings are instituted, the clerk of the court in which they are pending must certify the facts to the officers, whose duty it would otherwise be to draw such warrant or pay such salary."

While C. S., sec. 7298, provides that the party against whom judgment is rendered by the district court in an election contest case, " . . . . may appeal to the supreme court and if the appellant be in possession of the office, such appeal shall not supersede the execution of the judgment of ...