Drach v. Leckenby
Citation | 64 Colo. 546,172 P. 424 |
Decision Date | 01 April 1918 |
Docket Number | 9100. |
Parties | DRACH v. LECKENBY et al. |
Court | Supreme Court of Colorado |
Rehearing Denied May 6, 1918.
Error to District Court, City and County of Denver; Charles C Butler, Judge.
Mandamus by E. E. Drach against Charles H. Leckenby, substituted as State Auditor for Harry E. Mulnix, and another. Decree for defendants and plaintiff brings error. Affirmed.
Barnett & Campbell, of Denver, for plaintiff in error.
Goss & Kemp and Harold H. Healy, all of Boulder, for defendants in error.
The action was in mandamus by E. E. Drach to compel the State Auditor to issue warrants for salary earned while acting as State Bank Commissioner. In response to the alternative writ the Auditor filed an interpleader which set out that one McFerson claimed to be the de jure Bank Commissioner for the period in question and entitled to the salary, and prayed that he be brought in in order that the court might determine to whom the warrants should issue, and he was accordingly made a party.
In his answer to the alternative writ McFerson set up a final judgment in quo warranto which declared him to be the de jure Bank Commissioner, and to have been such officer from May 6th, 1915, to July 5th, 1916, the time for which petitioner demanded pay, and during which period Drach was held disentitled to the office. The court entered judgment against Drach, and the Auditor was directed to issue warrants for the salary during the period in question to McFerson. This decree is here for review on error. In the opinion the parties will be designated as in the trial court.
It will be necessary to consider only those assignments which relate to the right of Drach as de facto Bank Commissioner to recover salary. The question is whether a de facto officer who performs the duties of an office to which there is a judicially ascertained de jure claimant, can, after surrender of the position to such officer, recover salary.
It is urged that there is no property right in a public office; that it is not a franchise, and that the one who performs the duties is entitled to the pay. Cases holding that the salary of an officer may be increased or reduced at the will of the legislature, or that, in the absence of constitutional inhibition, it may lawfully abolish an office, or that the salary is deemed an equivalent for the services rendered, or that a person is not entitled to the salary unless he both hold and discharge the duties of the office, are cited in support of the claim of petitioner. These principles may be conceded to be correct, but they have not the remotest application to this case.
Henderson v. Glynn, 2 Colo.App. 303, 30 P. 265, El Paso County v. Rohde, 41 Colo. 258, 95 P. 551, 16 L.R.A. (N. S.) 794, 124 Am.St.Rep. 134, and Thompson v. City of Denver, 61 Colo. 470, 158 P. 309, hold that payment to a de facto officer is a defense to the State in an action by the de jure officer to recover the salary. From this sound doctrine petitioner attempts to extract the premise that because he might have compelled payment of his salary while performing the duties of the office, he may after the de jure officer has been disclosed by court decree, still enforce his claim against the State. It is true, as urged by petitioner, that such payment to him while he occupied the office would have barred McFerson from recovery from the State, but he, however, ignores the proposition that McFerson, after having been declared the de jure officer, could have maintained an action against the de facto officer for the emoluments of the office even though the latter had discharged the duties attached to the place. Drach while serving might have compelled payment to him, not because the salary attaches to the person who performs the service, but because as matter of sound public policy, the business of the State must go forward in an orderly manner, and the question of the right to the office not having been determined the de facto officer, in the interest of the public, and because the question of title to the office cannot be determined in mandamus, is permitted to perform the service and get the salary. But when the de jure officer has been ascertained, the de facto incumbent must respond to him for such salary. That the de jure officer can compel such repayment is almost universally held. The only well considered case, which we have been able to find, holding otherwise is Stuhr v. Curran, 44 N. J. Law, 181, 43 Am.Rep. 353.
In Eubank v. Montgomery County, 127 Ky. 261, 105 S.W. 418, 128 Am.St.Rep. 340, reported in 16 Ann.Cas. 483, at page 484, it is said in discussing the rights of a de facto officer to salary:
In United States ex rel. Crawford v. Addison, 6 Wall. 291, 18 L.Ed. 919, the court passed upon the refusal to give an instruction to the effect that if the jury should find that the de facto incumbent of an office had received the salary thereof the de jure officer was entitled to recover from him that amount with interest, providing the jury also found the de jure officer was ready and willing to discharge the duties and was prevented only by the interference of the de facto incumbent. This instruction was declared to correctly state the law, and its refusal was adjudged reversible error.
In People v. Tieman, 30 Barb. (N.Y.) 193, it is said at page 195:
Speaking to the same question the Supreme Court of West Virginia in Bier v. Gorrell, 30 W.Va. 95, at page 97, 3 S.E. 30, at page 32 (8 Am.St.Rep. 17), said:
In discussing the right of a de facto officer to compel payment by the State of his claim for services while wrongfully in office, the court in Matthews v. Supervisors, 53 Miss. 715, 24 Am.Rep. 715, said:
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