Fylpaa v. Brown County

• Decision Date: 20 April 1895
• Citation: 62 N.W. 962,6 S.D. 634
• Parties: FYLPAA v. BROWN COUNTY.
• Court: South Dakota Supreme Court

62 N.W. 962

6 S.D. 634

FYLPAA v. BROWN COUNTY.

Supreme Court of South Dakota

April 20, 1895

Syllabus by the Court.

1. In order to protect the public, and prevent a failure of justice, the apparently official acts of one having color of authority to hold and perform the duties of a public officer are valid in respect to the rights of interested third persons, but void so far as they may be of exclusive interest or ultimate benefit to him.

2. The right to an office being the only issue determined by a statutory contest proceeding, the judgment is self-executing except as to costs, and the right of the successful party to perform the duties of the office, and receive the emoluments thereof, is neither stayed, obstructed, nor suspended by an appeal therefrom.

3. The payment by a board of county commissioners of salary to one who wrongfully retains a public office, after it has been judicially determined that another is entitled thereto, with full knowledge of the existence of such judgment, and that the duly-elected officer has qualified and demanded the office, and has attempted to restrain such board from so doing, is not sufficient to defeat an action against the county by the de jure officer, to recover the compensation allowed by law for the time he was thus excluded.

Appeal from circuit court, Brown county; A. W. Campbell, Judge.

Action by John A. Fylpaa against the county of Brown to recover compensation as county treasurer. Defendant had judgment, and plaintiff appeals. Reversed.

H. H Potter, for appellant. Frank A. Luse and George W. Jenkins for respondent.

FULLER J.

Plaintiff Fylpaa, and Frank R. Raymond were opposing candidates for the office of county treasurer, at the general election held in November, 1890. The county canvassing board issued a certificate of election to Raymond, and plaintiff instituted in the circuit court a contest proceeding, which was decided in his favor on the 5th day of January, 1891, and in which it was found, ordered, and decreed by the court that plaintiff was the duly-elected treasurer for a term of two years beginning in January, 1891, and that Raymond be enjoined from claiming or holding said office, or from in any way interfering with the same, or with the duties or privileges thereof; and it was further adjudged that plaintiff have and recover from defendant the costs of the action, to be taxed by the clerk of the circuit court. The board of county commissioners having approved Raymond's bond, he took possession of the office, and assumed the duties of county treasurer, on the 5th day of January, about two hours prior to the entry of judgment in plaintiff's favor, and continued to hold possession and perform the duties of said office until the 1st day of the following August, at which time plaintiff took possession thereof, and presumably continued to act and perform the duties of county treasurer during the remainder of the term for which he had been elected. During the time Raymond was acting as treasurer, the board of county commissioners audited and paid to him the sum of $1,000 as the county treasurer's salary or compensation for the period of six months, and plaintiff, to recover said amount from the county, after demanding payment, instituted this suit, and now prosecutes the same on appeal from a judgment for the defendant obtained in the circuit court. From the undisputed evidence the court found, as a matter of fact, that the board of county commissioners were fully aware of the rendition of the judgment in plaintiff's favor on the 5th day of January, 1891, and had actual knowledge of the contents thereof, at all times prior to the payment of the $1,000 to Frank W. Raymond, and that plaintiff had taken the oath of office, and presented for the approval of said board on the 6th day of January, 1891, a good and sufficient official bond, the approval of which was refused for the sole reason that said board had already approved the bond of said Frank W. Raymond; that on the 19th day of February following plaintiff presented to said board of county commissioners another bond of like character, and the same was duly approved. The court further found "that the plaintiff was at all times after the rendition of said judgment on the 5th day of January, 1891, ready and willing to enter upon the duties of said office, and on several occasions, during the months of March and May, 1891, did present himself at the said place where the said Raymond was exercising the duties of said office, and where he had possession of said books and records, and that plaintiff did on each of said...