Hallowell v. Buffalo County

• Decision Date: 05 May 1917
• Docket Number: 19479
• Citation: 162 N.W. 650,101 Neb. 250
• Parties: F. M. HALLOWELL, APPELLANT, v. BUFFALO COUNTY, APPELLEE
• Court: Nebraska Supreme Court

162 N.W. 650

101 Neb. 250

F. M. HALLOWELL, APPELLANT, v. BUFFALO COUNTY, APPELLEE

No. 19479

Supreme Court of Nebraska

May 5, 1917

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Affirmed.

AFFIRMED.

H. M Sinclair and T. F. Hamer, for appellant.

Albert B. Tollefsen, contra.

CORNISH J. HAMER, J., not sitting.

OPINION

CORNISH, J.

Plaintiff was removed from the office of county judge June 15, 1913, by a judgment of the district court declaring the office vacant. After three days, no one in the meantime performing the duties of the office, the county board appointed one Morrison to fill the vacancy. He duly qualified, took possession of the office, performed its duties, received its fees, and was generally recognized as de facto officer until February 5, 1914, when, by mandate from the supreme court, he was removed, and plaintiff reinstated in the office. In the supreme court's decision it was held that the district court was without jurisdiction of the subject-matter, and its judgment would therefore be void. Conroy v. Hallowell, 94 Neb. 794, 144 N.W. 895. Plaintiff brings this action to recover from the county his salary, $ 1,053.85, being the amount paid by the county to Morrison during the time he was removed from office.

In State v. Milne, 36 Neb. 301, 54 N.W. 521, we held: "Where a county has once made payment of the salary of a county office, to one actually in possession of the office, performing its duties with color of title, before his right to the office has been determined against him by a competent tribunal, it cannot afterwards be compelled to pay the same salary to the de jure officer."

The acts of such an officer are valid, and are sustained upon the ground that it would be intolerable that the general public, having business to do with the office, should be required to determine at their peril who is the rightful incumbent. The county board, in allowing such an officer his fees and salary, has a right to rely upon his apparent title and to treat him as an officer de facto. The board being justified in allowing him the emoluments of the office, the county cannot afterwards be compelled to pay them again.

Because the judgment of the district court, removing him from office, was finally found to be void, and because Morrison was an appointee of the county board, plaintiff disputes the proposition that Morrison was a de facto officer, or held under color of title, and contends that he should be treated as an intruder or usurper of the office, and that the county should be required to pay plaintiff what would have been due him as salary. While we must agree with the plaintiff that the judgment of the district court was void and a nullity in so far that probably no rights could be predicated upon it, yet it was a fact and circumstance in the case upon which persons could and did act. Was not the plaintiff himself justified in not attempting to resume the office, or to continue to exercise its functions, until the case had been finally decided? And, likewise, was not the board justified in believing that the judgment had created a vacancy, and in acting upon that belief at a time when there was no one assuming the responsibilities of the office?

We agree that mere possession of an office is not sufficient to make the incumbent a de facto officer. To constitute one a de facto officer he must have color of title or his possession must be acquiesced in by the public generally. In this case, we are of opinion, these conditions existed. Morrison acquired color of title by reason of the district court's decision purporting to create a vacancy and by reason of his appointment by the board, a body authorized by law to fill vacancies. He was recognized as...