Hubbard v. Ledford

• Decision Date: 16 April 1935
• Citation: 258 Ky. 704
• Parties: Hubbard v. Ledford.
• Court: United States State Supreme Court — District of Kentucky

258 Ky. 704

Hubbard v. Ledford.

Court of Appeals of Kentucky.

Decided April 16, 1935.

1. Officers. — Where contestee, to whom certificate of election for office of sheriff had been issued, qualified and discharged duties of office until successful contestant qualified and assumed the office, contestant's right to recover from contestee held controlled by common law (Constitution, sec. 233).

2. Officers. — De jure officer may at common law recover fees or salary paid to de facto officer, and right to recovery does not accrue until right to the office is determined by court of competent jurisdiction.

Officers. — Person acting as sheriff in good faith under certificate of election during pendency of election contest held de facto officer, not usurper, as respects successful contestant's measure of recovery for emoluments received by contestee.

4. Officers. — Where de facto officer is not mere intruder or usurper but has acted in good faith and under fair color of title to the office, de jure officer may recover from de facto officer only fees or salary received by latter less amount necessarily and actually expended in conducting the office.

5. Officers. — Where contestee to whom certificate of election for office of sheriff had been issued exercised the office in good faith during election contest until successful contestant qualified, contestant held entitled to recover only the fees, commissions, and salary earned by contestee while in office, though afterwards collected, less actual, customary, and necessary expenses of contestee and deputies in conducting the office, including

deputies' salaries, but contestee was not entitled to deduct any remuneration for his personal services nor his living expenses.

Appeal from Clay Circuit Court.

CHARLES N. HOBSON, ROY W. HOUSE and A.D. HALL for appellant.

MURRAY L. BROWN and A.T.W. MANNING for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

Millard Hubbard and A.S. Ledford were candidates for the office of sheriff of Clay county at the November election, 1925. The certificate of election was issued by the election commissioners to Hubbard. Burchell who was the Democratic nominee for the office of sheriff was also voted for. He contested Hubbard's election and the right of Ledford to the office. The trial court found in favor of Hubbard, and from that finding Ledford prosecuted an appeal. Hubbard also appealed. Ledford v. Hubbard, 219 Ky. 9, 292 S.W. 345. Ledford on the appeal was declared elected.

In January, 1926, Hubbard qualified, assumed the duties of the office, and continued to discharge them until the 15th day of December, 1926, when Ledford qualified and assumed the obligations of the office. He filed this action in the Clay circuit court to recover of Hubbard the emoluments of the office during the period Hubbard served. The latter defended on the ground that the expenses of the office had exceeded the receipts. Ledford seasonably entered a motion requesting the regular judge of the court to vacate the bench. His motion was overruled. He asked this court for a writ of prohibition against the judge to prevent him trying the case. We "held that the court was without authority thus to control the action of the trial court, and that whatever relief the plaintiff was entitled to could be obtained by an appeal from any judgment which might be rendered against him. Ledford v. Lewis, 227 Ky. 396, 13 S.W. (2d) 276." The case proceeded to a trial in the circuit court, and judgment was rendered in favor of Hubbard, from which Ledford prosecuted an appeal, insisting that the court erred in not vacating the bench as well as in his decision on the merits. Without considering the merits, we ruled that the judge was disqualified and should have sustained Ledford's motion to vacate the bench. Ledford v. Hubbard, 236 Ky. 373, 33 S.W. (2d) 345, 346.

The case is again here for a review of a judgment on the merits.

There is neither a constitutional nor a statutory provision controlling the question now presented for determination. Section 246 of our Constitution limits the salaries of public officers, except the Governor, to $5,000 per annum, "independent of the compensation of legally authorized deputies and assistants, which shall be fixed and provided for by law."

The liability of Hubbard and the right of Ledford, in the circumstances, are controlled by the common law which is conceded to be in force in this commonwealth. Section 233, Constitution of Kentucky.

A de jure officer may at common law recover the fees or salary paid to a de facto officer and his right to recover does not accrue until the right to the office is determined by a court of competent jurisdiction. Kreitz v. Behrensmeyer, 149 Ill. 496, 36 N.E. 983, 24 L.R.A. 59; Atchison v. Lucas, 83 Ky. 451; United States ex rel. Crawford v. Addison, 6 Wall. 291, 18 L. Ed. 919; Naylor v. Carter, 167 Okl. 125, 27 P. (2d) 843, 93 A.L.R. 254, and annotation.

There is a distinction between the liability of an usurper and that of a de facto officer who in good faith, under apparent color of title, discharges the duties of the office and while so doing receives the emoluments.

Hubbard was in law a de facto officer, acting in good faith, under a certificate of election during the pendency of the contest, and therefore was not an usurper. Eubank v. Montgomery County, 127 Ky. 261, 105 S.W. 418, 32 Ky. Law Rep. 91, 128 Am. St. Rep. 340, 16 Ann. Cas. 483; Scholl v. Bell, 125 Ky. 750, 102 S.W. 248, 31 Ky. Law Rep. 335; Howard v. Burke, 248 Ill. 224, 93 N.E. 775, 140 Am. St. Rep. 159.

The position of Hubbard here is identical with that of a person who,...