O'Malley v. Parsons

• Decision Date: 24 December 1938
• Docket Number: 6598
• Citation: O'Malley v. Parsons, 59 Idaho 635, 85 P.2d 739 (Idaho 1938)
• Court: Idaho Supreme Court
• Parties: P. C. O'MALLEY, Respondent, v. HARRY C. PARSONS, State Auditor of the State of Idaho, Appellant

85 P.2d 739

59 Idaho 635

P. C. O'MALLEY, Respondent, v. HARRY C. PARSONS, State Auditor of the State of Idaho, Appellant

No. 6598

Supreme Court of Idaho

December 24, 1938

STATES - PUBLIC OFFICERS-DEFICIENCY EXCEEDING APPROPRIATION-PENALTY FOR CREATING-RIGHTS TO SALARY.

1. Before penalty prescribed by sec. 57-1017, I. C. A., can be invoked against or applied to an officer, it must be judicially determined in some appropriate proceeding, to which he is made a party, that he has been guilty of the offense charged. (I. C. A., sec. 57-901, subd. 7; secs 57-1015 to 57-1017.)

2. An accused, whether he be a public officer or a private citizen cannot be adjudged guilty of a crime and ineligible to hold office, without first being accused and tried in accordance with the law of the land.

3. The alleged fact that state insurance manager had created a deficiency exceeding his appropriation did not subject him to pen- alty of statute providing for disqualification from holding state office, where it had not been judicially determined that he created a deficiency. (I C. A., secs. 57-901, subd. 7, 57-1015 to 57-1017.)

4. A de facto officer who in good faith discharges the duties of an office while there is no other claimant to such office, and in fact no de jure officer, may collect the salary and emoluments of the office.

5. Where it appeared that state insurance manager had been a duly qualified and acting official, that he continued to act as such until date on which he contracted an obligation in excess of appropriation made by legislature, that he continued to hold office, notwithstanding alleged forfeiture of office by his act creating the deficiency claim, that thereafter the Governor reappointed him to the same office and that there was never at any time any other claimant to the office, he was entitled to receive salary as state insurance manager. (I. C. A., secs. 57-901, subd. 7, 57-1015 to 57-1017.)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Bert A. Reed, Presiding Judge.

Application for writ of mandate, to require defendant, as State Auditor to issue warrant in payment of plaintiff's salary as State Insurance Manager. Judgment for plaintiff. Affirmed.

Judgment affirmed. No costs awarded.

J. W. Taylor, Attorney General, and R. W. Beckwith, E. G. Elliott, L. B. Quinn and D. W. Thomas, Assistant Attorneys General, for Appellant.

Every civil office shall become vacant upon the happening of either of the following events at any time before the expiration of the term of such office: A forfeiture of office as provided by any law of this state. (Secs. 57-901, subd. 7, 57-1015, 57-1016, 57-1017, I. C. A.; 46 C. J. 974, pp. 120, 984; People v. Shorb, 100 Cal. 537, 35 P. 163, 38 Am. St. 310; McCluskey v. Hunter, 33 Ariz. 513, 266 P. 18; State v. Fousek, 91 Mont. 448, 8 P.2d 791, 84 A. L. R. 303.)

The salary of a public office attaches to the office itself and a person ineligible to hold such an office is not entitled to the salary thereof. (Dotson v. Cassia County, 35 Idaho 382, 206 P. 810; 46 C. J. 1059; Mechem on Officers, par. 331; Throop on Public Officers, par. 517.

Charles F. Reddoch and J. R. Smead, for Respondent.

An actual incumbent of a public office who is an officer de facto, is entitled to the compensation attached to the office, there being no adverse claimant or de jure officer. ( Dotson v. Cassia County, 35 Idaho 382, 206 P. 810; Gorman v. County Commrs., 1 Idaho 655; Peterson v. Benson, 38 Utah 286, 112 P. 801, Ann. Cas. 1913B, 640, 32 L. R. A., N. S., 949; State v. Otero, 33 N. M. 310, 267 P. 68; Naylor v. Carter, 167 Okla. 125, 27 P.2d 843, 93 A. L. R. 254; 46 C. J., p. 1059, sec. 377, 22 R. C. L., p. 599, sec. 321.)

AILSHIE, J. Holden, C. J., and Budge and Givens, JJ., concur. MORGAN, J., Dissenting.

OPINION

AILSHIE, J.

Respondent was manager of the State Insurance Fund several years prior to January, 1937, and he alleges:

"That plaintiff herein was on January 25, 1937, by Hon. Barzilla W. Clark, Governor of the State of Idaho, given a temporary appointment, as Manager of State Industrial Insurance, within the Department of Finance of the State of Idaho; that he thereupon duly qualified as such, and served in said capacity under said appointment until May 18, 1937, on which date, a new certificate of appointment was issued to him by the Governor of the State of Idaho, attested by the Secretary of State, under the Great Seal, effective on said last mentioned date to January 2, 1939."

He then alleged that he discharged the duties of the office of state insurance manager for the month of May, 1937, and the first three days of June following, for which service he was entitled to receive a salary of $ 275, and that the payroll of the state insurance fund was duly certified by the state board of examiners to the auditor, showing respondent entitled to a warrant or warrants aggregating said sum; and that the auditor neglected and refused to issue his warrant therefor; and respondent prayed for a writ of mandate commanding the auditor to discharge his official duty and issue such warrant.

The auditor demurred to the petition and at the same time answered, and the substance of the answer, allegations and admissions, amounts to this: That the respondent did occupy the position of manager of the State Industrial Insurance at the times and in the manner alleged but that he was not entitled to collect any salary for the reason that he was disqualified from holding the office at any time subsequent to January 1, 1935, by reason of having violated secs. 57-1015 and 57-1016, I. C. A., and thereby incurred the penalties and disqualifications prescribed by sec. 57-1017. It is further alleged by the answer that the decision rendered by this court May 25, 1937, in the case of State ex rel. Hansen v. Parsons, 57 Idaho 775, 69 P.2d 788, in effect adjudged respondent guilty of violating the foregoing enumerated sections of the statute and thereby, in effect, found respondent disqualified to hold office or to be employed in any manner by any state agency for a period of four years.

The case was heard by the trial court on the complaint and answer and demurrers thereto and the court found in favor of plaintiff and entered judgment directing the issuance of a permanent writ of mandate directed to appellant to issue a warrant in favor of respondent for the sum due. From the judgment so entered this appeal has been prosecuted.

Counsel for appellant seem to place their chief reliance on the decision of this court in State ex rel. Hansen v. Parsons, supra, and state in their brief as follows: "It is the position of the defendant that the office as Manager of the State Insurance Fund became ipso facto vacant and the plaintiff ineligible to hold any state office for four years from the time and happening of the event in which he exceeded his appropriations without any judicial determination whatsoever."

Counsel for appellant either misapprehend the holding of the court in the Hansen case or, apprehending it, overlook the fact that respondent was not a party to that action and that his eligibility to hold office or liability to punishment for a misdemeanor was not before the court and not the subject of decision in that case. The opinion itself in that case stated the question to be decided distinctly and succinctly. It is there said:

"The only question with which we are confronted is: Did the legislature have the constitutional power to enact chapter 46 (House Bill No. 74), First Extraordinary Session of the Legislature of 1935?"

It was stipulated in that case that the appropriation had been exceeded by claims against it in the sum of $ 1402.85. (See, also, chap. 46, p. 129, 1935 Sess. Laws, First Extraordinary Sess.) After a somewhat extended analysis of the bill and discussion of its purposes and the power of the legislature to enact it, the opinion concludes: "We conclude that the act in question (chap. 46 of the 1935 Sess. Laws, 1st ex. Sess.) violates section 18, article 4 and paragraph 18, section 19, article 3 of the Constitution." On rehearing Mr. Justice Holden made the following statement in his concurring opinion:

"However, the brief filed by the friends of the court leads me to point out: That Mr. P. C. O'Malley, former manager of the State Insurance Fund, is not a party to this action; that he is not on trial in this case; that this court has not adjudged him guilty of any misconduct whatsoever, and that this court has not decided that he is ineligible to hold the office of manager of that fund."

It is clear that the decision of this court in the Hansen case was not an adjudication against respondent, nor did it become res adjudicata as to any of his rights. However, it is contended by the attorney general that immediately upon the respondent creating any deficiency exceeding his appropriation, in violation of secs. 57-1015 and 57-1016, he thereby ipso facto incurred the pains and penalties prescribed by sec. 57-1017, which reads as follows:

"Any person violating the provisions of the two preceding sections shall be deemed guilty of a misdemeanor, and shall be disqualified from holding any state office or from being employed by the state of Idaho or by any board of regents or board of trustees of any state institution for a period of four years from and after the commission of the offense."

The foregoing contention is then followed by citation of subd. 7 of sec. 57-901, which provides: "Every civil office shall be vacant upon the happening of either of the following events at any time before the expiration of the term of such office, . . . . 7. A forfeiture of office as provided by any law of the state."

Now it will be noticed that this...