McCollough v. Douglas County
| Decision Date | 15 November 1948 |
| Docket Number | 32383. |
| Citation | 34 N.W.2d 654,150 Neb. 389 |
| Parties | McCOLLOUGH v. DOUGLAS COUNTY. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The requirement of section 23-135, R.S. 1943, that claims against a county shall be filed with the county clerk within ninety days attaches only to claims ex contractu.
2. The board of county commissioners acts quasi judicially in passing upon claims against the county when their action is not a mere formal requisite to the issuance of a warrant, but involves the determination of questions of fact on evidence or the exercise of discretion in ascertaining or fixing the amount to be allowed.
3. Where the salary or compensation of a public officer is fixed by statute no judicial action in that respect is required and in consequence the provisions of section 23-135, R.S.1943 have no application.
4. An 'officer de jure' is one who is in all respects legally appointed and qualified to exercise the office; one who is clothed with full legal right and title to the office in other words, one who has been legally elected or appointed to an office, and who has qualified himself to exercise the duties thereof according to the mode prescribed by law.
5. A person is a de facto officer where the duties of the office are exercised (1) without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; (2) under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like, (3) under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; (4) under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.
6. The de facto officer doctrine does not rest upon a vindication of the right of one to occupy a position or to perform official acts but upon the principle of protection to the interests of the public and third parties.
7. The performance of the duties of an office by a de facto incumbent gives him no claim to the official compensation.
8. In this jurisdiction the right of a public officer to compensation of the office occupied by him is incident to and dependent upon his right and title to the office.
9. It was the intent of the Legislature in the enactment of sections 23-1101 [34 N.W.2d 656] and 23-1110, R.S.1943, to designate the position of chief deputy clerk of the district court an office and the holder of the position an officer.
James J. Fitzgerald and Theodore L. Richling, both of Omaha, for appellant.
Eugene D. O'Sullivan, Arthur J. Whalen, Ernest S. Priesman and Eugene D. O'Sullivan, Jr., all of Omaha, for appellee.
Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ.
This action as instituted was a claim filed by Maxwell F. McCollough plaintiff in the district court and appellee here, against the County of Douglas, Nebraska, defendant in the district court and appellant here, on August 27, 1945, wherein McCollough claimed that the County of Douglas was indebted to him in the amount stated at one place in the claim to be $6,755 and in another $6,785 which he alleged was the difference between the salary of a deputy clerk of the district court for the County of Douglas which was paid to him for the period beginning January 1, 1940, and ending June 30, 1945, and the salary of chief deputy which position he asserted that he held and occupied for the period named. McCollough will be referred to hereinafter as plaintiff and the County of Douglas as defendant.
The board of commissioners of Douglas County denied the claim on August 28, 1945. Following the denial of the claim plaintiff in due form of law appealed the decision to the district court wherein issues were joined on pleadings. Following the joinder of issues a jury was waived and trial was had to the court. On the trial plaintiff recovered a judgment for $4,970 with interest in the amount of $488.15 and costs. The district court sustained the position and contention of plaintiff but gave judgment for the four-year period preceding and including June 30, 1945. The earlier period was excluded on the ground that compensation therefor was barred by the appropriate statute of limitations. This exclusion need not be discussed or further referred to since the appeal does not bring the matter into question and no cross-appeal was taken. From this judgment the defendant has appealed.
In order that the matters presented by this appeal may be properly understood it becomes necessary to make reference to certain statutes which were in force and effect at the date of the commencement of the period covered by the claim and to subsequent statutory changes which came about in part by amendment and in part by repeal during that period and which became controlling with the effective date of the changes and to apply thereto the facts as disclosed by the record. The provisions to be considered and applied relate generally to deputy clerks of district courts and particularly to chief deputy and deputy clerks of the district court in the county of Douglas. At the commencement of the time in question and continuing to August 29, 1943, the provisions of the Compiled Statutes of 1929 were controlling. From and after August 29, 1943, the provisions of the Revised Statutes of 1943 became controlling.
Section 27-401, Comp.St.1929, is in part as follows: 'The clerk of the * * * several district courts in this state shall have power to appoint deputies; * * * and provided further, in counties having over one hundred thousand inhabitants, the clerk of the district court shall appoint one chief deputy, whose salary shall be three thousand dollars per annum.'
Section 33-109, Comp.St.1929, is in part as follows: 'If the clerk of the district court thinks necessary, said clerk may with the approval of the county board be allowed one deputy at a compensation of not to exceed one-half the amount paid the clerk of the court, * * *; Provided further, that in counties having one hundred fifty thousand inhabitants the clerk of the district court shall have the following deputies and assistants for such periods and at such salaries as he may determine, with the approval of the county board, all to be paid monthly out of the general fund of the county to-wit: One chief deputy at a salary of three thousand dollars per annum; one deputy and disbursing clerk, whose salary shall not exceed twenty-five hundred dollars per annum; one bookkeeper and cashier, whose salary shall not exceed twenty-one hundred dollars per annum; five deputies or assistants whose salaries shall not exceed eighteen hundred dollars each per annum; * * *.'
Section 25-2219, R.S.1943, is as follows: 'Any duty enjoined by this code upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.'
This provision was in full force and effect during all of the time with which this action is concerned.
By action of the Legislature in 1943, Laws 1943, c. 90, section 27-401, Comp.St.1929, was repealed and section 24-401, R.S.1943, was enacted in its place, the pertinent part of which is as follows: 'The clerk * * * of the several district courts in this state shall have power to appoint deputies; * * *.'
This provision became effective August 29, 1943. It will be noted that in it there appears no reference to a chief deputy or a salary for such an office or position.
Section 33-109, Comp.St.1929, was repealed by action of the Legislature in 1943. The repeal became effective August 29, 1943. No similar provision was enacted.
By action of the Legislature in 1943 section 23-1110, R.S.1943, was enacted, which is in part as follows: 'In counties having a population of class (8), the county officers shall each receive as their annual salaries, to be paid monthly out of the general fund of the county, as follows: * * * deputy clerk of the district court, who acts as chief deputy, the sum of thirty-two hundred dollars; other deputy clerks of the district court, not to exceed the sum of twenty-seven hundred dollars; * * *.'
All of these provisions have reference to the county of Douglas since this county met the requirements as to population and classification specified therein.
The rights of plaintiff and the liabilities of the defendant, if any, must, up to August 29, 1943, be ascertained with reference to the statutory provisions effective up to that time and thereafter with reference to the provisions which were effective on or after that date.
The district court found that plaintiff was de facto chief deputy clerk of the district court from January 1940 to August 29, 1943, and acting chief deputy thereafter until May 29, 1945, and accordingly rendered judgment for the difference between the salary received by plaintiff as deputy clerk of the district court and the statutory salary of chief deputy and of deputy acting as chief deputy except for that portion of the difference which it was concluded was barred by the statute of limitations.
There are nine assignments of error urged as grounds for reversal. The first seven amount to an assertion that the judgment may not be sustained for the reason that during none of the time mentioned was plaintiff de jure or de facto chief deputy or acting...
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