Nall v. Coulter

• Citation: 78 S.W. 1110,117 Ky. 747
• Parties: NALL v. COULTER, State Auditor.
• Decision Date: 02 March 1904
• Court: Court of Appeals of Kentucky

78 S.W. 1110

117 Ky. 747

NALL v. COULTER, State Auditor.

Court of Appeals of Kentucky.

March 2, 1904

Appeal from Circuit Court, Franklin County.

"To be officially reported."

Action by I. B. Nall against Gus G. Coulter, as State Auditor. From a judgment for defendant, plaintiff appeals. Affirmed.

Hazelrigg Chenault & Hazelrigg, for appellant.

Atty Gen. Hays, for appellee.

NUNN J.

In the election of state officers in the month of November, 1899 the appellant, Nall, was a candidate for the office of Commissioner of Agriculture, one Throckmorton being the opposing candidate. On the face of the returns Throckmorton was declared elected by the canvassing board, a board duly created by and under the laws of the commonwealth, whose duty it was to count the votes and determine for whom the greater number of votes were cast. It was not the duty of this board to pass upon the legality of the votes cast. On January 1 1900, Throckmorton took the oath of office, and entered upon the duties thereof. But after the canvassing board had declared Throckmorton duly elected on the face of the returns, the appellant, Nall, instituted a contest, claiming that because of irregular acts done, whereby the votes counted for Throckmorton were procured, and by reason of illegal votes cast at the election, he was entitled to the office. The contest board decided that Nall was the person elected. Upon this finding Nall instituted a proceeding to oust Throckmorton, who refused to give up the office. After this court decided that Nall was entitled to the office, Throckmorton vacated, and appellant entered and assumed the duties of the office. It appears that the then auditor, Sweeney, paid Throckmorton his salary for the months of January and February. The present suit was brought by appellant against Auditor Coulter to compel him to issue his warrant on the Treasurer of the Commonwealth for the sum of $382.25, the amount of the salary due him from the 1st day of January to the 25th of February, 1900, the date when the contest board declared appellant entitled to the office. In other words, appellant claims that by reason of his being entitled to the office on the 25th of February he is entitled to the salary due from the state beginning January 1, 1900. The appellee claims that the state paid this salary to Throckmorton, who was in the office, attending to the duties thereof, and who had been duly declared elected by the board of election commissioners, and held the apparent legal title to the office; that, if the appellant is entitled to this salary, he must look to Throckmorton for it, who received it, and contested with him the right to the office.

We are of the opinion that appellee's contention is the correct one. We have not been referred to, nor have we been able to find, any case decided by this court directly in point; but the courts of many states, as well as the English courts have passed upon the question. The decided weight of authority, both in numbers and reason, uphold the principles contended for by appellee. We have been referred to many cases apparently holding the opposite rule, but upon a close examination of them it appears that many are not in conflict; some few of them apply to usurpers, having no color of right or title to the office; some few have reference to cases where the appointment or election of the person who held the office and performed its duties was void. The cases of Stone v. Caufield (Ky.) 55 S.W. 924, Gorley v. City of Louisville (Ky.) 55 S.W. 886, also same case reported on first appeal, 47 S.W. 263, are cited by appellant. The right of Caufield to compel the auditor to issue to him a warrant for his salary as clerk of the penitentiary was upon the idea that his removal from office by the acts of the state's officials was a nullity. This precise principle was involved in the Gorley Case, supra. In these cases the state and city officials professing to act for and on account of the state and city committed illegal and void acts in the removal of Caufield and Gorley. At least it appears that it was upon these principles that they might be permitted to recover their salaries from the state and city. The case at bar is different. Throckmorton was at least a de facto officer, and not a usurper, and it is not charged that the state board of canvassers committed any illegal or void act with reference to granting Throckmorton a certificate. In Am. & Eng. Enc. of Law (2d Ed.) vol. 8, p. 783, it is said: "To constitute a person an officer de facto, there must be some facts, circumstances, or conditions which would reasonably lead persons who have relations or business with the office to recognize and treat him as the lawful incumbent, and submit to or invoke his official action without inquiry as to his title." Again, on page 794: "Color of title to an office is defined to be 'that which in appearance is title, but which in reality is no title.' It is this color of title, or, it has been said, color of authority, which distinguishes the de facto officer from a mere intruder or usurper, whose acts are absolutely void." It cannot be said that Throckmorton was a mere intruder or usurper, but, on the contrary, he assumed the duties of the office with the legal certificate of the board of canvassers, and so remained in office until February 25, 1900, when the board of contest declared appellant elected and entitled to the office. The then auditor, Sweeney, had the right to believe that Throckmorton was then the legal officer. Upon what principle of reasoning can it be required of the auditor to investigate and determine at his peril whether or not a person has been legally elected to an office before he draws his warrant upon the treasurer for his salary? To require the auditor to pay at his peril, or withhold salaries until all contests were finally settled, would in many cases leave the state without officials to perform its service. In the same volume of the Am. & Eng. Enc. of Law, p. 813, it is said: "The general rule is that a state, county, or municipality which, before judgment of ouster against a de facto officer, has paid him the salary of the office due at the time of payment, is...