Parker v. Supervisors Dakota County

• Decision Date: 01 January 1860
• Citation: 4 Minn. 30
• Parties: EDWARD F. PARKER vs. THE BOARD OF SUPERVISORS OF DAKOTA COUNTY.
• Court: Minnesota Supreme Court

Page 30

4 Minn. 30

(4 Minn. R. p. 59.)

EDWARD F. PARKER vs. THE BOARD OF SUPERVISORS OF DAKOTA COUNTY.

Supreme Court of Minnesota.

Error to the district court, Dakota County.

The plaintiff in error was elected district attorney for Dakota County, for 1858-59. Seagrave Smith, claiming to be elected to the office, and holding a certificate of election, entered upon and performed its duties till ousted by a judgment against him, and received his salary during such time. The plaintiff in error presented his claim for salary during that time to the Board of Supervisors, who disallowed it, and on appeal to the district court, judgment was rendered against him, on an agreed statement of the facts.

Points and authorities for plaintiff in error: —

1. Smith not being an agent or assignee of the plaintiff in error, who was de facto and de jure the district attorney, the payment of money to him by the county for actual or supposed services rendered the county is no payment of the salary to the legal officer. Chitty on Cont. 643; Story on Cont. 1081, § 978.

2. The salary belongs to the officer de jure. Blackwell on Tax Titles, 114, 115; Col. Stat. of Minn. 165, § 10.

3. If Smith was, as claimed, a district attorney de facto, and not de jure, as admitted, he was entitled to no emolument of profit from the office. Blackwell on Tax Titles, 118, 119; U. S. Digest, 466, § 53 (supplement).

4. It is no defense, that the defendant paid a third party the salary of the office of district attorney without authority from the plaintiff, who only had the right to receive it. Chitty on Cont. 643; Story on Cont. 1081, § 978.

Points and authorities for defendants in error: —

1. The act of an officer de facto, who comes into office by color of title, are valid so far as the public and third persons are concerned until he is ousted by quo warranto. Blackwell on Tax Titles, 116, 117, 118, and cases there cited.

2. The board of supervisors of Dakota County was a ministerial body, and had no right to decide who was the district attorney of Dakota County de jure. The title of an officer de facto cannot be called in question in a proceeding to which he is not a party. Blackwell on Tax Titles, 116; Morse v. Calley, 5 N. H. 222; The People ex rel. Bush and Higby v. Collins, 7 Johns. 549.

3. The salary was payable to the officer holding the office, and not to the office. C. L. 165, § 10; Conner v. The Mayor, etc., of New York, 5 N. Y. 285.

Edward F. Parker, plaintiff in error, in person.

John R. Clagett and F. M. Crosby, for defendant in error.

FLANDRAU, J.

The facts stipulated by the parties show clearly that although Parker was entitled to the office of district attorney of Dakota County, and was the officer de jure, yet Smith was in possession of the office under color of an election, and was fortified by the certificate of election from the proper officer. The question is (the board having paid the salary to Smith), were they justified in so doing, and can Parker maintain an action against them for the salary during the period that Smith held the office de facto, and received the salary? The stipulation declares that "Parker acted as district attorney whenever called upon during the years 1858 and 1859." This fact could only have been inserted in the stipulation to show notice in the board of his claim to the office, because it could not have effect in any other way that I can see. There cannot be two persons in possession of the same office at the same time, the one de jure and the other de facto. Where there is but one office, there can be but one in possession of it. Boardman and Perry v. Halliday and others, 10 Paige, 223. Parker can take no advantage from his having acted as district attorney, if he admits that Smith was the officer de facto, because it is impossible that Smith and himself could both stand in that relation to the same office. If this fact was inserted in the...