Rasmussen v. Board of County Commissioners of Carbon County

• Citation: 56 P. 1098,8 Wyo. 277
• Parties: RASMUSSEN v. BOARD OF COUNTY COMMISSIONERS OF CARBON COUNTY
• Decision Date: 24 April 1899
• Court: Wyoming Supreme Court

56 P. 1098

8 Wyo. 277

RASMUSSEN v. BOARD OF COUNTY COMMISSIONERS OF CARBON COUNTY

Supreme Court of Wyoming

April 24, 1899

ON reserved questions from the District Court, Carbon County HON. DAVID H. CRAIG, Judge.

The material facts are stated in the opinion.

N. E Corthell, for the plaintiff.

The judgment in the election contest had the same force and effect as to the result of the election as if it had been so declared by the canvassers. (L. 1890, Ch. 80, Sec. 161; State v. Johnson, 17 Ark. 407; Carroll v Siebenthaler, 37 Cal. 195; Swann v. Turner, 23 Miss, 565; Glascock v. Lyons, 20 Ind. 1; Kreitz v. Behrensmeyer (Ill.), 36 N.W. 985; People v Pease, 27 N.Y. 56; Shannon v. Baker, 31 Ind. 391.) The right, therefore, of one who holds office by election arises from the fact and at the time of his election. That is his title. It dates from the time of his election. What does a successful candidate acquire by election? An office is a "right to exercise a public (or private) employment, and to take the fees and emoluments thereunto belonging." (2 Blackstone, 36.) The term embraces the ideas of tenure, devotion, emolument, and duties. (U. S. v. Hartwell, 6 Wall., 393.) The salary is an incident to the office, and can not be detached from it. It is incident to the office and not to the performance of the services. (Blair v. Marye, 80 Va. 492; Kendall v. Raybauld (Utah), 44 P. 1034; People v. Oulton, 28 Cal. 44; People v. Smith, Id., 21; Carroll v. Siebenthaler, 37 Id., 195; People v. Brennan, 30 How. Pr., 417; People v. Tieman, 30 Barb. 193; Fitzsimmons v. Brooklyn, 102 N.Y. 538.) Hence no one but a de jure officer can recover the salary, although the duties might have been performed and the functions thereof exercised. The lawful title is put in issue whenever such recovery is sought. (Meagher v. Story, 5 Nev., 245; Carroll v. Siebenthaler, 37 Cal. 195; People v. Brennan, 30 How. Pr., 417; Kimball v. Alcorn,, 45 Miss. 158; McCue v. Wapello, 56 Iowa 698; Dolan v. Mayor, 68 N.Y. 279; Mayor, etc., v. Hays, 25 Ga. 590; People v. Van Nostrand, 46 N.Y. 382.) And it is generally held that the de jure officer may recover from the incumbent the salary paid to him. (Kreitz v. Behrensmeyer, 36 N.E. 984; People v. Pease, 27 N.Y. 56; Dolan v. Mayor, 68 N.Y. 280; State v. Holmes, 10 So. 172; Wenner v. Smith, 4 Utah 238.)

The right of the de jure officer can not be taken away or defeated by a payment to an incumbent. (Board v. Burns, 3 Wyo. 705; Guthrie v. Board, 7 Id., 95; State v. Carr (Ind.), 28 N.E. 88.) A debtor can not discharge his debt by paying it to third person without the consent of his creditor. (Pimental v. Marques (Cal.), 42 P. 159; Aldritt v. Panton (Mont.), Id., 767.)

The doctrine flows logically from these propositions that the de jure officer may recover the salary from the county, although it has been paid to another who may have actually performed the duties. (Bastrop v. Hearn (Tex.), 8 S.W. 302; Dorsey v. Smith, 28 Cal. 21; Carroll v. Siebenthaler, 37 Cal. 195; Ward v. Marshall (Cal.), 30 P. 1113; State v. Carr (Ind.), 28 N.E. 90; Andrews v. Portland (Me.), 10 A. 458; Stadler v. Detroit, 13 Mich. 346; State v. Carr, 3 Mo. App., 6; Lee v. Mayor (Del.), 40 A. 663: Selby v. Portland (Ore.), 12 P. 377; Phila. v. Rink (Pa.), 2 A. 505; Memphis v. Woodward, 12 Heisk., 499; Williams v. Clayton, 6 Utah 86; Kendall v. Raybauld, 44 P. 1036; McVeany v. Mayor, 80 N.Y. 195; Fitzsimmons v. Brooklyn, 102 N.Y. 336.) The question of notice seems to be altogether immaterial, but the fact is shown that the commissioners had notice of the contest.

F. Chatterton, for defendant.

It is contended on behalf of defendant that, 1. In the absence of fraud, payment of salary to a de facto officer bars an action by the de jure officer. 2. Disbursing officers are not judicial officers, and may rely upon the apparent title of the de facto officer, and treat him as de jure. 3. The salary of an office is a reward for, grows out of, and is dependent on, the actual rendition of services. 4. An office, in this country, is not held by grant or contract; is not a vested interest, and there is no property right in its prospective emoluments. 5. One entitled to an office is not entitled to the salary thereof for any period prior to his qualification. 6. Recovery can only be had for such period as the plaintiff was actually an incumbent of the office. 7. The defendant, not being a party to the contest proceedings, the individual knowledge of the commissioners, can not charge the defendant with notice to effect liability. 8. Where all allegations of the petition are true, and yet defendant is not liable, the petition will fail to state facts sufficient to constitute a cause of action. As to this last point we cite 1 Ency. L., 517; Bliss Code Pl. 413, 414; Pursel v. Deal, 16 O., 295; Biers v. Dalles, Id., 343; Franklin v. Kirby, 25 Wis. 496.

In this class of cases a distinction is made between those cases where the de facto officer obtained the office by fraud, unlawfully, and as an usurper, and those cases where he came to the office honestly and with color of title. In this case the de facto officer had color of title, and was not guilty of any fraud. It would be unjust to require fiscal officers to pay salaries, if they were not held justified in relying on the apparent title of the officer, especially when such title was obtained, as in this case, honestly, without fraud, and by due course of law; and equally unjust to the government, if after its officers have acted honestly it could be required to pay the salary a second time, and to one who had not acted or even offered to act. The disbursing officer acts ministerially. (Parker v. Dakota, 4 Minn. 59; Dolan v. Mayor, 68 N.Y. 281.)

We therefore urge that the payment to a de facto officer is a good defense to this action, and this seems to be supported by the great weight of authority. (Dolan v. Mayor, supra; McVeany v. Mayor, 80 N.Y. 185; Terhune v. New York, 88 N.Y. 247; Auditors v. Benoit, 20 Mich. 176; Shaw v. Pima Co. (Ariz.), 18 P. 273; Saline Co. v. Anderson, 30 Kan. 298; Smith v. Mayor, 37 N.Y. 518; Connor v. Mayor, 5 N.Y. 285; State v. Milne, 36 Neb. 301; Demarest v. New York, 74 Hun., 517; Demarest v. Mayor, 147 N.Y. 206; Michel v. New Orleans, 32 La. Ann., 1094; McAffee v. Russell, 29 Miss. 84; Wheatly v. Covington, 11 Bush, 18; McManus v. Brooklyn, 25 N.Y.S. R., 939; Gorman v. Boise Co., 1 Ida., 655; State v. Clark, 52 Mo. 508; Westberg v. Kansas, 64 Mo. 493; Steubenville v. Culp, 38 O. St., 18; Scott v. Crump (Mich.), 64 N.W. 1; Newark v. McDonald (N. J.), 32 A. 384; Fuller v. Roberts (S. D.), 68 N.W. 308; Chandler v. Hughes Co. (S. D.), 67 Id., 946.)

The salary is not an incident to the office alone, but under our statutes is a reward for, grows out of, and is dependent upon, actual rendition of services. (L., 1895, c. 76; State v. Barnes, 24 Fla. 29; 38 O. St., 18; 52 Mo. 508, and other cases cited above.) One holding a certificate of election, from the proper authorities, is entitled to the possession of the office, although his election may be questioned. (People v. Head, 25 Ill. 325; People v. River, 27 Ill. 242.) It has been held that a de facto officer may recover upon the principle that salary is a reward for the rendition of services. (Envin v. Jersey City, 37 A. 732; Stuhr v. Curran, 44 N.J.L. 181; Queen v. Mayor, 12 Ad. & El., 702.) One, although with a right to do so, who has not assumed an office is not an incumbent in any sense. (King v. Swyer, 10 B. & C., 486.) Plaintiff can not recover for the time between judgment and qualification. (Chandler v. Hughes, 67 N.W. 946; Albaugh v. State (Ind.), 44 N.E. 355.) Defendant had a right to deal with Baker as the de jure officer. (State v. Durkee, 12 Kan. 308; Leach v. Cassidy, 23 Ind. 449; Auditors v. Benoit, 20 Mich. 176; State v. Williams, 5 Wis. 308; Venable v. Card, 2 Head, 582; Saline Co. v. Anderson, 20 Kan. 298.) The judgment in the contest only establishes the right of the successful party to a certificate of election as evidence of title, but the evidence of title does not install him in the office and give him a right to the salary. Before he can take the office or have a right to the salary, he must take and file an oath and furnish the requisite bond.

N. E. Corthell, for plaintiff, in reply.

Fraud is imputed to the acts of the board, at least in so far as payments were made after notice that the incumbent had been adjudged not entitled to the office. In view of the contest, and the knowledge thereof on the part of the disbursing officers, there was no "apparent title" in the incumbent to be relied on. They were not ignorant of the facts, and ignorance of the law furnishes no excuse. (Broome's Leg. Maxims; 24 Fed. C., 829; 98 U.S. 145; 1 Pet., 15.) While expressions in the authorities are abundant that salary is dependent upon actual rendition of services, the proposition must be taken with this qualification, that a readiness and willingness to perform may stand for actual performance, where the employer prevents performance. It was not required of plaintiff that he should take the oath previous to judgment in his favor; the law does not require the doing of a vain or useless thing.

KNIGHT, JUSTICE. POTTER, C. J., and CORN, J., concur.

OPINION

KNIGHT, JUSTICE.

At the general election, held in 1896, plaintiff was candidate for the office of county treasurer of Carbon County. The returns of the election as canvassed gave him twenty-seven votes less than Fred M. Baker, the opposing candidate, and a certificate of election was issued to said Baker, under which he duly qualified and assumed the duties of said office. Plaintiff Rasmussen instituted proceedings to contest the election of Baker within the time and as...