Shaw v. Pima County

Citation18 P. 273,2 Ariz. 399
Decision Date25 May 1888
Docket NumberCivil 226
PartiesE. O. SHAW, Plaintiff and Appellant, v. COUNTY OF PIMA, Defendant and Appellee
CourtSupreme Court of Arizona

APPEAL from a Judgment of the District Court of the First Judicial District in and for the County of Pima. Wm. H. Barnes, Judge.

Affirmed.

Cameron H. King, Goodrich, Smith, Street & Goodrich, Thos. D Satterwhite and Geo. L. Hood, for Appellant.

The salary and emoluments of an office are incident to the title to the office. See dissenting opinion of Cooley, Judge, in Wayne Co. v. Benoit, 20 Mich. 176, 4 Am. Rep. 382; People ex rel. Morton v. Tieman, 30 Barb. 193; People v. Hopson, 1 Denio, 579; Riddle v. The County of Bedford, 7 Serg. & R. 386. A de jure officer has the sole right to the salary of his office, and may recover the same from the public treasury, although it has been paid to an intruder. People v. Nostrand, 46 N.Y. 375 and 382; People v. Tieman, 8 Abb. Pr. 35 and 361; Mayor v. Flagg, 6 Abb. Pr. 296 and 302; Carroll v. Siebenthaler, 37 Cal. 193; People v Smyth, 28 Cal. 21; People v. Carter, 29 Barb 208; Nichols v. McLean, 63 How. Prac. 448; Stadler v. City of Detroit, 13 Mich. 346; Selby v. City of Portland, 14 Or. 243, 12 P. 377.

Payment to another even if he were a de facto officer is no defense to an action by the officer de jure for his salary. People v. Collins, 7 Johns. 549; Hull v. Luther, 13 Wend. 491; Mayor v. Flagg, 6 Abb. Pr. 296; People v. Smyth, 28 Cal. 21; People v. Oulton, 28 Cal. 44; People v. Brennan, 30 How. Pr. 418; Comstock v. City of Grand Rapids, 40 Mich. 397; People v. Miller, 24 Mich. 459, 9 Am. Rep. 131.

The reversal of a judgment removing an officer from office restores him thereto without need of any further order. Phares v. State, 3 W.Va. 567, 100 Am. Dec. 777. The granting of a new trial vacates and sets aside the judgment. Thompson v. Smith, 28 Cal. 527.

"It is well settled that a de facto officer cannot recover the compensation or salary annexed to such office. That such salary is incident to the title to the office and not to its occupation and exercise." Burke v. Edgar, 67 Cal. 184, 7 P. 488; People v. Potter, 63 Cal. 127; People v. Smyth, 28 Cal. 21; People v. Oulton, 28 Cal. 44; McVeany v. Mayor, 80 N.Y. 185, 36 Am. Rep. 600; Mayor and Alderman v. Woodward, 1 Central Law Jour. 587; Shannon v. Baker, 33 Ind. 390.

If a person is legally entitled to an office of which he is not in actual possession, it is his property and he cannot be restricted to the compensation provided therefor but may demand the office itself. Glasscock v. Lyons, 20 Ind. 1, 83 Am. Dec. 299.

Special attention is called to the decision in the case of Andrews v. City of Portland, 79 Me. 484, 10 Am. St. Rep. 280, 10 A. 458.

H. R. Jeffords, District Attorney, for Appellee.

Porter, J. Wright, C. J., and Barnes, J., concur.

OPINION

The facts are stated in the opinion.

PORTER, J.

The facts of this case are these: There was an election held in the county of Pima, on November 4, 1884, for the office of sheriff. Afterwards the board of supervisors canvassed the votes, and declared plaintiff elected, and delivered the certificate to him. Thereafter he qualified and gave the required bond, and after such qualification, the clerk of the district court granted him a certificate that he had so qualified and given such security. At the time plaintiff was to take the office, to-wit, January 1, 1885, he served the last-named certificate upon R. H. Paul, the former and then sheriff, and entered upon the discharge of the duties of the office. On the 15th of December, 1884, Paul filed his statement in the district court, contesting the election of Shaw, and on the trial of such contest, on the 3d day of January, 1885, judgment was pronounced in favor of Paul. There-upon, Paul, on the 3d day of January, 1885 qualified, gave bonds, and entered upon the duties of the office. There was no stay of proceedings on the judgment, nor was there any appeal taken therefrom to the supreme court. The salary was paid to Paul by the board of supervisors. On the 9th of January, 1886, Shaw served notice of motion for new trial in this contest case before the district court, and on the hearing on April 3, 1886, a new trial was granted, that Paul, on the 3d of April, 1886, appealed from the order granting a new trial to the supreme court, and then and there gave an undertaking on appeal in the sum of $ 300. The court ordered that in case Paul desired to retain the office, pending the appeal, he should give a bond in the sum of $ 5,000 to operate as a supersedeas in addition to the $ 300 bond, or, in lieu thereof, deposit with the clerk the sum of $ 3,600, with privilege of withdrawal upon filing the bond. On 10th April, 1886, Paul deposited the $ 3,600, whereupon a stay of proceedings was granted. On 14th June, 1886 Paul and Shaw stipulated in writing that the appeal be dismissed, and that the money deposited may be withdrawn, and the order granting the supersedeas be vacated, and pursuant to the stipulation, on the 19th July, 1886, the appeal was dismissed, and the money withdrawn, and it was further and expressly stipulated that Shaw should release Paul from any debt or obligation or demand or cause of action which might be due from Paul for withholding the office from Shaw. On the 9th day of July, 1886, Shaw re-entered upon the discharge of the duties of the office, and continued to discharge the same until the expiration of the term. The salary of the sheriff was $ 7,500 a year, payable quarterly. On the 23rd of December, 1886, plaintiff presented his demand in writing, verified, for the sum of $ 9,375, to the board of supervisors, and on the 6th day of January, 1887, the board disallowed the same. Whereupon plaintiff brought suit in the district court against Pima county, and judgment was had for defendant. Plaintiff moved the court for a new trial, which motion was denied, and from which denial this appeal is taken.

For the decision of this case it is unnecessary to determine the first question suggested by defendant whether the district court could grant a new trial of election contests. It will be observed that there was a judicial determination of the rights to this office on the 3d day of January, 1885, and that thereafter on same day Paul entered upon the duties of the office; that not until the 9th day of January, 1886, did Shaw move for a new trial, and the new trial was granted on the 3d day of April, 1886. Should the county, after Paul had been declared by a competent court to be entitled to the office, with no notice to the board of supervisors of further action, have withheld his salary while he was performing the duties of the office? While this judgment continued in force he was the sheriff de jure. "They paid him the salary under the judgment, as they were bound to do, and the law protects them in this payment." Viewing Paul, however, as only the sheriff de facto, in Dolan v. Mayor, 68 N.Y. 274, 23 Am. Rep. 168, decided in 1877, the court says: "We are of opinion that payment to a de facto public officer of the salary of the office, made while he is in possession, is a good defense to an action brought by the de jure officer to recover the same salary after he has acquired or regained possession. * * * If fiscal officers, upon whom the duty is imposed to pay official salaries, are only justified in paying them to the officer de jure, they must act at the peril of being held accountable in case it turns out that the de facto officer has not the true title; or, if they are not made responsible, the department of the government they represent is exposed to the danger of being compelled to pay the salary a second time. * * * Disbursing officers charged with the payment of salaries, have, we think, a right to rely upon the apparent title, and treat the officer who is clothed with it as the officer de jure, without inquiring whether another has the better right. Public policy accords with this view." "Public offices are created in the interest and for the benefit of the public. Such at least is the theory upon which the statutes creating them are enacted and justified. Public and individual rights are to a great extent protected and enforced through official agencies, and the state and individual citizens are interested in having official functions regularly and continuously discharged. The services of persons clothed with an official character are constantly needed. They are called upon to execute the process of the courts, and to perform a great variety of acts affecting the public individuals. It is important that the public offices should be filled, and that at all times persons may be found ready and competent to exercise official powers and duties. If, on a controversy arising as to the right of an officer in possession, and upon notice that another claims the office, the public authorities could not pay the salary and compensation of the office to the de facto officer, except at the peril of paying it a second time, if the title of the contestant should be established, it is easy to see that the public service would be greatly embarrassed and its efficiency impaired. Disbursing officers would not pay the salary until the contest was determined, and this in many cases would interfere with the discharge of official duties. McVeany v. Mayor, 80 N.Y. 185, 36 Am. Rep. 600, decided in 1880, reviewing the New York cases, says: "It is then to be deduced from the cases in this state that, as a general principle, the rendition of official service must precede a right to demand and recover the compensation given by law to the officer; that the disbursing officer of a municipality is protected from a second payment of that compensation, and so is his superior, when he...

To continue reading

Request your trial
15 cases
  • State ex rel. Gallagher v. Kansas City
    • United States
    • Missouri Supreme Court
    • April 4, 1928
    ...for salary against Kansas City, as it cannot be compelled to pay twice for the same services. State ex rel. v. Coon, 296 S.W. 103; Shaw v. County, 2 Ariz. 399; Coughlin v. McElroy, 74 Conn. 397; Lee v. Mayor, 40 Atl. 663; Gorman v. Commissioners, 1 Idaho, 655; People ex rel. v. Schmidt, 281......
  • State ex rel. Gallagher v. Kansas City
    • United States
    • Missouri Supreme Court
    • April 4, 1928
    ... ... removed or to compel payment of salary by the city. St ... Louis County Court v. Sparks, 10 Mo. 117; Winston v ... Mosely, 35 Mo. 146; State ex rel. v. Thompson, ... Paulsen's Estate, 170 P. 855; Board v ... Darrow, 13 Colo. 460; Mayor v. Shaw, 16 Ga ... 172; People ex rel. v. Thompson, 316 Ill. 11; ... People ex rel. v. Burdette, ... ...
  • State v. Coon
    • United States
    • Missouri Supreme Court
    • December 30, 1926
    ...to an action brought by the de jure officer to recover the same salary after he has acquired or regained possession. Shaw v. Pima County, 2 Ariz. 399, 18 P. 273; Board of Com'rs of El Paso County v. Rhode, 41 Colo. 258, 95 P. 551, 16 L. R. A. (N. S.) 794, 124 Am. St. Rep. 134; Coughlin v. M......
  • Rasmussen v. Board of County Commissioners of Carbon County
    • United States
    • Wyoming Supreme Court
    • April 24, 1899
    ...(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; Demares......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT