Shumate v. Fauquier County

• Decision Date: 08 March 1888
• Citation: 5 S.E. 570,84 Va. 574
• Court: Virginia Supreme Court
• Parties: Shumate v. Fauquier County.

5 S.E. 570

(84 Va. 574)

Shumate

v.Fauquier County.

Supreme Court of Appeals of Virginia.

March 8, 1888.

Judgment—Res Adjudicata—Quo "Warranto—Mandamus.

Plaintiff instituted a proceeding in the nature of a quo warranto to try the title to an office, against one appointed by the legislature in his place. Held, that a judgment rendered in that proceeding for the defendant was a bar to plaintiff's proceeding by mandamus to compel the board of supervisors to pay him salary as officer de jure; the writ of mandamus being prayed for on the same grounds set up in the quo warranto proceeding.

Petition for mandamus.

R. R. Campbell, for petitioner. R. Taylor Scott, for respondent.

Lewis, P. This is a petition for a mandamus to compel the board of supervisors of Fauquier county to issue a warrant on the treasurer of the said county for $1,250, which sum, it is alleged, is due the petitioner on account of salary as county court judge from the 1st of March, 1884, to the 1st of January, 1886. The petitioner alleges that he was the de jure judge of the said county, and entitled to the salary annexed to the office, for the period above mentioned; but that, upon presentation of his claim, the respondents refused to recognize him as such, on the ground that he had been removed from office by the legislature, and one Edward M. Spilman elected in his stead. He insists, however, that such alleged removal was in violation of the constitution, and without legal effect, for three reasons: (1) Because the proceedings against him were instituted and conducted by the legislature without lawful notice; (2) because neither the joint resolution to proceed against him, nor the subsequent joint resolution attempting to remove him from office, was presented to the governor, in conformity with the eighth section of the fourth article of the constitution, which provides that "every bill which shall have passed the senate and house of delegates, and every resolution requiringthe assent of both branches of the general assembly, shall, before it becomes a law, be presented to the governor" for his approval, etc.; and (3) because, independently of these considerations, the proceedings were void, because they were based upon charges which could be constitutionally acted on by the legislature only under those provisions of the constitution relating to impeachment. There were two charges. The first was incompetency; the second was as follows: "That the said W. B. G. Shumate did aid one Benjamin George in a manifest, willful, and partisan violation of the statute of Virginia which prohibits and makes it a misdemeanor for any clerk or other officer to issue his blank receipts for any such tax, with a view to the same being filled at a future time, or to give receipt for such tax, except in cases in which the money is paid at the time of executing such receipt." "Wherefore" it is further alleged in the petition that "the petitioner was impeached without a trial before the senate, as the constitution requires; that said impeachment was consequently null and void;" and that petitioner's claim for salary was therefore wrongfully rejected. To this petition the respondents, the board of supervisors, demur, and also answer. The defense set up in the answer is based upon three grounds: (1) That mandamus is not the proper remedy, the petitioner having a specific and adequate legal remedy by appeal from the action of the board, rejecting his claim, to the county or circuit court of Fauquier county, pursuant to the statute in such case made and provided; (2) that petitioner was lawfully removed from office by the legislature, and therefore that his claim was rightly rejected; and (3) that the matter in controversy is res adjudicata.

The grounds upon which the writ is prayed for in the petition involve questions which are certainly very grave and important in their character, and which, if they properly arose in the present case, would receive the most careful and deliberate consideration of the court; but in our opinion they do not arise, and cannot, therefore, be properly considered, because we are of opinion that the defense of res adjudicata is sustained by the record, and that this view of the case fairly precludes the consideration of any other question. It appears that, soon after the election of Spilman by the legislature to the office of county court judge in 1884, a proceeding in the nature of a quo warranto was instituted in the circuit court of Fauquier county, at the instance of the petitioner, to try the title to the said office, and in that proceeding judgment was rendered for the defendant, Spilman. A copy of the record is exhibited with the answer in the present case, from which it appears that the grounds relied on by the petitioner in that proceeding were precisely the same as those upon which he now relies; namely, that the proceedings against him by the legislature were taken without lawful notice, and were, besides, unconstitutional and void. The circuit court, however, held otherwise, and gave judgment against him; whereupon the case, on a writ of error, was brought to this court. Here it lingered on the docket, without any effort being made by the parties to obtain a hearing, until after the expiration of the term for which the petitioner had been elected, and, when finally called and argued, it was dismissed, because the term had expired; so that the judgment of the circuit court, which, in effect, adjudged that the petitioner had been lawfully removed, and that Spilman was entitled to the office, remains unreversed and in full force. This being so, the petitioner is undoubtedly estopped by that judgment, since it virtually determined the point now in controversy; and the effect is the same whether the judgment be erroneous or not, as to which we express no opinion. Case v. Beauregard, 101 U. S. 688; Freem. Judgm. (3d Ed.) § 249.

As to the identity of subject-matter there can be no doubt. The jndgmert-determining that the petitioner had no title to the office, necessarily deter-mined that he was no longer entitled to receive the emoluments, though claim for salary was specifically made, and could not have been regularly madein that proceeding. An office is defined to be a right and correspondent duty to exercise a public or private trust, and to take the emoluments belonging to it; and as was said in Blair v. Marye, 80 Va. 485, "the salary follows the office, as the shadow follows the substance." The right to the salary now sought to be recovered was therefore necessarily involved in the adjudication in the...