State ex rel. Cox v. Hooper

• Decision Date: 17 July 1940
• Docket Number: 27509.
• Parties: STATE ex rel. COX v. HOOPER, County Auditor, et al.
• Court: Ohio Supreme Court

28 N.E.2d 598

137 Ohio St. 222

STATE ex rel. COX v. HOOPER, County Auditor, et al.

No. 27509.

Supreme Court of Ohio

July 17, 1940

Syllabus by the Court.

Payment of salary to a de facto public officer who holds the office by color of title constitutes a valid defense to an action by a de jure officer to recover the salary when the governmental body responsible for paying the salary in no wise prevented the de jure officer from discharging the duties of the office.

In Mandamus.

One phase of this controversy was considered and decided by this court in the case of State ex rel. Cox, v. Riffle, 132 Ohio St. 546, 9 N.E.2d 497, in which a writ of quo warranto was allowed, thereby ousting the respondent from the office of county engineer of Adams county, Ohio, and holding the relator entitled thereto.

The present case is an original action filed in this court by the same relator. The respondents are the auditor and commissioners of Adams county. The relief asked is a writ of mandamus to compel appropriation and payment of the $875 salary the relator would have received during the first six months of the year 1937, had Riffle not occupied the office and performed the duties thereof for that period, thereby preventing the relator from so doing. Riffle likewise received the salary for the first five of the six months but the warrant for the sixth month was withheld from him.

The respondents have filed answers alleging four defenses. In the answer of the county auditor it is alleged that he offered and still offers to issue a warrant to the relator for the sixth month but that the offer has not been accepted. Therefore, the dispute between the relator and the respondents is limited to the salary for the first five months. To the answers the relator has filed demurrers on the ground that the facts stated are insufficient to constitute a defense.

O. E Young, of Georgetown, for relator.

James W. Lang, Jr., Pros. Atty., of West Union, and Robert L Barton, of Columbus, for respondents.

WEYGANDT Chief Justice.

Although several questions are presented by the briefs of counsel there is but one now requiring consideration and decision by this court. That is the fundamental and decisive question as to whether the relator can maintain this action against these respondents. Of course the demurrers search the entire record.

It is the contention of the relator that for a period of six months he was wrongfully prevented from discharging the duties of the office of engineer and that therefore the county should be compelled to pay him the salary for that entire period although the work was performed by another and although the salary for five of the six months already has been paid to that de facto officer without any effort on the part of the relator to prevent such payment.

The relator relies upon the decision in the case of City of Cleveland v. Luttner, 92 Ohio St. 493, 111 N.E. 280 Ann.Cas. 1917D, 1134, an action at law. Without commenting upon the criticism to which the majority view in that case has been subjected, it is necessary to observe the important distinction that those plaintiffs were wrongfully ousted by the defendant city itself, while in the instant controversy the respondent county officials had nothing whatsoever to do with preventing this relator from discharging the duties...