State ex rel. Godby v. Hager, 12993

• Decision Date: 17 November 1970
• Docket Number: No. 12993,12993
• Citation: 154 W.Va. 606,177 S.E.2d 556
• Parties: STATE ex rel. J. T. (Tom) GODBY v. Okey L. HAGER et al., etc.
• Court: West Virginia Supreme Court

Page 556

177 S.E.2d 556

154 W.Va. 606

STATE ex rel. J. T. (Tom) GODBY v. Okey L. HAGER et al., etc.

No. 12993.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 2, 1970.

Decided Nov. 17, 1970.

Syllabus by the Court

1. The salary of a public officer is an incident to the office and the legal right to receive or enforce its payment goes with the title to the office.

2. A de jure officer who has been wrongfully excluded from office may rest upon his legal right to the salary of the office regardless of the occupancy of the office by a de facto officer in the absence of any conduct on the part of the de jure officer which amounts to waiver or estoppel.

3. Mandamus is a proper remedy to require the performance of a nondiscretionary duty by a governmental body.

4. A duly elected county assessor, a de jure officer who has been wrongfully removed from office by a judgment which is subsequently reversed and who is then restored to the office, is entitled to payment by the county court of the salary of the office during the period of such removal, in the absence of any conduct by him which constitutes waiver or estoppel, even though a de facto officer occupied the office during that period of time and was paid by the county court for his services as such occupant of the office; and mandamus lies to require the county court to pay such assessor the salary which he would have received but for such wrongful removal.

Graziani, O'Brien & Paterno, Thomas P. O'Brien, Jr., Charleston, for relator.

Thomas R. Parks, Asst. Pros. Atty., Logan, for respondents.

HAYMOND, Judge:

In this original mandamus proceeding, instituted in this Court July 21, 1970, the petitioner J. T. (Tom) Godby seeks a writ to require the defendants Okey L. Hager, Junior Lambert and Leroy Counts, individually and as Commissioners of and constituting the County Court of Logan County, West Virginia, to approve and allow and order the payment of the claim of the petitioner in the sum of $6,432.58, representing salary, fees and commissions from September 24, 1969 to April 27, 1970, during which he was wrongfully removed from the office of Assessor of Logan County, West Virginia, under a judgment of the Circuit Court of Logan County rendered September 24, 1969, which was reversed, vacated and set aside by this Court April 21, 1970, upon appeal in the case of John L. Smith et al. v. J. T. (Tom) Godby, W.Va., 174 S.E.2d 165.

Upon the petition and its exhibits a rule was issued in vacation returnable September 2, 1970, at which time this proceeding was submitted for decision upon the petition and its exhibits, the answer of the defendants and its exhibits, the briefs and the oral argument of counsel in behalf of the respective parties.

At the time of his removal from the office of assessor, pursuant to the judgment of the Circuit Court of Logan County entered September 24, 1969, the petitioner was serving his third consecutive term as the holder of that office. No suspension of the judgment was granted and on September 25, 1969, the County Court of Logan County appointed Ralph Grimmett as assessor of Logan County in the place and stead of the petitioner. Grimmett qualified as assessor of Logan County by subscribing to the oath prescribed by law and entered into bond and continued to occupy that office and served as assessor of Logan County until April 27, 1970, when the petitioner, under the decision of this Court, was reinstated and took possession of the office of assessor.

During the time that Grimmett occupied the office of assessor he performed the duties of the office and was paid by the county court the sum of $5,936.28, which included $5,076.28 salary from September 25, 1969 to April 27, 1970, which is an incident to the office, and $860.00 assessor's fees for agricultural reports during the same period of time. The sum of $5,076.28 represents the salary to which the petitioner was entitled and which he would have been paid if he had occupied the office of assessor during that period. Grimmett accepted the appointment as assessor in good faith and the county court in good faith paid him the foregoing amount.

On June 5, 1970, the petitioner filed his claim with the Clerk of the County Court of Logan County, which was duly presented to the county court on that day, in the amount of $6,432.58, consisting of salary from September 23, 1969 to April 27, 1970, of $5,076.28, assessor's fees for agricultural reports during the same period of $860.00 and 10% Commission of $496.30 on capitation tax which was paid to Grimmett by the State of West Virginia during the same period. After obtaining an opinion of the prosecuting attorney who recommended that the claim be denied, the county court, by order entered July 6, 1970, refused to pay the claim. As the item of commission on capitation tax is not payable by the county, the petitioner concedes that he can not recover that item from the county court, and as the fees for agricultural reports are not payable unless the services for which the fees are allowed are performed and it does not appear that the petitioner has performed such services, the amount of his claim in this proceeding is reduced from $6,432.58 to $5,076.28 by the elimination of the items of $860.00 fees and $496.30 commissions.

The controlling question for decision is whether the petitioner, having been wrongfully removed from the office of assessor, is entitled to recover from the governmental authority the salary of the office during the period of his removal when the office was occupied by a person appointed to that office and who in good faith performed the duties of the office and was paid the salary which the petitioner would have received but for his wrongful removal from the office. The question is one of law as to which there is a distinct split of authority and is one of first impression in this State. A majority of the courts in various jurisdictions hold it to be the general rule in the absence of a controlling statute that an officer de jure can not recover from the governmental body salary of the office paid by it to an officer de facto during the period when the de jure officer is deprived of his office. A minority of the courts, however, hold that this defense will not discharge the public body for liability to the de jure officer for that period in which the de facto officer performed the duties of the office and received the salary therefor. La Belle v. Hazard, 91 R.I. 42, 160 A.2d 723; 67 C.J.S. Officers § 99; Annotation, 64 A.L.R.2d 1375, at pages 1377--1378. Various reasons are given in support of each rule.

The reasons offered in support of the majority rule are that the governmental authority has received only one service and ought not to be made twice to pay for such service; that efficiency in government requires that officers and employees be promptly paid for their services and disbursing officers ought to be permitted to rely upon the apparent right of the de facto officer to be paid for his services; that since the de jure officer has no property or contract right in the office, it is only fair that he perform his duties before he is entitled to recover any salary; that broad grounds of public policy preclude the payment of back salary to the de jure officer; and that successful governmental operation may be seriously impaired by repeated and large-scale withdrawal of governmental funds for which no provision has been made by the public authority.

The reasons advanced in support of the minority view are that the salary involved follows the legal title to the office; that the majority rule is unique in that no similar rule exists in connection with any other claims against the governmental authority; that the public good is not served when a public officer, legally entitled to salary, does not receive it; that the public authorities ought not to be told that they may countenance the intrusion of a public office with impunity; and that it is more just that the public treasury be made to respond to the de jure officer rather than that the de facto officer be made to suffer, where the fault of the de jure officer's absence from office lies with public agents and not with the de facto officer. See Annotation, 64 A.L.R.2d pages 1377--1378.

Among the numerous decisions which support the majority rule are: Irwin v. Jefferson County, 228 Ala. 609, 154 So. 589; Drach v. Leckenby, 64 Colo. 546, 172 P. 424, L.R.A.1918F 576; Coughlin v. McElroy, 74 Conn. 397, 50 A. 1025, 92 Am.St.Rep. 224; State ex rel. Jones v. Wise, 39 Del. 409, 200 A. 418; Talmadge v. Cordell, 167 Ga. 594, 146 S.E. 467; Bullis v. Chicago, 235 Ill. 472, 85 N.E. 614; McClinton v. Melson, 232 Iowa 543, 4 N.W.2d 247; Hallowell v. Buffalo County, 101 Neb. 250, 162 N.W. 650; Wilkerson v. City of Albuquerque, 25 N.M. 599, 185 P. 547; Osborne v. Town of Canton, 219 N.C. 139, 13 S.E.2d 265; State ex rel. Cox v. Hooper, 137 Ohio St. 222, 28 N.E.2d 598; Fuller v. Roberts County, 9 S.D. 216, 68 N.W. 308.

Some of the cases which support the minority rule are: Ward v. Marshall, 96 Cal. 155, 30 P. 1113; Wilkinson County Board of Supervisors v. Jolliff (Miss.), 230 So.2d 61; Ness v. City of Fargo, 64 N.D. 231, 251 N.W. 843; Board of County Commissioners of Oklahoma County v. Litton, (Okl.), 315 P.2d 239, 64 A.L.R.2d 1365; La Belle v. Hazard, 91 R.I. 42, 160 A.2d 723; Andrews v. City of Portland, 79 Me. 484, 10 A. 458, 10 Am.St.Rep. 280; Baker v. City of Nashua, 77 N.H. 347, 91 A. 872; Tanner v. Edwards, 31 Utah 80, 86 P. 765, 120 Am.St.Rep. 919, 10 Ann.Cas 1091; Cowan v. State ex rel. Scherck, 57 Wyo. 309, 116 P.2d 854, 136 A.L.R. 1330. See also, Adams v. Rubinow, 157 Conn. 150, 251 A.2d 49; Holley v. McDonald, 154 Conn. 228, 224 A.2d 727; McDermott v. City of New Haven, 107 Conn. 451, 140 A. 826; Oliver v. Spitz, 76 Nev. 5, 348 P.2d 158.

When wrongfully removed from the office of assessor the petitioner was a de jure officer. A de jure officer...