State ex rel. Greeley Cnty. v. Milne

• Decision Date: 15 February 1893
• Citation: 54 N.W. 521,36 Neb. 301
• Parties: STATE EX REL. GREELEY COUNTY v. MILNE.
• Court: Nebraska Supreme Court

36 Neb. 301

54 N.W. 521

STATE EX REL. GREELEY COUNTY

v.MILNE.

Supreme Court of Nebraska.

Feb. 15, 1893.

Syllabus by the Court.

Where a county has once made payment of the salary of a county office to one actually in possession of the office, performing its duties, with color of title, before his right to the office has been determined against him by a competent tribunal, it cannot afterwards be compelled to pay the same salary to the de jure officer.

Application for mandamus by the state, on the relation of Greeley county, against Henry N. Milne, to compel defendant to pay into the treasury of the county certain moneys received by him as treasurer. Writ allowed.B. F. Griffith, Coffin & Stone, and J. R. Swain, for relator.

J. R. Hanna and Robert Ryan, for respondent.

NORVAL, J.

This is an application to this court for a peremptory writ of mandamus to compel the respondent, ex-county treasurer of Greeley county, to pay into the treasury of said county certain moneys received by him as the treasurer of said county, which he failed to pay over to his successor in office. After the issues were made up the cause was referred to Thomas J. Welty, Esq., to take the testimony, and report the same to the court, with his findings of fact. The referee, after having heard the testimony, made and returned to this court his findings. The material facts found by the referee, stated briefly, are these: On the 5th day of November, 1889, the respondent,Henry N. Milne, and one E. F. Cashman were opposing candidates for the office of treasurer of Greeley county, in this state. On a canvass of the votes of the county the canvassing board found that the respondent had received a majority of the votes cast at said election for said office, and a certificate of election was duly issued to him on November 12, 1889. The respondent subscribed to and took the oath of office required by law, and executed and filed his official bond with the proper officer, which bond was approved on the 21st day of November, 1889. Soon after the canvass of the votes was had, Cashman instituted proceedings to contest the election. A trial was had, and on the 7th day of January, 1890, the county court of said county found that said Cashman was duly elected to, and was entitled to, the office. From the decision respondent removed the case to the district court by appeal, and on the 27th day of October, 1891, the district court, on the evidence adduced, found that respondent received at said election 407 votes, and Cashman 403; and, the latter being in possession of the office, it was adjudged that he be forthwith removed therefrom, and that respondent be installed in said office. From the judgment so rendered no appeal was taken, and respondent entered upon the performance of the duties of the office on the 28th day of October, 1891, and held the office, and received the emoluments thereof, until the expiration of his term. After the decision of the county court, Cashman qualified, and took possession of the office, and performed the duties and exercised the functions thereof, and received from the county the fees and salary belonging to the office until he was removed by the said judgment of ouster. At the expiration of respondent's term as county treasurer, he retained in his hands, of the moneys collected by him for said county, the sum of $2,783.95, which he refused to pay over to his successor, claiming the same as fees and salary of the office for the period he was excluded therefrom. Respondent has been paid the fees and emoluments of the office during the time he exercised the duties of the office.

It will be observed that the respondent claims he is entitled to retain the money in controversy as fees and emoluments of the office of county treasurer of Greeley county during the time it was in the possession of Cashman, the latter having already received the compensation which attached to the office while the duties of the office were performed by him. The question presented for determination is whether a de jure county officer can recover the salary or compensation which attaches to the office while it is in the possession of an officer de facto, who, before any judgment of ouster has been rendered against him, has been paid by the county the salary of the office. The question has never been passed upon by this court, and the decisions in other states are conflicting and irreconcilable. In establishing a precedent we shall adopt the rule which to us seems the best supported by reason, and in harmony with judicial principles. The doctrine that the acts of an officer de facto are valid, as far as they affect third parties and the public, is so familiar and well settled that no citation of authorities is necessary to show it. The acts of such officer are sustained upon the ground that to question them would devolve upon every person transacting business with the officer the duty of determining for himself, at his peril, the right of the incumbent to the office he holds. Third parties assume no such risk. They are not bound to know that the person exercising the functions of a public office under color of authority is rightfully in possession of the office, but are warranted in recognizing him as the legal and valid officer, and are justified in dealing with him as such. If a person pays to a de facto officer the fees allowed by law for his services, he is protected, and will not be compelled to pay them the second time to the officer de jure. We think the same principle should govern in a case like the one at bar. Cashman was the de facto county treasurer of Greeley county, and performed the duties of the office, under color of title, from January 9, 1890, to October 28, 1891, during which time he received all the emoluments which attached to the office. He took possession of...