State v. Babcock

• Decision Date: 04 April 1904
• Parties: STATE ex rel. HATTON v. BABCOCK et al.
• Court: Missouri Court of Appeals

80 S.W. 45

106 Mo. App. 72

STATE ex rel. HATTON v. BABCOCK et al.

Kansas City Court of Appeals. Missouri.

April 4, 1904.

OFFICER DE JURE—RIGHT TO SALARY.

1. An officer de jure cannot recover salary paid by the government to the officer de facto, who claims under an election at which he received a majority of the votes, and who is in actual possession of the office, and discharging the duties thereof, though the payment was made with notice of the rightful incumbent's claim.

Appeal from Circuit Court, Pettis County, Geo. F. Longan, Judge.

Mandamus by the state of Missouri, on the relation of J. C. Hatton, against J. L. Babcock and others. From the denial of a peremptory writ, relator appeals. Affirmed.

W. D. Steele and Jno. D. Bohling, for appellant. A. L. Shortridge, for respondents.

BROADDUS, J.

This is a mandamus proceeding by the appellant against the mayor and board of aldermen of the city of Sedalia to compel them to allow the appellant his salary as city assessor for eight months from June 1, 1900, to February 1, 1901, at the rate of $50 per month. At the general city election held in Sedalia in April, 1898, relator, Hatton, was duly elected city assessor for the term of two years, and until his successor was duly elected and qualified. On April 9, 1898, he duly qualified as such city assessor, and was thereupon commissioned by the mayor of said city as such assessor for the term of two years, and until his successor was duly elected and qualified. Under said commission he took charge of said office June 1, 1898, and performed all the duties pertaining thereto until June 1, 1900. At the general city election on April 3, 1900, relator was a candidate for re-election to said office, and one Mathew Meyer was also a candidate. At this election the latter received more votes than any other candidate, and a certificate of election was issued to him, and he afterwards subscribed to the oath of office and gave bond, and the mayor issued him a commission for the term of two years from June 1, 1900, and until his successor was duly elected and qualified. At the time said Meyer claimed to have been elected and subscribed to the oath of office, and was so commissioned, he was in arrears to the city for his personal taxes. The relator, Hatton, at the time said Meyer qualified, insisted and contended that Meyer was not eligible to hold said office, for the reason of his being in arrears for said taxes, and insisted that he (relator) was the legal and...