Tanner v. Edwards

• Decision Date: 04 August 1906
• Docket Number: 1727
• Court: Utah Supreme Court
• Parties: TANNER v. EDWARDS, Auditor

86 P. 765

31 Utah 80

TANNER v. EDWARDS, Auditor

No. 1727

Supreme Court of Utah

August 4, 1906

APPEAL from District Court, Salt Lake County; T. D. Lewis, Judge.

Mandamus on the relation of Caleb Tanner, to compel John A. Edwards as auditor of public accounts, to issue a warrant in favor of relator, and from a judgment issuing the peremptory writ respondent appeals.

AFFIRMED.

M. A. Breeden, Attorney General, for appellant.

APPELLANT'S POINTS.

No claim can be brought for the salary or perquisites of an office for any period during which the claimant was not actually in office, even though wrongly hindered from occupying the position, the salary being the reward for expressed services. (Smith v. Mayor, 37 N.Y. 518; Queen v. Atlanta, 59 Georgia 318; Webster v. Kansas City, 64 Mo. 493; 47 Alabama 709.) In the case of Farrell against the city of Bridgeport, the court holds that before a public officer is entitled to the salary of an office he must both obtain and exercise the functions of the office. Payment follows the actual discharge of duty and not the formal offer to do it no matter how honestly and persistently made. (Farrell v. City of Bridgeport, 45 Conn. 191; Samis v. King, 40 Conn. 298; The Mayor of Brunswick v. Fahm, 59 Georgia 318.) Throope on Public Officers, secs. 176, 315, 472 and 473, hold to the same doctrine. Auditors v. Beloit, 20 Mich. 179, holds that a person cannot claim compensation without the performance of duties of the office. Cook v. People, 106 Ill. 237, holds the same doctrine.

Warner & Davis for respondent.

RESPONDENT'S POINTS.

In Fitzsimmons v. Brooklyn, 102 N.Y. 536, toward the end of the decision, the court says: "We have before held that there is no contract between the officer and the State or municipality by force of which the salary is payable. That belonged to him as an incident of his office, and so long as he holds it; and when improperly withheld, he may sue for it and recover it. When he does so, he is entitled to its full amount, not by force of any contract, but because the law attaches it to the office; and there is no question of breach of contract or resultant damages out of which the doctrine invoked has grown." We could more fully consider the cases cited by the Attorney-General, but we think it would be a useless waste of time, as the question involved is fully settled in the case of Andrews v. Portland, 10 Am. St. Rep. 280, which seems to be a leading case, and is followed by State v. Carr, 28 Am. St. Rep. 163. (State v. Otis, 39 Am. St. Rep. 912; Blore v. Broad, 81 Am. St. Rep. 495; Ward v. Marshall, 31 Am. St. Rep. 198.)

BARTCH, C. J. McCARTY and STRAUP, JJ., concur.

OPINION

BARTCH, C. J.

Upon the hearing of an application therefor, which was made by the relator, Caleb Tanner, the district court issued a peremptory writ of mandamus to compel the auditor of public accounts, the defendant, to draw a warrant, in favor of the relator, in payment of salary, as state engineer, from March 15 to March 31, 1905, for the sum of $ 141.66. From that judgment the auditor appealed to this court.

The controlling question presented is whether the State Auditor can refuse to issue a warrant for the salary of an officer for a portion of the time during which such officer did not personally assume charge of the office, and discharge the duties thereof, although he was appointed and commissioned by the Governor for the whole term and had duly qualified. In other words, can the auditor or disbursing officer question the right of an officer, who has the proper credentials from the appointing power and has duly qualified, to any portion of the emoluments of the office? The Attorney-General, representing the appellant, referring to the relator, in his brief, says: "It is true the evidence shows that he filed his bond and took the oath of office on the 14th day of March, 1905, but there is no pretense or claim whatever, that he assumed the duties of the office until March 20th;" and then contends that "before a public officer is entitled to receive the emoluments of an office," he must not only be appointed and qualified, but must take charge, assume the duties of and perform the services in the office, and insists that no claim can be made for the "salary or perquisites of an office for any period during which the claimant was not actually in office, even though wrongfully hindered from occupying the position;" the salary, as is urged, "being the reward for expressed services."

Although, it must be admitted, there are authorities which give some support to this contention, we are of the opinion that it cannot be maintained within this jurisdiction, and that the question here presented must be answered in the negative.

The decisions on this subject appear to be irreconcilable. Some cases seem to hold that to entitle an officer to the emoluments of the office, he must take possession and actually discharge the duties of the office and that if an officer de facto is in possession, performs the services, and is paid the salary, the officer de jure loses his right to recover the salary from the state or municipality. It seems such holding is based upon the theory, in part at least, that an officer de jure has no property right in the office, and that his right to the emoluments is dependent upon the performance of the duties and not upon the office. Notwithstanding that this doctrine has been maintained by courts of high authority, it does not appear to have the support either of logic or sound reason. A de facto officer has no title to the office. In general he is a mere usurper, and when he commits an act for his own benefit it is void. His act is only valid when it concerns the public, and this upon the principle that the public is presumed to be unaware of his want of title. If he performs the services or duties, no matter how faithfully, he can maintain no action to recover the emoluments. This upon the ground that he has no title to the office because of which the emoluments accrue, and the principle that one can not sue to recover what does not belong to him. Most of the cases of the class referred to, even while denying the right of the de jure officer to recover the emoluments from the state or municipality, after they have been paid to the officer de facto, hold that the latter must account to the former for the same in an appropriate action, thus virtually recognizing the fact that the emoluments are in some way attached to the office, and belong to the holder of the legal title. Logically, therefore, it would seem to follow that payment to one not entitled to the office or its emoluments, would not discharge the obligation to the person lawfully entitled thereto. If it be true that the de jure officer may recover the emoluments from the officer de facto, it must be upon the ground that he has some property rights of some sort in them, not, perhaps, property rights as ordinarily understood, but still some veritable, though they be intangible, rights or interests of pecuniary value of which the law takes cognizance. This must be true, else no action could lie to recover the emoluments from the officer de facto , for it is self-evident that no action lies in favor of one to recover what lawfully belongs to another. If, as it seems to us, this is an uncontrovertible fact, then upon what legal ground can the state or municipality pay the salary, or emoluments, to one having no right or title to the office, without any fault or consent of the holder of the legal title, and thereby shake off all its responsibility to the de jure officer? How can the payment of the salary, in contravention of the will of the holder of the legal title to the office, to a person not entitled to recover it and who can maintain no action to recover it, relieve the state or municipality from liability, or impair the right of the de jure officer to recover it? It would seem clear that such...