Board of County Commissioners v. Wharton

Mr. Justice Adams delivered the opinion of the court. Mildred Wharton, defendant in error, presented to the hoard of county commissioners of Montrose county a verified claim for salary as probation officer for the month of January, 1927, bearing the O. K. of the county judge of that county. The board disallowed the claim and claimant appealed to the district court, where the case was thereupon tried and judgment rendered against the commissioners. They bring the case here and ask for a supersedeas. Mrs. Wharton was appointed probation officer by the county judge of Montrose county; she did the work and is personally qualified. A salary of $50 per month had been fixed by the judge and commissioners and paid to a former probation officer for about two years, whom the judge discharged just before he appointed Mrs. Wharton. The commissioners did not approve of Mrs. Wharton’s appointment when made, though she claims, and the judge corroborates her, that the judge and commissioners had previously agreed that the salary should be $50 per month for a probation officer, and that the judge would be permitted to make his own selection of the person to fill the office, to serve at his pleasure. This is denied by the board. Mrs. Wharton is the only person that performed the duties of the office during the time in question; the former appointee makes no claim, and it is not asserted that Mrs. Wharton’s tenure of office extends *468 beyond that of the county judge, who entered the court order appointing her. 1. The ground of the board’s objection to the allowance of the bill is that it did not approve of claimant’s appointment as probation officer, and that therefore she is not entitled to the salary. Montrose is a county with a population of 25,000 or less, and the objection is based upon the following statute: ‘‘In counties of twenty-five thousand population, or less, the county judge, if deemed necessary by him to carry out the provisions mentioned in section 1, is authorized with the approval of the board of county commissioners to appoint not to exceed one such probation officer at a compensation not to exceed one thousand two hundred dollars per year. * * *” C. L. 1921, § 663. See 22 E. C. L. § 84, p. 433, 29 Cyc. 1372, and 23 A. & E. Ency. Law, (2nd Ed.) p. 346. Section 1, referred to in § 663 above, is the same as C. L. 1921, § 662. The question of the necessity of the board’s approval of the appointment of a probation officer in counties classified like Montrose is not without its serious aspects, but this is not the place to raise it, and so we cannot pass upon it here. Title to office cannot be tried in a suit brought to recover a salary. Roberts v. People, 81 Colo. 338, 255 Pac. 461; Pueblo County v. Gould, 6 Colo. App. 44, 39 Pac. 895; Montezuma County v. Wheeler, 39 Colo. 207, 89 Pac. 50; Clear Creek County v. McLean, 50 Colo. 602, 115 Pac. 525. As said in Roberts v. People, supra, where a person unlawfully holds or exercises a public office, the exclusive method by which to try his title to the office is by quo warranto under chapter 28 of the Code. Questions similar to that raised here — i. e., defects claimed in the maimer of the officers ’ appointments — were raised in the above cases, but the services having been rendered, compensation was allowed. Mrs. Wharton is at least a de facto officer. The office being de jure, one appointed to it is a de facto officer, though the statutory *469 mode of appointment may not have been followed. Brown v. People, 11 Colo. 109, 110, 17 Pac. 104. 2. It is argued that Mrs. Wharton’s duties as clerk of the county court are inconsistent with her work as probation officer, and that therefore she cannot hold both positions. We cannot say that they are necessarily incompatible. They might well go together, if the incumbent has the time, as the county judge appears to believe that she has. There is no statutory inhibition against holding the two offices. The county judge himself may act as the clerk of the same court, if he so desires. (C. L. 1921, § 5802.) So may the clerk of the county court act as probation officer in Montrose county. And where an officer may, and does, hold two offices, he is entitled to the compensation attached to each'. Lindsley v. Denver, 64 Colo. 444, 453, 172 Pac. 707, and many cases there cited. 3. We have not altogether followed the reasoning of the trial court, but if the judgment was right, we must sustain it, whether we agree with such reasons or not. We conclude that it is right. We should be compelled to set aside our accustomed practice and former decisions if we determined otherwise. Judgment affirmed. Mr. Ghiee Justice Burke and Mr. Justice Campbell not participating.