Toronto v. Salt Lake County

Smith, J.: The plaintiff brings this action to recover $1,166.66, which he claims to be due him as extra compensation for [415] •official services rendered as county treasurer of defendant ■county. The claim for compensation is based upon section 82 of the school law of 1890, which is as follows: “The county treasurer shall receive and hold as a special school fund, subject to the orders of the county superintendent all district school moneys from whatever source received and keep a separate account thereof, and when the same is apportioned to the school district shall open •and • keep a separate account with each district. He shall, •on or before the first day of August in each year, make •a report,” etc. “The county treasurer shall receive such ■compensation out of the county school fund as the county •court may determine for the services rendered by him in pursuance of this act.” By a subsequent amendment of' this section, it was provided that such compensation should be paid upon the warrant of the county superintendent of •schools. After this law was in force, plaintiff was elected ■county treasurer, and entered upon the discharge of his •duties September 1, 1890, and continued performing his ■duties to December 31, 1892, — a period of 28 months. Shortly after he qualified, plaintiff made application to the county court to fix his compensation as provided in this statute. Some time afterwards, and during his term •of office, such compensation was fixed at $500 per annum. No part of it, however, was paid to plaintiff up to the time that he retired from office, on March 13, 1893; and .after his term of office had expired, he having in the meanwhile asked an order of the county court appropriating the sum of $1,166.66 from the school fund in payment ■of his compensation, the county court, upon its own motion, made an order allowing $500 as full compensation for the two years and four months that plaintiff had served as county treasurer. The plaintiff claims that his right to compensation had become vested under the order fixing the salary at $500 per year, and that the subse [416] quent order of tbo county court, allowing him $500 in full' payment of all compensation for bis term of office of two ' years and four months, was without jurisdiction and void, and this is the principal question involved in this appeal. Judgment in the court below was rendered upon the-pleadings, on motion of plaintiff, in his favor, for the full amount claimed, and from that judgment the county appealed. It is contended by the appellant county that there is no contract relation between the government and a public officer; that the right of a public officer to compensation is not a contract right. Many authorities are cited by the appellant to sustain this proposition, and the proposition, that is necessarily a part of it, that a public officer can never recover upon a quantum meruit. We think this position is correct, in a case to which it applies. The difficulty is that this case does not come within the rule; a different rule obtaining where, as in this case, an officer has already performed the services for which he claims-compensation, provided the compensation has been fixed by the proper authority at the time the services were rendered. The plaintiff asked the county court to fix his compensation at or shortly after the time of his qualification. For some reason, not explained, there was considerable delay in making the order, but it was finally made, and made during his term of office, and upon his-petition. We think that the true rule in such case is-stated in the case of Givens v. Daviess Co. (Mo. Sup.), 17 S. W. 998. where the court say: “ Every day he [the officer] held the office, the law vested in him the right to a due proportion of the salary as at that time fixed; and consequently an order changing the compensation could not have a retrospective operation, and divest him of what was his already.” That case was exactly like the one at bar. It must be [417] observed that, when the county court undertook to reduce the plaintiffs compensation for 28 months’ services, he had already fully completed his term of office, and his compensation, whatever it was, was completely earned; and, as we hold, his right to such compensation was completely vested. A vested right is a title, legal and equitable, to the present and future enjoyment of property, or to the present enjoyment-of a demand or a legal exemption from a demand made by another. With this definition before us, it is difficult to see why the plaintiff, when his term of office is completed, and his services entirely rendered, did not have a complete vested right to the present and future enjoyment of the compensation attached to his office by law at the .time he held it and' performed the services. It is true that an officer has no property in the prospective compensation attached to his office, whether it be in the shape of salary or fees for services yet to be rendered. But we think, both upon principle and authority, he has a complete vested right of property in the compensation fixed by law for services rendered, and that this right is one that cannot be taken away, as was attempted in this case, by an order made after his term of office had expired. This determines the principal question in the case against the appellant, and there remains but one more matter that we need consider. It is claimed by the appellant that in any event the plaintiff cannot maintain this action against the county; that his remedy is by mandamus against the county superintendent of schools, to compel him to issue the warrant for the amount claimed. This contention can hardly be sustained. It is made upon the ground that the salary is payable out of a particular fund, and not out of the general county revenue. The difficulty in the present case is that there has been no appropriation made by the [418] county conrfc oí any part of the school fund to pay this claim, except the sum of $500, and the county court refuses to appropriate any additional sum. The claim has been presented to the county court, and in part rejected. In our opinion, this is the proper practice. Claims against the county funds, of whatever nature they may be, should be presented to the county court to be passed upon' by that body; and its allowance of the claim is a sufficient authority to the proper ministerial officer — the county superintendent of schools, in this case — to draw his warrant on the treasurer for the payment of the claim. Without such allowance, it is diffieult to see what check there would be upon the superintendent in making out these warrants for compensation. It is true the salary was fixed at $500 per annum, but there must be made some board or body — some authority somewhere — to determine whether or not the claimant has performed the services that entitle him to the compensation fixed by law. We think in this case the county court is that body, and has the authority; that it was its duty to make this allowance, and certify it to the county superintendent as his authority for issuing the warrant. We find no error in the judgment of the court below, and it is affirmed, with costs to respondent. Miner and Bartch, JJ., concur.