Peterson v. Benson

McCAETY, J. (after stating tbe facts as above). Eespondent contends, first, tbat tbe period of time elapsing from January 3, 1910, tbe date upon which tbe officers of Logan City elected in 1909 were installed in office, until March 1, 1910, was a part and a continuation of tbe term of office to which appellant was elected in November, 1901, and tbat the tenure of bis office and tbe emoluments thereof were as fixed by law at tbe time be qualified and entered upon tbe duties of tbe office, January 6, 1908; and, second, “tbat so much of tbe ordinance passed October 1, 1909 (mentioned in tbe foregoing statement of tbe case), as purported to increase tbe salary of said marshal to take effect January 3, 1910, is void as to appellant, for tbe reason tbat it would increase tbe salary of said marshal ‘to take effect during tbe time for which such officer was elected’ and would be in conflict with section 225 of tbe Compiled Laws of the State of Utah, 1907.” Tbe authorities seem to bold tbat when a person is elected or appointed to an office and be qualifies and enters upon tbe duties thereof under a statute which provides tbat tbe person so elected or appointed shall bold tbe office for a definite period of time and until bis successor is elected and qualified, and such person bolds over and continues to discharge tbe duties of tbe office after tbe expiration of bis [291] regular term because of tbe failure to elect or appoint a successor, tbe bold-over period is a part of tbe time for wbicb sucb officer was elected or appointed. In tbis case, however, tbe law under wbicb appellant was elected, and under wbicb be beld tbe office from January 6, 1908, until tbe first Monday in January, 1910, vpas, in tbe year 1909, amended and tbe office changed from an elective to an appointive office. Tbe amendment, so far as it affects tbe officer in question, went into effect immediately on tbe expiration of tbe term (two years) for wbicb appellant was elected. Chapter 107, p. 230, Sess. Laws Utah 1909. As appellant was not appointed to tbe office after bis term expired, and tbe law under wbicb be bad been elected having been, in effect, repealed, it follows that during tbe month of February, 1910, be was not a de jure officer, and was in no sense a holdover, as tbe term “holdover” is understood when applied to a person bolding a public office. (State v. Simon, 20 Or. 365, 26 Pac. 170.) It does appear, 1 however, that be was a de facto officer, and as such discharged all tbe duties of the office during tbe month of February, 1910. Tbe important question tberefox*e is, Can an actual incumbent of a public office, who is only an officer de facto and in no sense a de jure officer, maintain an action for tbe salary, fees, or other compensation attached to the office, there being no adverse contestant or de jure officer % There are many American decisions in which tbe view derived from England is still adhered to-, namely, that tbe right to tbe emoluments of a public office is an incident to and rests upon tbe title to tbe office; and hence under no circumstances is a de facto officer legally entitled to tbe emoluments of tbe office, although be may have performed all tbe services and discharged all tbe duties of tbe office. Upon tbe other band, there are courts of high standing wbicb bold that in tbis country a public office is in no sense property, and that public officers have no proprietary interest in their offices. Pursuant to these latter views sucb courts have deduced tbe doctrine that tbe right to the emoluments [292] of an office arises out of the actual rendition of the services required to be performed by the officer; that is, the emoluments are designed to be merely compensatory. (Stuher v. Curran, 44 N. J. Law, 184, 43 Am. Rep. 353; Erwin v. Jersey City, 60 N. J. Law 141, 37 Atl. 732, 64 Am. St. Rep. 584.) In view of the foregoing, some of the courts have adopted and followed the intermediate course, namely, that as between an officer de facto and a de jure officer the latter is entitled to whatever salary and other compensation may be atteched to the office, even though the de facto officer may have performed all the duties of the office. This doctrine is based upon the theory that unless the de jure officer is protected, dishonest intruders will lay claim to the office, and, obtaining possession thereof, will claim the emoluments to the detriment, of the public and the injury of the de' jure officer. In cases, however, where there is no de jure officer, the line of decisions last mentioned hold that a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office and may, in an appropriate action, recover the salary, fees, and other compensation attached to the office. This doctrine is discussed and illustrated in the following cases: Erwin v. Jersey City, supra; Dickerson v. City of Butler, 27 Mo. App. 9; Behan v. Board, etc., 3 Ariz. 399, 31 Pac. 521; Adams v. Directors, etc. [Ariz.], 40 Pac. 18. Constantinian, in his treatise on the De Facto Doctrine, section 238, says: “Certain courts, while denying to the de facto officer the right to recover salary when there is a de jure officer entitled to the office, have thought that the rule should be different when there is no such officer in existence. This doctrine may undoubtedly be supported on equitable grounds, since it seems unjust that the public should benefit by the services of an officer de facto, and then be freed from all liability to pay any one for such services.” The author cites with approval the Arizona cases above mentioned. [293] We think the rule as declared by these authorities is more in consonance with the principles of equity than the opposite rule which holds that an officer de facto cannot, under any circumstances, maintain an action for the 2, 3 salary, fees, or other compensation attached to the office which he holds. The judgment is reversed, with directions to the trial court to issue a writ of mandate as prayed for in appellant’s complaint. Appellant to recover costs. STEAUP, C. L, and PEICK, L, concur.