Tout v. Blair
Before: Allen
Synopsis
Public Office—Salary Incident to Occupation of Office.—The legislature has power to provide that the salary attached to a public office shall be an incident, not to the title of the office, but to its occupation and exercise.
Id.—Right of Incumbent to Salary Pending Contest—County Supervisor.—Under section 936 of the Political Code, as amended in 1891, one who has received a certificate of election as county supervisor, qualified as such, entered upon the discharge of the duties of such office, and continued to perform them during the pendency of a contest respecting the title to such office and until he was ousted from the office as the result of the judgment in such contest, is entitled to receive the salary 'attached to the office to and until the judgment in the contest proceedings becomes final. The successful contestant has no right to the salary which accrued during that period.
Id.—But One Salary for County Office.—Under the limitations of the constitution, the legislature has power to provide for but one salary as an incident to a county office.
ALLEN, J.
Plaintiff, Tout, and one W. E. Hawkins, were, at the general election of 1902, opposing candidates for the office of supervisor of district No. 4 in Tulare county. Upon a canvass of the returns Hawkins was declared elected and a certificate of election regularly issued to him, and he thereupon, within the time required by law, took the oath of office, executed his bond, and, on the fifth day of January, 1903,
[181]
entered upon the discharge of the duties of such office and continued so to act until the thirty-first day of May, 1904. Plaintiff, within due time after the canvass of vote, instituted in a proper court his contest of the right of Hawkins to hold the office, upon the ground that he had received at such election a greater number of votes than any other candidate, and averring that he was duly elected to such office. A trial was had and judgment went for plaintiff, which judgment became final May 31, 1904. The salary of the office for the period within which Hawkins performed the duties of supervisor under his certificate was regularly paid to him by warrants drawn by the auditor upon the treasury. Plaintiff, on June 28, 1904, demanded of the auditor that he draw his warrants upon the treasury in his favor for the salary covering the period between January 5, 1903, and May 31, 1904, which demand was by the auditor refused. Plaintiff thereupon instituted a proceeding in the superior court of Tulare county in
mandamus
to compel the issuance of his warrants. Judgment went for defendant auditor, from which, and an order denying a new trial, plaintiff appeals.
The principal contention of appellant is that the salary annexed to a public office is incident to the title of the office, and not to its occupation and exercise. This established principle received recognition in our supreme court in
Stratton
v.
Oulton,
28 Cal. 45, and in succeeding cases; and appellant claims that, being actually elected to the office, the right to receive the salary follows as a natural consequence. The general principle before stated should not be carried to the extent of asserting that the legislative power of a state may not establish a different rule. To obviate consequent difficulties involving the personal liability of public officers intrusted the duty of disbursing salaries, section 936 of the Political Code was adopted, which provides: “When the title of the incumbent of any office in this state is contested by proceedings instituted in any court for that purpose, no warrant can thereafter be drawn or paid for any part of his salary until such proceedings have been finally determined." This section was amended in 1891 by the following proviso: “Provided, however, that this section shall not be construed to apply to any party to a contest or proceeding now pending or hereafter instituted who holds the certificate of election, or commission
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