Adams v. Doyle

SHAW, J.

This is a proceeding in

mandamus

to compel the defendant, as auditor, to draw his warrant on the county treasurer for $202.05, claimed to be due the petitioner for his salary as sheriff of said county for the month of January, 1903. The court gave judgment in favor of petitioner, and the defendant appeals from the judgment.

The facts are as follows: At the general election in 1902 the petitioner and William Sweeney were each candidates for the office of sheriff of said county for the term commencing upon the first Monday after the first day of January, 1903. One Price was the incumbent of the office. Upon the official canvass, the supervisors declared that the petitioner received the highest number of votes, and caused to be issued to him a certificate of election. He failed to take the oath of office or file the bond as required by law, and neither qualified nor attempted to qualify under such election. Within the time prescribed by law, Sweeney began proceedings to contest the .election of petitioner, claiming that he (Sweeney) was duly elected as such sheriff. On January 7, 1903, after the time when the term for which the petitioner was elected had begun, Price, the incumbent, not having resigned, and being still in charge of the office, the board of supervisors of the county made an order appointing the petitioner sheriff, ostensibly to fill the vacancy caused by the petitioner’s failure to qualify, in pursuance of his election, and by the expiration of the regular term of the incumbent, Price. Under this appointment the petitioner duly qualified, and on January 8th entered into the-offiee of sheriff, claiming under such appointment, and thereafter, during the month of January, being the

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time for which he claims the salary in question, he acted as and performed the duties of sheriff of said county. After he took possession of the office, the superior court on January 12, 1903, decided the contest in favor of Sweeney and against the petitioner, and rendered judgment declaring Sweeney duly elected. From this judgment the petitioner appealed to this court, and the appeal is still pending.

We do not perceive that the institution and pendency of the contest proceedings are material to the consideration of the ease. The right of the petitioner is not at all affected by the fact that he was the party declared elected and the party against whom the contest was made. His right is precisely the same as it would have been had some other person been the candidate at the previous election and had failed to qualify and the petitioner had been appointed to fill the vacancy thus caused. The right of the petitioner depends upon his title to the office, by virtue of the appointment. He cannot claim the salary unless he was lawfully entitled to hold the office.