People ex rel. Dorsey v. Smyth
Before: Sanderson
Synopsis
Application to the Supreme Court for writ of mandate to compel the defendant, County Auditor of Tuolumne County, to audit and allow the salary of the relator as District Attorney of said county.
The affidavit of the sureties on the official bond of the relator states that they “are each and severally worth the amount for which they have become sureties in the above bond over and above all their just debts and liabilities.”
At the September election, in 1863, the relator, Caleb Dorsey, and one Hugh Gf. Platt were opposing candidates for the office of District Attorney of Tuolumne County. At that election two hundred and eleven votes were cast for the candidates for that office by soldiers in the military service of the United States. Of these votes, Platt received two hundred and ten, and Dorsey one. With these votes in, Platt was elected, otherwise Dorsey. They were included in the count, and Platt declared elected. Thereupon Dorsey brought suit to contest the election upon the ground that the votes in question were illegal, wffiich was finally determinéd in his favor by the County Court on the 7th of December, 1863, and by this Court on appeal at the October term, 1864. Prior to the first Monday in March, 1864, at which time the term of office to which he had been elected commenced, the relator duly qualified, and on that day formally demanded from C. C. Brown, the then incumbent, possession of the office and the books and papers pertaining thereto. On account of the pending controversy between the relator and Pratt, Brown refused to comply with the demand, and continued to hold the office and exercise its functions until after the final determination thereof, at which time he surrendered the office to the relator. For the time during which he thus held over, Brown received from the county the salary belonging to the office, amounting to the sum of seven hundred dollars, which was paid to him in obedience to a mandamus issued by the District Court upon his relation against the Board of Supervisors, to which proceeding neither the relator nor the respondent were parties; both, however, were cognizant of the proceeding and the judgment thereon. Upon coming into the possession of his office, the relator made claim for the back salary before the respondent, and demanded from him a warrant therefor, which was refused. Hence the present proceeding.
By the Court,
Sanderson, C. J. The question involved in this case is whether Brown, the old incumbent, or the relator is entitled to the salary for the time during which the former held over. This question is wholly unaffected by the mandamus against the Board of Supervisors. The relator was not a party to that proceeding, nor had the Board any power over or duty to perform touching the salary of his office. The salary of District Attorneys is not audited and allowed by the Board of Supervisors but by the County Auditor. (Wood’s Digest, p. 664, Sec. 2, and [25]p. 694, Sec. 9.) Admitting that he could have intervened in that proceeding we know of no rule by which he was compelled to. do so, and such being the case his rights in the premises could not be prejudiced by his omitting to do what no rule of law .required.
Every one is presumed to know the law, and therefore Mr. Brown was bound to know under the circumstances who was his successor, and to yield the office upon his qualification and demand. He was bound to act at his peril, and if he held over, and thereafter it should appear that the party so qualifying and demanding the office had at the time a title thereto he could claim nothing'on the score of services rendered, for upon the determination of that question he became a usurper ab initia. The salary annexed to a public office is incident to the title to the office, and not to its occupation and exercise. {The People ex rel. Morton v. Tieman, 8 Abbott’s Practice Reports, 359.) In the case cited the Court said : “ The salary and fees are incident to the title, and not to the usurpation and colorable possession of an office. An officer de facto may be protected in the performance of acts done in good faith in the discharge of the duties of an office under color of right, and third persons will not be permitted to question the validity of his acts by impeaching his title to the office. Public interests require that acts of public officers, who are such de facto, should be respected and held valid as to third persons who have an interest in them, and as concerns the public, in order to prevent a failure of justice. (2 Kent’s Com., 295.) But it does not follow that a right can be asserted and enforced on behalf of one who acts merely under color of office, without legal authority, as if he were an officer de jure. When an individual claims by action the office or the incidents to the office, he can only recover upon proof of title. Possession under color of right may well serve as a shield for defence, but cannot, as against the public, be converted into a weapon of attack to secure the fruits of the usurpation and the incidents to the office.’’
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