People ex rel. Culbertson v. Potter

McKee, J. This was an application to compel the auditor of Tuolumne County to draw his warrant in favor of petitioner and appellant on the county treasurer for the sum of eight hundred and seventy dollars, which had been allowed by the board of supervisors of the county as compensation for services, which had been rendered by the petitioner as a defacto member of the board, pending a contest between him and a supervisor-elect, in which the latter was adjudged to have been legally elected, and to be entitled to the office. The judgment was rendered on the 5th of December, 1878, but the incumbent, instead of surrendering the office, appealed from the judgment to the Supreme Court, where it was affirmed on August 16, 1881. The term of the office commenced on the first Monday of March, 1879. From that time until the final determination of the contest by the decision of the Supreme Court the petitioner excluded the officer-elect from the office, and for the services rendered by him during the time that he intruded himself into the office to which he was not elected, he asked the county to compensate him.

The court below properly refused the prayer of the petitioner. An officer de facto, acting even in good faith under a claim of right to an office, is not entitled to recover from a county the [128]compensation provided by law for such services to the exclusion ,-of the officer de jure. “It will be remembered,” says the Supreme Court of Iowa in MeCue v. County of Wapello, 51 Iowa, 60, “that one exercising the power of an office without lawful authority is regarded as an officer de facto, not for his own protection or advantage, but for the protection of the public and those who are doing business with him. When his right to the possession of the office is to be determined he cannot be declared an officer de jurre, on the ground that he has been an officer de fado. It is therefore a rule of law that when an officer seeks to recover the emoluments of an office he must show his right to the possession of the office. The rule is based upon the ground that the officer de jure who has been ousted from his place by an intruder has a property interest in the emoluments of the office, of which he cannot be deprived by one having no title thereto. This property right demands protection, and the officer de facto cannot recover emoluments to which the officer de jure is entitled.” (56 Iowa, 331.) Actual incumbency merely, gives no right of recovery. (Dorsey v. Smyth, 28 Cal. 21.)

Appellant, however, claims that the rule has been changed by the Political Code of this State. In this he is mistaken. Section 963 of that Code declares that pending a contest for an office no warrant for any part of the salary of the office must be drawn or paid. Prom this it results that after the contest has been finally decided the officer de jure is the only person entitled to the salary. (Dorsey v. Smyth, 28 Cal. 21; Stratton v. Oulton, 28 Cal. 45.)