13 Del. Ch. 320 | New York Court of Chancery | 1922
Solicitors for the parties have submitted their argument upon the demurrer on briefs. A reading of the
The defendants view the complaint as one made against the eligibility of Hill as County Engineer because he does not possess the qualifications prescribed by the statute as necessary for one appointed by the Levy Court to that office, and the consequent illegality of the payment to him of the salary attached by the law to it. This being the proper aspect of the case, they contend that the bill seeks to try in a Court of Chancery the right of Hill to occupy the office.
The complainant, however, insists that the bill does not seek to try Hill's title to the office of County Engineer; that it does not charge that Hill is in possession of such office; that the office he is charged with occupying is that of “Acting County Engineer”; that there is no such office as “Acting” County Engineer; and that the payment to him of a salary therefor has no warrant in law and is consequently an illegal expenditure of the money of taxpayers.
Which of these two views is the correct one, must be deter-minded by the court. The statement of the case which precedes this opinion gives a complete synopsis of the bill and paraphrases all its material contents. It would, therefore, be superfluous to recite the bill’s allegations again at this point. After full consideration I am clearly of the opinion that the gravamen of the case is Hill’s alleged inability to meet the qualifications prescribed by the statute as necessary for County Engineer of Sussex County. I am at a loss to explain the allegations in the bill on any other theory. The bill shows that Hill is performing the duties of the office of County Engineer and is drawing the salary as such, and the sole objection made by the bill is that he does not possess the statutory qualifications specified for that office. If the true theory of the bill is that it complains against disbursing county funds to maintain an office not authorized by law (the so-called office of Acting County Engineer), as is contended by the complainant, then almost every paragraph of the entire bill is irrelevant to the ground of complaint, for surely, if such be the theory of the case, all the allegations with reference to the statutory office of County
"Ninth: Your orator, therefore, avers that in paying to the said Robert Clark Hill the salary of Eighteen Hundred Dollars per year, provided by the said Chapter 76, Volume 28, Laws of Delaware, to be paid to the County Engineer of Sussex County, or any part thereof, the said William H. Bookhammer Rufus D. Lingo, Jr., and William E. Valliant, composing the Levy Court of Sussex County, have exceeded their power as such Levy Court, and that said payment is an illegal expenditure and disposition of the moneys collected from the citizens and taxpayers of Sussex County, including your orator, for county purposes and contrary to the provisions of the hereinabove referred to act of the General Assembly of the State of " Delaware, creating'the office of the County Engineer for Sussex County."
. The thought gathered from a casual reading of this paragraph is confirmed by a more attentive consideration of it as being, that the illegality in paying Hill the salary consists, not in the fact that the Levy Court is paying money to maintain an office not authorized by law, but in paying the salary of County Engineer, an office created by statute, to a man who was appointed contrary to the provisions of the statute wherein the qualifications for the office are defined. That is to say, thq illegality of the payment, consists in paying the salary of County Engineer to a man who lacks the statutory qualifications for the pffice. This appears to me as the clear purport and meaning of the ninth paragraph, the .paragraph to which the complainant" points as showing “the real and only reason advanced by the bill for the relief sought.” Any other meaning would not only not be justified by the language employed, but would also be entirely inconsistent with all the remaining allegations of the bill.
. The complainant lays great stress upon the word “acting” as indicating that when used in the phrase “Acting County Engineer” it describes an office entirely different from the office of County Engineer created by the statute. For instance, he urges that if quo warranta were instituted to oust Hill from the office of County Engineer,, the writ would be defeated by.the defense that, he-was
The bill allegés that the term of office of County Engineer is fixed by the statute as four years, and that Hill was áppointed only for one year, first for the portion of 1921 from August to December 31st, and then again for the year 1922. Thus Hill was appointed for a term less than that prescribed by the statute. The complainant on his brief lays no particular stress upon this circumstance. What effect such an appointment may have on Hill’s rights, I ani' not called upon to decide. There may be some room to contend that the attempt by the Levy Court to place such a limitation on the term of his appointment is ineffectual, for the reason that, the Legislature having defined the term as four years, it is beyond the power of the Levy Court to curtail the term to less than that period. People v. Case, et al., 19 N. Y. Supp. 625; Clark v. State ex rel. Graves, 177 Ala. 188, 59 South: 259; State ex rel. Boone County Attorney v. Willott, 103 Neb. 798, 174 N. W. 429; Stadler v. Detroit, 13 Mich. 346; Brewer v. Davis, 9 Humph. (Tenn.) 208, 49 Am. Dec. 706; Hale v. Bischoff, 53 Kan. 301, 36 Pac. 752; State
If, under the circumstances, therefore, Hill was as a matter of law appointed for the full term of four years notwithstanding the attempt of the Levy Court to narrow his term to one year, then, of course, nothing can be made of the employment of him for the shorter time. His situation would then be as in the case just supposed, viz., where a person has been appointed “Acting” County Engineer for the full term in which case, as before indicated, he would be occupying the statutory office arid not one outside the statute.
But, whatever might be the true view to take with respect to the length of the term of Hill’s appointment, whether it be for the full period of four years, or for the less period of one year, I am satisfied that the result is the same. For in either case, the bill shows that he is occupying the statutory office of County Engineer, not a new office created without authority by the Levy Court. I apprehend that, assuming equity has jurisdiction to enjoin the. payment of the salary, yet it would never do so if the sole objection were that the officer to whom the salary is payable was appointed for less than the full statutory term of the office. The officer might have some right to assert objection to such a curtailment of the office, and it may well be that the public might have some right by way of mandamus (26 Cyc. 251) to compel the appointing body to fill the office for the full term, if its action had not already in law been equivalent to a full term appointment. But it would seem clear that the fact that an appointment is made for one year when it should have been for four-years can supply no justification for an appeal to the injunctive process of this court to stop the payment of the salary.
Having reached the conclusion that the bill charges that Hill is in occupancy of the statutory office of County Engineer by appointment from the Levy Court, and that the attempted restriction of his term to one year is of no present significance, it is now in order to pass upon the questions of law applicable to the situation as raised by the demurrer.
It is urged that if Hill is disqualified to hold the office, the law supplies an adequate remedy by way of quo warranta to oust
The real question in the case before me is the eligibility of Hill to hold the office in question. That question can be tried only in a direct proceeding to which the alleged officer is a party. This is in obedience to the general rule applicable to the subject. 29 Cyc., page 1380. Numerous cases, in addition to those cited supra where the rule operates against restraining the payment of the salary, illustrate it. Tappan v. Gary, 9 Paige, 507, affirmed 7 Hill 259, and Stone v. Wetmore, 42 Ga. 601, where a claimant who was out of the office sought to enjoin the incumbent from receiving the fees, etc., both follow the general rule and deny the relief. So
I do not feel disposed to amplify this point further. It appears-too well settled by authority to warrant further discussion.' Indeed the complainant Seems to concede that if Hill is occupying the office of County Engineer, created by statute, and is not occupying one statutorily non-existent, the only proceeding in which his title can be questioned is the legal one of quo warranta. I have examined the authorities cited by the complainant and find none of them (the status of Hill being fixed as occupying the statutory office of County Engineer) to hold that this court would be justified in issuing the injunction prayed for. Such of them as seem to bear at all upon the question here discussed, contain language in harmony with thé views hereinabove expressed: I refer particularly to the Pennsylvania cases cited by the complainant, of Hagner v. Heyberger, 7 Watts & S. 104, 42 Am. Dec. 220; and Commonwealth ex rel. Hunter v. Smail, 238 Pa. 106, 85 Atl. 1088, Ann. Cas. 1914C 326.
On the ground, therefore, that it is improper in this proceeding to try the question of Hill’s right to the office, the remedy at law by way of quo warranta being not only adequate but peculiarly proper, the demurrer should be sustained.
Taking this view it is not necessary for me to proceed to a-consideration of the other points raised by the demurrer. They