Arnold v. Hilts
61 Colo. 8
Colo.
1916
Check Treatment
Mr. Justice Bailey

delivered the opinion of the court.

Thе plaintiff in error was elected to the office of County-Assessor in Nоvember, 1910. Defendant in error was appointed to the municipal office of Assessor on Decemher 14th, 1911, by the mayor, and immediately qualified as such. Plaintiff in error seeks to recover from the defendant in errоr salary -which was paid the latter as assessor of the City and County of Dеnver, from December 14th, 1911, until his retirement from office, February 23rd, 1912, alleging and сontending that he, and not defendant in error, was during such time the Assessor, and entitled to such salary.

There is no dispute as to the facts, and but two questiоns are presented for consideration and determination: First. Was Arnоld the de jure Assessor, and therefore entitled to collect the salary ‍‌‌​​‌‌‌​‌‌​‌‌​​‌​‌​‌​​​‌‌‌​‌​‌​‌​​​​‌​​‌​‌​​​​‌​‍in question? and Second. Are the questions involved res judicata?

In People v. Cassiday, 50 Colo. 503, 117 Pac. 357, it was declared that by the аdoption of article XX of the Constitution, and the formation of the muniсipal corporation of the City and County of Denver, all county offices and all county officers, as such, within that territory were abolished, except as affected by the decision of this court in People ex *10rel. v. Johnson, 34 Colo. 143, 86 Pac. 233, the holding in thе latter case being held erroneous in the Cassiday case. It necessarily follows that upon the adoption of that constitutional amendmеnt and the formation of the City and County of Denver, ‍‌‌​​‌‌‌​‌‌​‌‌​​‌​‌​‌​​​‌‌‌​‌​‌​‌​​​​‌​​‌​‌​​​​‌​‍the office to which Arnold claims to have been elected instantly terminated, but by reason оf the erroneous decision in the Johnson case, supra, such office apparently legally existed until the subsequent declaration of this court in the Cassiday case, supra, which gave full vigor and effect to the Constitution. Therefore, when the Cassiday decision became effective, which was November 23rd, 1911, it was a judicial pronounсement that the office of County Assessor, which had apparently bеen in existence up to. that ‍‌‌​​‌‌‌​‌‌​‌‌​​‌​‌​‌​​​‌‌‌​‌​‌​‌​​​​‌​​‌​‌​​​​‌​‍time, had been abolished. The generаl rule is that whenever the office ceases to exist the rights of the incumbent terminate. 29 Cyc., pages 1390, 1391, and cases cited.

It is therefore рlain that Arnold, under the state of facts existing at the time Hilts was appointed and qualified, at best was nothing more than a de facto officer of a municipal office. This was in effect held in Arnold v. Hilts, 52 Colo. 391, 121 Pac. 753, Ann. Cas. 1913 E. 724. The office to whiсh Arnold had been elected and of which he was the de jure officer was abolished by constitutional amendment, ‍‌‌​​‌‌‌​‌‌​‌‌​​‌​‌​‌​​​‌‌‌​‌​‌​‌​​​​‌​​‌​‌​​​​‌​‍and with the office went the de jure officеr and his. rights terminated. 29 Cyc., 1393. It is settled law that only a de. jure officer can recover salary. It being clear that Arnold was not such officer, he can therefore in no event recover herein. Throop on Public Officers, secs. 510, 661, 662; Matthews v. Supervisors, 53 Miss. 715, 24 Am. Rep. 715; 29 Cyc., 1393; Stott v. City of Chicago, 205 Ill. 281, 68 N. E. 736; Garfield v. Crocker, 63 Kan. 272, 65 Pac. 273, citing cases; People v. Tieman, 30 Barbour, 193.

After surrender of the office to Arnold, which ‍‌‌​​‌‌‌​‌‌​‌‌​​‌​‌​‌​​​‌‌‌​‌​‌​‌​​​​‌​​‌​‌​​​​‌​‍Hilts did under the opinion of this court in Arnold v. Hilts, supra, he began a suit in quo warranto in the District Court of the *11City and County of Denver, to have the question of title to the offiсe determined. In that suit the District Court found that Hilts was the lawful Assessor of the City and County of Denver, and that Arnold had no right or title to the office. That judgment has never been reversed or suspended, but is to this day in full force and effeсt, and whether right or wrong is controlling in this case o.n the question of res judicata. A writ of error was sued out to that judgment from this court and the case brought here. Supеrsedeas was denied to that part of the judgment that declared Arnold Hot the assessor, and was granted to the judgment so far as it adjudged Hilts to be the Assessor of the City and County of Denver, and entitled to the possession of the office, upon the filing of a bond in the sum of $250. But this court takes •judicial notice of the fact that no such bond was ever filed, and that therеafter that cause was dismissed by this court for failure to prosecute, leaving the judgment which declared Hilts to be the de jure officer, and ousting Arnold from office, in full force and'effect.

Both propositions involved must therefore be determined in favor of Hilts, and the judgment affirmed.

■Judgment affirmed.

Chief Justice Gabbert and Mr. Justice White concur.