61 Colo. 8 | Colo. | 1916
delivered the opinion of the court.
The plaintiff in error was elected to the office of County-Assessor in November, 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 error salary -which was paid the latter as assessor of the City and County of Denver, from December 14th, 1911, until his retirement from office, February 23rd, 1912, alleging and contending 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 questions are presented for consideration and determination: First. Was Arnold 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 adoption of article XX of the Constitution, and the formation of the municipal 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
It is therefore plain 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 which 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 officer 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
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.