27 S.D. 519 | S.D. | 1911
This is an appeal by the plaintiff from a judgment entered in favor of the defendant, and from the order denying a new trial. The action was commenced by the plaintiff to recover from the defendant the sum of $500 alleged to be due him for services as county superintendent of schools of Roberts county during the months of May, June, July, and August, 1909. It is alleged in the complaint that at the regular meeting of the board of county commissioners in September, 1909, plaintiff’s bill for said amount was duly presented and allowed by the said board, but the defendant has refused to pay and still refuses to pay the same or any part thereof.
It is alleged in the answer of the defendant: “For a first defense herein defendant alleges that plaintiff was elected to the office of superintendent of schools of said county at the general election held in said county November, 1904, and that he duly qualified as such on the first Monday in January, 1905, and continued to act as such until the first Monday in January, 1907; that at the general election held in said county in November, 1906, said plaintiff was again re-elected to said office, and that on the first Monday in January, 1907, he duly qualified as such and entered upon the discharge of his duties as such officer and continued to perform the duties thereof until the first Monday in January, 1909; that said plaintiff under such election aforesaid performed the duties of said office continuously for the full period of four years as aforesaid; and that by reason of said facts said plaintiff was not eligible to be elected to or hold or occupy said office after the expiration of his said term of office on the first Monday in January, 1909, and was not entitled to receive any of the salary or emoluments belonging to said office at any time thereafter.
The case was tried to the court without a jury, and the court finds the facts substantially as alleged in the answer, and further finds that at the general election held in said county in November, 1908, one Agnes E. Gee was duly elected to the office of county superintendent of school of said county and received the usual certificate of election thereto; that after said Agnes E- Gee received
The court further found that the plaintiff continued in the sole and exclusive possession of said office of county superintendent from and after the expiration of his term therein on the first Monday of January, 1909, until October, 1909, and assumed to and did perform the duties of such office; that during the year 1909 the salary allowed by law to the superintendent of schools of said county was the sum of $125 per month; that on September 9, 1909, the board of county commissioners of said county allowed the claim of said plaintiff for the sum of $500, and -that thereafter the state’s attorney of said county did, upon petition of seven taxpayers of said county, duly take and perfect an appeal to this court from the action and decision of said board of county commissioners in allowing the said bill for the salary aforesaid. And the court concludes as follows: “That the plaintiff herein was not eligible to take, hold, or occupy said office after the expiration of his said term of office on the first Monday in January, 1909, and is not entitled to receive any of the salary or .emoluments belonging to said office at any time thereafter, and that the defendant herein is entitled to a judgment dismissing said action upon the merits, and for its costs and disbursements herein.” A
It is contended by the appellant that as no- person eligible to hold the office was elected to succeed him, and he continued to hold the office and perform the duties thereof, he is entitled to the salary for the time he served as such county superintendent during the pendency of the election contest, and that the court erred, therefore, in its conclusions of law and judgment in holding'that the board of county commissioners was not authorized to allow plaintiff’s demand for the said salary as claimed by him, and in dismissing the plaintiff’s action.
The respondent, in support of the decision of the trial court, contends: (1) That plaintiff was not eligible to hold or occupy said office or to perform its duties after January, 1909, the expiration of his four years’ continuous holding of the same. (2) That there was a vacancy in said office after such date and that plaintiff was a mere usurper in such office, holding possession in violation of the positive prohibition of law, and without color of title thereto. (3) That the salary attached to an office belongs only to the legal incumbent — the de jure officer — and that, even if we should consider plaintiff as an officer de facto, still he could not recover; that, in order to recover, plaintiff must show a legal title to the office. Section 5 of article 9 of the state Constitution provides that: “In each organized county at the first general election held after the admission of the state of South Dakota into the Union, and every two years thereafter, there shall be elected a clerk of the court, * * * and superintendent of schools, whose terms of office respectively shall be two years, and except the
The first question, therefore, presented is: AYas the plaintiff entitled to hold and perform the duties of the office of county superintendent after his term of office expired, and until his successor was elected or appointed and qualified? It is contended by the appellant that under the provisions of the Constitution and the law, while not eligible to re-election, he could legally and properly remain in possession and discharge the duties of the office until his successor was elected or appointed and qualified. AYe are of the opinion that the appellant is right in his contention. It will be noticed that the language of the Constitution and the law is: “No person shall be eligible for more than four years in succession to any of the above named offices,” except the clerk of courts. The. appellant was not in terms prohibited from performing the duties of his office after his term expired, but was not eligible to re-election after four years.
It is contended by the respondent that, as it is provided that no person shall be 'eligible for more than four years, it was clearly intended to prohibit the party who had held the office four years from further performing the duties of his office, but we are not able to agree with respondent in this contention. The word “eligible,” as used in our Constitution and law, was evidently intended to be used in the sense, legally qualified for election or appointment. Such is the definition of the word “eligible” as defined in the Century Dictionary and AVebster’s Unabridged
The judgment of the circuit court and order denying a new trial are reversed, and the circuit court is directed to conform its conclusions of law to the views expressed in this opinion, and to enter judgment in favor of the plaintiff and appellant for the sum of $500 and interest and costs. Hamlin County v. Clark County, 1 S. D. 131, 45 N. W. 329.