297 P. 512 | Colo. | 1931
WILLIAM S. Lail and Federal Surety Company seek the reversal of a judgment rendered against them in an action on a bond brought by the City and County of Denver. There is involved the construction of those prolific sources of litigation, article XX of the state Constitution and the charter of the City and County of Denver.
On July 23, 1924, Lail, who then was the clerk and recorder and ex officio clerk of the City and County of Denver, was appointed by the mayor public trustee of the City and County of Denver. He took the oath of office as such, and furnished a bond to secure the faithful performance of his duties as public trustee and the payment and delivery to the person entitled to receive the same of all moneys coming into his hands as such officer. He entered upon the performance of his new duties and continued to perform the duties of both offices until June 15, 1927, when he resigned from both offices. He received in full his salary as clerk and recorder and ex officio clerk. There is no controversy as to that. Out of the moneys received by him as public trustee, he retained $7,233.60, claiming the same as part compensation for his services as public trustee. Upon Lail's refusal to pay over that *364 sum, this action was commenced. Lail filed a counterclaim, alleging that he was entitled to a salary of $14,467. 20 as public trustee, that he had received $7,233.60 on account, leaving a balance of $7,233.60 due him. He demanded judgment in that amount.
[1] There were two causes of action pleaded in the complaint. The second was based upon an alleged agreement, whereby Lail is said to have agreed to accept the office of public trustee and to perform the duties thereof without any compensation additional to his salary as clerk and recorder and ex officio clerk; in other words, that he agreed to waive all salary as public trustee. Lail denied the making of such an agreement. If Lail was not entitled to such salary, the agreement was useless. If he was entitled to the salary, the agreement, if made, was contrary to public policy and therefore void. Glavey v.United States,
The question presented for our determination is this: Was Lail entitled to receive a salary as public trustee in addition to his salary as clerk and recorder and ex officio clerk of the City and County of Denver? He says that he was. Counsel for the City and County of Denver say that he was not.
Article XX of the Constitution was adopted in 1902. It consolidated the city of Denver and that part of the county of Arapahoe included within the boundaries of the city of Denver into a single body politic and corporate by the name of the "City and County of Denver." Section 2 of article XX provides: "The officers of the city and county of Denver shall be such as by appointment or election may be provided for by the charter; and the jurisdiction, term of office, duties and qualifications of all such officers shall be such as in the charter may be provided; but every charter shall designate the officers who *365 shall, respectively, perform the acts and duties required of county officers to be done by the Constitution or by the general law, as far as applicable. If any officer of said city and county of Denver shall receive any compensation whatever, he or she shall receive the same as a stated salary, the amount of which shall be fixed by the charter, and paid out of the treasury of the city and county of Denver in equal monthly payments." Section 3 provides that upon the adoption of article XX the terms of office of all officers of the city of Denver and of the county of Arapahoe shall terminate, except that certain designated officers of the city of Denver and of the county of Arapahoe, including "the then clerk and ex officio recorder * * * of the county of Arapahoe," shall become, respectively, said officers of the City and County of Denver, and shall hold said officers until their successors are elected and qualified. No mention is made of the public trustee. Section 4 relates to the holding of a convention to adopt a charter. Section 6, as amended, contains these provisions: "Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith. * * * The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except in so far as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters."
[2, 3] The charter does not designate any officer to perform the duties of public trustee. The failure of section 3 of article XX to include the public trustee of Arapahoe county among the provisional officers, and the failure of the charter to designate an officer to perform the duties of the public trustee, is due, counsel explain — and the explanation is reasonable — to the fact that until 1921, when, in Chambers v. People,
[4] Section 5047 of the Compiled Laws fixes the salary of the public trustee of counties of the first class (to which class Denver belongs) at $5,000 per year, payable from the fees collected. The mayor of Denver has the power to appoint as public trustee either a person who does not hold any other office, or a person who does. If the mayor had appointed one who did not hold any other office, the appointee would have been entitled to the statutory salary, as there is nothing in the charter that *367 supersedes the statutory provision with reference thereto. By failing to fix, in its charter, the salary of the public trustee, the City and County of Denver cannot deprive the people of the services of such an officer. Until the charter fixes the salary, as provided in section 2 of article XX, the statutory salary of $5,000 prevails in the case supposed, namely, where the mayor appoints one who is not already an officer of the City and County of Denver.
The mayor, however, did not appoint to the office of public trustee one who held no other office. His appointee, Lail, already held, and he continued to hold and receive the salary attached to, the office of clerk and recorder and ex officio clerk of the City and County of Denver, an office created by the charter pursuant to section 2 of article XX. Is Lail entitled not only to the salary of such office, which has been paid to him, but also to a salary of $5,000 per year as public trustee? If he is, the judgment should be reversed; if he is not, the judgment against him should be affirmed.
Although we have determined many controversies involving the construction of article XX and the charter of the City and County of Denver, we never before have had occasion to pass upon the precise question presented by the record in this case.
[5] Section 2 of article XX contains this provision: "If any officer of said City and County of Denver shall receive any compensation whatever, he or she shall receive the same as a stated salary, the amount of which shall be fixed by the charter, and paid out of the treasury of the City and County of Denver in equal monthly payments." Several sections of the charter are called to our attention. Section 159, being section 304 of the Municipal Code of 1927: "All fees and compensation of any kind allowed to county officers by law shall be collected by the officers designated to perform the acts and duties required of county officers and paid to the treasurer as in the charter provided, and no officer shall be paid any fee or compensation beyond that fixed by the charter." *368 Section 347, being section 311 of the Municipal Code of 1927: "No officer or employe shall hold or enjoy any other public office or public employment for which he is paid anycompensation * * *." Section 24C, being section 312 of the Municipal Code of 1927: "No official or employe shall solicit or receive any pay, commission, money or anything of value, or derive any benefit, profit or advantage, directly or indirectly, from or by reason of any dealings with or service for the City and County * * * except lawful compensation or salary as such officer or employe * * *. Any violation of this section shall ipso facto work a vacancy in the office or employment of such persons so offending."
In construing these several provisions, it is helpful to bear in mind the purpose sought to be accomplished by the consolidation of the city government and the county government into what article XX calls "a single body politic and corporate."
In his dissenting opinion in People v. Horan,
[6] Lail's counsel cite Lindsley v. Denver,
Counsel for Lail calls attention to section 347 of the charter, being section 311 of the Municipal Code of 1927, and contends that Lail's acceptance of the office of public trustee created a legal vacancy in the office of clerk and recorder and ex officio clerk; that as no one was appointed to fill the vacancy and Lail continued to perform the duties of that office, he was an officer de facto; that Lail was the de jure public trustee; and therefore that Lail was entitled to the salaries of both offices — of the former as an officer de facto, and of the latter as an officer de jure. But the section provides that no officer shall hold or enjoy any other public office "for which he is paid any compensation." That Lail was not paid any compensation for his services as public trustee is shown by his counterclaim in this case. When we read that provision in connection with other provisions of the charter and with the provisions of article XX, it is evident that its real purpose is not so much to prohibit one person from performing the duties of two offices as to forbid the payment of more than one salary to one person. As we have seen, the purpose of the Constitution and the *371 charter was to consolidate separate offices into one office, with only one salary. Even where, as here, the charter, through some oversight, fails to expressly consolidate two offices, the charter section that we are discussing prevents an officer appointed to a second office from being paid the salary of that office. If Lail had resigned his first office upon being appointed public trustee and had ceased to perform the duties and receive the salary of the first office, he would have been entitled to a salary as public trustee; but, as we have seen, he did not resign, but continued to act as clerk and recorder and ex officio clerk, and accepted payment of the salary of that office.
[7] Counsel for the Surety Company make an argument based upon section 24C, being section 312 of the Municipal Code of 1927, already quoted in part in this opinion. It is contended that, by virtue of that section, if Lail was not lawfully entitled to the salaries of both offices, his solicitation of the salary of public trustee had the effect of ipso facto working a vacancy in the office of clerk and recorder and ex officio clerk, and that thereupon he became lawfully entitled to the salary of public trustee. That section has no application to a case where, as here, an official openly and in good faith asserts a claim to the salary of another office, the duties of which he has discharged, and where his right to such salary is fairly debatable. Besides, no successor was appointed, no proceeding was brought to oust Lail, and he continued to perform the duties and receive the salary of the office of clerk and recorder and ex officio clerk. In such circumstances, neither he nor the Surety Company is in a position to urge the creation of a supposed vacancy in support of Lail's claim in this case. A statute of New Jersey provides that when a street and water commissioner accepts another office, his former office shall become vacant. In Oliver v. Jersey City,
The judgment is affirmed. *373