117 Ky. 747 | Ky. Ct. App. | 1904
Opinion op the court by
Affirming.
In the election of State officers in the month of November, 1899, the appellant, Nall, was a candidate for the office of Commissioner of Agriculture, one Throckmorton being the opposing candidate. On the face of the returns Throckmorton was declared elected by the canvassing, board, a board duly created by and under the laws of the Commonwealth, whose duty it was to count the votes and determine for whom the greater number of votes were cast. It was not the duty of this board to pass upon the legality of the votes cast. On January 1, 1900, Throckmorton took the oath of office, and entered upon the duties thereof. But after the canvassing board had declared Throckmorton duly elected on the face of the returns, the appellant, Nall, instituted a contest, claiming that because of irregular acts done, whereby the votes counted for Throckmorton were procured, and by reason of illegal votes cast at the election, he was entitled to the office. The contest board decided that Nall was the person elected. Upon this finding Nall instituted a proceeding to oust Throckmorton, who refused to give up the office. After this court
We are of the opinion that appellee’s- contention is the correct one. We have not been referred to, nor have we been able to find, any ease decided by this court directly in point; but the courts of many States, as well as the English courts, have passed upon the question. The decided weight of authority, both in numbers and reason, uphold the principles contended for by appellee. We have been referred to many cases apparently holding the opposite rule, but upon a close •examination of them it appears that many are not in conflict; some few of them apply to usurpers, having no color of right or title to. the office; some few have reference to cases where the appointment or election of the person who
In Am. & Eng. Ency. of Law (2d Ed.) vol. 8, p. 783, it is said: “To constitute a person an officer de facto, there must be some facts, circumstances, or conditions which would reasonably lead persons who have relations or business with •the office to recognize and treat him as the lawful incumbent, and submit to or invoke his official action without inquiry as to his title.” Again, on page 794: “Color of title to an office is defined to be ‘that which in appearance is title, but which in reality is no title.’ It is this color of title or, it has been said, color of authority, which distinguishes the de facto officer from a mere intruder or usurper, whose acts are absolutely void.” It can not be said that Throckmorton was a mere intruder or usurper, but, on the contrary, he assumed the duties of the office with the legal certificate
In the case of Dolan v. New York, 68, N. Y., 274, 23 Am. Rep., 168, the court said: “If fiscal officers, upon whom the duty is imposed, to pay official salaries, are only justified in paying them, to the officer de jure, they must act at the peril of being held accountable in case it turns out that the de facto officer has not the true title; or, if they are not made responsible, the department of the government they represent is exposed to the danger of being compelled to pay the salary the second time. It would be unreasonable, we think, to require them, before making payment, to go behind the commission, and investigate and ascertain the real right and title. This in many cases, as we have said, would be impracticable. Disbursing officers, charged with the payment of salaries, have, we think, a right to rely upon the apparent title, and treat the officer who is clothed with it
Appellant claims that he is protected by section 235 of the State Constitution. This section is as follows: “The
salaries of public officers shall not' be changed during the terms for which they were elected; but it shall be the duty of the General Assembly to regulate, by a general law, in what cases and what deductions shall be made for neglect of official duties.” He contends that, if he be not allowed the whole salary for the full term of four years, this would be a deduction from his salary in the meaning of this provision of the Constitution, and a violation of this provision' of the Constitution. In our opinion, this section of the Constitution has no application to a case like this.” This is not an effort to decrease or change his' salary, nor make any deduction therefrom for any neglect of official duty. The appellant had the right to sue the party who litigated with him for this office and recover that part of the salary paid
It is also contended “that the State, by its officers and agents, wrongfully prevented appellant from discharging the duties of his office for a time, and that the State can not now be heard to say that appellant during that time neglected his official duty, and therefore must not be paid.” We do not decide that appellant is not entitled to his salary, or that he was guilty of any neglect of official duty, but conclude that his remedy is against the person who received a part of his salary. It is true that the board of canvassers, board of contest, circuit judge who tried the case, and the Oourt of Appeals, were officers and agents created by the 'State, but the creation of them was for the purpose of guarding and protecting the rights and interests of the •State and individual. We can not admit that the State should be held responsible for the mistakes or errors of judgment of its officials. To carry such a construction to its logical conclusion would involve the State, and make it liable for all losses incurred by the litigant by reason of the errors or mistakes of its officials.
For these reasons the judgment of the lower court is affirmed.