92 Neb. 729 | Neb. | 1913
Lead Opinion
In the year 1909 the legislature of this state passed what is popularly known as the “Bank Guaranty Law.” Laws 1909, ch. 10. Under the authority and provisions of that 1 aw, the governor appointed plaintiff to the office of secretary of the state banking board. The salary of that office was fixed' by the act at $3,000 a year. The appointment was made after the passage and approval of the act, but before it became effective; there being no emergency clause contained in the bill. Plaintiff accepted the appointment, took the required oath, and executed a personal official bond, which was delivered to the governor. Later he withdrew that bond, and caused a bond issued by an indemnity company to be filed in its stead. It being contended that the guaranty law was unconstitutional and void, a suit was instituted in the United States circuit court for the district of Nebraska by one of the banks in this state, the purpose of Avhich AA’as to enjoin the enforcement of the law. The governor, the state banking board and plaintiff Avere made parties defendant in that suit. Such proceedings were had as resulted in a final decree perpetually enjoining the defendants therein from enforcing or attempting to enforce the provisions of the laAV. Prom that decree the state took an appeal to the supreme court of the United States, where the case was heard, and on the 3d day of January, 1911, a decree was entered finding the act valid and reversing the decree of the circuit court. Prior to the institution of that suit, and under the provisions of the law then in force, Edward Royce was duly appointed the secretary of the state banking board, and entered upon the duties of the office and continued to act until after the decision of the supreme court of the United States was rendered, when he was appointed the secretary under the provisions of the new law, and which office he still holds. The session of the legislature which enacted the guaranty law appropriated the sum- of $3,000 a year for and during
The case is presented upon unusually Avell and cárefully prepared briefs. It is conceded that plaintiff rendered no service to the state. It is also conceded that, after filing his official bond, he thereafter A withdraw it from its legal custodian and surrendered it to the indemnity company, causing it to be canceled, and left nothing in its stead, the withdrawal, surrender and can-
The guaranty law, under which plaintiff’s appointment was made, requires that the secretary give an official bond in the sum of $25,000. Without such bond he was not entitled to and could not hold the office, nor legally discharge its functions. Rounds v. City of Bangor, 46 Me. 541; Foster v. Justices of the Inferior Court, 9 Ga. 185; 23 Am. & Eng. Ency. Law (2d ed.) 354; 29 Cyc. 1387; State v. Paxton, 65 Neb. 110; State v. Lansing, 46 Neb. 514, 35 L. R. A. 124; Holt County v. Scott, 53 Neb. 176. It is provided in section 6, ch. 8, Comp. St. 1911, that the secretary, etc., “shall each enter into a bond, to the state of Nebraska, before taking their respective offices, with surety or sureties to be approved by the governor” in the sum of $25,000. Not only did he withdraw the bond, but he devoted himself to his own banking business, evidently giving the affairs of the office no thought or attention.
It is claimed by the defense that the cancelation and withdrawal of the bond was such an act as Avould effectually deprive plaintiff of the right to any claim for the salary, irrespective of all other grounds upon which he might liaA'e based his demand. It- is argued, in substance, that, had every impediment to the discharge of the duties of the office been removed after the cancelation and Avithdrawal of his bond, plaintiff could not have entered into the office without a requalification, and, as that never occurred, he is in no condition to demand the payment of the salary, even had the office otherAvise been Aracant and no one discharging its duties. While this contention might be entitled to consideration, we are not inclined to dispose of the case upon that ground alone.
It is contended by plaintiff that, having qualified and fully prepared himself for taking charge of the office, he thereby became the secretary de jure; that the order of injunction issued by the circuit court could not change his status; and that he so continued until the final appointment of his successor, the injunction having been can
In Dredla v. Baache, 60 Neb. 655, the question was presented as to the legality of the orders and proceedings of an acting county judge; it being contended that his acts Avere AAdiolly void from want of authority to exercise the functions of the office. In the opinion by Holcomb, J., at page 662, we said: “Whether Wurzburg was a de jure or a de facto officer, it is unnecessary here to determine. A discussion of the distinction between the two
In Haskell v. Dutton, 65 Neb. 274, the officer was the deputy clerk of the district court, under verbal appointment, without having complied with any of the provisions of the law relative to official bonds and oaths, but had acted in the capacity for a year or more. On deciding the case as to the legality of his acts, we said, Sullivan, O. J., writing the opinion: The deputy, “according to the narrowest definition of the term, was a de facto officer, and his acts, so far as they affected the parties to the suit, were just as binding and efficacious as they would have been if all the conditions necessary to make him a de jure officer had been fulfilled” — citing cases, and quoting from Norton v. Shelby County, 118 U. S. 425, wherein it was said by Justice Field: “Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is enough that he is clothed with the in
Applying these rules to the incumbency of Royce, it is clear that, to say the very least, he was a de facto officer, and that the payment to him of the salary, which he had earned, out of the appropriation, thus exhausting it, was a legal payment, and that the state officers would not be justified in, paying it again to plaintiff, who had discharged none of the duties of the office.
It follows that the judgment of the district court must be, and is,
Affirmed.
Concurrence Opinion
concurring in part.
Plaintiff withdrew his official bond early in the term for which he ivas appointed. Afterward, his status was the same as if his .appointment had never been made, since he did not in fact occupy the office at any time or perform any of the duties thereof. The claim he presented to the auditor of public accounts was a single demand for a warrant for $6,000 — the entire statutory compensation appropriated by the legislature for the full term. The allowance of the claim in its entirety was the question presented. In disallowing it, the auditor and the trial court did not err. For these reasons alone, I concur in the affirmance, but express no opinion on other questions discussed by the chief justice.