63 Cal. 127 | Cal. | 1883
This was an application to compel the auditor of Tuolumne County to draw his warrant in favor of petitioner and appellant on the county treasurer for the sum of eight hundred and seventy dollars, which had been allowed by the board of supervisors of the county as compensation for services, which had been rendered by the petitioner as a defacto member of the board, pending a contest between him and a supervisor-elect, in which the latter was adjudged to have been legally elected, and to be entitled to the office. The judgment was rendered on the 5th of December, 1878, but the incumbent, instead of surrendering the office, appealed from the judgment to the Supreme Court, where it was affirmed on August 16, 1881. The term of the office commenced on the first Monday of March, 1879. From that time until the final determination of the contest by the decision of the Supreme Court the petitioner excluded the officer-elect from the office, and for the services rendered by him during the time that he intruded himself into the office to which he was not elected, he asked the county to compensate him.
The court below properly refused the prayer of the petitioner. An officer de facto, acting even in good faith under a claim of right to an office, is not entitled to recover from a county the
Appellant, however, claims that the rule has been changed by the Political Code of this State. In this he is mistaken. Section 963 of that Code declares that pending a contest for an office no warrant for any part of the salary of the office must be drawn or paid. Prom this it results that after the contest has been finally decided the officer de jure is the only person entitled to the salary. (Dorsey v. Smyth, 28 Cal. 21; Stratton v. Oulton, 28 Cal. 45.)
In answer to this result it is claimed that the appellant was the officer de jure, because the officer elect failed to qualify before the expiration of fifteen days from the commencement of his term of office, as he was required to do by section 907 of the Political Code; and the appellant, as the incumbent of the office, was compelled by section 879 of such Code to hold over and perform the duties of the office until his successor had been elected and qualified.
These sections of the Code do not admit of such a construction. Where a contest is pending for an office, section 907 has no application until the contest has been finally determined (Pearson v. Wilson, 57 Miss. 862); otherwise it would be.in the
Judgment affirmed.
Ross, J., and McKinstry, J., concurred.