112 P. 801 | Utah | 1910
(after stating tbe facts as above).
Eespondent contends, first, tbat tbe period of time elapsing from January 3, 1910, tbe date upon which tbe officers of Logan City elected in 1909 were installed in office, until March 1, 1910, was a part and a continuation of tbe term of office to which appellant was elected in November, 1901, and tbat the tenure of bis office and tbe emoluments thereof were as fixed by law at tbe time be qualified and entered upon tbe duties of tbe office, January 6, 1908; and, second, “tbat so much of tbe ordinance passed October 1, 1909 (mentioned in tbe foregoing statement of tbe case), as purported to increase tbe salary of said marshal to take effect January 3, 1910, is void as to appellant, for tbe reason tbat it would increase tbe salary of said marshal ‘to take effect during tbe time for which such officer was elected’ and would be in conflict with section 225 of tbe Compiled Laws of the State of Utah, 1907.”
Tbe authorities seem to bold tbat when a person is elected or appointed to an office and be qualifies and enters upon tbe duties thereof under a statute which provides tbat tbe person so elected or appointed shall bold tbe office for a definite period of time and until bis successor is elected and qualified, and such person bolds over and continues to discharge tbe duties of tbe office after tbe expiration of bis
There are many American decisions in which tbe view derived from England is still adhered to-, namely, that tbe right to tbe emoluments of a public office is an incident to and rests upon tbe title to tbe office; and hence under no circumstances is a de facto officer legally entitled to tbe emoluments of tbe office, although be may have performed all tbe services and discharged all tbe duties of tbe office. Upon tbe other band, there are courts of high standing wbicb bold that in tbis country a public office is in no sense property, and that public officers have no proprietary interest in their offices. Pursuant to these latter views sucb courts have deduced tbe doctrine that tbe right to the emoluments
Constantinian, in his treatise on the De Facto Doctrine, section 238, says: “Certain courts, while denying to the de facto officer the right to recover salary when there is a de jure officer entitled to the office, have thought that the rule should be different when there is no such officer in existence. This doctrine may undoubtedly be supported on equitable grounds, since it seems unjust that the public should benefit by the services of an officer de facto, and then be freed from all liability to pay any one for such services.” The author cites with approval the Arizona cases above mentioned.
The judgment is reversed, with directions to the trial court to issue a writ of mandate as prayed for in appellant’s complaint. Appellant to recover costs.