255 P. 461 | Colo. | 1927
By mandamus, the defendant in error Duncan sought to compel the payment of salary claimed to be due him as commander of the Soldiers' and Sailors' Home. The trial court awarded him a peremptory writ. The plaintiffs in error seek a reversal of the judgment. The defendant in error Duncan will be referred to as the plaintiff, and the plaintiffs in error as the defendants.
The government of the home is vested in a commission. The commission has power to appoint the commander *340 of the home and fix his salary. C. L. sections 692, 698. On June 13, 1925, there was a vacancy in the office of commander, but there was no eligible list from which a permanent appointment could be made. The civil service commission, therefore, authorized the home commission to make a temporary or provisional appointment. The home commission thereupon temporarily or provisionally appointed the plaintiff, such appointment to take effect on June 16, on which date the plaintiff qualified and entered upon the duties of the office. On October 27, the civil service commission held a competitive examination (in which the plaintiff did not participate), and John F. Greene was ascertained to be "the most fit and of the highest excellence" in qualifications for the office of commander of the home, and was declared by the civil service commission to have received the highest rating. On November 9 the civil service commission notified the home commission that Greene was entitled to the permanent appointment to the office of commander, and that the provisional appointment of the plaintiff Duncan would cease and terminate on November 15. On the same day a similar notice was sent to the plaintiff Duncan. The home commission, however, did not appoint Greene until April 15, 1926, upon which date the plaintiff surrendered the office to Greene. From November 15, 1925, to April 15, 1926, the home commission issued and delivered to the plaintiff duly authenticated vouchers for salary, covering that period, but the state auditor refused to draw warrants therefor.
There are presented two principal questions: (1) Did the plaintiff's right to the office terminate on November 15, 1925? If it did not terminate then, but continued until April 15, 1926, the judgment should be affirmed. If it did terminate on November 15, it will be necessary for us to consider the second question, which is: (2) Has the plaintiff, who at one time was a de facto officer, the right to maintain, after having ceased to be such, a mandamus action to compel the payment of the salary covering *341 the time he was discharging the duties of the office? If he has, the judgment should be affirmed; if he has not, the judgment should be reversed.
1. Section 13 of article XII of the Constitution requires all appointments to office in the classified civil service of the state to be made according to merit and fitness, which shall be ascertained by competitive tests; "the person ascertained to be the most fit and of the highest excellence to be first appointed." It also provides: "In cases of emergency or for employment of an essentially temporary character, the commission may authorize temporary employment without a competitive test. * * * The making and enforcement of rules to carry out the purposes of this amendment and of the laws enacted in pursuance hereof, * * * the conduct of all competitive tests, * * * the determination of standards of efficient service * * * shall be vested in the commission."
Substantially the same provisions are found in C. L. sections 128, 130 and 131. Rule VII, adopted by the civil service commission, is as follows: "Whenever there are urgent reasons for filling a vacancy for which no appropriate eligible list exists the Commission may authorize the appointing power to nominate a person who may be appointed provisionally. The Commission shall, as soon as practical, proceed to advertise and hold a competitive examination and upon completion of the eligible list the provisional appointment shall cease. * * *"
The civil service amendment and act are liberally construed, so as to accomplish their purpose, which is to promote efficiency in the civil service by appointing or employing those only who, upon examination, have shown their qualification for the office or position. Shinn v.People, ex rel.,
2. The plaintiff was a de facto officer between November 15, 1925, and April 15, 1926. If there was a de jure officer during that period, and if the plaintiff had received any salary during such period, the de jure officer could recover from the plaintiff the salary so received. In other words, as between a de jure officer and a de facto officer, the former is entitled to the salary. Arnold v.Hilts,
The judgment of the district court is right and is affirmed. *344