18 P. 273 | Ariz. | 1888
The facts of this case are these: There was an election held in the county of Pima, on November 4, 1884, for the office of sheriff. Afterwards the board of supervisors canvassed the votes,'and declared plaintiff elected, and delivered the certificate to him. Thereafter he qualified and gave the required bond, and after such qualification, the clerk of the district court granted him a certificate that he had so qualified and given such security. At the time plaintiff was to take the office, to-wit, January 1, 1885, he served the last-named certificate upon R. H. Paul, the former and. then sheriff, and entered upon the discharge of the duties' of the office. On the 15th of December, 1884, Paul filed his state
For the decision of this ease it is unnecessary to determine the first question suggested by defendant whether the district court could grant a new trial of election contests. It will be observed that there was a judicial determination of the rights to this office on the 3d day of January, 1885, and that thereafter on same day Paul entered upon the duties of the office; that not until the 9th day of January, 1886, did Shaw move for a new trial, and the new trial was granted on the 3d day of April, 1886. Should the county, after Paul had been declared by a competent court to be entitled to the office, with no notice to the board of supervisors of further action, have withheld his salary while he was performing the duties of the office? While this judgment continued in force he was the sheriff de jure. “They paid him the salary under the judgment, as they were bound to do, and the law protects them in this payment.” Viewing Paffi, however, as only the sheriff de facto, in Dolan v. Mayor, 68 N. Y. 274, 23 Am. Rep. 168, decided in 1877, the court says: “Wre are of opinion that payment to a de facto public officer of the salary of the office, made while he is in possession, is a good defense to an action brought by the de jure officer to recover the same salary after he has acquired or regained possession. * * * 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 ease 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 a second time. # * * 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 as the officer de jure, without inquiring whether another has the better right. Public policy accords with this view.” “Public offices are created in the interest and for the benefit of the
Commissioners v. Anderson, 20 Kan. 298, 27 Am. Rep. 171 was a ease very similar to the ease at bar. Anderson and Wildman were opposing candidates for county clerk. Anderson secured a majority of the votes, and he was awarded the certificate of election. Irregularities occurred in the election, and Wildman contested. The contest court decided
We repeat that it was the duty of the board of supervisors to pay Paul, while no action was pending, during the time he was in the performance of the duties of the office, and Shaw was sleeping on his rights, and when apprised of a further contest by the order granting a new trial they were secure in a continued payment because the money was up to save Shaw harmless. Judgment is affirmed.
Wright, C. J., and Barnes, J., concur.