125 Iowa 454 | Iowa | 1904
At the January, 1899, session of the hohrd of supervisors of the defendant county the plaintiff, as the publisher of a newspaper known as the State Line Democrat, and one E. H. Rockwell, as publisher of another newspaper known as the Farmington Herald, applied to have their respective papers selected as the county official paper for the ensuing year,- as provided in Code, section 441. A contest arising, the board gave its decision in favor of the plaintiff, from which decision Rockwell appealed to the district court, by which tribunal the decision of the board of supervisors was affirmed. Thereafter Rockwell appealed to this court, where the judgment below was reversed. Smith v. Rockwell, 113 Iowa, 452. On retinal in the district court judgment was finally rendered in favor of Rockwell. The petition in the present case alleges that during the year 1899, after the appeal had been taken by Rockwell in the newspaper contest, and before its final determination in this court, plaintiff, with the knowledge and consent and under the direction of the board of supervisors, published the board’s proceedings, and did other public printing to the amount, at statutory rates, of $385.27, and that such matters, were not printed or published in the Farmington Herald. It is further alleged that after the contest had been finally adjudicated in favor of Rockwell the latter presented to the board of supervisors a claim against the defendant for the amount of the printing done by the plaintiff, but the board rejected the claim, and in suit brought in the district court it was adjudged that said Rockwell, not having done the printing, could collect no pay therefor. In November, 1901, the plaintiff presented his claim for the printing’so done by him to the board of supervisors,
If the appointment or selection of a “ county official paper ” operates as the appointment or selection of its publisher to an office, and his right to perform the service and collect payment therefor depends upon his right or title to such office, then the question here presented is clearly governed by the late case of Brown v. Tama County, 122 Iowa, 745, and the earlier case of McCue v. Wapello County, 56 Iowa, 698, to which precedents we.shall hereinafter call more particular attention.- It is the claim of appellee that the relation between the defendant county and the official printer is that of employer and employe only, and that an appointment or selection under the provisions of Code, section 441, is not an appointment to office. The courts have in many instances defined “ public office ” with sufficient elaboration for the purposes of the particular cases under consideration, but in few, if any, has any attempt been
Appellant argues that pending the appeal, and while the State Line Democrat was recognized as the official paper, the publication therein of official notices could not be held invalid simply because the decision upon the appeal thereafter determined that another newspaper was entitled to the position, and the conclusion is sought to be drawn from this admitted proposition that the .county is bound to pay for the services rendered prior to the final judgment in favor of the contestant. But the argument is fallacious. Because the acts of the de facto. incumbent may be entitled to full faith and credit as official acts which are binding and conclusive against all the world, it by no means follows that he may recover the salary or emoluments of the position. Indictments signed by a de facto county attorney, notices served by a de facto sheriff, conveyances recorded by a de facto recorder, taxes collected by a de facto treasurer, judgments rendered by a de facto justice of the peace, court proceedings presided over by a de facto judge, are rendered neither void nor voidable because it may subsequently be adjudged that such officer holds his office by a defective title, and is therefore ousted in favor of a contestant; and in each instance
Neither can we agree that because Rockwell was denied the right of recovery the appellant must therefore be held entitled thereto. Rockwell was properly held to have no claim for compensation, because he never performed the service for which alone any compensation is provided. Jayne v. Drorbaugh, 63 Iowa, 717. The appellant was properly denied recovery, because the right to enforce compensation depends upon the validity' of his title to the appointment In other words, to be entitled to recover from the county, the claimant must be able to show both title to the position and service therein. Rockwell could make the showing of title, but not of service, while the appellant could make the showing of service, but not of title, and there is therefore no inconsistency in denying relief to both.
There was ho error in the proceedings in the trial court, and the judgment is affirmed.