28 N.E.2d 598 | Ohio | 1940
Although several questions are presented by the briefs of counsel, there is but one now requiring consideration and decision by this court. That is the fundamental and decisive question as to whether the relator can maintain this action against these respondents. Of course the demurrers search the entire record.
It is the contention of the relator that for a period of six months he was wrongfully prevented from discharging the duties of the office of engineer and that therefore the county should be compelled to pay him the salary for that entire period although the work was performed by another and although the salary for five of the six months already has been paid to thatde facto officer without any effort on the part of the relator to prevent such payment.
The relator relies upon the decision in the case of City ofCleveland v. Luttner,
This court is likewise of the view that the county should not be required to twice pay the salary for the five-month period, since it in no wise prevented the relator from discharging the duties of the office, and since the relator took no steps to prevent payment to Riffle. That this is in conformity with the general rule is shown by the following summary in 32 Ohio Jurisprudence, 1034, Section 177:
"The courts taking this view generally agree that upon grounds of public policy the office must be filled and the salary cannot be paid twice, and further, that the de jure officer's sole remedy is against the de facto officer; they also appear generally to consider that the certificate of election, or the commission, or a judgment of a lower court in the incumbent's favor, is itself sufficient justification for paying the de facto officer."
See also 55 A. L. R., 997; 59 A. L. R., 117.
Certainly when, as in this case, the governmental body responsible for paying the salary is not at fault, this is an eminently fair rule. This principle was applied in the case ofSteubenville v. Culp,
It follows that the relator's petition showing payment of the salary to Riffle for the first five months does not plead a cause of action for that period.
With reference to the salary for the sixth month no further action on the part of the commissioners is necessary, inasmuch as they made an appropriation for the entire six months, and that allocated to the sixth remains unpaid. Furthermore, the auditor offered and still offers to pay that month's salary to the *225
relator. Thus, apparently no suit is necessary to collect this money, but if litigation be unavoidable, a simple action at law will suffice. Williams, Dir., v. State, ex rel. Gribben,
The relator's petition states no cause of action and is dismissed at his costs.
Petition dismissed.
DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.