| Del. Super. Ct. | Feb 19, 1944
• The plaintiff sued in assumpsit to recover from the defendant the amount of salary incident to the office of County Comptroller for Kent County which had beén paid to and accepted by the defendant during the time of his alleged wrongful possession of the office.
The special count of the declaration alleged that between January 7, 1941, and April 1, 1943, the Levy Court of Kent County, believing that the defendant Lad been duly elected to the office of County Comptroller for Kent County at the general election held on November 5, 1940, for the term of four years beginning on January 7, 1941," and was entitled to the salary appertaining to the office, paid to the defendant from the monies of Kent County the total sum of $4,397.63 as the salary due to the duly elected holder of the office for the period between January 7, 1941, and March 16, 1943, which amount the defendant received and accepted as the salary appertaining to the office for the stated period; that thereafter the Superior Court of Kent County, consti
The defendant pleaded specially averring that the defendant had been duly elected County Comptroller for Kent County at the general election held in November 1936 for the statutory term, and a certificate of election had" been issued to him pursuant to which he qualified for the office by taking the required oath and giving bond; that on the first Tuesday in January 1937, he entered upon and duly performed all the duties and obligations pertaining to the office up to and including March 16, 1943; that no other person qualified for the office, nor performed its duties and obligations during the stated period; that on March 11, 1943, the Superior Court for Kent County, constituting the Board of Canvass for the general election held in November, 1940, issued a certificate of election certifying that the plaintiff had been elected to the office of County Comptroller, and thereafter, on March 16, 1943, the plaintiff for the first time sought to and did qualify for the office by taking the required oath and giving bond, and it was not until then that the plaintiff entered upon or sought to perform any of the duties and obligations of the- office.
The plaintiff demurred generally.
The root of the controversy was the constitutionality of Chapter 39, Volume 21, Delaware Laws, approved June 25,
In State v. Lyons et al., 1 Terry 77, 5 A.2d 495" court="Del. Super. Ct." date_filed="1939-04-12" href="https://app.midpage.ai/document/state-v-lyons-6557255?utm_source=webapp" opinion_id="6557255">5 A. 2d 495, the Court of General Sessions for New Castle County had before it the question of the constitutionality of Chapter 103, Volume 33, Delaware Laws, appearing in the Code in Article 5 of Chapter 60, and known as the Absentee Voters Act. Lyons and others were indicted for conspiring to abet fraud in connection with the casting of votes under the provisions of that act at the general election held in New Castle County in November, 1938. The defendants moved to quash the indictment on the ground, inter alla, that the act was unconstitutional for the reason that the legislature was without power to enact a statute authorizing the casting of ballots by persons who were not personally present at the polling places on election day. The debates in the Constitutional Convention of 1897 with respect to the Article V of the Constitution headed “Elections,” were carefully examined, and from the debates and other provisions of the Article providing for the challenging of electors offering to vote it was held that no power existed in the Legislature to provide for absentee voting. This decision was rendered on April 12, 1939, and at the time of the general election in 1940 constituted the. whole of the decisional law in this State on the general question of absentee voting. At thát election certain ballots of electors absent from their polling places in Kent County by reason of service in the armed forces of the United States were forwarded under the provisions of the Soldiers’ Vote Act, and were before the Superior Court for Kent County, the constitutional Board of Canvass for the election in that County. Against the plaintiff’s objection, and no doubt on the theory that the Court, sitting as a Board of Canvass, was without power to pass upon the constitutionality of the Soldiers’ Vote Act, which was not directly before the Court in the Lyons case, these votes were counted, and counting them, it was
Thereafter the plaintiff invoked the original jurisdiction of the Supreme Court to direct by mandamus the Superior Court for Kent County constituting the Board of Canvass for the election to re-canvass the vote cast at the election, especially for the office of County Comptroller; and in that action it wás held that the Soldiers’ Vote Act was unconstitutional and void, and an appropriate mandate was issuéd to the Board of Canvass. State ex rel. Walker v. Harrington et al., 3 Terry (42 Del.) 14, 30 A.2d 688" court="Del." date_filed="1943-02-22" href="https://app.midpage.ai/document/state-v-harrington-6557393?utm_source=webapp" opinion_id="6557393">30 A. 2d 688. Accordingly the Board of Canvass re-canvassed the vote cast at the general election held in November, 1940, for the office of County Comptroller and the result was, as alleged both in the declaration and plea, an ascertainment that the plaintiff, and not the defendant, had received the highest number of votes cast for the office. A certificate of election was thereupon issued to the plaintiff, and an order entered rescinding the certificate of election theretofore issued to the defendant. The plaintiff qualified, and assumed the duties of the office.
The not unusual case is presented in which one .whose right to a public office has been judicially determined seeks to recover from another in possession under color of title the emoluments of the office.
The great weight of authority supports the rule that the rightful incumbent of a public office may recover from an officer de facto the salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title. The reasons advanced in support of the rule are quite generally regarded as unanswerable. To prevent embarrassment of the public service, disbursing officers, charged with the duty of
Inferentially, at least, the rule has been recognized in this State by the former Court of Errors and Appeals, and by this Court. See Lee v. Mayor & Council of Wilmington, 1 Marv. 65, 40 A. 663; State ex rel. Jones et al. v. Wise, 9 W. W. Harr. (39 Del.) 409, 200 A. 418" court="Del. Super. Ct." date_filed="1938-06-24" href="https://app.midpage.ai/document/state-v-wise-6557227?utm_source=webapp" opinion_id="6557227">200 A. 418.
Stuhr v. Curran, 44 N..J. L. 181, 43 Am. Rep. 353, is one of the few cases which holds to the contrary. There the
The defense offered by the plea is, that during the period from January 7, 1941, to March 16, 1943, when the plaintiff ássumed the office, the defendant was an officer de jure under constitutional and statutory authority, and not merely a de facto officer.
Section 5 of Article XV of the Comtitution provides that all public officers shall hold their respective offices until their successors shall be duly qualified, except as otherwise provided; and the statute creating the office of County Comptroller for Kent County created a term of four years, or until a successor shall be duly qualified. Rev. Code, 1935, Ch. 46, Sec. 1 (section 1476).
The defendant, in his plea, tacitly admits the allegations of the declaration with respect to the general election held on November 5, 1940; but he seeks to avoid the force and effect of the averments by alleging that he was elected to the office at the general election held in November, 1936, and that from the time of his qualification therefor in January following the election until March 16, 1943, when the plaintiff first qualified, he alone had qualified for the office and none other than he had assumed and performed its duties and obligations. It is argued that during this period the defendant,
The contention is patently invalid. Holding over provisions in constitutions and statutes are not uncommon; and apart from any constitutional or statutory regulation it seems to be the general rule of law that an incumbent of an elective office will hold over after the conclusion of his term until the election and qualification of a successor. 43 Am. Jur. 20.
The purpose of a holding over provision is to prevent a possible vacancy or interregnum in a public office where there is no properly qualified successor at the expiration of the usual statutory term, so that the public business will not be interrupted or subjected to doubt or dispute. State ex rel. Southerland, v. Caulk, 3 W. W. Harr. (33 Del.) 344, 138 A. 354" court="Del. Super. Ct." date_filed="1927-05-16" href="https://app.midpage.ai/document/state-v-caulk-6556801?utm_source=webapp" opinion_id="6556801">138 A. 354. An elective officer holding over after the expiration of his term may or may not be accurately described as an officer de jure dependent on the circumstances. In a proper case he holds de jure in the full sense of the term and is entitled to the emoluments of the office as of right, as, for example, where there has been no election of a successor, or where a duly elected successor is disqualified to hold the office. But it will not be readily agreed that an elective officer retaining possession of the office after the conclusion of his term is necessarily and in all circumstances an officer de jure under the usual holding over provision even as against a duly elected successor possessing all of the qualifications for the office whose right to the immediate possession of the office is withheld through no default or neglect on his part. So to hold would extend the holding over provision far beyond its purpose; would tend to promote, not discourage, wrongful retention of public office; and would effectively deny the very principle on which is based the liability of a de facto officer
The certificate of election first issued to the defendant following the canvass of the vote in November, 1940, conferred upon the defendant a prima facie title to the office, and justified the disbursing officers of the County in paying to him the stated salary of the office. But the certificate of election was but a muniment of title. 42 Am. Jur. 948. It was evidence of the result of the canvass, but did not determine the result of the election conclusively beyond the possibility of revision or reversal. The plaintiff’s right or title to the office was in esse as a result of the election as properly ascertained. His right to possess the office accrued on the first Tuesday in January, 1941, upon qualification therefor. At that time, prima facie, the defendant had title. The plaintiff was not obliged to make a formal but utterly vain offer to qualify in order to establish and maintain his right to the office which, however long postponed in actual enjoyment, existed and persisted, with the result that the defendant, from January 7, 1941, was never in possession of the office as of legal right. 42 Am. Jur. 969; 43 Am. Jur. 21; People v. Potter, 63 Cal. 127; People ex rel. Benoit v. Miller, 16 Mich. 56; Id., 24 Mich. 458, 9 Am. Rep. 131.
Moreover, it is clear enough that the defendant, on and after January 7, 1941, did not rest his right to continue in possession of the office on the holding over provisions of the Constitution and statute. The result of the election held in November, 1940, was at first determined in the defendant’s favor. By necessary implication he had been a candidate for re-election to the office. A certificate of election was issued to him by the Board of Canvass. He accepted from the Levy Court of Kent County from January 7, 1941 to March 16, 1943 certain money as the salary due to the duly elected County Comptroller for the County. A
In one aspect the defendant is in hard case. There is, of course, no question as to his good faith. At the same time he was aware of the plaintiff’s contention with respect to the validity of the votes received from electors in the armed services ; and he must be held to the knowledge that the final determination of the result of the election might be adverse to him. Hardship to the plaintiff is likewise manifest, if he should be deprived of the emoluments of the term of office to which he was duly elected.
The plea offers no defense to the action; and the demurrer is, accordingly, sustained.