137 Minn. 154 | Minn. | 1917
In the interim between April 6 and September 13, the office was not without an incumbent. In State v. Windom, supra, it was said in sub-' stance that either Judge Windom or Judge Smallwood had been occupying the office and exercising its functions during that time, and that each during his incumbency was a de facto judge. This was said advisedly. In other words, it was decided that each had sufficient color of right to render him a de facto officer during this period, if in fact in possession of the office.
This action is brought by plaintiff to recover the salary of the office for the full period from May 1- to September 13, 1915. Plaintiff does not claim that he was a de jure officer. He does claim some greater rights than are accorded generally to de facto officers. He claims that when his term ended and no successor had been chosen it was not only his right but his duty to continue in possession of the office and in the discharge of its duties until a successor was regularly chosen, to the end that public business should receive attention and the court should not be left without a judge.
On the other hand, such an incumbent is usually spoken of in the decisions as a de facto officer. In re Interrogatories of the Senate, 54 Colo. 166 (175), 129 Pac. 811; People v. Beach, 77 Ill. 53; Morton v. Lee, 28 Kan. 286; State v. McJunkin, 7 S. C. 21. And it has been held that a person holding over in this manner may be ousted in proceedings in quo warranto, even though no successor has been chosen. People v. Bull, 46 N. Y. 57, 7 Am. Rep. 302; Hawkins v. Cook, 62 N. J. Law, 84, 40 Atl. 781. If such be the case, his incumbency while it lasts is merely permissive.
The fact is, Judge Windom, during this period, was insisting that he was the de jure judge. He was preserving his rights against any claim of abandonment of the office. But plainly he was not in the possession of the office. Clearly, Jndge Smallwood was the incumbent of the office from May 3 to July 30. Two persons cannot hold the same office at the same time. Judge Smallwood was the de facto judge during that time. Judge Windom was not, during these months either a de jure nor a de facto judge of the court nor an incumbent of the office of any kind, and he cannot recover the salary of the office. Beadiness to perform the duties of an office is in no sense the equivalent of possession of the office and does not avail plaintiff.
We hold that Judge Windom is entitled to recover the salary of the office up to May 3, and for the month of August and the first 13 days of September, but not for the remaining period in controversy.
Judgment may be entered in accordance with this opinion.