Opinion
No. 31200
Decided April 7, 1948.
Office and officer — Salary paid to de facto county engineer during litigation over office — De jure officer entitled to salary from date his title adjudicated — County not required to pay de jure officer salary prior thereto — De jure officer relegated to action against de facto officer.
IN MANDAMUS.
Relator filed a petition in this court alleging that he was and is the duly elected and qualified engineer of Belmont county, Ohio, having been commissioned as such engineer by the Governor of Ohio, and having qualified for that office on December 12, 1946; that respondent is the duly elected, qualified and acting auditor of Belmont county; that on August 18, 1947, relator made demand upon such county auditor for the issuance to relator of warrants upon the treasurer of Belmont county for the payment of relator's monthly salary as county engineer for the period December 12, 1946, to the last current in monthly payday, as required by Section 7181, General Code; and that respondent auditor neglected and refused to issue such warrants.
A peremptory writ of mandamus was prayed for.
The respondent auditor filed an answer containing three defenses:
1. Admitting his own qualification as auditor, the written demand made upon him by relator to issue the warrants, and his refusal; and denying all other allegations of relator's petition.
2. For his second defense the auditor alleged that the relator had not been the county engineer of Belmont county and had not performed any services whatever for Belmont county as county engineer; that during all the period mentioned, one Lawrence Hayes had been the duly appointed, qualified and acting county engineer and had performed the duties of the office; and that respondent had issued warrants to Lawrence Hayes for salary as county engineer during all the period claimed in relator's petition.
3. For a third defense the respondent auditor alleged that there was now pending in this court an action with the same relator against Lawrence Hayes as respondent, asking this court to determine the question whether he, W.S. Shriver, or Lawrence Hayes is legally entitled to the office of county engineer.
Relator filed a reply admitting that respondent had issued warrants for payments to Lawrence Hayes during the period from December 12, 1946, to the date of the filing of the petition (August 20, 1947) in this case.
The following agreed statement of facts was filed in this court:
"It is agreed by counsel for the parties hereto, that the following are facts which are in addition to the ultimate facts stated in the petition and admitted in the answer.
"Grover C. Travis, county engineer for Belmont county, Ohio, died on September 30, 1946. At the next regular state election, on November 5, 1946, W.S. Shriver was elected to fill the vacancy in that office. Governor, Frank J. Lausche, and Secretary of State, Edward J. Hummel, issued, to W.S. Shriver, a commission dated December 3, 1946, which states as follows:
" 'Whereas, W.S. Shriver of Belmont county, has been duly elected to the office of county engineer for the unexpired term ending the first Monday in January 1949.
" 'Therefore, by virtue of the power vested in me by the Constitution, and in pursuance of a provision of the statutes, I do hereby commission him, the said W.S. Shriver, to be county engineer, authorizing and empowering him to execute and discharge, all and singular, the duties appertaining to said office and to enjoy all the privileges and immunities thereof.'
"On November 7, 1946, the board of commissioners of Belmont county appointed one Lawrence L. Hayes to the office of county engineer. The Governor and Secretary of State of Ohio issued to him a commission to that office until his successor should be elected and qualified. On November 7, 1946, said Lawrence L. Hayes qualified and took possession of that office. On December 6, 1946, W.S. Shriver executed the oath of office as county engineer. The bond of county engineer for Grover C. Travis and Lawrence L. Hayes and for many years prior to their terms of office, approved by the board of commissioners of Belmont county, had always been in the sum of $2,000. On December 12, 1946, W.S. Shriver presented his oath of office and his bond, as county engineer, in the amount of $2,000 with American Surety Company of New York as surety, to the board of commissioners of Belmont county at its meeting on that date. The board refused to approve the bond and it was deposited with the treasurer of Belmont county, where it has since remained.
"Also, on December 12, 1946, W.S. Shriver personally made oral demand on said Lawrence L. Hayes for possession of the office of county engineer, the office rooms, records and equipment of that office. Said Lawrence L. Hayes immediately refused the demand.
"At the time said bond was presented to the board of commissioners, W.S. Shriver advised the board that if the board considered said $2,000 bond not to be sufficient in amount, he was prepared to execute another bond, with the same surety in any amount that the board should designate up to the statutory limit of $10,000. The board designated no other amount for the bond at that time and Shriver filed an action in this court in mandamus against the board in case No. 30900. That case resulted on July 23, 1947, in final judgment for Shriver, and, obedient to the judgment of this court, the board, at its meeting on July 28, 1947, fixed the amount for Shriver's bond at $2500. Shriver, on that date, presented to the board, his bond as county engineer in the sum of $2500 with the American Surety Company of New York as surety, and the same was approved on July 28, 1947, by the board.
"On July 30, 1947, W.S. Shriver presented a written demand for the office of county engineer to said Lawrence L. Hayes * * *. * * * * *
"Said Lawrence L. Hayes endorsed on said written demand * * * [his] refusal, placed a padlock upon the only door to the county engineer's office and continued in possession of said office of county engineer, records and equipment until January 1, 1948, when, in obedience to the judgment and decree of this court in case No. 31199, filed August __, 1947, said Lawrence L. Hayes surrendered said office to relator W.S. Shriver.
"Said W.S. Shriver, since December 12, 1946, has not been absent from Belmont county for any period as long as ninety days.
" During all of the period in question, said Lawrence L. Hayes performed the duties of the office of county engineer of Belmont county and was paid the regular monthly salary of the office from November 1946, until August 1, 1947, by warrants issued upon the treasurer of Belmont county, which payments ceased as of August 1st, 1947, when the injunction was issued in this action. Thereafter, and until January 1, 1948, Lawrence L. Hayes continued to perform the duties of said office but has not been paid for his said services. The relator, W.S. Shriver, performed none of the duties of the office of county engineer of said county at any time prior to January 1, 1948." (Italics ours.)
Messrs. Thornburg Lewis, for relator.
Mr. Paul V. Waddell, Mr. Austin C. Furbee, Mr. Ross Michener and Mr. A.G. Lancione, for respondent.
Cases involving different phases of this controversy have been decided by this court in State, ex rel. Shriver, v. Board of Commissioners of Belmont County, 148 Ohio St. 277, 74 N.E.2d 248; State, ex rel. Shriver, County Engineer, v. Hayes, 148 Ohio St. 681.
The court is unanimously of the opinion that the writ prayed for should issue in favor of relator commanding respondent to issue to relator warrants on the treasurer of Belmont county for the compensation provided by law for the county engineer of Belmont county, accruing from August 1, 1947, to the end of the period for which relator was elected.
As to the warrants for compensation accruing between December 12, 1946, and August 1, 1947, there is a difference of opinion among the members of this court.
In the case of State, ex rel. Cox, v. Hooper, County Aud., 137 Ohio St. 222, 28 N.E.2d 598, we held:
"Payment of salary to a de facto public officer who holds the office by color of title constitutes a valid defense to an action by a de jure officer to recover the salary when the governmental body responsible for paying the salary in no wise prevented the de jure officer from discharging the duties of the office."
In the case of Kirk v. Board of Commissioners of Columbiana County, 137 Ohio St. 348, 30 N.E.2d 334, the court followed the holding in the case of State, ex rel. Cox, v. Hooper, County Aud., supra.
Relator phrases his question and the statement in respect thereof as follows:
"The question presented is whether plaintiff-relator as de jure elected officer to the office of county engineer can require the county to pay his salary as county engineer after he diligently did everything lawfully possible to take possession of that office.
* * * * *
"This action tests whether or not the sovereign state of Ohio will protect one of its officers, in the office to which he has been lawfully elected and qualified, from a usurper and a combination of governmental officers of the state supporting the usurper's possession of the office."
It is clear that the relator was kept out of office through the refusal of the de facto officer to surrender the office, the refusal of the county commissioners to approve relator's bond and to provide suitable offices for the relator as county engineer of Belmont county, the refusal of respondent to issue warrants for relator's compensation as such county engineer, and the advice of the prosecuting attorney of Belmont county to the de facto officer, the board of county commissioners and the respondent.
In the absence of justification for the foregoing conduct of the officers of Belmont county we would be of the opinion that the writ should issue covering warrants from December 12, 1946, on. However, the majority of this court is of the opinion that the fore. going officers of Belmont county were justified in their contest of relator's right to the office and to the warrants for the compensation belonging to the office.
On September 30, 1946, Grover C. Travis, then the county engineer of Belmont county, died. On November 7, 1946, the commissioners of Belmont county appointed one Lawrence L. Hayes to fill the unexpired term of the deceased county engineer. On November 8, 1946, Hayes received from the Governor a commission for the office of county engineer, Hayes then presented his commission with oath of office endorsed thereon, together with his bond, to the county commissioners. The bond was approved and Hayes entered upon the duties and functions of the office which he has since continued to perform.
At the general election in Belmont county on November 5, 1946, which was more than 30 days after the death of Travis, the board of elections of that county did not cause ballots to be printed containing the name of the office of county engineer or the names of any candidates therefor; nor did it provide adhesive slips or pasters to be attached to the ballots. Neither the relator nor any other person in his behalf filed his declaration of candidacy or a certificate to become a candidate for the office of county engineer at that election, and, relator did not request the board of elections to have the name of the office or his name printed on the ballots for election as a candidate for the office.
There were approximately 30,000 ballots cast in Belmont county at the general election on November 5, 1946. Certain electors in the county wrote in on the official ballots cast by them the designation of the office of county engineer, and, underneath such designation, the name of W.S. Shriver with a black pencil X mark in front of such name. The board of elections of Belmont county in canvassing the vote of such county at that election counted approximately 56 such ballots for the relator for the office of county engineer, and no votes were cast for any other person for that office. The board of elections issued a certificate of election to the relator. No application was made for recount of the votes cast and no proceeding to contest the election of relator to the office was instituted.
On December 4, 1946, the relator received a commission from the Governor to the office of county engineer of Belmont county for the term ending the first Monday in January 1949, and relator executed his oath, tendered a bond and on December 12, 1946, qualified for such office with the exception that the county commissioners by a two to one vote refused to approve the bond.
An action in quo warranto was instituted against Lawrence Hayes, the de facto officer, in this court by the relator here, resulting in a judgment in Shriver's favor by a divided court. The opinion is to be found in the case of State, ex rel. Shriver, County Engineer, v. Hayes, supra.
In a case in mandamus instituted in this court by relator here, entitled State, ex rel. Shriver, v. Board of Commissioners of Belmont County, supra, the commissioners of Belmont county were commanded by a unanimous court to approve the surety on relator's proffered bond, or, in the alternative, to fix a different amount within the statutory limitations in order that the relator might comply therewith.
A majority of the court is of the opinion that the officers of Belmont county who are accused of keeping relator out of his office were justified in trying out the questions of law involved and, therefore, we are of the opinion that Belmont county should not be punished for such acts of its officers but that relator herein should be relegated to his right of action against the de facto officer for the amount of the compensation paid to such de facto officer prior to August 1, 1947. See 32 Ohio Jurisprudence, 1035, Section 179; Restatement of Restitution, 554, Section 137; and 43 American Jurisprudence, 167, Sections 386, 387.
The facts in the case of City of Cleveland v. Luttner, 92 Ohio St. 493, 111 N.E. 280, Ann. Cas. 1917D, 1134, render that case inapplicable as a precedent here.
The relator is entitled to, and there is allowed, a peremptory writ of mandamus commanding the respondent, W.T. McCort, auditor of Belmont county, to issue to the relator warrants upon the county treasurer of Belmont county for the compensation accruing to the county engineer of Belmont county for the period between August 1, 1947, and the first Monday of January 1949.
Writ allowed.
TURNER, MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., Concur.
WEYGANDT, C.J., concurs in the allowance of the writ for the later period but dissents from the disallowance of the writ for the earlier period.