This is an appeal by plaintiff from a judgment given in favor of defendant on sustaining a demurrer to the complaint. The facts of the case, as shown by the complaint, are as follows: Plaintiff and defendant were opposing candidates for the office of sheriff of Butte County at the general election held November 4, 1902. On the official canvass of the returns of said election, defendant was found to have received the highest number of votes and was declared elected, and a certificate of such election was regularly issued to him on November 22, 1902. In January, 1903, he entered upon the discharge of the duties of the office. Plaintiff in due time contested the election of defendant under the provisions of the Code of Civil Procedure relative to such contests (sec. 1111 et seq.), with the result that, on January 24, 1903, judgment was rendered in the superior court of Butte County declaring plaintiff elected to the office and annuling the certificate of election issued to defendant. Thereupon, plaintiff qualified, and, on January 26, 1903, demanded to be let into possession of the office. Defendant on the same day appealed from said judgment to this court. The judgment was affirmed by this court on March 25, 1904, the remittitur being transmitted to the superior court one month thereafter. Thereupon, on April 25, 1904, defendant, who had in the mean
time continued in the possession of the office, discharging all the duties appertaining thereto, surrendered possession of the office to plaintiff. Between the date of the judgment in the superior court, January 24, 1903, and the giving up of possession of the office, defendant received from the county the accruing salary provided by law for such office, six thousand dollars per annum, as well as certain fees allowed such officer by law, amounting to six hundred dollars or thereabouts. This action was brought by plaintiff to recover from defendant the amount of salary and fees so received by him during his incumbency of the office.
It cannot be doubted that in the absence of statutory provision compelling a contrary conclusion, these facts would show a right of recovery in plaintiff. This is not disputed by defendant. At common law, the salary annexed to a public office is incident to the title to the office, and not to its occupation and exercise, and it is apparently well established that, in the absence of statutory provision, the de jure officer recovering possession of the office has a right of action against the intruder for the damage occasioned him by the intrusion, and that the salary and fees received by the intruder are the measure of his damage. We are of the opinion that this rule has, however, been materially modified in this state by statute. From the time of the adoption of the codes to the year 1891, section 936 of the Political Code was as follows: "When the title of the incumbent of any office in this state is contested by proceedings instituted in any court for that purpose, no warrant can thereafter be drawn or paid for any part of the salary until such proceedings have been finally determined." The effect of this provision was to relieve the disbursing officers of the necessity of determining at their own risk as to who was the rightful claimant, and, by keeping the money in the public treasury pending the proceeding, to secure to the person lawfully entitled to the office the full salary annexed thereto, and to protect the public from the contingency of being compelled to pay twice for the same period of time, as had occurred in Dorsey v. Smyth, 28 Cal. 21, and Carroll v.Siebenthaler, 37 Cal. 193. It was undoubtedly a recognition of the doctrine that the salary annexed to the office is incident to the true title, and not to its occupation and exercise, and the rightful claimant, when
his right was finally adjudged, would become entitled to receive from the disbursing officers the amounts so withheld and accumulated during the pendency of the proceedings, whether he had or had not discharged the duties of the office. (See People
v. Potter, 63 Cal. 127; Bledsoe v. Colgan, 138 Cal. 34, 36, 37, [70 P. 924].) In 1891 this section was amended by the addition of the following: "provided, however, that this section shall not be construed to apply to any party to a contest or proceeding now pending or hereafter instituted who holds the certificate of election or commission of office, and discharges the duties of the office; but such party shall receive the salary of such office, the same as if no such contest or proceeding was pending." The question in this case is as to the effect of this provision, pending contest of title to an office, in the case of one holding the certificate of election or commission of office, and discharging the duties of the office. It seems very clear to us that it entitles such a person not only to receive, but also to retain to his own use, the compensation incident to the office, and to this extent modifies the old rule.
It is well settled that, under this provision, the person so situated may enforce payment of the accruing salary at the hands of the disbursing officers. (See Bledsoe v. Colgan, 138 Cal. 34, [70 P. 924]; Wilson v. Fisher, 140 Cal. 188, [73 P. 850];Anderson v. Browning, 140 Cal. 222, [73 P. 986].) In Wilson v.Fisher, 140 Cal. 188, [73 P. 850], which was mandamus against a county auditor, it was said that the provision of this section that such a person "shall receive the salary of such office the same as if no such contest or proceeding was pending" is entirely clear and leaves no room for the play of construction, that no valid reason appeared for holding it unconstitutional, and that under it the petitioner was beyond doubt entitled to his salary, notwithstanding the pending contest. In Anderson v. Browning,140 Cal. 222, [73 P. 986], the auditor was forced to draw his salary warrant in favor of the incumbent holding the certificate of election, for salary accruing during the pendency of an appeal by him from a judgment awarding the office to the contestant, the effect of the appeal taken within ten days from such judgment being to suspend the operation thereof, and continue the certificate of election in force unimpaired.
(Code Civ. Proc., sec. 1127; Day v. Gunning, 125 Cal. 527, [58 P. 172].) To this extent certainly, under the decisions cited, the common law has been modified by the statutory provision, for under the old rule the lawful title to the office was in issue in any proceeding to enforce the payment of the salary and only one showing himself to be the officer de jure could prevail. (SeePeople v. Potter, 63 Cal. 127; Dolan v. Mayor etc., 68 N.Y. 274, [23 Am. Rep. 168].) It is further established by decisions of our district courts of appeal that, in view of this proviso, the successful claimant cannot enforce the payment of salary already once paid to an incumbent coming within its terms. (See Merkley
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This is an appeal by plaintiff from a judgment given in favor of defendant on sustaining a demurrer to the complaint. The facts of the case, as shown by the complaint, are as follows: Plaintiff and defendant were opposing candidates for the office of sheriff of Butte County at the general election held November 4, 1902. On the official canvass of the returns of said election, defendant was found to have received the highest number of votes and was declared elected, and a certificate of such election was regularly issued to him on November 22, 1902. In January, 1903, he entered upon the discharge of the duties of the office. Plaintiff in due time contested the election of defendant under the provisions of the Code of Civil Procedure relative to such contests (sec. 1111 et seq.), with the result that, on January 24, 1903, judgment was rendered in the superior court of Butte County declaring plaintiff elected to the office and annuling the certificate of election issued to defendant. Thereupon, plaintiff qualified, and, on January 26, 1903, demanded to be let into possession of the office. Defendant on the same day appealed from said judgment to this court. The judgment was affirmed by this court on March 25, 1904, the remittitur being transmitted to the superior court one month thereafter. Thereupon, on April 25, 1904, defendant, who had in the mean
time continued in the possession of the office, discharging all the duties appertaining thereto, surrendered possession of the office to plaintiff. Between the date of the judgment in the superior court, January 24, 1903, and the giving up of possession of the office, defendant received from the county the accruing salary provided by law for such office, six thousand dollars per annum, as well as certain fees allowed such officer by law, amounting to six hundred dollars or thereabouts. This action was brought by plaintiff to recover from defendant the amount of salary and fees so received by him during his incumbency of the office.
It cannot be doubted that in the absence of statutory provision compelling a contrary conclusion, these facts would show a right of recovery in plaintiff. This is not disputed by defendant. At common law, the salary annexed to a public office is incident to the title to the office, and not to its occupation and exercise, and it is apparently well established that, in the absence of statutory provision, the de jure officer recovering possession of the office has a right of action against the intruder for the damage occasioned him by the intrusion, and that the salary and fees received by the intruder are the measure of his damage. We are of the opinion that this rule has, however, been materially modified in this state by statute. From the time of the adoption of the codes to the year 1891, section 936 of the Political Code was as follows: "When the title of the incumbent of any office in this state is contested by proceedings instituted in any court for that purpose, no warrant can thereafter be drawn or paid for any part of the salary until such proceedings have been finally determined." The effect of this provision was to relieve the disbursing officers of the necessity of determining at their own risk as to who was the rightful claimant, and, by keeping the money in the public treasury pending the proceeding, to secure to the person lawfully entitled to the office the full salary annexed thereto, and to protect the public from the contingency of being compelled to pay twice for the same period of time, as had occurred in Dorsey v. Smyth, 28 Cal. 21, and Carroll v.Siebenthaler, 37 Cal. 193. It was undoubtedly a recognition of the doctrine that the salary annexed to the office is incident to the true title, and not to its occupation and exercise, and the rightful claimant, when
his right was finally adjudged, would become entitled to receive from the disbursing officers the amounts so withheld and accumulated during the pendency of the proceedings, whether he had or had not discharged the duties of the office. (See People
v. Potter, 63 Cal. 127; Bledsoe v. Colgan, 138 Cal. 34, 36, 37, [70 P. 924].) In 1891 this section was amended by the addition of the following: "provided, however, that this section shall not be construed to apply to any party to a contest or proceeding now pending or hereafter instituted who holds the certificate of election or commission of office, and discharges the duties of the office; but such party shall receive the salary of such office, the same as if no such contest or proceeding was pending." The question in this case is as to the effect of this provision, pending contest of title to an office, in the case of one holding the certificate of election or commission of office, and discharging the duties of the office. It seems very clear to us that it entitles such a person not only to receive, but also to retain to his own use, the compensation incident to the office, and to this extent modifies the old rule.
It is well settled that, under this provision, the person so situated may enforce payment of the accruing salary at the hands of the disbursing officers. (See Bledsoe v. Colgan, 138 Cal. 34, [70 P. 924]; Wilson v. Fisher, 140 Cal. 188, [73 P. 850];Anderson v. Browning, 140 Cal. 222, [73 P. 986].) In Wilson v.Fisher, 140 Cal. 188, [73 P. 850], which was mandamus against a county auditor, it was said that the provision of this section that such a person "shall receive the salary of such office the same as if no such contest or proceeding was pending" is entirely clear and leaves no room for the play of construction, that no valid reason appeared for holding it unconstitutional, and that under it the petitioner was beyond doubt entitled to his salary, notwithstanding the pending contest. In Anderson v. Browning,140 Cal. 222, [73 P. 986], the auditor was forced to draw his salary warrant in favor of the incumbent holding the certificate of election, for salary accruing during the pendency of an appeal by him from a judgment awarding the office to the contestant, the effect of the appeal taken within ten days from such judgment being to suspend the operation thereof, and continue the certificate of election in force unimpaired.
(Code Civ. Proc., sec. 1127; Day v. Gunning, 125 Cal. 527, [58 P. 172].) To this extent certainly, under the decisions cited, the common law has been modified by the statutory provision, for under the old rule the lawful title to the office was in issue in any proceeding to enforce the payment of the salary and only one showing himself to be the officer de jure could prevail. (SeePeople v. Potter, 63 Cal. 127; Dolan v. Mayor etc., 68 N.Y. 274, [23 Am. Rep. 168].) It is further established by decisions of our district courts of appeal that, in view of this proviso, the successful claimant cannot enforce the payment of salary already once paid to an incumbent coming within its terms. (See Merkley
v. Williams, 3 Cal.App. 268, [84 P. 1015]; Tout v. Blair,3 Cal.App. 180, [84 P. 671].) As to the correctness of these decisions we have no doubt.
Plaintiff is compelled by the decisions to admit this much, but claims that the provision deals solely and entirely with the respective rights of the incumbent and the de jure officer as against the disbursing officer or sovereignty paying the salary, and was not intended to affect the right of the contestant to recover from the incumbent such damages as he may suffer by being excluded from the office, in the event that he is ultimately determined to have been entitled thereto. So far, certainly, as he includes in such damage the amount of any salary or fees received by the incumbent by virtue of this statutory provision, and, therefore, withheld from him, we can see no merit in his contention.
There can, of course, be no doubt as to the power of the legislature to so change the general rule as to the right to the compensation annexed to the office, as to give such compensation pending contest to the incumbent holding the certificate of election or commission of office, and discharging the duties of the office. The matter of compensation of public officers is wholly within the domain of legislative power, to be arranged as may be deemed best for the public interest, and every successful candidate for public office takes his office subject to the provision. Public offices are created primarily for the benefit of the public, and if it be considered essential to the proper performance of the duties of such an office during a protracted period of litigation as to the right to the office, that the incumbent possessing the prima facie
right evidenced by the certificate or commission, and discharging those duties, shall have the compensation, the legislature may undoubtedly so provide. If it is so provided here, plaintiff was never entitled under the law to any of the compensation accruing prior to the final determination of the contest in his favor. Under the law, it, to such extent, was made an incident of the occupancy and exercise of the office, and belonged absolutely to the incumbent, and in receiving it, defendant received only what the law gave to him as the incumbent performing the public service, and holding the prima facie evidence of title to the office, and plaintiff can have no valid claim against him for damages on account thereof. The question is as to whether the amendment of 1891 is to be construed as constituting such provision. In our judgment no other reasonable construction can be given to it. The only conceivable object for its enactment was to insure the proper performance of the duties of the office. As we have seen, under the law as it stood prior to the amendment, no salary could be paid to either party pending the contest. This manifestly relieved the disbursing officers from all embarrassment as to whom the salary should be paid, fully protected the public against the possibility of double payment for the same service, and preserved the whole salary, incident to the office, intact in the public treasury, for the one who should ultimately be determined entitled to the office. It was found, however, as might well have been foreseen, that the public service incident to the office might not be performed well, if at all, by one who was receiving no compensation for his services, and whose right to ever receive the same was contingent upon a final adjudication in his favor in the contest as to the right to the office, a result as to which there must always be some degree of doubt, and in many cases a very serious doubt. Under such circumstances, it might well be that neither claimant could afford to take the risk of performing the duties without compensation, and the public service might be very greatly embarrassed. To remedy this was, unquestionably, the object of the amendment. It will readily be seen, however, that very little, if anything, has been accomplished in the desired direction, if the effect of the amendment is practically to make the person receiving the salary merely the trustee for the rightful claimant until the
contest is concluded, for such would be the effect of a construction that would leave the incumbent liable to such rightful claimant for the damage caused by his failure to obtain the salary. Unless he be absolutely execution-proof and devoid of any desire to pay his debts, the incumbent would still be beset with the same difficulties as under the old law. To merely receive and temporarily retain and perhaps use the salary, with a knowledge that the amount must ultimately be given in the form of damages to the other claimant, if he finally prevail, would not materially assist the situation as it existed prior to the amendment. No good reason can be given for the amendment if it goes only to this extent. So construed, its only practical effect would be to take away the absolute security theretofore afforded the rightful claimant by retaining the salary in the treasury for him, and make his ability to recover the same depend on the solvency of the party who had received it, which would manifestly be a most absurd result. The plain language of the amendment and the manifest object of its enactment point inevitably to the conclusion that it was the intention of the legislature that, pending contest as to the title to a public office, in the interest of an efficient performance of the duties thereof, the person having the prima facie right thereto evidenced by certificate or commission, and actually discharging the duties, as he is entitled to do by reason of such certificate or commission, should be entitled to the compensation incident to the office as pay for his services, thus making such person during said time not only the de facto officer, but practically the de jure officer. Such a condition is, of course, a hardship on the person ultimately found to have been entitled to the office, whose official emoluments have thus been abridged, but the public interests are paramount, and fully warrant legislation of the character here under consideration.
Much reliance is placed upon the fact that section 807 of the Code of Civil Procedure, in the chapter relating to the action that may be brought by the attorney-general in the name of the people of the state against one usurping or unlawfully holding or exercising a public office, etc., has always provided that if judgment be rendered upon the right of another person alleged to be entitled, in favor of such person, he may recover by action the damages which he may have
sustained by reason of the usurpation of the office by the defendant. Under the existing law, however, this cannot be held to authorize the recovery as damages, of the amount of salary or compensation of which the party has been deprived by reason of its payment to the incumbent under such circumstances as existed here. Conceding that an action may be maintained by the attorney-general under this chapter against an incumbent possessing the certificate of election or commission of office, for the purpose of contesting his right to the office on any of the grounds specified for the ordinary contest by an elector (Code Civ. Proc., sec. 1111, et seq.), the case, in the event of such action, is still within the provisions of section 936 of the Political Code, as amended in 1891. The language of that section is such that it necessarily includes any character of proceeding by which the title of such an incumbent is assailed, and entitles such incumbent to the compensation incident to the office pending the contest, as long as the conditions specified (possession of a valid certificate or commission and discharge of the duties of the office) continue. The rule thus declared by the legislature in the interest of a proper performance of the public service is paramount to the personal claims of either of the claimants, and necessarily excludes the recovery in any form, either as salary or damages, of the compensation awarded by and paid under the law to the incumbent. The case of People v. Rogers, 118 Cal. 393, [46 P. 740, 50 P. 668], does not touch upon the question here involved, and does not assist plaintiff.
The judgment of the superior court in the election contest, declaring plaintiff elected and annulling the certificate of election held by defendant, in no degree affected the right of plaintiff to hold the office, discharge its duties, and receive the compensation, until its affirmance on appeal, in view of the appeal from the judgment taken within ten days from the time it was given. His rights after such judgment and until the disposition of the appeal were the same as before judgment. The appeal so taken operated as an absolute suspension of the judgment, and continued the certificate of election in full force during its pendency. (Code Civ. Proc., sec. 1127; Day v. Gunning,125 Cal. 527, [58 P. 172]; Anderson v. Browning, 140 Cal. 222, [73 P. 986]. See, also, Wilson v. Fisher, 148 Cal. 13, [82 P. 421].) As suggested in Day
v. Gunning, 125 Cal. 527, [58 P. 172], it might be wiser to provide that, pending an appeal in such a case, possession of the office should go to the party prevailing in the trial court, but that is a matter of policy within the legislative domain, and the legislature has not seen fit to so provide. Construing the amendment of 1891 liberally, with a view to the accomplishment of its manifest object, as we must, we are satisfied that it must be held to so change the old rule as to entitle an incumbent, under the circumstances therein specified, to the compensation incident to the office, whether the same be salary in the strict sense, or designated fees for specified services.
In view of what we have said, the complaint failed to state a cause of action.
The judgment is affirmed.
Sloss, J., Beatty, C.J., and Shaw, J., concurred.