
    PETERSON v. BENSON, City Recorder.
    No. 2146.
    Decided December 1, 1910
    (112 Pac. 801).
    1. Officers — Officer De Facto. Comp. Laws 1907, sec. 213, provided for the election of a city marshal in cities of less than a certain population, but was amended by Laws 1909, c. 107, eo as to require the appointment of a marshal by the mayor. Held., that where a marshal, elected under section 213, continued to hold office after the expiration of his term, no appointment having been made by the mayor, he was a de facto officer. (Page 291.)
    2. Mnicipal Corporations — Officers—Compensations. Comp. Laws 1907, sec. 213, provided for the election of a city marshal in cities of less than certain population; but was amended by Laws 1909, c. 107, so as to require the appointment of a marshal by the mayor. Comp. Laws 1907, sec. 225, provide that the compensation of an officer shall not be increased or diminished to take effect during the time for which such officer was elected or appointed. One elected a marshal for the term of two years took office January 6, 1908, and continued to serve after the expiration of his term; no appointment having been made by the mayor. In October, 1909, an ordinance of the city increased the compensation of marshal for the term beginning 1910. Held, that for service after the expiration of the term for which he was elected the marshal was entitled to the increased compensation; he being a de facto officer, and not a “holdover” as the term is used, as applied to one holding a public office. (Page 293.)
    3. Officers — Compensation—De Facto Oeficer. An actual incumbent of a public office who is an officer de facto is entitled to the compensation attached to the office, there being no adverse contestant or de jure officer. (Page 293.)
    Appeal from District Court, First District; Hon. W. W. Mcmghan> Judge.
    Application by Niels Peterson for a writ of mandate requiring Mae Benson, as Recorder of Logan City, to draw a warrant in favor of applicant.
    Judgment dismissing petition. Applicant appeals.
    REVERSED.
    STATEMENT OE PACTS.
    Niels C. Peterson, appellant, applied to the district court of Cache County for a writ of mandate requiring the recorder of Logan City to draw a warrant in his favor upon the treasurer of said city for the sum of eighty-three dollars and thirty-three and one-third cents alleged to be due him for salary earned as marshal of Logan City during the month of February, 1910. An alternative writ of mandate was issued by the court. The recorder filed an answer to Peterson’s petition and the cause was submitted to the court for decision upon an agreed statement of facts, from which it appears that Peterson was duly elected to the office of marshal of Logan City on November 3, 1907, and that he duly qualified as marshal and entered upon the duties of the office January 6, 1908, and ever since has continued to and did during the month of February, 1910, perform the duties of the office.
    Section 213, Comp. Laws 1907, provides, as far as material here, that: “In addition to the mayor and city councilmen, there shall be elected ... in cities of less than twelve thousand inhabitants, a city marshal ; provided, that in cities of less than twelve thousand inhabitants the city recorder shall be ex officio city auditor and shall perform the duties of such office. . . . All elective officers shall hold their respective offices for two years, and until their successors are elected and qualified.”
    Section 225 provides that: “All officers of any city shall receive such compensation as may be fixed by ordinance, but the compensation of any such officer shall not be increased or diminished to take effect during the time for which any such officer was elected or appointed.”
    In the’ year 1909 the legislature amended section 213 (Laws 1909, e. 107). The section as amended, so far as material to the questions here involved, provides that: “In cities of less than twelve thousand inhabitants a city marshal shall be appointed by the mayor subject to the confirmation of the city council on the first Monday in January fol-loging a municipal election.”
    It appears from the statement of facts that Logan City is a city of the second class having a population of less than twelve thousand inhabitants; that the mayor of said city has failed and neglected to' appoint a marshal for the city by and with the concurrence of the city council or otherwise; that Peterson has not been duly or otherwise appointed to the office of marshall of the city in the year 1910; that he is exercising and performing the duties of the office of city marshal, and claiming the benefits, emoluments, and salary of the office by virtue of his election thereto in the year 1907, and tbat be has no right or claim to the office, except such as arises out of bis election to the same in the year 1907. It further appears that at the time Peterson was elected, and at the time he entered upon the duties of the office mentioned, there was in force and effect an ordinance of Logan City fixing the salary of the office of city marshal at nine hundred dollars per annum, payable at the end of each month in equal installments of seventy-five dollars; that subsequently, on October 1, 1909, there was duly passed by the city council, and approved by the mayor of Logan City “an ordinance purporting to fix the annual salary attached to the office of marshal of Logan City for the terms of two years beginning the first Monday in January, 1910, and ending the first Monday in January, 1912, at one thousand dollars per annum,” payable in monthly installments of eighty-three dollars, thirty-three and one-third cents at the end of each month.
    It is further stipulated that “the above-named defendant, Mae Benson, ever since January 3, 1910, has been, and now is, the duly elected, qualified, and acting city recorder of Logan City, and as such officer it was, and now is, the duty of such recorder to draw all warrants or orders for the payment of all funds due from said city to its officers on account of salary or otherwise payable out "of the treasury of Logan City; that petitioner duly demanded that the defendant draw a warrant in his favor upon the treasurer of Logan City for the sum of eighty-three dollars and thirty-three and one-third cents in payment of his salary as marshal earned in the month of February, 1910; . . . that the recorder refused and still refuses to draw a warrant- for said sum or any sum except said amount of seventy-five dollars; . . . that the recorder tendered to the petitioner a warrant drawn on the treasurer of Logan City for the sum of seventy-five dollars,” which Peterson, the petitioner, refused to accept; that defendant deposited with the clerk of the district court of Cache County at the time she filed her answer said warrant for seventy-five dollars for the use and benefit of Peterson; and that defendant bas at all times been ready, willing, and able to issue and deliver to Peterson a warrant for seventy-five dollars. It was also stipulated tbat “tbe petitioner bas no- plain, speedy, or adequate remedy at-law.”
    Tbe court found on tbe issues in favor of tbe recorder, and rendered judgment dismissing tbe petition for a writ of mandate. To reverse tbe judgment, Peterson bas brought tbe case to tbis court on appeal.
    
      A. A. Law for appellant.
    
      R. G. Nebeher and Charles R. Rart for respondent.
   McCAETY, J.

(after stating tbe facts as above).

Eespondent contends, first, tbat tbe period of time elapsing from January 3, 1910, tbe date upon which tbe officers of Logan City elected in 1909 were installed in office, until March 1, 1910, was a part and a continuation of tbe term of office to which appellant was elected in November, 1901, and tbat the tenure of bis office and tbe emoluments thereof were as fixed by law at tbe time be qualified and entered upon tbe duties of tbe office, January 6, 1908; and, second, “tbat so much of tbe ordinance passed October 1, 1909 (mentioned in tbe foregoing statement of tbe case), as purported to increase tbe salary of said marshal to take effect January 3, 1910, is void as to appellant, for tbe reason tbat it would increase tbe salary of said marshal ‘to take effect during tbe time for which such officer was elected’ and would be in conflict with section 225 of tbe Compiled Laws of the State of Utah, 1907.”

Tbe authorities seem to bold tbat when a person is elected or appointed to an office and be qualifies and enters upon tbe duties thereof under a statute which provides tbat tbe person so elected or appointed shall bold tbe office for a definite period of time and until bis successor is elected and qualified, and such person bolds over and continues to discharge tbe duties of tbe office after tbe expiration of bis regular term because of tbe failure to elect or appoint a successor, tbe bold-over period is a part of tbe time for wbicb sucb officer was elected or appointed. In tbis case, however, tbe law under wbicb appellant was elected, and under wbicb be beld tbe office from January 6, 1908, until tbe first Monday in January, 1910, vpas, in tbe year 1909, amended and tbe office changed from an elective to an appointive office. Tbe amendment, so far as it affects tbe officer in question, went into effect immediately on tbe expiration of tbe term (two years) for wbicb appellant was elected. Chapter 107, p. 230, Sess. Laws Utah 1909. As appellant was not appointed to tbe office after bis term expired, and tbe law under wbicb be bad been elected having been, in effect, repealed, it follows that during tbe month of February, 1910, be was not a de jure officer, and was in no sense a holdover, as tbe term “holdover” is understood when applied to a person bolding a public office. (State v. Simon, 20 Or. 365, 26 Pac. 170.) It does appear, however, that be was a de facto officer, and as such discharged all tbe duties of the office during tbe month of February, 1910. Tbe important question tberefox*e is, Can an actual incumbent of a public office, who is only an officer de facto and in no sense a de jure officer, maintain an action for tbe salary, fees, or other compensation attached to the office, there being no adverse contestant or de jure officer %

There are many American decisions in which tbe view derived from England is still adhered to-, namely, that tbe right to tbe emoluments of a public office is an incident to and rests upon tbe title to tbe office; and hence under no circumstances is a de facto officer legally entitled to tbe emoluments of tbe office, although be may have performed all tbe services and discharged all tbe duties of tbe office. Upon tbe other band, there are courts of high standing wbicb bold that in tbis country a public office is in no sense property, and that public officers have no proprietary interest in their offices. Pursuant to these latter views sucb courts have deduced tbe doctrine that tbe right to the emoluments of an office arises out of the actual rendition of the services required to be performed by the officer; that is, the emoluments are designed to be merely compensatory. (Stuher v. Curran, 44 N. J. Law, 184, 43 Am. Rep. 353; Erwin v. Jersey City, 60 N. J. Law 141, 37 Atl. 732, 64 Am. St. Rep. 584.) In view of the foregoing, some of the courts have adopted and followed the intermediate course, namely, that as between an officer de facto and a de jure officer the latter is entitled to whatever salary and other compensation may be atteched to the office, even though the de facto officer may have performed all the duties of the office. This doctrine is based upon the theory that unless the de jure officer is protected, dishonest intruders will lay claim to the office, and, obtaining possession thereof, will claim the emoluments to the detriment, of the public and the injury of the de' jure officer. In cases, however, where there is no de jure officer, the line of decisions last mentioned hold that a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office and may, in an appropriate action, recover the salary, fees, and other compensation attached to the office. This doctrine is discussed and illustrated in the following cases: Erwin v. Jersey City, supra; Dickerson v. City of Butler, 27 Mo. App. 9; Behan v. Board, etc., 3 Ariz. 399, 31 Pac. 521; Adams v. Directors, etc. [Ariz.], 40 Pac. 18.

Constantinian, in his treatise on the De Facto Doctrine, section 238, says: “Certain courts, while denying to the de facto officer the right to recover salary when there is a de jure officer entitled to the office, have thought that the rule should be different when there is no such officer in existence. This doctrine may undoubtedly be supported on equitable grounds, since it seems unjust that the public should benefit by the services of an officer de facto, and then be freed from all liability to pay any one for such services.” The author cites with approval the Arizona cases above mentioned.

We think the rule as declared by these authorities is more in consonance with the principles of equity than the opposite rule which holds that an officer de facto cannot, under any circumstances, maintain an action for the salary, fees, or other compensation attached to the office which he holds.

The judgment is reversed, with directions to the trial court to issue a writ of mandate as prayed for in appellant’s complaint. Appellant to recover costs.

STEAUP, C. L, and PEICK, L, concur.  