Opinion
No. 28220
Decided November 20, 1940.
Office and officer — Salary paid to de facto officer under court order — Governmental body not liable to de jure officer for salary.
APPEAL from the Court of Appeals of Columbiana county.
In 1932 Lloyd C. Kirk was elected county engineer for the four-year term expiring January 3, 1937, and served until January 9, 1937.
At the November 1936 general election Robert S. Wheatley received the highest number of votes, received his certificate of election and commission, and filed his bond which was approved according to law.
On January 9, 1937, Kirk surrendered the office to Wheatley pursuant to a writ of mandamus issued by the Court of Common Pleas. Wheatley performed the duties of the office through February 16, 1938, but received the salary only from January 3, 1937, to August 2, 1937, amounting to $2,380. The compensation from the last date to February 17, 1938, was paid to Kirk under a settlement agreement without prejudice to the right to litigate the $2,380.
The Court of Appeals in a quo warranto proceeding found Kirk was entitled to hold the office of county engineer from January 3, 1937, until his successor was elected and qualified. This court affirmed that judgment. State, ex rel. Kirk, v. Wheatley, 133 Ohio St. 164, 12 N.E.2d 491. Also a writ of quo warranto was denied by this court. State, ex rel. Wheatley, v. Kirk, 134 Ohio St. 178, 16 N.E.2d 261.
Reporter's Note: Another phase of the controversy over the office was decided in State, ex rel. Snyder, v. Secretary of State, 134 Ohio St. 352, 16 N.E.2d 946.
In August 1938 Kirk brought an action to recover salary from January 4, 1937, to February 17, 1938. Settlement was made in part, leaving in dispute only the $2,380 which had been paid to Wheatley from January 3 to August 2, 1937, by virtue of the writ of mandamus issued by the Court of Common Pleas as heretofore stated.
The instant action by Kirk to recover compensation from the county was tried to the Common Pleas Court, without the intervention of a jury, upon the pleadings, evidence and an agreed statement of facts. The trial court found for Kirk and entered judgment for $2,380, with interest.
Upon appeal on questions of law that judgment was affirmed by the Court of Appeals.
A motion to certify the record was allowed by this court.
Mr. W.B. Moore and Mr. H.L. McCarthy, for appellee.
Mr. Karl T. Stouffer, prosecuting attorney, for appellant.
The judgment of affirmance was entered by the Court of Appeals in the present proceeding prior to our decision in State, ex rel. Cox, v. Hooper, County Aud., ante, 222, 28 N.E.2d 598.
The facts in the case at bar bring it within the principle announced in the case cited.
The judgment of the Court of Appeals will be reversed and final judgment entered for the appellant.
Judgment reversed and final judgment for appellant.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS, HART and TURNER, JJ., concur.