Opinion
No. 30964
Decided December 31, 1947.
Office and officer — Judge of Common Pleas Court impliedly resigns and abandons office — By accepting appointment and serving as officer in army — Former judge, performing judicial duties after military service, a de facto judge — State may not recover compensation paid to de facto judge, when.
1. A duly elected, qualified and acting judge of the Court of Common Pleas, on accepting a temporary appointment and entering service as an officer in the Army of the United States during World War II, impliedly resigns and abandons the office of judge.
2. In such case, where the former judge upon returning from the military service enters upon and performs the duties of his former office with the acquiescence of the public authorities and the public and has the reputation of being the officer he assumes to be and is dealt with as such, he is in the eyes of the law a de facto judge.
3. Compensation paid to such judge by the state for his services as de facto judge between his return from military service and his appointment and qualification as a de jure judge cannot be recovered by the state.
IN MANDAMUS.
Bernard G. Witten filed his petition in mandamus in this court against Joseph T. Ferguson, Auditor of State, praying that a writ of mandamus issue commanding the respondent to issue and deliver to the relator a warrant or warrants drawn upon the treasury of the state of Ohio for salary for relator's services as common pleas judge of Belmont county, from the first day of September 1946 to date, or show cause why respondent has not done so.
The respondent filed an answer alleging, among other things, that relator had forfeited his office by reason of having entered the armed forces of the United States.
The relator filed his reply denying, among other things, the forfeiture of the office, and alleging, inter alia, that after July 1, 1945, he performed the duties of his office in good faith, and that there was no other claimant to that office.
The parties by their counsel have stipulated and agreed as to the facts in the case, which are:
"1. Respondent is and was since the first day of September, 1946, the duly elected, qualified and acting auditor of the state of Ohio.
"2. At the regular state election held in the year 1942, relator was elected to the office of judge of the Court of Common Pleas of Belmont county, Ohio, for a term of six years, commencing on the first day of January, 1943, and ending on the 31st day of December, 1948. Relator received his commission as such judge, took the oath of office and entered upon the duties of the office on January 1, 1943.
"3. Relator was on the 1st day of May, 1943, offered and received a temporary appointment as major in the Army of the United States, said appointment being made by the President of the United States, by authority of H. J. Res. 199, Public Law Number 252, 77th Congress of the United States, Joint Resolution, September 22nd, 1941, 55 Stat. 728, 10 U.S.C. which provides as follows:
" 'That during the present emergency, temporary appointments as officers in the Army of the United States may be made, under such regulations as the President may prescribe, from among qualified persons without appointing such persons as officers in any particular component of the Army of the United States. All persons so appointed as officers shall be commissioned in the Army of the United States and may be ordered into the active military service of the United States to serve therein for such periods of time as the President may prescribe. Such appointment in grades below that of brigadier general shall be made by the President alone, and general officers by and with the advice and consent of the Senate: Provided, that any appointment made under the provisions of this act may be vacated at any time by the President and, if not sooner vacated, shall continue during the present emergency and six months thereafter: Provided further, that any person appointed as an officer in the Army of the United States under the provisions of this act shall receive the same pay and allowances and be entitled to the same rights, privileges, and benefits as members of the Officers' Reserve Corps of the same grade and length of active service: And provided further, that nothing contained in this act shall be construed to prohibit the appointment of officers in the various components of the Army of the United States in accordance with existing laws.' (Approved, September 22, 1941.)
"That on the said first day of May, 1943, relator commenced service in the Army of the United States, by virtue of the aforesaid appointment.
"4. On July 1, 1945, relator returned from duty as a major in the Army of the United States, and on said date commenced to perform and thereafter continued to perform and discharge the duties of the office of judge of the Court of Common Pleas of Belmont county, Ohio.
"5. Relator was paid compensation from the state treasury of Ohio the sum of thirty-five hundred dollars, as salary for the period from July 1, 1945, to September 1, 1946.
"6. On October 9, 1946, the Governor of Ohio issued a commission to relator for the office of judge of the Court of Common Pleas of Belmont county, Ohio, and on October 29, 1946, relator took an oath of office, and thereafter continued as judge of the Court of Common Pleas of Belmont county, Ohio. * * *
"7. Respondent has since the first day of September, 1946, refused and still refuses to pay any moneys demanded and claimed by the relator to be salary due him for the period from September 1, 1946, to the present date, and has paid relator no moneys whatever since said September 1, 1946.
"8. For the calendar year 1946, including the period from September 1, 1946, to December 31, 1946, there was money in the state treasury of Ohio to the credit of the fund for the payment of the state's share of the salaries of Common Pleas judges of the various counties during the period from September 1, 1946, to December 31, 1946, legally appropriated for said purpose, unincumbered, and sufficient to pay the amount claimed by relator as salary for said period.
"9. For the calendar year 1947, including the period from January 1, 1947, to the present date, there is money in the state treasury of Ohio, to the credit of the fund for the payment of said salary during the calendar year 1947, legally appropriated for said purpose, unincumbered, and sufficient to pay the amount claimed by relator as aforesaid.
"10. Respondent refuses to pay relator's salary as judge from September 1, 1946, until the sum of $3,500 has been recovered by reason of respondent's claim that salary was illegally paid to relator for the period from July 1, 1945, to September 1, 1946.
"11. During all the period of time relator served as major in the Army of the United States by virtue of his appointment as aforesaid, he received no compensation from Belmont county, Ohio, or from the state of Ohio; and that upon his return from service on July 1, 1945, relator notified the Auditor of State of the state of Ohio, that he had resumed, and did on said date resume his duties as judge of the Court of Common Pleas of Belmont county, Ohio.
"12. Relator on the first day of July, 1945, commenced to discharge in good faith the duties of said office of judge and at the date hereof, and at all times since July 1, 1945, relator performed said duties in good faith, and there was no other claimant to said office during said period.
"13. No proceeding of any nature was had at any time to declare the office of judge as aforesaid held by relator to be vacated, abandoned or forfeited."
Mr. Kenneth G. Cooper, Messrs. James Jones, Mr. Austin C. Furbee, Mr. Gordon D. Kinder, Messrs. Michener Dankworth and Messrs. Thornburg Lewis, for relator.
Mr. Hugh S. Jenkins, attorney general, Mr. E.G. Schuessler and Mr. Edgar L. Weinland, for respondent.
The principal question presented by this action concerns the status of the relator during the period from July 1, 1945, when he returned from the army and commenced to perform and thereafter continued to perform and discharge the duties of the office of judge of the Court of Common Pleas, to September 1, 1946, the approximate date of his appointment to the office by the then Governor of Ohio. Respondent contends that, under the terms of Section 14 of Article IV of the Constitution of Ohio, the relator, upon his acceptance of a commission from the United States Government as an officer in the Army of the United States, forfeited and vacated his office as judge of the Common Pleas Court and was not entitled to the salary paid to him by the state from July 1, 1945, when he returned, to the date of his appointment by the Governor.
Section 14, Article IV, Constitution of Ohio, provides:
"The judges of the Supreme Court, and of the Court of Common Pleas, shall, at stated times, receive, for their services, such compensation as may be provided by law, which shall not be diminished, or increased, during their term of office; but they shall receive no fees or perquisites, nor hold any other office of profit or trust, under the authority of this state, or the United States. All votes for either of them, for any elective office, except a judicial office, under the authority of this state, given by the General Assembly, or the people, shall be void." (Italics ours.)
Was the relator a de jure or a de facto officer, or was he a mere volunteer?
A de jure officer is one who occupies his office through a proper and legal election or appointment and during a constituted term.
The relator was in the year 1942 elected to the office of judge of the Court of Common Pleas of Belmont county for a term of six years commencing on the first day of January 1943 and ending on the 31st day of December 1948, and entered upon the duties of the office on January 1, 1943. He received his commission in the: Army of the United States and commenced service therein on the first day of May 1943.
The section of the Constitution of Ohio here under consideration does not provide that a person holding the office of judge of the Court of Common Pleas shall be ineligible to hold another office. To the contrary it provides:
"The judges * * * of the Court of Common Pleas * * * shall receive no fees or perquisites, nor hold any other office of profit or trust, under the authority of this state, or the United States. * * *" (Italics ours.)
Did the relator forfeit his office as judge by the acceptance of a commission in the Army of the United States and service therein during World War II?
The principle is firmly established that the acceptance by an officer of a second office which is incompatible with the one already held is a vacation of the original office and amounts to an implied resignation or abandonment of the same. Annotation, 100 A. L. R., 1162, and the authorities there reviewed.
The relator could not under our Constitution have been an officer in the Army of the United States and a judge in the state of Ohio at the same time, and when he accepted a commission in the Army of the United States, he impliedly resigned from his office as judge of the Common Pleas Court and thus abandoned it. When he returned from the army and purportedly reassumed his seat on the bench, relator could not have done so under his prior election, and so was not a de jure officer.
If the relator was not acting as a de jure officer, was he a de facto officer?
A de facto officer may be defined as one who, although not an officer in point of law, has the reputation of being the officer he assumes to be and is accepted as such by those who deal with him. Calley v. Blake, 126 W. Va. 696, 29 S.E.2d 634.
The following comprehensive definition of a de facto officer is found in State v. Carroll, 38 Conn. 449, 471, 9 Am. Rep., 409:
"A definition sufficiently accurate and comprehensive to cover the whole ground must, I think, be substantially as follows: An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised,
"First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be.
"Second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like.
"Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.
"Fourth, under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such."
The above definition divides de facto officers into four classes. In three of these classes the officer holds his office under color of right. In the fourth class, which is perhaps not as well known as the others, the officer holds his office without protest, not under an invalid election or appointment, but under some other claim of right, and has been recognized and dealt with by the public as such officer. In such situation, his reputation as such officer and the acquiescence of the public take the place of or furnish the color of right. State, ex rel. City of Republic, v. Smith, State Aud., 345 Mo., 1158, 139 S.W.2d 929.
In 43 American Jurisprudence, 232, Section 478, it is stated:
"One who has the reputation of being the officer he assumes to be, although he is not such in point of law, if he is in possession of the office and claims to be entitled to perform its duties, is generally considered as being an officer de facto. The reputation of a person being a public officer and the acquiescence by the public in his official standing may be traced to a known but defective election or appointment, as in the case of a color of title acquired in this manner. But, it seems, reputation and general recognition may be based on the mere performance of the duties of the office for a sufficient length of time to imply that there must have been an appointment or election although it is only presumed and the occasion is unkown. In other words, a person may, irrespective of any question of appointment or election, become an officer de facto where he has acted under such circumstances of reputation or acquiescence as are calculated to induce people, without inquiry, to submit to or invoke his action in the supposition that he is in truth the officer he assumes to be."
Thus, where an officer holds the office and performs the duties thereof with the acquiescence of the public authorities and the public and has the reputation of being the officer he assumes to be and is dealt with as such, he is, in the eyes of the law, a de facto officer.
Clearly, the relator, under the above definition, was a de facto officer. He performed the duties of judge and was accepted as such by the community during the period after his return from the army and until his appointment by the Governor. The citizens of Belmont county appeared before him in good faith, presuming he was the officer he assumed to be, and he decided cases and made orders affecting their interests. The respondent himself during this period recognized the relator as such judge and acquiesced in his holding the office by paying him the salary due the office. In the opinion of this court, the relator was a de facto judge from the time he assumed his duties after resigning his commission in the army until the date of his appointment by the Governor.
Does the state have the authority to recover the salary paid to relator during his service as a de facto judge?
It is a well established rule that, in the absence of statutory permission, salary which has been paid a de facto officer cannot be recovered by public authorities, where such officer, acting in good faith, actually rendered the services for which he was paid. 32 Ohio Jurisprudence, 1093, Section 238; 43 American Jurisprudence, 239, Section 491; annotations, 93 A. L. R., 273, and 151 A.L.R., 960.
There is no doubt that relator in good faith rendered the services for which he was paid. The state, therefore, cannot recover the salary paid to him during this period, and the respondent is without authority to retain the salary which has accrued to the relator since his appointment and qualification as judge.
Writ allowed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.