BOARD OF COUNTY COM'RS v. JENKINS

BOARD OF COUNTY COM'RS v. JENKINS
1926 OK 900
252 P. 825
123 Okla. 196
Case Number: 17416
Decided: 11/16/1926
Supreme Court of Oklahoma

BOARD OF COUNTY COM'RS, CREEK CO.,
v.
JENKINS. SAME v. WILLIAMS.

Syllabus

¶0 Clerks of Courts--Salary of Court Clerks--Special Statute Relating to Rightful Claimant in Election Contest--Duty to Withhold Salary Until Determination of Contest. J. was holding the office of court clerk and was voted for at the polls for election of his successor. His opponent, who was shown by the returns to have been elected, qualified and performed the duties of the office and received the salary during the entire term. J. promptly sued such opponent for the office and notified the authorities of the county to withhold payment of salary pending the contest After the expiration of such term of office, J. was finally adjudged to have been elected and was the rightful claimant of the office. Held, in an action by J. against the board of county commissioners for the salary during such term, under section 129, C. O. S. 1921, specially applicable to such election contest, it was the duty of the commissioners of such county to have impounded or withheld payment of all salary pending such contest, and to have paid same to J. as the rightful claimant of the office after determination of the contest, and their payment of such salary to the de facto court clerk, before such determination, is no defense to such action of J. for such salary after such determination. Said statute excludes such state of facts from the general rule that a municipality is not liable to an officer de jure for salary paid an officer de facto who performs the duties.

W. F. Pardoe and Grady Lewis, for plaintiff in error.
Don W. Walker, Don Lewis, and T. L. Blakemore, for defendants in error.

ESTES, C.

¶1 Wm. M. Jenkins had judgment against the board of county commissioners of Creek county for $ 6,000 for salary as court clerk for the term beginning in 1923 and ending 1924. He was court clerk for the term ending in 1922, and was the candidate of his party in the general election of that year for the same office. Upon canvassing the returns of the election, the county election board issued a certificate of election to Maude C. Elliott, his opponent, who qualified and entered upon the duties of the office on the first Monday in January, 1923, and performed the duties of that office during the remainder of the two-year term, and received the salary amounting to $ 6,000. On January 11, 1923, Jenkins sued Elliott for the office, and on December 7, 1925, final judgment was rendered in favor of Jenkins against Elliott, adjudging Jenkins to have been duly elected court clerk for such term and entitled to have received the emoluments of the office, and adjudged Elliott not to have been elected. On February 1, 1923. Jenkins notified the commissioners of Creek county that said suit was being instituted and demanded the salary of the office be not paid until the determination of the title to the office. On January 26, 1926, Jenkins filed his claim with the commissioners in writing for salary in the sum of $ 6,000, and, same being disallowed, he filed the instant action. From a judgment in his favor for the salary, the commissioners duly appeal.

¶2 This appeal is to be determined by the construction of section 129, C. O. S. 1921, which is in part:

"Rights of Parties in Contest: If there be a contest over the election, between a person holding an office, who was voted for at the polls for election, and some other competitor for the same office, the one shown by the election returns to have been elected shall, after qualifying and giving bond as required by law, and on demand, be entitled to the possession of the office, and perform the duties pending the determination of the contest. When the contest is determined, the successful party shall, on qualifying and giving bond, and on demand, be entitled to the office. The salary shall, after the contest is determined, be paid to the rightful claimant of the office, and if paid in fees, the incumbent if defeated in the contest, shall be liable therefor on his official bond to the rightful claimant"