FISCAL MANAGEMENT.

25. The fiscal management of counties is commonly prescribed with particularity in the general, permanent statutes of the state; and, in matters wherein specific directions are not given, the analogies, rules, and practice of the state government, rather than of private corporations, is favored by the courts.

Every state has its peculiar form of county organization, created by Constitution and statute, wherein are specified the various officers of the county government, and the duties and functions of each. The assessment, collection, and appropriation of county revenues, and the disposition of county funds, are specifically regulated and directed by those statutes which give to each state its own peculiar rules of fiscal management. But since human foresight cannot provide for every possible contingency, many things are necessarily taken for granted. In the interpretation and application of these statutes the courts are averse to recognizing and following the rules and usages of private corporations,83 but, because of the purely public character and functions of counties, are inclined to conform rather to the rules and usages prevailing in the fiscal management of the state government, wherever practicable. Most county officers, indeed, charged with fiscal functions, represent both. the state and the county, and, in matters of assessment and collection of revenue, perform the same duties for each. The appropriation and disbursement of the county revenue are purely county functions, as is likewise the audit of county claims.85

83 Coles v. Madison Co., 1 Ill. 154, 12 Am. Dec. 161.

84 Milam Co. v. Bateman, 54 Tex. 165; People v. Power, 25 Ill. 187.

85 City of Nashville v. Towns, 5 Sneed (Tenn.) 186; Tippecanoe Co. v. Lucas, 93 U. S. 108, 23 L. Ed. 822.

County Claims.

It is a general rule that, before suit can be brought upon any county claim, it must be duly presented for audit.se In some states the rule prevails that the action of the county board of audit is conclusive, unless appealed from, both upon the county and claimant.87 In others, it is only prima facie evidence in favor of a claim, and the county may thereafter contest its validity; while a rejection of the claim by the auditing authority amounts to a mere refusal to pay, and gives the claimant his right of action.89

Compensation of County Officers.

County officers are compensated for their services either by salary, fees, or commissions fixed by law. This limit of compensation cannot be transgressed by the county by extra allow

86 Autauga Co. v. Davis, 32 Ala. 703; Board of Sup'rs of Lawrence Co. v. Brookhaven, 51 Miss. 68; Board of Com'rs of Sullivan Co. v. Arnett, 116 Ind. 438, 19 N. E. 299; Armstrong v. Tama Co., 34 Iowa, 309; McCann v. Sierra Co., 7 Cal. 121; Waitz v. Ormsby Co., 1 Nev. 370; Board of Com'rs of Washington Co. v. Clapp, 83 Minn. 512, 86 N. W. 775; Shepard v. Easterling, 61 Neb. 882, 86 N. W. 941; Lorsbach v. Lincoln Co. (C. C.) 94 Fed. 963.

87 Board of Com'rs of Warren Co. v. Gregory, 42 Ind. 32; Moser v. Boone Co., 91 Iowa, 359, 59 N. W. 39; Endriss v. Chippewa Co., 43 Mich. 317, 5 N. W. 632; Taylor v. Marion Co., 51 Miss. 731. See, also, State v. Griggsy, 6 Ohio N. P. 202; Taylor v. Davey, 55 Neb. 153, 75 N. W. 553; Trites v. Hitchcock Co., 53 Neb. 79, 73 N. W. 215; Lamberson v. Jefferds, 118 Cal. 363, 50 Pac. 403; State v. Headlee, 18 Wash. 220, 51 Pac. 369. But see Dean v. Saunders Co., 55 Neb. 759, 76 N. W. 450; Board of Com'rs of Huntington Co. v. Buchanan, 21 Ind. App. 178, 51 N. E. 939.

88 Leavenworth County Com'rs v. Keller, 6 Kan. 510; Ryan v. Dakota Co., 32 Minn. 138, 19 N. W. 653; Abernathy v. Phifer, 84 N. C. 711; Jones v. Commissioners, 57 Ohio St. 189, 48 N. E. 882, 63 Am. St. Rep. 710.

89 Gillett v. Lyon Co., 18 Kan. 410; Boswell v. Albany Co., 1 Wyo. 235; Murphy v. Steele Co., 14 Minn. 67 (Gil. 51); Waitz v. Ormsby Co., 1 Neb. 370; Clay Co. v. Chickasaw Co., 76 Miss. 418, 24 South.

91

ance without statutory authority. The basis of this rule is that the officer has, by taking the office, agreed to perform all the duties of the office, whether prescribed at the date of his induction or subsequently added by statute, for the compensation fixed by law, and that these include all services performed in the line of his official employment.92 It has accordingly been held that public corporations cannot lawfully allow extra compensation to attorneys, physicians, and other county officers for extraordinary services rendered by them in the line of their professional and official duty, though they were not foreseen or contemplated at the time of induction into office. So, likewise, where service had been rendered by persons in effecting the organization of a county, they cannot be treated as preliminary or quasi officers, nor can they receive compensation for

90 Gilmore v. Lewis, 12 Ohio, 281; Albright v. Bedford Co., 106 Pa. 582; Wayne Co. v. Reynolds, 126 Mich. 231, 85 N. W. 574, 86 Am. St. Rep. 541; Garfield Co. v. Leonard, 26 Colo. 145, 57 Pac. 693; Ellis v. Steuben Co., 153 Ind. 91, 54 N. E. 382; Grant County Com'rs v. McKinley, 8 Okl. 128, 56 Pac. 1044; Jones v. Commissioners, 57 Ohio St. 189, 48 N. E. 882, 63 Am. St. Rep. 710; The Judges' Salary Cases, 110 Tenn. 370, 75 S. W. 1061, holding statute unconstitutional.

911 Dill. Mun. Corp. § 233; Glavey v. U. S., 35 Ct. Cl. (U. S.) 242. But see Id., 182 U. S. 595, 21 Sup. Ct. 891, 45 L. Ed. 1247.

92 Heslep v. Sacramento, 2 Cal. 580; Debolt v. Cincinnati Tp., 7 Ohio St. 237; Pilie v. New Orleans, 19 La. Ann. 274; Hatch v. Mann, 15 Wend. (N. Y.) 44; Hobbs v. Yonkers, 102 N. Y. 13, 5 N. E. 778; Brissenden v. Clay Co., 161 Ill. 216, 43 N. E. 977.

93 Henderson Co. v. Dixon, 63 S. W. 756, 23 Ky. Law Rep. 1204: Sipler v. Clarion Co., 8 Pa. Dist. R. 253; Morgantown Deposit Bank V. Johnson, 108 Ky. 507, 56 S. W. 825; Carroll v. St. Louis, 12 Mo. 444; Memphis v. Brown, 20 Wall. (U. S.) 289, 22 L. Ed. 264; Cal

lagan v. Hallett, 1 Caines (N. Y.) 104; Preston v. Bacon, 4 Conn. 471; Shattuck v. Woods, 1 Pick. (Mass.) 175; Smith v. Smith, 1 Bailey (S. C.) 70. But see, contra, Huffman v. Greenwood Co., 23 Kan. 281; McBride v. Grand Rapids, 47 Mich. 236, 10 N. W. 353. The Judges' Salary Cases, 110 Tenn. 370, 75 S. W. 1061, declare unconstitutional and void a legislative act authorizing a county to pay additional salary to a judge of the state court sitting in that county only.

ING.CORP.-6

services rendered in promoting and completing the county organization. A de facto officer may lawfully claim and receive official salary until his official right to the office has been adversely decided, but he cannot maintain an action for salary. A majority of cases hold that the de jure officer cannot recover from a county the salary paid by it to the de facto officer, but has his action therefor against the ousted de facto

96

97

95

94 Board of Com'rs of Fremont County v. Perkins, 5 Wyo. 166, 38 Pac. 915.

95 McVeany v. New York, 80 N. Y. 185, 36 Am. Rep. 600; Steubenville v. Culp, 38 Ohio St. 18, 43 Am. Rep. 417; Michel v. New Orleans, 32 La. Ann. 1094; Parker v. Dakota Co., 4 Minn. 59 (Gil. 30); Brinkerhoff v. Jersey City, 64 N. J. Law, 225, 46 Atl. 170; Atchison v. Lucas, 83 Ky. 451; Manor v. State, 149 Ind. 310, 49 N. E. 160; Sullivan v. Haacke, 5 Ohio N. P. 26. The acts and judgments of a de facto officer are as valid and binding as though performed and rendered by an officer de jure. Dredla v. Baache, 60 Neb. 655, 83 N. W. 916; Morford v. Territory, 10 Okl. 741, 63 Pac. 958, 54 L. R. A. 513. See, also, Wilson v. Brown, 58 S. W. 595, 59 S. W. 513, 22 Ky. Law Rep. 708.

96 Andrews v. Portland, 79 Me. 484, 10 Atl. 458, 10 Am. St. Rep. 280; Romero v. United States, 24 Ct. Cl. (U. S.) 331. See Farrell v. Bridgeport, 45 Coun. 191; City of Vicksburg v. Groome (Miss.) 24 South. 306.

The charter of Jersey City provided for the appointment of a single person as city attorney. Two persons acted in that capacity as de facto officers. It was held that, while the acts of each were valid with respect to strangers, neither could maintain a suit for official salary. City of Jersey City v. Erwin, 59 N. J. Law, 282, 35 Atl. 948.

97 Greeley Co. v. Milne, 36 Neb. 301, 54 N. W. 521, 19 L. R. A. 689, 38 Am. St. Rep. 724; Nichols v. MacLean, 101 N. Y. 526, 5 N. E. 347, 54 Am. Rep. 730; Parker v. Dakota Co., 4 Minn. 59 (Gil. 30). If, during the incumbency of an officer de facto, and before any judgment of ouster has been rendered against him, the city or county of which he is such officer de facto pays him the salary of the office, a very decided preponderance of authorities sustains the position that by means of such payment the right of the officer de jure to collect his salary from such city or county is lost. Auditors of Wayne Co. v. Benoit, 20 Mich. 176, 4 Am. Rep. 382; Shaw v. Pima Co., 2 Ariz. 399, 18 Pac. 273; State ex rel. Nail v. Clarke, 52 Mo. 508; Smith v. Mayor, 37 N. Y. 518; Westberg v. Kansas City, 64 Mo. 493;

officer. The opposite view has been strongly maintained in municipal decisions in several states.""

McVeany v. Mayor, 80 N. Y. 185, 36 Am. Rep. 600; Dolan v. Mayor, 68 N. Y. 274, 23 Am. Rep. 168; Steubenville v. Culp, 38 Ohio St. 23, 43 Am. Rep. 417; Saline County Com'rs v. Anderson, 20 Kan. 298, 27 Am. Rep. 171.

If a judgment of ouster has been entered against an officer de facto, and salary is thereafter paid to him, the officer de jure may maintain an action therefor against the city or county, notwithstanding such payment. McVeany v. New York, supra.

If none of the salary has been paid to the officer de facto, the officer de jure, although he performs no duties of the office, may maintain an action against the city and county for the salary and emoluments thereof. Comstock v. Grand Rapids, 40 Mich. 397.

A county or municipality which has paid a salary to a de facto officer, who performed the duties of the office under color of title, while the right to it was in litigation, cannot be held liable therefor again to another who may thereafter establish his title to the office. Fuller v. Roberts Co., 9 S. D. 216, 68 N. W. 308.

But in Tennessee and California it has been in several cases held that a de jure officer can maintain an action against a city, county, or other public body charged with the duty of making payment of the salary office for the payment of such salary, where it has been paid to a de facto officer. City of Memphis v. Woodward, 12 Heisk. (Tenn.) 499, 27 Am. Rep. 750; Savage v. Pickard, 14 Lea (Tenn.) 46; People v. Smith, 28 Cal. 21; Carroll v. Siebenthaler, 37 Cal. 193. 98 In an action by a de jure officer against a person wrongfully in possession of the office for fees received by the incumbent, plaintiff is entitled to recover the entire amount received by defendant, though the value of defendant's services equals the fees received. Wenner v. Smith, 4 Utah, 238, 7 Pac. 293.

If he has in fact received the emoluments of the office, he has no right whatever to retain them, and he may be compelled to account therefor to the officer de jure, in any appropriate form of action. Douglass v. State, 31 Ind. 429; Lawlor v. Alton, 8 Ir. R. C. L. 160; Mayfield v. Moore, 53 Ill. 428, 5 Am. Rep. 52.

An officer de facto is not entitled to the salary of the office, and,

99 City of Memphis v. Woodward, 12 Heisk. (Tenn.) 499, 27 Am. Rep. 750; Ward v. Marshall, 96 Cal. 155, 30 Pac. 1113, 31 Am. St. Rep. 198; Kempster v. Milwaukee, 97 Wis. 343, 72 N. W. 743; Larsen v. St. Paul, 83 Minn. 473, 86 N. W. 459. See Dickerson v. City of Butler, 27 Mo. App. 9.