The plaintiff performed none of the duties of the office, and cannot recover the back salary, at least from the county. The statute (Wood's Dig. p. 1147, Art. 478) provides that the District Attorney of Tuolumne " shall receive for his services annually" the sum of one thousand two hundred dollars. (Payne v. San Francisco , 3 Cal. 122.)
The plaintiff refers to the New York case of People v. Tieman (30 Barb. 193). The Court will see, on examination, that that case was decided expressly on the ground that under the New York statute no power to hold over was vested in the incumbent.
Although the County Auditor may be the party required to draw the warrant, it is the duty of the Supervisors to " examine, settle, and allow all accounts legally chargeable against the county." (Wood's Dig., Art. 3319.)
It is particularly requisite that the Supervisors should inspect the account of the District Attorney, for if he fail to attend theterm of any District Court or Court of Sessions, the Court is authorized to appoint a substitute, to be paid from the County Treasury. (Wood's Dig., Art. 118.)
Petitioner, not having filed the requisite bond, could not legally perform the duties of his office, and therefore could claim no compensation. (W. D. 77, Art. 208.)
If a party were allowed to interpolate the word " just," the statute might easily be avoided. He might confess a fraudulent judgment covering his entire property; this evidently would not be a " just" debt--yet, as between himself and the party to whom the same was confessed, it would be perfectly valid, on the ground that he could not interpose his own fraudulent act as an answer to the judgment, being particeps criminis.
JUDGES: Sanderson, C. J.
OPINION
SANDERSON, Judge
The question involved in this case is whether Brown, the old incumbent, or the relator is entitled to the salary for the time during which the former held over. This question is wholly unaffected by the mandamus against the Board of Supervisors. The relator was not a party to that proceeding, nor had the Board any power over or duty to perform touching the salary of his office. The salary of District Attorneys is not audited and allowed by the Board of Supervisors but by the County Auditor. (Wood's Digest, p. 664, Sec. 2, and p. 694, Sec. 9.) Admitting that he could have intervened in that proceeding we know of no rule by which he was compelled to do so, and such being the case his rights in the premises could not be prejudiced by his omitting to do what no rule of law required.
Every one is presumed to know the law, and therefore Mr. Brown was bound to know, under the circumstances, who was his successor, and to yield the office upon his qualification and demand. He was bound to act at his peril, and if he held over, and thereafter it should appear that the party so qualifying and demanding the office had at the time a title thereto, he could claim nothing on the score of services rendered, for upon the determination of that question he became a usurper ab initio. The salary annexed to a public office is incident to the title to the office, and not to its occupation and exercise. (The People ex rel. Morton v. Tieman, 8 Abbott's Practice Reports, 359.) In the case cited the Court said: " The salary and fees are incident to the title, and not to the usurpation and colorable possession of an office. An officer de facto may be protected in the performance of acts done in good faith in the discharge of the duties of an office under color of right, and third persons will not be permitted to question the validity of his acts by impeaching his title to the office. Public interests require that acts of public officers, who are such de facto, should be respected and held valid as to third persons who have an interest in them, and as concerns the public, in order to prevent a failure of justice. (2 Kent's Com. 295.) But it does not follow that a right can be asserted and enforced on behalf of one who acts merely under color of office without legal authority, as if he were an officer de jure. When an individual claims by action the office, or the incidents to the office, he can only recover upon proof of title. Possession under color of right may well serve as a shield for defense, but cannot, as against the public, be converted into a weapon of attack to secure the fruits of the usurpation and the incidents to the office." The technical objection interposed to the relator's official bond is, in our judgment, untenable.
Having the title to the office, the relator is entitled to the salary from the commencement of the term for which he was elected, and he cannot be deprived of it by the usurpation of Brown, or the wrongful payment of the same to the latter by the direction of a Court in a proceeding to which he was not a party.
Peremptory mandamus allowed.