County of Luzerne v. Trimmer , 95 Pa. 97 ( 1880 )

Mr. Justice Mercur

delivered the opinion of the court,

The right of the defendant in error to the emoluments of the office ended when it was judicially decided that Barber was duly elected and entitled to the office. The decision in favor of Barber was made by the Court of Common Pleas on the 30th June 1877. Inasmuch, however, as a certiorari was taken to that judgment, and it was not affirmed in this court until the 25th March 1878, the learned judge held the defendant in error entitled to the emoluments of the office until the latter date. In so holding there was error. Due effect was not thereby given to the judgment of the 30th June 1877. The merits of that decision were not reviewed in this court. The certiorari brought up the record only. Although our affirmance of the decree was on the 25th March 1878, yet the effect thereof was to confirm the decree of the 30th June 1877. That was the final decree on the merits of the controversy : Election Cases, 15 P. F. Smith 20. Barber was thereby declared to be the prothonotary de jure. Thenceforth, the defendant in error was merely an officer de facto. His acts were good as to third persons who have an interest in the act done; but he could not recover the fees given for the official services: Riddle v. County of Bedford, 7 S. & R. 387; Commonwealth ex rel. Bowman v. Slifer, 1 Casey 23.

It is contended that Barber was not duly qualified when the decree of the 30th June was made in his favor. This argument rests on the facts that the Act of Assembly declares no commission shall, issue within thirty days after the election, nor pending a contest for the office. The petition contesting his election was filed on the twenty-ninth day thereafter, and without notice thereof the governor issued the commission on the thirtieth day after the election. It is .therefore urged that the commission was wholly invalid under the authority of In re Contested Election of Barber, 5 Norris 392. Such an inference might be drawn from the generality of the language used in that case. It should, however, be interpreted in view of the question then presented. The contention was whether the effect of the commission was such as to authozrize Barber to take possession of the office and to hold the same during the pendency of the contest. It was held to give no such power. It issued irregularly but was not void. Its operative power was suspended during the pendency of the contest. When it was decided that Barber was entitled to the office, then the commission took effect. No second commission was necessary. This conclusion is in harmony with that part of the third section of the Act of 2d July 1839, Purd. Dig. 1181, which declares when a commission is suspended by reason of a contest, it shall take effect from the time of the legal qualification of the officer under the same. To the same effect is Ewing v. Thompson, 7 Wright 372. In case the defendant in error had yielded up the office to Barber at the time the court decided in favor of the latter, his right thereto would have been clear. He had taken the oath of office and held a commission from the only authority competent to issue it. The defendant in error is not entitled to recover any portion of the fees after the 30th June 1877. The learned judge therefore erred in entering judgment for any fees received'after that date. It must therefore be modified so far as to give the defendant in error a judgment for the sum of two thousand six hundred and eighty-seven dollars and ninety cents, with interest from the time payment was demanded.

And now, to wit, October 4th 1880, judgment reversed and set aside, a judgment is hereby entered in favor of the defendant in error for $3087.50, as of this date.