Christian v. Gibbs , 53 Miss. 314 ( 1876 )

Chalmers, J.,

delivered the opinion of the court.

The relator, who had served out a full term as chancellor of the fourth chancery district, was upon the expiration thereof re-appointed during a recess of the legislature to another term, by the lieutenant-governor acting as governor.

This court decided, in the case of Brady v. Howe, 50 Miss. 607, 620, that the governor has no authority to appoint a judge or chancellor to a full term, upon the expiration of a preceding one, during a recess of the senate; that such appointment under the Constitution must either be sent to the senate at its session preceding the expiration of the term, or must be deferred until the next session of the senate succeeding the vacancy; and that, if attempted to be made otherwise, it was void.

The relator, however, claiming that he acted as chancellor, and discharged all the duties of the office for several months subsequent to his pretended re-appointment, brings this action of mandamus against the auditor, to compel the payment of his salary.

It is impossible to see upon what theory his suit can be maintained. He cannot be regarded as a judge holding over until the qualification of his successor, for neither by the common law nor by our Constitution are judges permitted to hold over after the expiration of their terms. If regarded as a de facto officer his situation is not improved, since it is well settled that a de facto officer can maintain no- action for compensation. Such an officer exists merely by sufferance, and can assert no affirmative claim of any sort. His acts are good as between third parties while he is permitted to occupy the position; but the instant that he puts his claim to the office into litigation in any shape he must fail, because in truth he has no claim. Kimball v. Alcorn, 45 Miss. 151. It is moreover a part of the judicial and legislative history of the State that another person (ex-Chancellor Dennis) likewise claimed to have acted as de facto chancellor of the same district at the same time, and that his claim was admitted and his salary paid by act of the legislature for the period during which the relator now claims compensation. Acts of 1875, p. 60. If two persons are to receive salaries for the same office, at the same time, it must be by legislative action; or the one who has received nothing must conclusively show that he was and the other was not legally entitled to it. Certainly no such case has been made out. Judgment affirmed.