of the incumbent of a public office, whether an officer de jure or de facto, he is entitled to the compensation as fixed and determined. by law only for the actual time he serves; the payment of compensation presupposes the rendition of actual service. 523 The converse of the rule also is true that an official is entitled to compensation only from the time when he assumes and can legally perform the duties of the office.524 Where a legislative body has the power to create an office and fix the compensation for its incumbent, its legal abolition will destroy any right of compensation.525

§ 695. Payment in case of sickness, suspension or absence from Office.

The payment of compensation to public officers for the performance of duties or the rendition of services with which they are legally charged is commonly based upon the actual rendition of the services rendered.526 One who, therefore, is absent from his of fice either on business or personal reasons or because of sickness, cannot collect compensation for such time as he may have been disabled by such absence, whatever the cause, for performing the duties of his office.527 Statutory provisions are usually found covering emergencies and establishing the principle that in case

cer de jure to compensation in note 10, Am. St. Rep. 284.

523 Dillon v. Bicknell, 116 Cal. 111, 47 Pac. 937; Albaugh v. State, 145 Ind. 356, 44 N. E. 355; Fassey v. City of New Orleans, 17 La. Ann. 299; Wayne County Auditors V. Benoit, 20 Mich. 176; Howard v. City of St. Louis, 88 Mo. 656; Stanfield v. Bexar County (Tex. Civ. App.) 28 S. W. 114.

524 United States v. Flanders, 112 U. S. 88; Shelley v. United States, 19 Ct. Cl. 653; Ball v. Kenfield, 55 Cal. 320; Speed v. Common Council of Detroit, 100 Mich. 92, 58 N. W. 638; City of San Antonio v. Micklejohn, 89 Tex. 79, 33 S. W. 735.

525 Board of Councilmen of Frankfort v. Brawner, 100 Ky. 166, 37 S. W. 950, 38 S. W. 497; Bryon v. Jumel, 32 La. Ann. 442; Robinson

v. City of Baltimore, 93 Md. 208, 49 Atl. 4; Wittmer v. City of New York, 50 App. Div. 482, 64 N. Y. Supp. 170; Debolt v. Trustees of Cincinnati Tp., 7 Ohio St. 237; Jones v. Shaw, 15 Tex. 577; City of San Antonio v. Micklejohn, 89 Tex. 79, 33 S. W. 735. But see Kimball v. City of Salem, 111 Mass. 87, and Silvey v. Boyle, 20 Utah, 205, 57 Pac. 880.

526 State v. McAllister (Tex. Civ. App.) 31 S. W. 679.

527 Hurlburt v. United States, 30 Ct. Cl. 16. But see Bryan v. Cattell, 15 Iowa, 538, which holds that where a public officer of the state is absent from his duties he is entitled to his salary during such absence where he has not legally vacated his office.

of unavoidable sickness, the right to compensation is not lost 528 though the official may be required to remunerate the deputy or official actually performing his duties so far as they can be performed. In case of an official charged with the exercise of discretionary duties, an ordinary sickness does not deprive him of a right to compensation. The suspension of an officer for cause will destroy a claim of this nature."

Unlawful removal or suspension. If, however, the official has been illegally removed or suspended from office or prevented from performing its duties, the greater weight of authority is to the effect that no right of compensation is lost and that he can recover subsequently full pay for the time which he may have lost because of the suspension or removal.53

§ 696. Right to reimbursement and indemnity.

The proper performance of official duties may require in addition to the services of the official at the head of the department, deputies, clerks and other employes and the necessary expenses which accompany the carrying on of the work of the office. In

531

some instances, a public official is given a salary, commission, or fees from which he is required to meet all necessary expenses connected with the proper rendition of the service.5 Under these conditions, a public officer has no right to reimbursement or indemnity for any salaries or disbursements which he may have made and which may have become necessary by reason of the business in the office.532 In the greater number of instances, however, a public officer is paid compensation for his personal services, and the necessary expenses of the office including salaries or wages of deputies, 533 clerks and other employes,534 rent, fuel, light, heat and other incidentals,535 are a charge upon the public corporation and if the officer expends moneys in payment of any of these when authorized by law, he is entitled to reimbursement.

to an official on account of his suspension may be waived by him. Smith v. City of New York, 37 N. Y. 518.

531 State v. King, 136 Mo. 309, 36 S. W. 681, 38 S. W. 80.

532 Hamilton County Com'rs V. Sherwood (C. C. A.) 64 Fed. 103. Construing Kan. Gen. St. 1889, c. 39, § 12. Ellis v. Tulare Co. (Cal.) 44 Pac. 575; State v. Mills, 142 Ind. 569, 41 N. E. 1026. Under Ind. Rev. St. 1894, § 8083, a township trustee receiving a per diem for his compensation is not entitled to reimbursement for money paid for office rental. Callaway County v. Henderson, 119 Mo. 32; State v. Hazelet, 41 Neb. 257; Gage County v. Wilson, 38 Neb. 168, 56 N. W. 880; State v. Cappeller, 39 Ohio St. 207.

533 Schuyler v. Bogue, 38 Ill. App. 48; Bradley v. Jefferson County, 4 Greene (Iowa) 300; State v. Van Auken, 98 Iowa, 674, 68 N. W. 454; Harris v. Chickasaw County, 77 Iowa, 345, 42 N. W. 313.

534 Roberts v. People, 9 Colo. 458, 13 Pac. 630.

535 United States v. Reed, 13 C. C. A. 682, 69 Fed. 841; Gorman v.

Tidholm, 94 Ill. App. 371; Marion County Com'rs v. Reissner, 58 Ind. 260; Williams V. Henry County Com'rs, 27 Ind. App. 207, 60 N. E. 1099; Hill v. City of Clarinda, 103 Iowa, 409, 72 N. W. 542; Boone County v. Todd, 3 Mo. 140; People v. New York City Sup'rs, 32 N. Y. 473. Public funds are "necessarily expended" within the meaning of the statute when the expenditure it not only needful and proper as distinguished from needless and improvident disbursements but also reasonable, appropriate and customary in the execution of the particular offi cial duty. Walsh v. Albany County Sup'rs, 20 App. Div. 489, 47 N. Y. Supp. 35; People v. Ulster County Sup'rs, 91 N. Y. 672; Dauphin County v. Bridenhart, 16 Pa. 458; Harris County v. Clark, 14 Tex. Civ. App. 56, 37 S. W. 22. But see Yost v. Scott County Com'rs, 25 Minn. 366; State v. Smith, 84 Minn. 295, 87 N. W. 775. County surveyors are not entitled to receive pay for the use of horses used by them while engaged in the performance of their public and official duties and the fact that such a claim may have been paid at one time does

§ 697. Miscellaneous disbursements.

A public official in performing the duties of his office may incur miscellaneous expenses which are a proper charge upon public funds and this is especially true where the expense was one incurred in the performance of a duty in which the public corporation has a direct and beneficial interest or one which rests upon it as a duty or as an agency of the sovereign. For such disbursements a public officer is clearly entitled as a matter of right to a reimbursement.536 If the expenses, however, are incurred in

not make subsequent claims a legal demand against the county. 536 Glenn's Case, 4 Ct. Cl. 501. The judicious expenditure of moneys for the recovery of funds stolen from a paymaster without his fault should be paid by the government. Gregory v. City of Bridgeport, 41 Conn. 76; Scott County v. Drake, 71 Ill. App. 280; Philips v. Christian County, 87 Ill. App. 481; Christian County v. Merrigan, 92 Ill. App. 428; Zartman v. State, 109 Ind. 360, 10 N. E. 94; Clark Civil Tp. v. Brookshire, 114 Ind. 437, 16 N. E. 132; State v. Parker, 33 Ind. 285; Kiefer v. Troy School Tp., 102 Ind. 299; Wapello County v. Monroe County, 39 Iowa, 349; Miller v. Dickinson County, 68 Iowa, 102; Moon v. Butler County Com'rs, 30 Kan. 458. An officer in searching in another state for a fugitive from justice is entitled to reimbursement for expenses necessarily incurred though unsuccessful.

Parker v. City of New Orleans, 15 La. Ann. 43; Inhabitants of Kennebunk v. Alfred, 19 Me. 221; Brown v. Inhabitants of Orland, 36 Me. 376; City of Baltimore v. Howard County Com'rs, 61 Me. 326; Emerson v. Inhabitants of Newbury, 30 Mass. (13 Pick.) 377; Bancroft v. Inhabitants of Lynnfield, 35 Mass. (18 Pick.) 566; Cochrane v. Inhabitants of Melrose, 121 Mass. 562;

Barker v. Vernon Tp., 63 Mich. 517, 30 N. W. 175; Jenney v. Mussey Tp., 121 Mich. 229, 80 N. W. 2; Ranson v. Gentry County, 48 Mo. 341; James v. Lincoln County Com'rs, 5 Neb. 38. Expenses incurred in behalf of several counties must be properly apportioned between them. Rider v. City of Portsmouth, 67 N. H. 298, 38 Atl. 385; Lewis v. Freeholders of Hudson County, 37 N. J. Law, 254. A board of freeholders may reimburse reasonable expenses incurred in good faith by a public officer in the arrest and prosecution of public offenders where such are justified by the hands of justice and the exegencies of the particular

case.

Macon County Com'rs v. Jackson County Com'rs, 75 N. C. 240; Tucker v. Trustees of Rochester, 7 Wend. (N. Y.) 254; People v. Columbia County Sup'rs, 67 N. Y. 330. The cost of keeping prisoners is a county charge and the sheriff should be reimbursed for this item. State v. Hamilton County Com'rs, 26 Ohio St. 364; Kelly v. Multnomah County, 18 Or. 356, 22 Pac. 1110; Mogel v. Berks County, 154 Pa. 14, 26 Atl. 227; Mansel v. Nicely, 175 Pa. 367, 34 Atl. 793. A county commissioner where traveling expenses are allowed by law is not entitled to expenses incurred each day in going from his home to his office and re

connection with services not authorized by law or in the performance of duties in excess of corporate powers, no right of indemnity or reimbursement exists."

537

Where the expense is incurred in a service which properly belongs to the public corporation as a governmental agent or as the sovereign itself, or is one in which it is directly and beneficially in terested, the authorities are all agreed that while a public official may not as a matter of right be entitled to reimbursement for the necessary expenditures, yet, the corporation has the unquestioned power to provide for a reimbursement.538 Where, however, the disbursement was made in the rendition of a service in which the officer or individual alone is directly and beneficially interested and which cannot be considered as a duty resting upon the corporation to perform, the right or power of reimbursement does not exist for this would be equivalent to the appropriation or

turning. Civic Federation v. Salt Lake County, 22 Utah, 6, 61 Pac. 222; Ladd v. Town of Waterbury, 34 Vt. 426; State v. Atkinson, 25 Wash. 283, 65 Pac. 531; McCumber v. Waukesha County, 91 Wis. 442, 65 N. W. 51. A town marshal cannot recover for use of his own vehicle in conveying prisoners. But see Bristol County v. Gray, 140 Mass. 59.

537 Heney v. County of Pima, 2 Ariz. 257, 14 Pac. 299; Reilly v. Cochise County (Ariz.) 53 Pac. 205; Irwin v. Yuba County, 119 Cal. 686, 52 Pac. 35; Carlile v. Hurd, 3 Colo. App. 11, 31 Pac. 952. The expenses of a deputy insurance commissioner in attending to an insurance conviction without the state and investigating the condition of the insurance company in another state are not a proper charge upon public funds.

Clyne V. Bingham County, 7 Idaho, 75, 60 Pac. 76; McCracken v. Soucy, 29 Ill. App. 619. The fact that moneys were expended for a useful purpose, if not authorized,

creates no claim for reimbursement. McGregor v. City of Logansport, 79 Ind. 166; Vincent v. Inhabitants of Nantucket, 66 Mass. (22 Cush.) 103; Rasmusson v. Clay County, 41 Minn. 283, 43 N. W. 3; Garnier v. City of St. Louis, 37 Mo. 554; State v. Bourn, 75 Mo. 473; Inhabitants of Princeton v. Mount, 29 N. J. Law (5 Dutch.) 299; Lewis v. Chosen Freeholders of Hudson, 37 N. J. Law, 254; Mogel v. Berks County, 154 Pa. 14; James v. City of Seattle, 22 Wash. 654, 62 Pac. 84. The expenses of a committee appointed by an ordinance in visiting and investigating other municipalities in order to secure information on municipal waterworks, street paving and street lighting, are not a proper charge upon the public funds and an appropriation cannot be made for the reimbursement of such expenses although they may be reasonable and necessary. Townsley v. Ozaukee County, 60 Wis. 251.

538 French v. City of Auburn, 62 Me. 452; Sherman v. Carr, 8 R. I. 431.