The opinion
HALLEY, Justice
(dissenting).
The majority opinion is, in my judgment, incorrect and I am compelled to dissent. Since September 14, 1909, it has been the law in this State that where a de jure chief of police, who was elected to office and who is, pending the trial of charges against him in the District Court, wrongfully suspended by order of the judge thereof, which said order is later set aside and said suit dismissed and where said City pays a de facto chief of police during his incumbency, the salary provided by law, said de jure officer after obtaining possession of the office cannot recover from the City the salary for the same. Stearns v. Sims, 24 Okl. 623 , 104 P. 44 , 24 L.R.A.,N.S., 475. In other words, this Court adopted the majority rule in cases involving the salary of officers removed from office which is that a de jure officer cannot recover his salary for the period he was suspended from office illegally when it was occupied by a de facto officer. The courts of last resort of twenty-six states have adopted this view. Only eight states have gone the other way and they are cases in which the de jure officer had not been removed or suspended by judicial determination as in the case at bar. So the great weight of authority supports the rule in Stearns v. Sims, supra, and to me it is the sounder view. It has been followed by us in City of Tulsa v. Coker, 181 Okl. 291 , 73 P.2d 443 and City of Tulsa v. Johnson, 196 Okl. 213 , 163 P.2d 993 , 163 A.L.R. 754 . A very comprehensive note on this question is found in 55 A.L.R. 997 . See also 59 A.L.R. 117 and 163 A.L.R. 760 . This statement is found in 67 C.J.S. Officers § 99 b:
“The general rule is that an officer de jure cannot recover from the state or other governmental body emoluments of the office paid by it to an officer de facto during the period when the officer de jure is deprived of his office. * * *”
*245 I have been itnable to find any case where the elective office holder who has been convicted of a crime was permitted to draw his salary for the period his job was taken over by a de facto officer, regardless of reversal of the criminal conviction.
In light of the foregoing I trust there is no question as to the numerical weight of authority. But why should we execute an about face on a rule of law that has been ours for almost a half century. If any change should be made on this principle it should be done by the Legislature. If we adopt the minority view, how can the units of government of this State avoid double payments for services performed only by one? How can they ever be sure? I submit that in this case that Oklahoma County had the right to rely on the fact that Litton had been removed from office by an able District Judge and that his office had been filled by the Governor of the State as by law provided.
After his removal from office, Litton in no way challenged the right of the court to remove him. After he had appealed his criminal case, he did not come back into court and demand his job back. At no time does the record show that he informed any one that he wanted his job back or that he was filling the same. Overholser, who was appointed to fill Litton’s place, served as the County Commissioner from Litton’s district. The office had to be filled and no one else filled it.
It was not a mere circumstance that the highest courts of twenty-six states adopted the view they did. These courts realized it was not fair to the taxpaying public that tax money be paid one who has not performed any service. While it might not seem entirely just that one be elected to office and not receive the salary but those courts thought that if any one had to lose, it should not be the taxpayers. This is but one of the risks that a holder of public office takes. This Court forty-eight years ago told the world that such was the law in Oklahoma and the reference works of our profession so show us. Litton was presumed to know that when he assumed the office.
The majority opinion in this case relies on Ness v. City of Fargo, 64 N.D. 231 , 251 N.W. 843 . While that case adopts the minority view it recognizes that even under that interpretation an office holder may waive his right to his salary while out of office or by his conduct may estop himself from claiming it. Litton did this very thing by not attempting in any way to hold on to his office by appeal or by attempting to prevent Overholser from functioning. In the Ness case, supra, Ness immediately upon his removal from office brought suit in the proper court to test the validity of his dismissal but Litton did nothing. The authorities of the City of Fargo knew that Ness took the position that he and no one else was the proper person to hold his office. In the case at bar Oklahoma County had no such knowledge as to Litton as he asserted no such claim. I say that Litton acquiesced in his removal by his failure to take action to recover his office. After he had appealed his criminal case it was incumbent upon him to demand his reinstatement. See Bell v. Treasurer of Cambridge, 310 Mass. 484 , 38 N.E.2d 660 .
I submit that in this case that Oklahoma County was entitled to have County Commissioners to take care of the business of the County and that the County Commissioners, who were the elected officials, had been removed by judicial determination and these men could not be restored to office during their terms except by some court of proper jurisdiction. No effort was made to restore them. Their terms expired before the decision of the Criminal Court of Appeals in the case. Oklahoma County was not required to hold up the salaries of the persons who were appointed to and were performing the duties of County Commissioners. No one could be required to serve without pay. An appropriation was made to pay the County Commissioners. The requisite taxes needed were levied. The County should net *246 be required to dip into other funds or levy additional taxes to pay the salary twice.
In my opinion, Litton was no longer a de jure officer when the District Judge removed him and that Overholser was not only a de facto but the de jure County Commissioner.
The majority opinion argues that under 69 O.S.1951 § 327, that the term “final judgment” means after the appellate court has passed on the matter. Under my view of this case, I think this point is immaterial but I do not go along with this interpretation. I set out the last sentence in this Section:
“* * * upon presentation in court of complaint in legal form, alleging violation of any provision of this Act, any road official charged with the duties herein shall be, at the option of the court, immediately suspended from office pending final judgment, and upon being found guilty shall forfeit his office in addition to any punishment imposed.”
Clearly under this Section when the complaint was filed, Litton could have been suspended from office immediately pending final judgment. I think that this term, “final judgment,” meant the final judgment in the trial court because it provides right after the words “final judgment” this clause “and upon being found guilty shall forfeit his office, * * *”. The expression “found guilty” refers to the trial court. It is the trier of facts. The appellate court in criminal cases either affirms, reverses or modifies a judgment of the trial court. It does not find a defendant guilty. To me it is plain that the Legislature intended that any road official “found guilty” of a criminal offense in the trial court should have his office forfeited. He was still guilty until the case was reversed.
Above all, and again I say, we should not overturn landmarks that have guided us for nearly fifty years without a better reason than urged. I dissent.