At the November, 1892, election, plaintiff was elected to the office of county assessor, and thereafter duly received from the proper authorities a certificate of election. On the 4th day of April, 1893, he took and subscribed to the usual oath of office, and presented the same, with his official bond to the board of county commissioners for its approval. Under a mistaken • notion that plaintiff had, undenSecs. 1380. and 1381 of the Compiled Laws, forfeited his right to the office by not qualifying and entering upon his official duties on the first Monday of January preceding or' within 10 days thereafter, the board refused to approve the bond, and declared the office vacant, and appointed Charles S. Lee to fill the vacancy, who thereupon qualified and in due time entered upon and performed the duties of county assessor for the year 1893, and until ousted by a judgment of the circuit court entered on the 14th day of December of that year. Although plaintiff, on the 29th day of April, 1893, demanded of the county auditor the books, papers and other insignia of office, which was refused, no legal steps were ever taken to compel the board to approve or in any manner act upon his official bond, and the same was never presented to the judge of the circuit court for approval, as provided by Sec. 1376 of the Compiled Laws, when the board neglects or refuses from any cause to approve or act *27with reference thereto. Under the law as it then existed, the assessment must be made during the months of May and June of each year, and the assessor must at the time or before receiving the assessment books and entering upon the discharge of his duties qualify by taking the prescribed oath of office and by filing with the county auditor an official bond in the penal sum of $500, “conditioned, that he will diligently, faithfully and impartially perform the duties enjoined on him by law.” Laws, 1891, Chap. 14, § 31. Lee, under his appointment, evidenced by the usual certificate thereof, made the assessment in May and June of the year 1893, and received from the defendant county full compensation therefor; and plaintiff, who performed none of the duties of the office demanded from said county board an amount of money equal to the compensation received by Lee, and brings this action to recover the same. A trial to the court resulted in a judgment for plaintiff, and the defendant appeals.
Just when the action by respondent to obtain possession of the office was commenced is not definitely shown, and there is nothing to indicate that the board of county commissioners had any knowledge of the pendency of the action prior to the time when Lee completed the assessment and received compensation therefor. The judgment by which respondent was declared to be entitled to the office was not obtainéd until several months thereafter. As Lee’s appointment was made and certificate issued by proper authority, he held the office under color of title, and performed the duties for which he received compensation, before appellant had in fact qualified, by filing with the county auditor an approved bond, as required by Sec. 31 of Chap. 14, supra. After the nugatory and unauthorized action of the board in declaring the office vacant -and in the appointment of Lee, and before the time to enter upon the discharge of his duties as assessor, appellant had ample time to have his bond approved by the circuit judge, or to institute proceedings to compel said board to act with reference thereto. He not only slept *28upon his rights, but apparently abandoned for the time being his claim as a duly elected officer by becoming an applicant with Lee for the appointment to fill the purported vacancy. A failure to qualify in the manner prescribed by the law of 1891 is deemed a refusal to serve, and under the circumstances the county'auditor was fully justified in refusing to deliver to appellant the books and papers belonging to the office, and his subsequent demands therefor upon Lee are of no legal efficacy. The distinction between this case and that of Fylpaa v. Brown Co. (S. D.), 62 N. W. 962, relied upon by counsel for appellant, is too obvious to justify more than cursory attention. There the salary was paid by the defendant county to one whose certificate of election had been judicially annulled and for services rendered after the entry of a final judgment in favor of Fylpaa, of which the defendant had actual notice, and by which said officer was adjudged to be the duly elected and legally qualified treasurer of Brown county. He not only duly qualified and demanded the office, but instituted proceedings to restrain the defendant from paying any salary to the defeated candidate, who was wrongfully occupying and discharging the duties of the office after he had become an adjudged usurper, except so far as his acts affected the interests of the public. The rule is that payment by a municipality to an officer de facto, who has entered upon and performed the duties of an office under color of title pending litigation do establish the right of a de jure officer is a bar to a recovery from the public of the amount thus paid before the entry of judgment, and the only remedy available to the officer de jure is an action for damages against the officer defacto. Mechem. Pub: Off. 871; Commissioners v. Anderson, 20 Kan. 298. Payment by the public to one with color of title, actually in an office discharging its duties whose right thereto has not been by a competent judicial tribunal adversely determined, is full protection against any further liability. McVeany v. Mayor, etc., 80 N. Y. 185; Meehan v. Board, 46 N. J. Law, 276; Comstock v. City of Grand Rapids, 40 Mich. 397; *29McCue v. County of Wapello, 56 Iowa 698, 10 N. W. 248. While every material feature of the present case is essentially different from Fylpaa v. Brown Co., supra, the clear and reasonable inference there suggested fully accords with the conclusions here reached. The judgment appealed from is reversed.