The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-12-06

This matter comes here on the fol
lowing agreed statement of facts
and questions of law involved re
served for the consideration of thi
Court by w. Austin Whiting, FRS
Judge of the Circuit Court of tn,
First Circuit
Charles A. Brown, the plaintiff, OF
the 18th day OF October, A. j.. 1892
was the duly appointed assessor and
collector of taxes for the First Divis
ion, to wit, the Island of Oahu that
previous to said date said plaintiff
had held said offiee and performed
the duties of the same for several
years; that on said date said plaintiff
was notified by T.. c. Macfarlane,
then Minister of Finance, that he,
the plaintiff, was removed from his
said office; that thereafter said Mac
farlane gave to plaintiff letter set
ting forth alleged causes of removal |;
that said plaintiff denied the power
OF said Minister to so remove him
for the reasons that no charges had
been preferred against him prior to
said removal, nor any opportunity
given to him to meet the witnesses
against HIM or to be heard and
that by the tenure of his said Office
he could not be removed otherwise;
that thereupon said Minister ap-
pointed one c. n. Spencer assessor
and collector of taxes for said dis
trict, who thereupon took possession
of the Office provided for said as
SCISSOR and of the books and papers
appertaining to the Office of as
SCISSOR and collector of taxes for the
First Division, and forcibly pre-
vented the plaintiff from having
access to the same, although the
plaintiff was at all times ready
and willing TO perform the
duties of said Office and at
tempted to do SO; that a suit was
thereafter brought by the plaintiff
against the said Spencer for the pos
session of said Office and for an in
junction against said Spencer's
further usurping the same; that
judgment was rendered for the
plaintiff in said suit and an niunct-
RON alliicc-ed Rccordingly;, that plain
tiff thereupon resumed MS said Office
and performed the duties of the
same; that during the period said |
Spencer occupied said Office, to wit,
from October 31st, 1892, to February |
18th, 1893, the defendant, the Hawai- |
ian Government, refused to pay the |
plaintiff the salary allowed by law,
to wit, the sum of nine hundred and |
ninety eight 25-1O0 1898 25), dollars,
though the same was duly demanded;
that the defendant paid said salary
to said @. n. Spencer.
1t is agreed that the parties hereto
request the presiding Judge to re
serve the question OF law whether or
not the plaintiff is entitled to receive
of the defendant said sum of nine
hundred and ninety-eight 25-100
(S99S 25). dollars for salary for said
period for determination by the Su-
preme Court; and further that the
records, exhibits and papers on file
in the above mentioned suit, as well
as in the writ of quo 1oaTrdnt0 taken
ont by said plaintiff against said @.
Y. Spencer, shall be made part
hereof.
1t is agreed that If the question
reserved is found for the plaintiff,
Judgment nnay be entered for the
sum of 1898 % and interest from
February %. 1898; otherwise for the
defendant
In the case of Andrews V. City OF
Portland, 10 Maine, p. 4S4, the ques
ton was whether the plaintiff 1.-THE
officer dc jure), could recover of the
city his salary from May IA, 1884, to
March z, 1885, whils the duties Of
the Office were performed by one De-
celle 1.-THE officer de JactO). and the
salary paid to him. The Court there
held that the plaintiff could recover,
but the Court in referring to
courts of high authority, and partic-
nlarIy the New York Court of APP 1
meals. where it had been held that a I
payment of the salary by the city to I
the officer de fdctO before the title to
tbe Office is determined. is good de-
Tense to a claim by the legal officer, {
saws: Courts In some other States
have followed the New York doc
trine. Courts of high authority In sew
sraI of the States have held that the '
officer having a legal title to the office /
NAV recover of the city the salary, {
Notwithstanding it has been paid to {
The officer de .factO. We have not at t
tempted to analyze the cases and to
try to reconcile them. They appear T
Our Court Is uncom- c
mitted, and we come to the conclu- (
sion which seems to US best sup I
ported by reason and sound legal f
We are in exactly the same posi- e
ton as that Court was; and after l
careful review of the authorities our r
is based on what seems .
TO us to be best supported by sound t
legal principles and what is best for Z
the public service. And we are OF 9
the opinion that the plaintiff cannot b
recover from the defendant in this t
case.
AS appears from the agreed state a
nent of facts and from the records b
IF the Court the plaintiff was hold t.
ng the office aud performing the u
duties of assessor and collector of IL
axes for the First Division when he 81
vas removed from Office by the then tt
Minister of Finance, the plaintiff o
protesting against his removal; but