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

: Wayne County V. Benoit, 30 Mich
: 176, it was held that "A person ac-
tually obtaining Office with the legal
, indicia of title Is legal officer until
ousted, so far as to render his official
acts as valid, as if his title were not
disputed" Also that No claim can
be enforced against a county for the
salary or perquisites of a county Off
Ger except for period during which
the claimant was the actual incum-
bent" In this case on page Isl,
Campbell, @. j., says: Nothing but
actual incumbency can make per-
son legal officer, however much he
may be entitled to obtain the Office.
And certainly when person stands
of record as ousted and demanding
the custer of another whom he al
leges to be wrongfully in Office as a
means of getting his own rights, 1t
| could not be claimed that the acts of
| the relator would be IN any sense Off
cial acts. The only valid proceedings
| in the name of the office must be those
of the actual incumbent" And on
p. 1872: "Aud when a person duly
| certified has complied with the cere-
monies and conditions incident to
office, public policy would not be
subserved by allowing his rights to
be questioned in any other form than
by judicial trial" And on p. 1873:
"But the laws assume that the laborer
is worthy of his hire, and the person
who is required to be recognized for
the time being as the legal incum-
bent for the purpose of doing the |
H. he.l
purpose of remuneration also, SO far |
as those are concerned with whom he |
deals officially, and who have no per
sonal interest in the contest for the
Office"
1t was held in Smith v. Mayor of |
New York, 81 n. Y. SIS, that no claim
could be brought for salary or per
quisites against a municipal corpora
ton covering any period when the
claimant was not actually in office;
and this was put on the ground that
these are the rewards of express or
implied services, and therefore could
not belong to one who could not law
fully perform those services, although
wrongfully hindered from occupying
a position in which he might render
them.
In the recent case of Henderson v.
Glynn, 30 Pac. Rep. 265, decided in
June, 1892, the Court held that the de
fact0 officer is entitled to the salary of
the Office, saying, "This seems to be
the general doctrine in most of the
States, In two or three, notably in
the State of Maine. the reverse has
been held, but they can only be re-
garded as exception to general
rule which appears to be well found
ed in reason and justice"
In view of the cases above cited
and the large mass of authority sup
porting them, and for the reasons
hen einbefore given, we feel no hest
tation in adopting the rule laid down .
n the New York cases, that the off
GER de juTe cannot recover from the
the salary of the Office
when it has been paid to the officer S
te factO while he was in possession of {
he same under color Of title and per- =
orming the duties of said Office.
On the point as to whether @. A. l
Brown was legally removed from l
,ffice. This question was not re- E
erved by the Court, and we do not ;.
consider that it Is necessary to pass
lpon it, having found as we have (
'bove on the question of the liability T
Il the defendant to pay the salary
econd time, for we have held that even +
the plaintiff was the officer de jure 6
nd entitled to the office but out of ,
under the circumstances {
f this case, he could not recover
rom the defendant. n
Judgment may be entered for the y
efendant. I
T. III. Hatch for plaintiff; w. o. <
ninth, Attorney General, for de- a
endant. II
Honolulu, November 25th, 1893. n