The Hawaiian gazette., 1893-12-12

FN1ox OF TIE COURT BIZ BICKERToS. j
This matter comes here on the fol
owing agreed statement Of facts,
md questions Of law involved re
served for the consideration of this
court by ". Austin Whiting, First
Judge Of the Circuit Court of the
First Circuit
Charles a. Brown, the plaintiff, on
he 18th day Of October, a. d. 1892,
Ess the duly appointed assessor and
collector Of taxes for the First Divis-
iou. to wit. the Island of Oahu that
previous to said date said plaintiff
hsd held said Office and performed
the duties Of the same for several
wears: that on said date said plaintiff
was notified by Z. G. Mscfarlsne,
then Minister Of Finance. that he,
the plaintiff. w6s removed from his
ssid Office: that thereafter said Mac
fsrlsne 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
tbst 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
rict who thereupon took possession
OF the Office provided for said as
SCISSOR and Of the books and papers
sppertsini1g 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 iniunct-
Ion allowed accordingly; that plain
tiff thereupon resumed his said Office
and performed the duties of the
ssme; that during the period said
Spencer occupied said Office. to wit,
from October 31st. 1892, to February
18th. 1898, 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 25-100 (S99S 25), dollars,
though the same was duly demanded:
thst the defendant paid said salary
to said c. \. 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.25l. 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 10 the writ Of ql0 i5arrant0 taken
out by said plaintiff against said G.
\. Spencer. shall be made a part
hereof.
Il is agreed that if the question
reserved Is found for the plaintiff,
Judgment may be entered for the
sum Of S99S.25 and interest from
February -. 1898; otherwise for the
defendant
In the case of Andrews V. City of
Portland, 20 Maine, p. 4S4, the ques.
ton was whether the plaintiff 1.-THE
officer dc jUrt), could recover of the
city his salary from May II, 1884, to
March Z. 1885. wills the duties of
the Office we're performed by one De
celle lthe officer dc JdotO), 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 psrtic
ulsrly the New York Court of APP
peals, where it had been held that
payment of the salary by the city to
the O1uCCL Nt fultt DclOLt luc lltl6 "
the Office is determined. is a good de-
tense to claim by the legal officer,
saws: Courts in some other States
have followed the New York doc
trine. Courts of high authority in sew
ersl OF the States have held that the
officer having legal title to the Office
NAV recover of the city the salary,
notwithstanding it has been paid to
the officer de facso. We have not at
tempted to snslyze the cases and to |
trv to reconcile them. They appear
irreconcilsble. Our Court is uncom-
mitted, and we come to the conclu-
sion which seems to US best sup.
ported by reason and sound legal
principles"
We are in exactly the same posi-
ton as that Court was; and after
careful review of the authorities our
conclusion is based on what seems
% as to be best supported by sound