The Hawaiian gazette., 1893-12-12

{ to expect and demand that the oIncla
functions of public officers shall bC
regularly and continuously dis
charged. 1t is important that the
public offices should be filled, an6
that at all times persons may be
found ready and competent to exer
else official powers and duties, more
especially in an Office of this nature
If in a controversy arising as to the
right to an Office in possession even
upon notice that another claims
the Office, the authorities could not
pay the salary of the Office to the
officer de facto, except at the risk OF
having to pay it second time should
the contestant prevail, the public SER
vice would be greatly embarrassed
and its efficiency impaired, and dis
bursting officers, for their own pro
lection, would not pay the salary
until the contest was over and the
legal title to the office determined by
some tribunal, this would most GER
tainly interfere with the discharge of
official functions.
In the case of The Auditors of
Wayne County V. Benoit, 20 Mich,
176, it was held that "a person &C.
tually obtaining Office with the legal
indicis 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 county for the
salary or perquisites of county off
Ger except for a period during which
the claimant was the actual incum-
bent" In this case on page 181,
Campbell, G. j., says: Nothing but
actual incumbency can make per-
son a legal officer, however much he
may be entitled to obtain the Office.
And certainly when a 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, it
could not be claimed that the acts of
the relator would be in any sense off.
cisl acts. The only valid proceedings
in the name of the Office must be those
of the actual incumbent" And on
p. 1872: "And 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. 1888:
"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
work, should be recognized for the
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
facto 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 a general
rule which appears to be we'll 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
hereinbefore given, we feel no hest
tation in adopting the rule laid down
in the New York cases, that the off
Ger de jure cannot recover from the
authorities the salary of the Office
when it has been paid to the officer
de fdcto while he was in possession of |
the same under color of title and per-
forming the duties of said Office.
On the point as to whether G. A.
Brown was legally removed from
Office This question was not res
served by the Court, and we do not |
consider that it is necessary to pass
upon it, having found as we have
above on the question of the liability |
of the defendant to pay the salary a !
second time, for we have held that even
if the plaintiff was the officer de jure
and entitled to the Office but out of
possession, under the circumstances
of this case, he could not recover
from the defendant.
Judgment may be entered for the
defendant.
F. NJ. Hatch for plaintiff; W. o.
Smith, Attorney General, for de-
PENDANT.
Honolulu, November 18th, 1893.
Hoke Smith Does Not Like 1t.