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

10 I'LL the Office vacated by the r
moval of plaintiff, said Spencer toe
possession and performed the datie
Plaintiff then brought a proceedin
IN equity for possession of said offiC
and for an Injunction against sal
= Spencer's further usurping the same
= which resulted In a judgment bein
rendered for the plaintiff and an IL
junction was allowed accordingly o
February 2Sth, 1893, the date up t
which the plaintiff claims the salary
There is also on file with the record
q copy of the resolution passed at
meeting of the then Cabinet as fol
D lows: THAT G.. A. Brown assesso
for the Island of Oahu be removed
from this Office for reasons stated t,
this Cabinet and which are deemed
sufficient under the law" This i
signed by all the four members o.
j the Cabinet We also find on file
with the records a copy of the
; appointment of G. n. Spencer t.
the Office in question signed by the
then Minister Of Finance. So we see
that Mr.. Brown was formally re
moved from Office, and Mr.. Spencer
was formally appointed to the va
Gated office; he was not there without
authority or color of title; he was
acting under commission from the
Minister of the department where he
had to pay In the taxes collected by
him and where he had to draw his
salary; he was the de fdctO officer
transacting the business of his office
with the department; he had the
apparent title to the Office and the
salary attached thereto.
| In Mechen on Public Officers we
find at Sec. 1872 the following: 1T is
| held that If payment of the salary or
other compensation be made by the
government in good faith to the
officer de .fdcto, while he is still in
ment cannot be compelled to pay
second time to the officer de jure when
he has recovered the Office, at least
where the officer de Jacto held by
color of title" cit is plain" says
Andrews, j., "that in many cases the
duty imposed upon the fiscal officers
of the State, counties or cities to pay
official salaries, could not be safely
performed unless they are justified
in acting upon the apparent title of
claimants. But it often happens that
= the apparent title Is over
thrown and another person is adj
judged to be rightfully entitled to
the Office. But this can seldom, if
ever, be ascertained except after a
judicial inquiry. And in case of an
appointed officer, the validity of the
appointment often depends upon
complicated questions of law and
fact. 1t would be unrea-
sonable, we think, to require them
before making the payment to go
behind the commission and investi
gate and ascertain the real right and
Stle, this in many cases would be
o .oee9cticable. Disbursing officers
b~aatD,1 with the payment of salaries
have, Ne think, right to rely upon
the apparent title, and treat the officer
who is clothed with it as the officer
de .jure without enquiring. whether |
another has the better right"
Dolan V. Mayor, 6S n. Y. PIP. $50 |
and 281.
In this case the Court also init
mates that where the salary of the
Office is paid to the officer de JactO, he
is liable on an action for money had
and received by the officer de jure to
recover it. And in the case of Mich
DIS V. Machesan. 1O1 n. Y. p. 534, the
Court says: "And in England from
an early day an action for money had
and received would lie in behalf of
one entitled to an Office to recover
the accustomed fees of the office re-
,eived by an intruder" See also
ilasscock v. Lyon, 20 Ind. l.
In the case of McVearny v. The
Mayor, so n. Y. p. 185, it is held that
"A municipal corporation whose dis
pursuing officer has once made pay
nent of the compensation given by
aw to an Office to one actually in the
,ffice discharging its duties with color
If title and with his right thereto not
against him by a compe
ent tribunal, is protected from
econd payment" In the same case
IN pages 1913 and 194, we find Folger,
T., using this language: ut is then
O be deduced from the cases in this
State that as a general principle, the
of official service must pre-
,ede a right to demand and recover I
he compensation given by law to |
he officer; that the disbursing officer ,
# municipality is protected from ,,
econd payment of that compensa
ion, and so is his superior, when he {
las once made payment to one actu-
lily in the Office, discharging the 6
lutjes of it with color of title, with t
is right thereto not determined
gainst him by a competent trib
nal" The learned judge cites a \
arge number of cases in his opinion
q support of his position. +
There are large number of cases
( this nature arising and constantly 9
efore the New York courts, natur- I
lily so; it being such large State, a
nd having such large number of b
ffices to be filled by election and ap- 4
ointment contests are constantly
sking place, consequently these cases q
ct very full consideration, resulting 7
i large number of decisions. These 6
ecisions, in our opinion, should be Il
iven more than ordinary weight in d
eighing the authorities where there n
a decided conflict, as there is on s.
lie question before us. Public policy p
and the public have right ft
expect and demand that the official s,
motions of public officers shall be II
,gularly and continuously dis 8,
larged. It is important that the "
ublic Offices should be filled, and d