The Hawaiian gazette., 1893-12-12

legal principles and what is best TO
the public service. And we are o
the opinion that the plaintiff canno
recover from the defendant in thu
case
As appears from the agreed state
ment of facts and from the record!
of the Court the plaintiff was hold
ing the Office and performing tht
duties of assessor and collector o.
taxes for the First Division when be
was removed from Office by the ther
Minister of Finance, the plaintiff
protesting against his removal; but
the Minister exercising his authority
to appoint. appointed G. \. Spencer
to fill the Office vacated by lie re-
moval of plaintiff, said Spencer took
] possession and performed the duties.
Plaintiff then brought proceeding
! in equity for possession of said office
and for an injunction against said
! Spencer's further usurping the same,
which resulted in a judgment being
rendered for the plaintiff and an in
J junction was allowed accordingly on
February 2Sth, 1893, the date up to
which the plaintiff claims the salary.
] There is also on file with the records
a COPY of the resolution passed at a
meeting of the then Cabinet as fol-
I lows: THAT G. a. Brown assessor
/ for the Island of Oahu be removed
| from this Office for reasons stated to
this Cabinet and which are deemed
sufficient under the law" This IS
signed by all the four members of
the Cabinet. We also find on file
with the records a copy of the
appointment Of G. n. Spencer to
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 tdcto officer
trsnsscting 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 .facto, while he is still in
possession of the Office, the govern
ment cannot be compelled to pay a
second time to the officer de jure when
he has recovered the Office, at least
where the officer de fdct0 held by
color of title" at 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 ad-
Judged to be rightfully entitled to
the Office. But this can seldom, if
ever, be ascertsined 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
title, this in many cases would be
impracticable. Disbursing officers
charged with the payment of salaries
have, we 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. go
and 2S1.
In this case the Court also init
mates that where the salary of the
Office is paid to the officer de tacto, be
is liable on an action for money had
and received by the officer de jure to
recover it. And in the case of Mich
OILS V. Machesan, 101 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-
ceiyed by an intruder" See also
Glasscock V. Lyon, 20 Ind. l.
In the case of McVearny Y. The
Mayor, so n. Y. p. 1S5, it is held that
"a municipal corporation whose dis
bursting officer has once made pay
ment of the compensation given by
law to an Office to one actually in the
Office dEcharging its duties with color
of title and with his right thereto not |
determined against him by compe- |
tent tribunal, is protected from a
second payment" In the same case |
on pages 1913 and 1914, we find Folger, |
j., using this language: 1T is then |
to be deduced from the cases in this
State that as q general principle, the
rendition of official service must pre-
cede right to demand and recover
the compensation given by law to
Al Al