The Maui news. [volume] (Wailuku, Maui, H.I.) 1900-current, 1921-03-18
COURT ENJOINS
PAYING SALARY
TO MAGISTRATE
Judge Burr Holds That Since
Decision of Quo Warranto
Proceedings Mckay Holds
Office Wrongfully.

Payment OF the salary of district
magistrate OF w. A. Mckay has been
enjoined by the second circuit court
and motion to dissolve the temporary
injunction was denied on Wednesday
| by Judge L. l.. Burr who handed down
the following decision;
The motion of respondent herein
to dissolve the temporary injunction
contains two grounds. The first is to
the effect that equity has no jurisdic
ton to grant the relief prayed for; and
the second is that as an appeal has
been perfected in the said quo war
ranto proceedings of Eugene Murphy
VS. w. A. Mckay, that by reason of
such appeal having been so perfected,
that in the matter of the judgment
of custer therein equity is without
jurisdiction to restrain payment of
respondents salary as district magis-
trate of Wailuku, Maui, T. H., by in
junction or other process. The argu-
ment of counsel on the first point is
to the effect that the respondent in
this case acting as such district mag
istrate is a de facto officer. If he is
de facto officer the point is well
taken There is no question on this
point. The law is well settled and
payment of his salary cannot be en-
joined There are two lines of reason
ing supporting this. One is that pub
lie office should be filled, and if fill
ed, the person who is filling it, if he
be de facto officer, is entitled to the
salary of such office; the second
course of reasoning is that the dis
bursting officer who is charged with
the payment of the salary, has right
to rely on the applicants apparent
title, and to treat such officer as ap-
pears to be clothed with the title of
the office as an officer de jure.
When De Facto officers
However all occupants of public
office are not necessarily de jure or de
facto officers. First there must be a
de jure office. There cannot be a de
facto officer without there being a de
jure office, and while there appear to
be no decisions directly on the point,
to pay out the public's money to
some man who claims to be an officer,
where no office eXists,-it would GER
tainly be an unlawful expenditure of
public funds, and certainly not in ac-
cordance with the principles of equity,
to refuse to enjoin such unlawful pay
ment. Second, where there is a de
jure Office a person is not necessarily
a de facto officer because he is occu-
pying that office. To be de facto
officer the occupant must be clothed
with the appearance or color of title,
either by election or by appoint
ment. In this case the respondent was
ade facto officer prior to the quo war
ranto proceedings. He had been ap-
pointed and though not legally quail
fed was de facto officer. The courts
have quite uniformly held where
man has no qualifications to hold any
public office yet, Notwithstanding, af-
ter he has an appointment, or has been
lected, he is a de facto officer.
in this case it is shown by the rec
ords of this court in quo warranto pro
ceedings against the respondent here
! in, that the respondent claimed to be
a citizen; that he was naturalized on a
certain day and date and he intro
duced the records of this court to sup
port such claim. The clerk of this
court-who was the clerk of this
court at the time the naturalization
proceedings were alleged to have TAX
en- place-identified the court minutes,
that is the court minutes which cover
the entire year during which respon-
dent claimed to have been anturalized,
and the minutes are silent as to any
naturalization proceedings had or
Judgment entered granting respondent
naturalization. The court records
speak for themselves and cannot be
added to in after years. There is
nothing better settled than this, and
the judgment record of this court also
shows-as set forth in the pleadings in
this case-the order of custer ousting
the respondent herein from office. BY
reason of these facts, for this court
to now hold that the respondent here
in is a de facto officer, the court would
have to ignore the judgment of custer.
Calls Incumbent interloper
"The finding therefore is, if the res
pondent is occupying, or has been oc-
cupying the Office of district magis-
trate of the district of Wailuku since
the order of custer, that the respon-
| dent herein is not a de facto othcer
but is a usurper or interloper and is
not entitled to occupy the Office of dis
trict magistrate of Wailuku and or to
receive the emoluments of the office.
AS to the second point raised that
by reason of the appeal having been
taken that the judgment of custer is
suspended, the authorities cited by
counsel in this matter support the
contention that in the absence of sta
tute such appeal does not have the eff.
feet of suspending the judgment OF
custer; and as to both points raised
therein the motion to dissolve the
temporary injunction is overruled.'
(Sig) e. l. BURR,
Judge, Circuit Court, Second
Circuit, Territory of Hawaii