by such limitation the salary or emoluments of an office declared to be in abeyance, without any salary, fees or emoluments attached thereto, and the duties of which are to be performed by some other person, as provided in said section 1769.

Further, it is not to be assumed that the President by these regulations intended to direct the payment of the money from the Treasury in clear violation of the

utes.

Revised Stat

A more sensible construction may be given those regulations, bringing them within the undoubted power of the President to make. It is that they apply only to those Indian agents whose term of office does not expire by statute until the qualification of their successors. Practically they fix the date of qualification as the day on which the new appointee takes the last step necessary to put himself in possession of the means to perform the duties of the office. That done, the statute, not the regulation, determines to whom the salary belongs. Thus construed the regulations are reasonable and valid.

It may be a hardship to the claimant to deny him pay for the time he performed duties after the expiration of his term of office, and, if so, his remedy is in Congress, as suggested by the Commissioner of Indian Affairs to the Secretary of the Interior, set out in finding VI.

The petition must be dismissed.

DOLAN V. MAYOR, &C.

Court of Appeals of New York. January, 1877.
68 N. Y. 274.

ANDREWS, J. The plaintiff on the 24th of May, 1872, was duly appointed assistant clerk of the District Court for the sixth judicial district in the city of New York, by the justice of that district, pursuant to the provisions of chapter 438 of the laws of 1872.

He thereupon duly qualified and took possession of the office, and held it until the first of January, 1873, on which day one Keating, claiming the office by virtue of an appointment made by the justice on the 31st of December, 1872, entered upon and con

tinued to occupy the office until March 1, 1874, and excluded the plaintiff therefrom. On that day the plaintiff again came into possession of the office by virtue of a judgment of ouster obtained by him against Keating in an action of quo warranto.

By the act of 1872 the salary of assistant clerk was fixed at $3,000 a year, and the comptroller of the city of New York was directed to pay it in monthly installments out of the city treasury. The salary was paid to Keating from the first of January, 1873, to the first of December, 1873. The salary for December, 1873, and January, 1874, has not been paid to any person. The plaintiff during the time he was excluded from the office, was ready to perform the duties, and proffered his services to the clerk, which were refused.

This action was brought, after the judgment in the quo warranto was rendered, to recover the salary of the office from January 1, 1873, to March 1, 1874. The court, on the trial, held that the plaintiff was not entitled to recover the salary prior to December 1, 1873, but that he was entitled to the salary from that time, and directed a verdict for the plaintiff for the amount of the salary for the three months preceding March 1, 1874. Both parties appealed to the General Term from the judgment entered upon the verdict. The General Term affirmed the judgment, and from the judgment of affirmance both parties have appealed to this court.

The question is, was the plaintiff entitled to recover the salary appurtenant to the office of assistant clerk, during the whole or any part of the term in which he was excluded from the possession of the office by Keating, acting under the illegal appointment of December 31, 1872.

That the plaintiff was the de jure officer, and that Keating usurped and unlawfully excluded the plaintiff from the office is no longer an open question.

It is the settled doctrine in this State, that the right to the salary and emoluments of a public office, attach to the true and not to the mere colorable title, and in an action brought by a person claiming to be a public officer for the fees and compensation given by law, his title to the office is in issue, and if that is defective and another has the real right, although not in possession, the plaintiff cannot recover. Actual incumbency merely gives no right to the salary or compensation.

But it does not follow from the conclusion that the defendant could have successfully defended an action brought by Keating to recover the salary of assistant clerk, that it was not justified in not treating him as an officer de jure when claiming it, and paying it upon that assumption. It is clear that if the city could rightfully pay the salary to Keating during the actual incumbency, and has paid it, it cannot be required to pay it again to the plaintiff. We are of opinion that payment to a de facto public officer of the salary of the office, made while he is in possession, is a good defence to an action brought by a de jure officer to recover the same salary after he has acquired or regained possession.

It is plain 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. The certificate of boards of canvassers certifying the election of a person to an elective office, is prima facie evidence of the title of the person whose election is certified. But it often happens that by reason of irregularities in conducting the election, or the admission of disqualified voters, the apparent title is overthrown and another person is adjudged 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 or fact. If fiscal officers, upon whom the duty is imposed to pay official salaries, are only justified in paying them to the officer de jure, they must act at the peril of being held accountable in case it turns out that the de facto officer has not the true title; or, if they are not made responsible, the department of the government they represent is exposed to the danger of being compelled to pay a salary a second time. It would be unreasonable, we think, to require them, before making payment, to go behind the commission and investigate and ascertain the real right and title. This, in many cases, as we have said, would be impracticable. Disbursing officers, charged with the payment of salaries, have, we think, a right to rely upon the apparent title, and treat the officer who is clothed with it as the officer de jure, without inquiring whether another has the better right.

Public policy accords with this view. Public officers are created in the interest and for the benefit of the public; such, at least, is the theory upon which statutes creating them are enacted and justified. Public and individual rights are, to a great extent, pro

tected and enforced through official agencies, and the State and individual citizens are interested in having official functions regularly and continuously discharged. The services of persons clothed with an official character are constantly needed. They are called upon to execute the process of the courts, and to perform a great variety of acts affecting the public and individuals. It is important that the public offices should be filled, and that at all times. persons may be found ready and competent to exercise official powers and duties. If, on a controversy arising as to the right of an officer in possession, and upon notice that another claims the office, the public authorities could not pay the salary and compensation of the office to the de facto officer, except at the peril of paying it a second time, if the title of the contestant should subsequently be established, it is easy to see that the public service would be greatly embarrassed and its efficiency impaired. Disbursing officers would not pay the salary until the contest was determined, and this, in many cases, would interfere with the discharge of official functions.

It is well-settled that the acts of an officer de facto are valid so far as they concern the public or the rights of third persons who are interested in the things done.

It remains to consider whether the plaintiff is entitled to recover the salary for the three months prior to March 1, 1874, during which the services were rendered by Keating, and for which no salary has been paid. The city has had the benefit of the services of assistant clerk during the time, rendered, it is true, by the de facto and not by the de jure officer. The plaintiff has regained possession of the office under a title which accrued prior to the time the services were rendered,

There is no apparent equity in permitting the city to escape from the payment of the unpaid salary, when claimed by the de jure officer. We think it may consistently be held that the defendant may treat the services as having been rendered by Keating for him, and that he may recover the unpaid salary upon that assumption. This does not interfere with the decision of this court in Smith v. The Mayor, 37 N. Y. 518.

The doctrine which we have been called upon to declare in determining this controversy is both reasonable and safe. It is desirable that official duties should be performed by officers legally elected or appointed. But the rules which allow the title of the officer to be questioned in an action for the salary, and which sub

jects the de facto officer to liability for damages to the officer de jure, is a sufficient discouragement to attempt to take possession of an office by force or fraud, in the exclusion of the rightful claimant. The judgment should be affirmed.

All concur, except RAPALLO, J., not voting.

Judgment affirmed.

NICHOLS V. MACLEAN.

Court of Appeals of New York. March, 1886.
101 N. Y. 526.

ANDREWS, J. The facts, upon which this controversy depends, are few and substantially undisputed. The plaintiff was duly appointed police commissioner of the city of New York, for a term of six years, from May 1, 1876, and duly qualified and entered upon and discharged the duties of the office until April 18, 1879. On that day the mayor of the city appointed the defendant, MacLean, police commissioner for the unexpired term of the plaintiff Nichols, the certificate of appointment reciting that the appointment was made by the mayor in pursuance of chapter 300 of the Laws of 1874, in place of Sydney P. Nichols, removed. Prior to the appointment of the defendant MacLean, the mayor had preferred charges against Nichols of official delinquency, upon which such proceedings were had that on the 5th day of April, 1879, the mayor made a certificate in writing removing the plaintiff from his office of police commissioner, which certificate with the reasons therefor he transmitted to the Governor, who on the 17th day of April, 1879, approved in writing of such removal. The plaintiff, in June, 1879, applied for a writ of certiorari, to review the proceedings removing him, which was issued August 12, 1879, addressed to the mayor, who made return thereto, and on February 11, 1880, judgment was rendered in the proceeding declaring that the proceedings of the mayor for the removal of Nichols and his judgment of removal "be and are hereby reversed, and in all things held for naught." The defendant, MacLean, on the 18th day of April, 1879, on presenting his certificate of appointment was duly recognized by the board of police commissioners as commissioner in place of Nichols, and thereupon assumed