article of small value is put to a use which makes it for the time being a nuisance, although not inherently so, it may be destroyed by summary process (10). See the article on Constitutional Law, § 134, in Volume XII of this work. (10) Lawton v. Steele, 152 U. S. 133. CHAPTER VI. OFFICIAL RIGHTS AND LIABILITIES. SECTION 1. RIGHTS TO OFFICE AND COMPENSATION. § 110. Remedies to obtain and keep office. Although the right to an office is not contractual, nor property, yet it is substantial. The three great remedies an officer has are quo warranto, mandamus and certiorari. These are treated in the article on Extraordinary Remedies elsewhere in this volume; but it may be said briefly that quo warranto tries title to office and ousts the de facto officer or usurper; mandamus compels the delivery of the books, papers, and other property pertaining to the office where the title is clear; and certiorari reviews proceedings for the removal of officers for cause. There are also numerous statutory remedies which in some states have supplanted these common law remedies, and in some states the usurping of office is punished as a crime. § 111. Rights pending contest. Commission or certificate of election is prima facie evidence of title, and pending a contest the holder thereof is entitled to the possession of the office; but, at least where the court is authorized to decide who the rightful holder of the office is, the holder of the judgment becomes the prima facie holder of the office with the same rights pending the appeal (1). (1) Allen v. Robinson, 17 Minn. 113. § 112. Right to compensation is created by law. The right to compensation depends on the law relating to the office. If the law does not provide for it no compensation can be recovered, irrespective of the value of the work done. Thus in White v. Inhabitants of Levant (2) it was held that a town agent could not recover compensation as none had been provided for. So in Locke v. City of Central (3), where a city surveyor had been allowed certain fees from parties at whose request certain work should be done and was required to perform such other duties as the council might require, it was held that he could not recover compensation for the performance of those other duties, although they had been more onerous than usual because of a great fire and although former surveyors might have been paid irrespective of the ordinance. On the other hand recovery of the salary provided by law can be had notwithstanding the non-performance of duties. Thus in O'Leary v. Board of Education (4) the plaintiff had not been able to render service for eleven months on account of trouble with his eyes and was finally discharged, but the court held that he could recover the salary for the five months prior to the discharge. § 113. Amount determined by law. In the case of Converse v. United States (5) a collector of customs sued for certain commissions for services rendered in purchasing articles for lighthouse purposes and the (2) 78 Me. 568. (3) 4 Colo. 65. (4) 93 N. Y. 1. court held, as the purchase of these articles within their districts was one of the duties that the secretary of the treasury was authorized by law to impose on the collectors, that, if the claim were for the purchase of articles within the district, the collector was not entitled to more than his salary as such. Nor is an agreement valid fixing the compensation at less than the law allows. Thus, in Kehn v. New York (6) the rate of pay of firemen at the capitol had been fixed by the statute at three dollars per day and it was claimed that the plaintiff had agreed to accept half that amount, but the court said that even if there had been such an agreement it would not affect the plaintiff's right to the full salary. § 114. Double pay. Where the offices are not incompatible, there is no objection to double pay in absence of an express restriction. Thus, in the case of Converse v. United States cited in the preceding subsection, the court held that while it was impossible for a collector of customs to receive additional compensation for the purchase of lighthouse supplies in his own district, as that was a duty which might properly be required of him as incident to his office, yet there was no objection to his also being agent for the purchase of these supplies outside his district, and in such a case might collect the fees prescribed for the same as well as his salary as collector. And in the case of United States v. Saunders (7) it was held that the claimant might recover salary as clerk of the committee on commerce of the house of representa (6) 93 N. Y. 291. tives, notwithstanding that at the same time he had been clerk in the office of the President of the United States and had received the salary for the same. § 115. Inapplicability of contractual principles. That the official relation is not contractual is illustrated by Fitzsimmons v. Brooklyn (8). In that case the plaintiff, who was a policeman, had sued to recover his salary during a wrongful suspension, and it was urged that his earnings in the meantime should be deducted, but the court said that the rule sought to be applied was one finding its usual application in cases of master and servant and landlord and tenant, where the injured party is required to make the loss as small as he reasonably can, but that as the official relation was not contractual the rule had no application in the case at hand. In Bliss v. Lawrence (9) it was held that the assignment of salary in advance was contrary to public policy and void; and in Buchanan v. Alexander (10) that the attachment of salary in the hands of a disbursing office was invalid. § 116. Legislative change of salary. Where there is no express constitutional provision to the contrary future salary may be increased, lowered, or abolished by the legislature, as we have already seen (§ 4, above), but the courts do not favor a change. Thus in United States v. Langston (11) the salary of the minister to Hayti had been fixed at the time the petitioner entered office in 1877 at $7,500 a year, but in the appropriation act of July 1, (8) 102 N. Y. 536. |