Concurring opinion by
Thompson, C. J.— I concur in opinion with my brethren that the judgment in the case must be reversed, but for different reasons from those expressed in the opinion just read. The plaintiff below claims for salary as city commissioner for the period of about seven months. His right to a salary was necessarily dependent on his title to the office to which the salary belonged. It is admitted in the case stated, that he had no title to the office; that another was duly elected, and was de jure city commissioner *140during all the period of these seven months for which he claims pay. This, a competent legal tribunal has conclusively determined. It did not determine that at the end of these seven months he ceased to be city commissioner, but that he was not elected at all at the October election of 1866. He was not, therefore, legally city commissioner for one moment of the time for which he claims salary. He could not claim on any ground but title. There is no such thing as allowing for services on any other principle. There is no quantum meruit in such cases. If there be no title there is no salary. It is true his acts were valid as to third parties. It is enSugh for them that he was defacto the city commissioner. They were not required to look beyond the actual incumbency. Necessity, in such cases, requires the recognition of validity in the acts of the officer defacto. In Riddle v. Bedford Co., 7 S. & R. 387, this was settled; and it was further settled beyond controversy, and the decision has never been questioned or modified, that “none but an officer de jure can successfully claim compensation for official services;” that while the office is valid as to strangers it is void as to the incumbent when there is no legal title. This was just the case here. There being no title in Given at all, the assumed title being void as to him, and this being the only possible foundation of a claim against the city for salary, the claim is necessarily invalid. Riddle, the treasurer de facto of Bedford county, could make valid sales of land, but it was held that he could not claim his costs from the county, for want of title. This in principle is just this case — no more nor no less.
Having no title to the office, it seems illogical to hold that he forfeited his right to salary because he did not properly qualify by giving the required security. He was not authorized to give security. That was a consequence of a legal election. A bond was not required of a party not duly elected, and in my judgment would not, if it had been given, have bound the sureties. They undertake for legal officers, not for illegal incumbents. But be this as it may, it may be safely asserted that unless Given was duly elected city commissioner, he was not bound to give security. Eor not offering to do a vain thing, in or out of time, I see no solid ground for saying that his salary is to be denied on that ground. If I could come to the conclusion that any result could properly be deduced from his failure to give bond, it would be because I believed him bound to tender it. But how can such a conclusion follow the judicial announcement that he was never elected, and therefore no bond-was legally demandable? Without enlarging, however, I am for reversing the judgment below on the grounds stated above, and not because of the want of security.