Counsel for appellant bases his contention that he should have the injunction prayed for in the bill, on the allegation that appellee Prendergast has impliedly resigned the office of county judge by being elected to and accepting the office, of drainage commissioner, and many cases are cited by counsel to show that the acceptance by one holding an office, of another office which is incompatible with the first, is a vacation of the said first office.
This may be true as a general proposition of law, but whether true as applied to the case of appellee Prendergast can only be determined in the forum which, by law, has jurisdiction to try and determine title to office, and by the procedure appropriate to the presentation of such a question.
Whether one has forfeited his legal right to hold an office, the duties of which he continues to perform, by some act subsequent to his election thereto, is in legal effect the same question as whether one who obtrudes himself into an office and performs the duties thereof to the exclusion of some other who claims title thereto, is rightfully in the discharge of such duties. In whatever form the question is presented the title to the office is involved, and the title to office is a question cognizable only in a court of law, and which a court of chancery is wholly without jurisdiction to determine.
Appellant seeks to avoid the logical consequence of this well established rule, by the suggestion that he does not seek to restrain the exercise of the functions of the office of county judge, but only to prevent the misappropriation of the public funds to one who is at most a defacto officer, and not of right entitled to the salary.
The position is not tenable. The people are interested in having the duties of the office of county judge performed. Public policy requires the recognition, as an established principle, of the rule that an officer de facto may do legal acts, though de jure he has no title, and the same public policy will prevent a court of chancery from interfering to disturb the de facto officer in the receipt of the fees or the salary of the office. High on Injunctions, Secs. 1312, 1314; Tappan v. Gray, 9 Paige Ch. 506; The People v. Albany & Susquehanna R. R., 57 N. Y. 161; Buffalo v. Mackay, 15 Hun, 204; Palmer v. Foley, 45 How. Pr. R. 110; Stone v. Witmore, 42 Geo. 601.
This policy of the law has found recent and pointed illustration in the State of Massachusetts.
There, a statute provides that “when a town votes to raise, by taxation or pledge of its credits, or to pay from its treasury, any money for a purpose other than those for which it has the legal right and power, the Supreme Judicial Court may, upon the suit or petition of not less than ten taxable inhabitants thereof, briefly setting forth the cause of complaint, hear and determine the same in equity.” A petition in equity was filed under this statute by ten taxable inhabitants of the city of Boston, to restrain the city from raising or appropriating moneys to pay the salaries of a board of police that had been appointed by the Governor of the State, and were performing the duties of their office, on the ground that the appropriation of such money for salaries and expenses of said board of police, was beyond the legal right and power of the city, for the reason that the act under which the Governor appointed the officers was unconstitutional, and they were entitled to no salary.
The Supreme Court, in deciding the case, said: “Asa general rule the title to such an office can not be assailed collaterally; if he is holding without right, the remedy is by information in the nature of a quo warranto. Under such an information the title to the office can be fully tried and conclusively settled. * * * Ordinarily the person holding the office which is assailed is not a party to a suit under the statute, and if as was done by amendment in the case at bar, he is made a nominal party, no decree or judgment can be rendered against him. Ho judgment of ouster could be rendered, but after a decree in favor of the petitioners he would continue still to hold the office. * * * If we should enter a decree in favor of the plaintiffs, it could not remove the board of police; they would still retain their offices, and thus would be produced confusion and conflict of authority between them and the old commissioners of police. * * * All difficulties will be obviated by trying the title to the office in the proper way, by information in the nature of quo warranto, the result of which will fully adjudicate and settle the rights of all parties.”
It is unnecessary to discuss cases cited by counsel and claimed by him to support his contention. No case is to be found in which a court of chancery has taken jurisdiction to grant such relief as appellant seeks by his bill.
The demurrers were properly sustained, and the decree dismissing the bill will therefore be affirmed.
Decree affirmed.