Lee v. Mayor & Council

Citations

• 15 Del. 65

Syllabus

<p>WRIT OF ERROR TO THE SUPERIOR COURT OF NEW CASTLE CO.</p> <p>Officer. Municipal Corporation. Assumpsit.—The salary or fees of an officer of a municipal corporation may ordinarily be recovered as other debts by an action at law, but such an action cannot be maintained for salary during time not in possession by one claiming the office while there is a de facto incumbent, until the right to the office has been adjudicated in a proper proceeding to try the title.</p> <p>Officers, de jure and de facto.—Whether or not the payment of salary to a de facto officer would operate to exonerate a municipal corporation from payment to the officer de jure, the latter has no right of action for it while out of posses-’ sion of his office, until his title is established by a competent tribunal.</p> <p>Same.—All that is required, when there is an office, to make an officer de facto, is that the individual claiming the office is in possession of it, performing its duties, and claiming to be such officer under color of an election or appointment.</p> <p>Same.—There cannot be two incumbents of an office, and if a de jure officer is ousted and a successor placed in possession, recognized as such officer and performing the duties and drawing the salary without contest or resistance, he is the incumbent de facto, and no one else by mere force of law or right can claim to be such.</p>