Estes, 35 Tex. Civ. App. 99. See also Sheridan v. St. Louis, 183 Mo. 25, 39; Gorley v. Louisville, 108 Ky. 789. The fact that enough money has not been appropriated to pay the salary of an officer who has been wrongfully removed, will not preclude a recovery by him if he is otherwise entitled to recover the salary or compensation for the unexpired part of his term. Magner v. St. Louis, 179 Mo. 495. An officer who has been wrongfully removed cannot maintain an action for salary accruing after dismissal while such dismissal remains unreversed. Van Sant v. Atlantic City, 68 N. J. L. 449. See also Chicago v. Campbell, 118 Ill. App. 129; Gibbs v. Manchester, 73 N. H. 265. But where the attempted removal was absolutely void, because made without the mayor's consent as required by the charter, and the officer continued to act as such so far as he could in the face of the hostile acts of his superior, it was held that he never ceased to hold office and could sue for his salary without first compelling reinstatement by mandamus. Morgan v. Denver, 14 Colo. App. 147. An action against a city to recover salary cannot be maintained, while the office is occupied by a de facto officer, or until the right to the office has been adjudicated. Selby v. Portland, 14 Oreg. 243.

It is a defence to the corporation that the officer was legally removed; but if he was removed contrary to law, it is no answer to the action that the corporation, in making the removal, acted judicially, and therefore is not liable for the error it committed. Shaw v. Macon, 19 Ga. 468; Shaw v. Macon, 21 Ga. 280. See s. c. Macon v. Shaw's Administrator, 25 Ga. 590. In the case last cited it was decided that if the removal of a city officer be for a specified cause, not warranting the removal, and the officer sue the corporation for his salary, as a defence to such action it may aver and prove other matters, good in law, to jus

tify such removal. In thus holding, the court say: "If his term of office had not expired when this suit was instituted, and he had moved for a mandamus to restore him, instead of bringing an action for his salary, the court would not have interfered, if good cause for his removal could have been shown, although he may have been removed without notice. Rex v. Mayor of Axbridge, 2 Cowp. 523; King v. Mayor of Axbridge, 2 Term R. 182." To the same effect, Davis v. Cordele, 115 Ga. 770.

Where an officer, entitled by law to a fixed annual salary, has been prevented for a time through no fault of his own from performing the duties of his office, and has during that time earned wages in another and different employment, he cannot be compelled in an action to recover his unpaid salary to deduct the amount so earned. Fitzsimmons v. Brooklyn, 102 N. Y. 536; Andrews v. Portland, 79 Me. 484; Everill v. Swan, 20 Utah, 56; People v. Miller, 24 Mich. 458. But quære, whether this rule is applicable to all cases, and may not admit of just and necessary exceptions. In considering the rule of damages in such a case, it has been held that the officer cannot recover of the corporation counsel fees for defending himself against the charges preferred against him, but may recover such "damages as necessarily resulted from his amotion from office, viz., his salary and perquisites." Shaw v. Macon, 19 Ga. 468. An officer who has compelled payment of his salary by mandamus cannot thereafter recover interest thereon from the municipality. Gordon v. Omaha, 71 Neb. 570.

1 Shaw v. Pima County, 2 Ariz. 399; Gorman v. Boise County, 1 Idaho, 655; Brown v. Tama County, 122 Iowa, 745; Saline County v. Anderson, 20 Kan. 298; Michel v. New Orleans, 32 La. An. 1094; Auditors of Wayne County v. Benoit, 20 Mich. 176; Scott v. Crump,

106 Mich. 288; Parker v. Dakota County, 4 Minn. 59; State v. Clark, 52 Mo. 508; State v. Milne, 36 Neb. 301; Gibbs v. Manchester, 73 N. H. 265; McDonald v. Newark, 58 N. J. L. 12; Smith v. New York, 37 N. Y. 518; Dolan v. Mayor, &c. of New York, 68 N. Y. 279; McVeany v. Mayor, &c. of New York, 80 N. Y. 185; Terhune v. Mayor, &c. of New York, 88 N. Y. 247; Higgins v. Mayor, &c. of New York, 131 N. Y. 128; Martin v. City of New York, 176 N. Y. 371, aff'g 82 Ñ. Y. App. Div. 35; Stemmler v. Mayor, &c. of New York, 179 N. Y. 473, 482, aff'g 87 N. Y. App. Div. 631; Douglas v. Board of Education, 21 N. Y. App. Div. 209; Van Valkenburgh . Mayor, &c. of New York, 49 N. Y. App. Div. 208; Grant v. City of New York, 111 N. Y. App. Div. 160; Steubenville v. Culp, 38 Ohio St. 18; Chandler v. Hughes County, 9 S. Dak. 24.

A statute which requires a municipality to pay its public money to an officer de jure for services not rendered, and for which, under the rule stated in the text, the municipality is not liable, and for which the municipality has paid the de facto officer who performed the services, violates a constitutional provision prohibiting the legislature from granting extra compensation to public officers and the use of city funds for any but city purposes. Stemmler v. Mayor, &c. of New York, 179 N. Y. 473, aff'g 87 N. Y. App. Div. 631.

1 Martin v. City of New York, 178 N. Y. 371, 373, aff'g 82 N. Y. App. Div. 35. In Steinson v. Board of Education, 165 N. Y. 431, aff'g 49 App. Div. 143, and Graham v. City of New York, 167 N. Y. 85, rev'g 55 Ñ. Y. App. Div. 627, a recovery was sustained apparently upon the distinction that the plaintiff's in these cases were employees of the municipality and not officers, and that their right to recover was founded upon a simple contractual relation. But in the later case of Martin v. City of New York, 176 N. Y. 371, 373, Vann, J., who delivered the opinion of the court overruling this supposed distinction, said: "It is insisted that the rule does not apply to this case because the plaintiff was not a public officer, but an employee holding a contractual relation to the city, and the following cases are relied upon to support the contention

(citing Steinson and Graham cases). There is an important distinction between the cases cited and the one in hand, because in neither of the former was the position filled, and no one was paid for services rendered by a de facto occupant. The rule governing payments to a de facto officer is founded in public policy, and applies with the same force to payments made to a de facto occupant of a position of public employment, although not an officer. In deciding those cases, as is obvious from the opinions, we did not intend to disturb the rule laid down in Higgins v. Mayor, &c. of New York, 131 N. Y. 128." But in Massachusetts, the Supreme Court refuses to follow the rule stated in the text in the case of employments as distinguished from offices. Thus, in the case of veterans it holds that if a veteran is employed as a laborer and is wrongfully prevented from working when other laborers who are not veterans are given work, he can recover as for a breach of the contract created by the statutes and the rules of the civil service commissioners, without being obliged to show that no other person received the wages which should have been paid to him. Ransom v. Boston, 192 Mass. 299. But in reaching this conclusion the court was influenecd by the fact that the plaintiff was only employed as a laborer, and it would ordinarily be difficult and frequently impossible to identify the laborer who was doing the work that ought to have been given to the plaintiff. See also Houston v. Estes, 35 Tex. Civ. App. 99.

If the plaintiff in an action against a city to recover wages during exclusion from employment is a mere employee, and not the incumbent of an office having a salary attached thereto as an incident, he waives his right to enforce payment of salary or wages during the time of his exclusion by executing a receipt and agreement to accept payment for the time he is actually employed, although by statute he may have a right to continuous employment. Downs v. New York, 75 N. Y. App. Div. 423, aff'd 173 N. Y. 651. So, too, his right to salary or wages during the period of exclusion is waived by failing to report for duty, and to insist on his statutory right to employment. Driscoll v. New York,

property in that city, was not unconstitutional, either as granting a franchise or immunity or exclusive privilege or as giving the money of the State to or in aid of an association, corporation, or private undertaking (Const. N. Y., art. viii. § 10). Assuming, but not conceding the money so directed to be paid to be the money of the State, the court held that it was not given, but was directed to be paid in discharge of a moral obligation resting upon the State, and the appropriation of the money was to a public use, the plaintiff being simply a subordinate governmental agency employed by the State to fulfil its obligations. It was also held that the State may recognize and discharge an obligation due from it by taking money from its treasury and giving it to a corporation for the relief of those to whom the obligation is due. The object of the incorporation of the plaintiff was to enable it to provide adequate funds for the relief of disabled and indigent firemen or their families. Any surplus beyond that necessity was directed to be applied to the purpose of extinguishing fires. Finch, J., examined the history of the fire department in the city of New York at great length, and pointed out that the precise relation of the firemen to the municipality and the State was not easy to describe; that they were not civil or public officers within the constitutional meaning, and yet must be regarded as the agents of the municipal corporation. Their duties were public duties; the service they rendered was a public service; their appointment came from the common council, and they were liable to removal by the authority which appointed them; they were at least a public body, and perhaps best described as a subordinate governmental agency. The court held that the fact that the payment was continued after the service ended did not convert it into a gift of public moneys, Finch, J., saying: "In the present case the payment was continued after the service ended, and it is strenuously contended that, however the payment might be construed while the firemen were a public body and doing a public duty, the appropriation became purely a gift when made after the service ended, and when there was no legal or equitable obliga

tion operating upon the State. It is true that no promise to continue the appropriation had been given, and the State was at liberty to withhold it; but that does not alter the inherent character of the payment when made. If a merchant fails in business and compromises with his creditors for a part only of their debts, or is discharged in bankruptcy with a small dividend, and thereafter being fortunate and becoming rich, calls his old creditors together, and gives to each principal and interest of the discharged balance, he does what he is not obliged to do, what neither law nor equity could compel, but he does not make a gift or dispense a charity. A purely moral obligation rests upon him, which he may or may not heed, but if he does, it characterizes his act, and makes that an honest payment of an honest debt which otherwise would have been a charity and a gift. So the State, in continuing the appropriation to the firemen when their services were no longer required, recognized an honorable obligation founded upon their past services and the injuries and suffering which those had occasioned. Just this policy had been adopted as to exemptions. They were continued after the service ended; and when the volunteers were disbanded without their fault and to make room for a paid service, justice and good faith required that the State should recognize its honorable obligation to keep up the fund as it had done for many years. The State did so, and we are concerned only with the question of the true character of its act. That which would have been merely a charity or a gift is not such by reason of the service given, the consideration rendered, the honorable obligation incurred. Its origin, its history, its characteristics require us to hold it not a charitable donation, but an appropriation of the public money, if indeed it be such, to a public use. The character of the obligation which leads to this result must not be mistaken or underestimated. Since the State cannot be sued without its consent, and acts without legal compulsion, it must be just. It must have honor and conscience. The motives which guide and control it must be those of absolute justice, and in almost every case its action, which