Dolliver v. Parks

Colburn, J. The first question to be determined in this case is the sufficiency of the official bond given by the plaintiff. The St. of 1862, c. 176, § 19, (Pub. Sts. c. 70, § 17,) provides that “ no person shall receive a commission or exercise the office of pilot until he has given to the treasurer of the Commonwealth a bond with two sureties in the penal sum of one thousand dollars,” &c. The sureties on the bond are to be satisfactory to the commissioners of pilots, but they have no authority to approve the form of the bond. We are of opinion that the statute requires a bond for $1000, with two sureties, each bound for the whole sum. In the bond given, the two sureties are only bound in the sum of $500 each; and the bond is not such as the statute requires. Brighton Bank v. Smith, 5 Allen, 413. The plaintiff could not legally exercise the office of pilot; but, as he held a commission, though illegally issued, and had assumed the duties of the office, he was a pilot defacto. The plaintiff contends that it is sufficient, to enable him to maintain this action, that he was a pilot de facto; and that his title to the office cannot be raised in this suit. While the acts of an officer de facto are valid, so far as they concern the public or the rights of third persons who are interested in the things done, and his title to the office cannot be inquired into collaterally, yet when he sues in his own right, to recover fees which he claims are due to him personally, by virtue of his office, his title to the office may be put in issue; and, to recover, he must show that he is an officer de jure. In such a suit, no rights of the public or of third persons are concerned. The question of title to the office is directly raised; and he can recover no benefit to himself from an office he holds de facto only. People v. Weber, 89 Ill. 347. Dolan v. Mayor, 68 N. Y. 274. Fowler v. Bebee, 9 Mass. 231. See State v. Carroll, 38 Conn. 449, 471. As the plaintiff was not legally a pilot, he is not entitled to recover in this suit. We have assumed in this case that the office of pilot is a public office, which is the view most favorable to the plaintiff; but we do not intend definitely to decide that question. Exceptions overruled.