CORNELL LAW LIBRARY LAW BOOKS i K Chicago, QlortipU Slam Brlioal library * 'iifHiiiiMiii?iI?i,l,C.* '^^ '3<'*o doctrine :in 3 1924 021 941 616 /^t^^^>. -^«i \ 1915 / The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021941616 A TREATISE ON THE DE FACTO DOCTROE IN ITS RELATION TO PUBLIC OFFICERS AND PUBLIC COR- PORATIONS BASED UPON THE ENGLISH, AMERICAN, AND CANADIAN CASES INCLUDING COMMENTS UP- ON EXTRAORDINARY LEGAL REMEDIES IN REF- ERENCE TO THE TRIAL OF TITLE TO OFFICE AND CORPORATE EXISTENCE BY ALBERT CONST ANTINEAU B. A. D. C. L. Judge of Prescott and Russell, Ont. Rochester, N. Y. THE LAAVYERS CO-OPERATIVE PUBLISHING COMPANY. 1910. /? ^7 7J CopyrieM 1910 BY iOBERT CONSTANTINEAU. PREFACE. This work is designed to give a systematic and com- prehensive exposition of the de facto doctrine in its rela- tion to public officers and public corporations. The aim of the author has not been merely to set forth general princi- ples, but to illustrate them adequately by cases selected from the English, American, and Canadian reports. Text- writers are often unmindful of the fact that access to an ex- tensive library is the privilege of the few, and that very many practitioners have to depend, in a large measure, upon the law as expounded in the pages of their treatises. Espe- cially is this so in the United States, where, owing to the number and cost of the law reports, a practitioner cannot be expected to have them all on the shelves of his private library. Bearing this in mind, an endeavor has been made to state the law with such detail and abundance of illustration, that it can, to a satisfactory extent at least, be gathered from the work itself, without the necessity of resorting to the re- ported decisions. The text will frequently be found interwoven with ver- batim quotations from the reports. This method, it is sub- mitted, offers a twofold advantage. In the first place, the possibility of misconstruing the language of a court or a judge, by paraphrasing it, is avoided; in the second, it im- parts to the work a larger measure of authority. Furthermore, as this is a pioneer treatise on a subject which has received so far but incidental attention in legal publica- Uii) iv PREFACE. tions, there is good reason why it should expound the subject in its entirety and fulness. The author also would remind the reader that this book was not written for any particular jurisdiction, but for all communities whose systems of jurisprudence are based upon the English Common Law. What may be a settled question in one community, may be a mooted one in another. Some- thing of merely academic or historical interest in one country, may be of practical importance in another. A truism to an American lawyer, whose intimate acquaintance with the de facto doctrine is due to its greater elaboration by the courts of his country, may be but little understood by members of his profession in other jurisdictions. While, as just stated, the subject has received great attention in the American Courts, strange to say, there is no English modern work which more than hints at the existence of such a principle. Black- stone speaks of de facto kings, Eoe of de facto returning officers, Viner and Bacon state that the acts of de facto officers are valid; but this appears to be the extent of infor- mation that may be acquired from a perusal of the older books. On the other hand, in the digests of the present day the earlier cases on the de facto doctrine will be found to be omitted. In these facts we undoubtedly have the true reason why, in the British Colonies, the doctrine has been overlooked in many cases where its application would have been an easy means of settling difficult points of law. The author has often been present in court when a whole jury-panel would be quashed by a judge of inferior jurisdiction, because of some slight irregularities in the selection of jurors. He also knows of many instances of the setting aside of official acts of municipal officers who had been openly acting for a con- siderable period, on the mere ground that their appointment did not conform strictly to the formalities required by statute. PREFACE. V In fact, it is just these experiences that led to the preparation of this work. But to refer again to the present status of the English law in relation to de facto doctrine, it would be a mistake to infer from what has been said, that because the text-writers do not mention it, there is any deliberate intention to ignore it. On the contrary, the legislatures occasionally enact laws com- pelling its recognition, under certain conditions. But such enactments, however, impart no knowledge of the principles which regulate its application. What is a de facto officer — under what circumstances is one to be regarded as such — what is the distinction between a usurper and a de facto offi- cer — what are the rights, duties, and liabilities of a de facto officer — what are the liabilities of his official sureties — what are his rights and liabilities in respect to the salary of the office — when, where, and under what circumstances, his acts are valid, and when not — when his title may be collaterally assailed and when not — what are the proper proceedings to determine his title — all these and many other subjects are left undetermined, and to be surmised by the practitioner, whose only means of knowledge, so far as the English law is concerned, is a reference to decided cases, many of which, as already explained, are not found in the digests, while others, though digested, are inserted without any systematic arrangement. Similar remarks might be made with refer- ence to de facto corporations. Apart from this, it may be added that, though the de facto doctrine has been recognized in England for nearly five cen- turies, as attested by the reports, yet owing to the peculiar character of its political institutions, the field has been little explored. And so one might easily go astray or be entirely lost were he to confine himself to such untrodden territory to discover the detailed principles of a branch of law only ad- verted to at rare intervals. The English or Canadian lawyer. vi PREFACE. therefore, must seek another field where the track is better beaten and more light can be obtained. This field is foimd in the United States, where an unbroken current of authority pours its steady stream for over a century. Here can be traced the evolution of the principle from its first unde- veloped stages to the settled doctrine of the present day. The courts have gone on correcting early misconceptions, making certain what was uncertain before, expanding old principles to meet the requirements of new combinations of facts and circumstances. The Canadian judges have so well realized that fact, that in many cases their decisions are founded solely on American authorities, which they seem to regard, and rightly too, as embodying the best exposition of the de facto doctrine. The author, therefore, would undoubtedly have been justi- fied in quoting the American cases, even had his intention been to write only an English or Canadian work. But, it will be found that the English and Canadian decisions have been given, as much as possible, a certain prominence throughout the book. This is not attribvitable to any partiality on the part of the author, but simply to the fact that any other method would have resulted in practically hiding the cases in question in the great mass of American authorities. It may further be stated that all the authorities bearing directly on the de facto doctrine, which the author has been able to discover by persistent research, have been examined, classified, and cited. The highest court in every American State being practically supreme in the interpretation of its own laws, every practitioner is naturally interested in the eases which have been decided in his own jurisdiction. And here, at the risk of being pedagogic, the author would point out how much more difiicult it is to write an American, than an English, treatise. In the British Empire, a decision of the PREFACE. vli House of Lords or of the Judicial Committee of the Privy Council, settles the law on the point in litigation throughout the whole empire. On the other hand, a decision of the Su- preme Court of the United States is, in many instances, only a respectable authority for the State courts, and may be fol- lowed or disregarded as the court is disposed. Therefore, to find the law throughout the American Union one has to exam- ine the reports of the federal courts, then those of the numer- ous States, Districts, and territories: a task requiring much patience, labor, and perseverance, notwithstanding all the as- sistance to be had from the digests and the encyclopedias. In the last part of the work, are treated in concise form certain subjects relating to questions of title to office. Chief among the proceedings discussed, are habeas corpus, certio- rari, mandamus, injunction, and quo warranto. The object of the author has been to clearly indicate what remedies are and what remedies are not available to question the authority of a de facto officer. Special care has been devoted to the chapter on quo warranto, in order to render it of practical usefulness in daily practice. This last part, it is hoped, will be specially appreciated by the Canadian profession, since works dealing with extraordinary legal remedies, and con- taining the English cases, let alone the Canadian ones, are seldom found in the hands of the average lawyer. The index has been made as exhaustive as possible. The date of every case cited is given, and all the references to the various reports are generally stated. With these explanations, the work is offered to the generous and indulgent acceptance of the profession. Whether the author has succeeded or not in accomplishing the piirpose he intended is not for him to decide, but at least he has the sat- isfaction of knowing that he has spared no time, pains, or trouble in his attempt to perform worthily the task under- via PREFACE. taken. That there are many imperfections in the book goes without saying, for hwmanum est errare. With the infirmi- ties inherent in our nature, to seek perfection, not to attain it, is the common lot of mankind. THE AUTHOE. Ottawa, May, 1910. TABLE OF CONTENTS. BOOK I. OF THE DE FACTO DOCTRINE AND OF PUBLIC OFFICES AND OFFICERS IN GENERAL. CHAPTER I. THE DE FACTO DOCTRINE— INTRODUCTORY REMARKS. g 1. Definition of the de facto doctrine 3 2. Same subject 4 3. Necessity of the de facto doctrine .'' 4. Universality of the same 7 5. Historical sketch of the de facto doctrine in England 8 6. Same subject 10 7. Same subject ^ ]2 8. Historical sketch of the de facto doctrine in the United States 13 9. Same subject 35 10. Historical sketch of the de facto doctrine In Canada 16 11. Same subject 19 12. De facto doctrine different from legal presumption as to official character 20 13. To what public officers de facto doctrine is applicable 22 CHAPTER II. OF PUBLIC OFFICES AND OFFICERS— DE JURE AND DE FACTO OFFICERS— USURPERS. § 14. English definitions of "office" and "officer" 24 15. American definitions 25 16. Difference between an office and an ordinary employment... 25 17. Classification of offices 26 18. Nature and incidents of English offices 27 (ix) X CONTENTS. § 19. Nature and incidents of American offices 28 20. Nature and incidents of Canadian offices 29 2L Definition of an officer de jure 30 22. Definition of an officer de facto 31 23. General characteristics of an officer de facto 32 24. Officers lidding by defeasible title 33 25. Definition of a usurper 35 BOOK II. OF THE REQUISITES TO CONSTITUTE AN OFFICER DE FACTO. CHAPTEE III. INTRODUCTORY. 26. What are such requisites 39 27. Purpose of Book II 39 CHAPTER IV. EXISTENCE OF DE JURE OFFICE NECESSARY TO CONSTITUTE AN OFFICER DE FACTO. § 28. General rule 41 29. Authorities upholding above rule 42 30. A person cannot be a de facto officer of an abolished office ... 45 31 . Conflicting doctrine 47 32. Same subject 48 33. Same subject 50 34. A person cannot be a de facto officer of an office attempted to be created by an unconstitutional Act 51 35. Same subject 53 36. Same subject 54 37. Conflicting doctrine 55 38. Same subject 57- 39. Same subject 5g 40. Same subject gO 41. Observations on unconstitutionality of laws— Xo unconstitu- tionally created offices in England 61 CONTENTS. CHAPTER V. OF OFFICES RECOGNIZED BY LAW EX NECESSITATE AND OF- FICES IRREGULARLY CREATED— DE FACTO GOVERNMENTS -DE FACTO MUNICIPAL CORPORATIONS. § 41a. Scope of this chapter 64 42. Officers under de facto governments 64 43. Offices irregularly created 6.5 44. Same subject — Illustrations 67 45. Same subject — Illustrations continued 68 46. Municipal corporations 70 47. De facto corporations 71 48. Status of a, de facto municipal corporation, and of the offices thereunder 72 49. Requisites to constitute a municipal corporation de facto. . . 73 50. Where there is no law authorizing municipal corporations, no such corporation can exist de facto 74 51. General views of the authorities as to whether an unconstitu- tional law can create a, de facto municipal corporation ... 76 52. Doctrine that unconstitutional law cannot create a de facto municipal corporation 77 53. Authorities holding that corporations organized under an unconstitutional law are only irregularly created 80 54. Same subject — Illustrations 81 55. Same subject — Illustrations continued 83 56. Where unconstitutional law causes an irregularity, though the municipal organization is not effected under it. ..... . 84 57. Authorities unconditionally holding that a municipal corpora- tion may be created by an unconstitutional law 85 58. Mere irregularities in the organization of a. municipal cor- poration will not deprive it of a de facto character — Must be, however, a bona fide attempt to organize 87 59. Same subject 89 60. Same subject ■ • 91 61. Where no bona fide attempt to comply with the law, no de facto corporation 93 62. Actual user of the corporato franchise 95 63. Collateral grounds tending to sustain de facto corporations . . 95 64. Rule as to collateral attacks on de facto corporations 96 65. Same subject 98 66. Estoppel to deny corporate existence of de facto corporation 98 67. Extent of the rule of estoppel 101 68. Same subject 102 69. Long user of municipal franchise with public or state ac- quiescence 104 70. Same subject 106 71. Legislative recognition of municipal corporations 107 72. Same subject 108 xii CONTENTS. CHAPTEE VI. POSSESSION OF OFFICE NECESSARY TO CONSTITUTE AN OF- FICER DE FACTO— INCIDENTS OF POSSESSION. § 73. Necessity of possession 110 74. Officer de jure and officer de facto may exist simultaneously, but both cannot hold at same time 112 75. Same subject 133 76. Same subject — Illustrations 115 77. Same subject — Illustrations continued 117 78. Two officers de facto cannot hold office at same time. ........ 119 79. Where two rival claimants have each only a partial or im- perfect possession of the office, neither is a de facto officer 120 80. Where one of two claimants has full possession, the other can- not deprive him of his de facto character by unlawfully dispossessing him 122 81. Possession of office by usurper affords no right 124 CHAPTEE VII. COLOR OF TITLE OR AUTHORITY NECESSARY TO CONSTITUTE AN OFFICER DE FACTO. § 82. Color of title, ground of distinction between officers de facto and usurpers 126 83. Color of title, definition of 127 84. Color of authority, definition of 128 85. Color of right, definition of 128 86. Other expressions used by judges 129 87. Colorable — Colorable title — Colorable election — Definitions of 129 88. Same subject 131 89. Color of office or colore officii — By virtue of an office or virtute officii — Meaning of 131 90. Color of title or authority, from what derived 132 91. Same subject — Examples of circumstances giving color of title or authority 133 92. Same subject — Examples of circumstances giving no color of title or authority 135 93. No color when official title known to be bad 137 94. Generally no color after title judicially declared invalid 138 CONTENTS. BOOK III. OF THE DIFFERENT CLASSES OF OFFICERS DE FACTO. CHAPTER VIII. INTRODUCTORY. § 95. Classification of oflRcers de facto 143 CHAPTER IX. OFFICERS DE FACTO BY REPUTATION OR ACQUIESCENCE, WITHOUT A KNOWN APPOINTMENT OR ELECTION. § 96. Earlier American cases as to necessity of election or ap- pointment ] 45 97. Same subject 146 98. Probable cause of the eroneous American definitions — R. vs. Lisle 148 99. Same case as reported by Strange 149 100. Criticism of R. vs. Lisle by Chief Justice Butler 150 101. Later American cases declare color of election or appoint- ment unnecessary 151 102. Same subject 153 103. Same principle upheld by English and Canadian authorities 156 104. What will constitute an oflicer de facto by reputation or acquiescence 157 105. Reputation or acquiescence — Definition of terms 158 106. Nature of office — Effect of open possession upon reputation. . 159 107. Circumstances establishing or afi'eeting reputation 161 108. Same subject Ifi2 109. Same subject 164 110. Acquiescence — Effect thereof upon assumed official character 166 111. Usurpers may become officers de facto by reputation or ac- quiescence 1 68 112. Officers de jure who usurp the official functions of other of- ficers 168 xiv CONTENTS. CHAPTEE X. OFFICERS DE FACTO BY REASON OF ENTRY BEFORE COM- MENCEMENT OF TERM, OR HOLDING OVER AFTER EXPIRA- TION OF SAME. § 113. General rule 171 114. Same subject 172 115. Entry before beginning of ofiBcial term — Illustrations 173 116. Oiiieers holding over — English authorities 174 117. Same subject — Canadian authorities 176 118. Classification of officers holding over, based upon the Ameri- can authorities 377 119. OfiBcers holding over indefinitely — American illustrations... 178 120. Same subject — Deputies holding over 180 121. Officers temporarily holding over until assumption of office by successors 181 122. Same subject — Illustrations 181 123. Same subject — Officer holding over after qualification of sucessor 183 124. Officers who, under claim of right, refuse to surrender the offices to their successors 184 125. Officers holding over after abolition of their offices 186 126. Holding must be uninterrupted 187 CHAPTEE XL OFFICERS DE FACTO BECAUSE OF FAILURE TO QUALIFY AS REQUIRED BY LAW. § 127. General rule 189 128. Failure to take proper oath 190 129. Failure to take oath of allegiance ]91 130. Failure to take oath within time prescribed by law 191 131. Taking oath before unauthorized persons 192 132. Oath or certificate of oath never filed, or not filed in time. . . 192 133. Total failure to take any oath — English illustrations 19:! 134. Same subject — Canadian illustrations 194 135. Same subject — Same subject j 95 136. Same subject — American illustrations 190 137. Irregularities concerning official bond 198 138. Total failure to give bond igg 139. Failure in other matters affecting official qualification 199 140. Failure to qualify when such failure is declared to operate a forfeiture of office 201 CONTENTS. XV § 141. Same subject — American illustrations 202 142. Same subject^Same subject 204 143. Same subject — Same subject 205 144. Same subject — English illustrations 205 145. Same subject — Canadian illustrations 207 146. Same subject — Where statute held mandatory 209 147. Same subject — Same subject 210 148. Same subject — Same subject 2] ] 149. Same subject — Authorities supporting above doctrine 211 150. Same subject — Same subject 212 CHAPTER XII. OFFICERS DE FACTO BECAUSE OF INELIGIBILTTY, OR LEGAL DISABILITY ARISING DURING CURRENCY OF OFFICIAL TERM. i 151. General rule 214 152. English illustrations 215 153. Same subject 216 154. American illustrations — Lack of age 218 155. Ineligibility through taint in the blood 218 156. Ineligibility by reason of alienism 219 157. Ineligibility by reason of sex 219 158. Ineligibility by reason of defalcation 220 159. Ineligibility through lack of property qualification 220 160. Ineligibility through lack of professional qualification 22] 161. Ineligibility by reason of non-residence 22 I 162. Ineligibility through the holding of an incompatible office. . . 222 163. Same subject 223 164. Votes cast for ineligible candidate not generally void 225 165. Disability arising during currency of term 226 166. Disability through change of residence 226 167. Change of residence effected by law 227 168. Disqualification by reason of insolvency — Canadian illus- trations 228 169. Disqualification by reason of exhaustion of the constitutional period of holding 228 170. Disqualification by reason of acceptance of incompatible office 229 xvi CONTENTS. CHAPTEK XIII. OFFICERS DE FACTO UNDER COLOR OF IRREGULAR ELECTION OR APPOINTMENT. § 171. General rule 231 172. English illustrations 232 173. Canadian illustrations 233 174. American illustrations — Irregular elections 234 175. Same subject — Invalid appointments 236 176. Officers verbally appointed 238 177. Election or appointment held or made at improper time .... 240 178. Appointment to office not vacant 242 179. Appointment for a term longer than warranted by lavp 243 180. Certificate of election confers a, prima facie title, though result of election wrongfully determined 245 181. Irregularities in election or appointment must be bona fide 246 CHAPTEE XIV. OFFICERS DE FACTO UNDER COLOR OF IRREGULAR ELECTION OR APPOINTMENT BY AN UNAUTHORIZED OFFICIAL PERSON OR BODY. § 182. General rule 248 183. English illustrations 249 184. Same subject 250 185. Canadian illustrations 252 186. American illustrations 254 187. Conflicting doctrine 256 188. Elective office filled by appointment or vice versa 257 189. Appointment without concurrence of all having authority to appoint 259 190. Same subject — Apparently conflicting cases distinguished. . 260 191. Where authority to appoint exists only in particular cases . . 262 CHAPTEE XV. DE FACTO OFFICERS UNDER COLOR OF AN ELECTION OR AP- POINTMENT BY OR PURSUANT TO AN UNCONSTITUTIONAL LAW. § 192. General rule -264 193. No distinction between laws manifestly unconstitutional and laws of doubtful constitutionality 265 CONTENTS. xvii § 194. General rule illustrated 266 195. Same subject — De facto judicial officers '. 2G7 196. Same subject — Same subject 209 197. Conflicting authorities 270 198. Unconstitutional act removing an officer and appointing a successor 272 199. Unconstitutional act appointing to an office which is and re- mains full in law and in fact 273 200. Same subject 275 201. Unconstitutional act altering constitution of office 276 202. Unconstitutional act altering mode of filling an office 278 BOOK IV. OF THE RIGHTS, POWERS, DUTIES, AND LIABILITIES OF DE FACTO OFFICERS, INCLUDING LIABILITY OF THEIR SURE- TIES. CHAPTEE XVI. INTRODUCTORY. § 202a. Preliminary remarks and divisions of this book 283 CHAPTER XVII. OFFICER DE FACTO NOT GENERALLY ENTITLED TO ANY PER- SONAL ADVANTAGE OR PRIVILEGE, BUT ENJOYS RIGHTS FOR THE BENEFIT OF THE PUBLIC. 203. Officer de facto has no personal privileges . .' 285 204. Same subject 286 205. Right of officer de facto to act on behalf of public 288 206. Injunction or prohibition not granted to prevent officers de facto from acting 290 207. Officers de facto protested by injunction 291 208. Right to recover property of office 293 209. Same subject 294 210. Right to recover money pertaining to office 295 211. Same subject — Conflicting decisions 297 212. Right of officer de facto to defeat quo warranto proceedings by perfecting his title 298 CONTEXTS. CHAPTEE XVIII. EIGHT OF OFFICER DE FACTO TO PROTECTION OF CRIMIXAL LAW IN EXECUTION OF HIS DUTIES. § 213. General rule 300 214. Resisting oflBeer de facto 301 215. Killing de facto officer 302 216. De facto officer killing person resisting him , 304 217. Persons assisting de facto officers protected 304 218. Escaping from officer de facto 305 CHAPTEE XIX. RESPECTIVE RIGHTS OF OFFICERS DE JURE AND OFFICERS DE FACTO IN REGARD TO SALARY AND EMOLUMENTS OF OFFICE. § 219. De Jure officer generally entitled to emoluments of office. . . . 300 220. De jure officer's right not dependent upon his performance of official duties 308 221. Conflicting doctrine 309 222. Extent of recovery by de jure officer from public body 311 223. De jure officer's right to recover not affected by any distinc- tion between fees and salary 312 224. Rule protecting public bodies from paying a second time salary already paid to a de facto officer 313 225. Same subject 31.5 226. Foregoing rule not followed by certain courts 316 227. Same subject 317 228. Injunction may sometimes be granted to restrain payment of salary to de facto incumbent pending contest of title . . . 310 220. De jure officer may recover salary from de facto officer 320 230. Same subject — English rule 322 231. Amount recoverable from the de facto officer 323 232. Same subject — Assumpsit or tort 324 233. Right to salary pending determination of title to office . . 327 234. Good faith of de facto officer of no avail to him 329 235. Clear title must be shown by officer de jure to recover salary from State or intruder 329 236. De facto officer cannot recover salary 330 237. Conflicting doctrine as to right of officer de facto to recover salary 332 238. Doctrine that officer de facto entitled to compensation when there is no de jure officer 334 CONTENTS. xix 230. Same subject 335 240. Salary paid to de facto officer cannot presumably be recov- ered back 33G CHAPTEE XX. DUTIES AND CIVIL LIABILITIES OF OFFICER DE FACTO. 241 . General rule 339 242. Officer de facto may be compelled to act by mandamus .... 340 243. Where mandamus directed to officer de facto in his official name 341 244. Officer de facto cannot be compelled to act after he disavows his authority 342 245. Officer de facto may sometimes be civilly liable for acts of omission as well as of commission 342 246. Officer de facto liable for money received by virtue of his office , 344 247. Not liable for moneys he could not collect 345 248. Not liable for moneys lawfully expended by him 345 249. Liable for funds unlawfully expended 346 249a. Liable in damages for permitting escapes 346 250. Liable for acts of his deputy 347 251 . Liable on his official bond 347 252. Contracts inconsistent with duties and responsibilities of officer de facto, void 348 CHAPTEE XXL CRIMINAL RESPONSIBILITY OF OFFICER DE FACTO. 253. Theory of criminal responsibility of de facto officer 351 254. Officer de facto in general not criminally liable for non-feas- ance in office 352 255. When liable for non-feasance 353 256. Same subject 354 257. Malfeasance in office — Embezzlement — English authorities.. 355 258. Same subjects — American authorities 356 259. Extortion by officer de facto 337 260. Officer de facto accepting bribe 358 261. Permitting escapes — English authorities 359 262. Same subject — American authorities 359 263. Misconduct in office 360 XX CONTENTS. CHAPTEK XXII. DE FACTO OFFICER LIABLE TO PENALTIES FOR USURPATION, AND TO DAMAGES WHEN SUED AS A TRESPASSER FOR ACT- ING WITHOUT AUTHORITY. § 263a. Introductory remarks 362 264. De facto officer punishable for usurpation 363 265. Not punishable when acting bona fide 364 266. Officer de facto liable as a trespasser 364 267. Same subject — Illustrations 366 268. Evidence of official reputation insufficient 367 269. Conflicting authorities 368 270. Same subject 369 271. Officer de facto liable for acts done by his order 370 272. What damages recoverable 370 273. Persons executing process issued by de facto officer not lia- ble — English authorities 371 274. Same subject — American authorities 373 275. Persons assisting de facto officers not liable 374 CHAPTER XXIII. LIABILITY OF SURETIES ON OFFICIAL BOND OF DE FACTO OFFICER. § 276. General rule 375 277. Official acts of officer de facto binding on his sureties 376 278. Sureties of officer de facto estopped from denying his title. . 377 279. Same subject — Irregularity of appointment 378 280. Same subject — Same subject — English authorities 379 281. Same subject — Defective qualification 382 282. Same subject — Same subject — Canadian authorities 382 283. Liability of sureties where appointment declared void by statute 383 284. Liability of sureties where statute declares forfeiture of office on non-performance of certain requirements 385 285. Where forfeiture judicially declared, but officer de facto in offif^e 387 286. Same subject — Special duties of sheriffs 388 287. Liability of sureties of officer de facto by reason of holding over — General principles 339 288. Rule of construction of official bonds— English authorities. . 390 289. Same subject — American authorities 392 290. Where the statute provides for holding over 394 CONTENTS. xxi 291. Same subject 395 292. Jurisdictions where sureties of holding over officer held liable — Officers de jure 396 293. Same subject 397 294. Jurisdictions where sureties of holding over officers held not liable — Officers de facto 399 295. Same subject 400 296. Same subject 401 297. Same subject 402 298. Liability of sureties where the bond provides for holding over 403 299. De facto officer's sureties not liable to de jure officer for of- ficial salary or fees 404 BOOK V. OF THE VALIDITY OF THE OFFICIAL ACTS OF DE FACTO OFFICERS. CHAPTEE XXIV. INTRODUCTORY. § 300. Scope of this book 407 CHAPTEE XXV. ACTS OF DE FACTO OFFICERS VALID— RULE EXPLAINED AND ILLUSTRATED. § 301. General rule 409 302. Acts not valid when official character notoriously bad.... 411 303. Acts not valid as to persons aware of the officer's want of title 414 304. Same subject 415 305. Knowledge of defective title of appointees not generally im- putable to appointors — Liability of appointors for acts of appointees discussed 41 7 306. Same subject — English authority 420 307. Same subject — ^American authorities 422 :xii CONTENTS. i 308. Where ignorance or defective title is due to gross negligence, de facto rule cannot be invoked 42.5 309. Conflicting ruling in New York in regard to effect of knowl- edge of defective title 426 310. De facto rule does not apply where same would work injury. 428 311. Acts of de facto Governors and Legislators in relation to the passing of laws 429 312. Ordinances or other measures passed by de facto municipal bodies 430 313. Bonds signed or issued by de facto municipal officers 432 313a. Contracts made by de facto officers binding on corporation. 43.5 314. Acts of de facto municipal officers in relation to various mat- ters 437 315. Payments by or to officer de facto, valid and binding on all parties 439 315a. Validity of marriages performed by de facto officers 440 316. Validity of instruments acknowledged before or registered by de facto officers 440 317. Acts of de facto clerks and deputy clerks of courts 444 318. Acts of de facto sheriffs and constables, and de facto deputies 446 319. Acts of de facto ]irosecuting attorneys 448 320. Validity of acts of de facto officers in relation to the selec- tion and swearing of jurymen 449 321. Validity of bonds or recognizances taken or approved by officers de facto 451 CHAPTEE XXVI. .\CTS OF DE FACTO OFFICERS IN RELATION TO THE LEVY AND COLLECTION OF TAXES— TAX TITLES. § 322. General rule 453 323. Tax titles 454 324. Order in which the authorities are reviewed 456 325. English rulings 45(5 326. Canadian rulings 457 327. Rulings in Maine 459 328. Rulings in Vermont 400 329. Rulings in New Hampshire 4g2 330. Rulings in Arkansas 4g4 331. Rulings in Mississippi 4gQ 332. Rulings in California 407 333. Rulings in New York 4gg 334. Rulings in Michigan 4gg 335. Rulings in Illinois 4qq CONTENTS. xxiii 336. Rulings in New Jersey 470 337. Rulings in Pennsylvania, Nevada, South Carolina, Texas, and Ohio 471 338. Rulings in Massachusetts, Kansas, and Maryland 473 339. Rulings in Iowa, Nebraska, Georgia, and Washington .... 474 340. Rulings in Kentucky, Wisconsin, Tennessee, and other states. 475 CHAPTER XXVII. APPOINTMENT OR ELECTION TO OFFICE BY DE FACTO OF- FICERS. § 341. English doctrine 477 342. Where de facto officer merely perfected official title, same rule did not apply 479' 343. Canadian rulings 480 344. Doctrine in New York 481 345. Judgment of ouster against one appointee, not evidence against another 482 346. General rule in America sustains validity of appointments made by de facto officers 483 347. Same subject 485 348. Same subject 486 CHAPTEE XXVIII. ACTS OF DE FACTO OFFICERS IN RELATION TO THE HOLDING AND CONDUCT OF ELECTIONS. § 349. English Parliamentary doctrine 487 350. Same subject 488 351. Same subject — Statutory ineligibility of returning officer .. 490 352. Same subject — Ineligibility of returning officer by reason of minority 490 353. Same subject — Failure of election officers to take oath .... 491 354. Returning officers joined by unauthorized persons 49] 355. Unauthorized persons acting as returning officers 492 356. English doctrine adopted in Canada 493 357. English judicial doctrine 494 358. English judicial doctrine followed in a Canadian case .... 495 359. Former doctrine of the American House of Representatives 496 360. Same subject 497 361. Present doctrine 498 xxiv CONTENTS. § 362. Same subject • ^^9 363. Same subject — Election officers must be appointed by au- thorized persons 5"" 364. American judicial doctrine 500 365. Same subject — Irregular appointment of election officers . . 501 366. Same subject — Officers ineligible or disqualified 504 367. Same subject — Omission to take oath 505 368. Same subject — Election officers acting in insufficient number or joined by improper persons 507 CHAPTEE XXIX. VALIDITY OF OATHS TAKEN BEFORE DE FACTO OFFICERS- PERJURY. § 369. Affidavits and depositions taken before de facto officers, valid 509 370. Perjury cannot be committed at common law before a de facto tribunal 510 371. English doctrine still as at common law 511 372. Exception to the English rule 513 373. Evidence of official reputation sufficient, unless rebutted . . 514 374. Doctrine in Canada 515 375. Observations on case of Drew vs The King 517 376. Same subject — Language of the commissioners 518 377. Same subject — Language of the Code 519 378. Same subject — Status of the Recorder 520 379. Doctrine in New York 524 380. Same subject 525 381. Doctrine in Alabama 528 382. Doctrine in Kentucky 529 383. Doctrine in Ohio 529 384. Doctrine in Indiana 531 385. Doctrine in South Carolina 532 380. Doctrine in Iowa 532 387. Doctrine in New Hampshire 533 388. Doctrine in Texas 533 389. Doctrine in Illinois 534 390. Doctrine in Florida 534 391. Doctrine in Maryland 535 392. Doctrine in Michigan 535 393. Doctrine in Oklahoma 536 394. Doctrine in Kansas 536 CONTENTS. CHAPTER XXX. VALIDITY OF ACTS OF DE FACTO JUDICIAL OFFICERS— DE FACTO COURTS. § 395. Scope of this chapter 539 396. De facto courts 539 397. Same subject — Rulings 541 398. De facto courts may exist under a de facto government 543 399. De facto courts under other circumstances 545 400. Courts of the Confederate States of America 545 401. Same subject — First period 546 402. Same subject— Second period 547 403. Same subject — Third period 548 404. Limitations to the above doctrine 550 405. Who are de facto judicial officers 551 406. Title of de facto judicial officers not collaterally assailable. . 552 407. Same subject — Illustrations 553 408. Same subject — Same subject 554 409. Same subject — Same subject 556 410. Same subject — Same subject 557 411. Same subject — English illustrations 559 412. Same subject — Same subject 560 413. Same subject — Canadian authorities 562 414. Causing objection to judge to be spread on the record, of no avail 563 415. When foregoing principles are inapplicable 565 41 6. Same subject — Special judges 566 416a. Same subject — Same subject 568 417. Same subject — Canadian authorities 569 418. Same subject — Public officers only occasionally discharging judicial duties 571 419. Same subject — Justices of the peace only occasionally acting 572 420. Observations on the English and Canadian cases 574 421. Same subject 576 422. Acts cf de facto judicial officers, valid 577 423. Acts of de jure judges acting outside their jurisdiction, un- der an unconstitutional Act 579 424. Same subject — American cases 580 425. Same subject — Canadian cases 582 426. Same subject — Same subject 583 427. Same subject — Same subject 584 CONTENTS. BOOK VI. OF THE REMOVAL OF DE FACTO OFFICERS. CHAPTEE XXXI. INTRODUCTORY. § 428. Scope of this book 589 CHAPTER XXXII. OF COLLATERAL ATTACKS ON THE TITLE OF DE FACTO OFFIC- ERS—HABEAS CORPUS— CERTIORARI— PROHIBITION— JIAN- DAMUS— INJUNCTION— ETC. § 429. De facto officer's title cannot be collaterally assailed 591 430. Limitations to the above rule 59? 431. Title to office cannot be tried in proceedings to recover official records 594 432. In United States title cannot be tried in action for recovery of salary .50.5 433. Different rule in England 59& 434. De facto officer's title cannot be inquired into by ministerial officers 597 435. Title to office cannot be determined on habeas corpus 598 436. Title to office not generally determinable on certiorari — English and Canadian authorities 600 437. Same subject — Same subject 602 438. Same subject — American authorities 604 439. Same subject — Same subject 606 439a. Same subject — Same subject 607 440. Title to office not triable by prohibition 610 441. Title to office cannot be tried by mandamus — English au- thorities 612 442. Same subject — American authorities 614 443. Mandamus lies to compel admission of person having prima facie title to office, though there be another in possession 616 444. Mandamus proper remedy to restore officer unlawfully re- moved 619 445. Mandamus proper remedy to determine de facto title of of- ficer 622 CONTENTS. xxvii 446. Title to office cannot be tried by injunction — American au- thorities 623 447. Same subject — Englisli authorities 626 447a. Injunction under the English Judicature Act 628 448. Interference of equity on account of breaches of trust — Eng- lish and American authorities 630 449. Title to office not triable by writ of assize 632 CHAPTER XXXIII. OF QUO WARRANTO. 450. General remarks 634 451. Quo warranto proper remedy to try title to office 635 452. Writ of quo warranto 630 453. Information in the nature of quo warranto 637 454. Quo warranto information extended by statute of Anne .... 63S 455. Statutory substitutes 039 456. Statutory proceedings to try validity of elections — Their ef- fect upon quo warranto 040 457. Same subject 643 458. Same subject '. 644 459. Same subject 640 460. DiflFerent kinds of quo warranto proceedings ■ 047 461. Quo warranto on behalf of the State — Discretion of prose- cuting officers 648 462. When 'State has exclusive right of prosecuting quo warranto 650 463. Quo warranto at the instance of private individuals 651 464. When private person has sufficient interest to maintain quo warranto 653 465. Discretion of Court in granting or refusing leave to file quo warranto 655 466. Circumstances afifeoting the discretion of the Court 056 467. Same subject 658 468. Same subject 659 469. Time within which quo warranto proceedings must be insti- tuted 662 470. Public offices respecting which quo warranto lies 663 471. Officer must be in possession of the office 664 472. Dual purpose of American statutory quo warranto in some cases — Burden of proof 065 473. Scope of inquiry in quo warranto 667 474. Judgment in quo warranto 670 TABLE OF CASES CITED. [KEPEEENCES AEE TO SECTIONS] Abbe de Fontaine Case (1431, Year Book, 9 H. 6, fol. 32) 5, 74, 171, 182. Abbott vs Aspinwall (1857, 26 Barb. (N. Y.) 202) 66. Abbott vs Chase (1883, 75 Me. 83) 301. Abington vs Steinberg (1900, 86 Mo. App. 639) 318. Ackerman vs Haenck (1893, 147 111. 514, 35 N. E. 381) 367. Adam vs Mengel (Pa., 1887, 8 A. 606) 170, 316, 405. Adams vs Directors of Insane Asy- lum (1895, 4 Ariz. 327, 40 P. 185) 238. Adams vs Lindell (1878, 5 Mo. App. 197; affirmed 72 Mo. 198) 29, 31,, 125, 340. Adams vs Mississippi State Bank (1897, 75 Miss. 701, 23 So. 395) 123, 416, 422. Adams vs Tator (1886, 42 Hun (N. Y.) 384) 203, 318. Ah Lee, In re (1880, 6 Sawy. (U. S.) 410, 5 Fed. 899) 83, 188, 196, 405. Ainsworth vs Dean (1850, 21 N. H. 400) 329. Akers vs Kolkmeyer (1903, 97 Mo. App. 520, 71 S. W. 536) 136, 138, 340. Akers vs State (1856, 8 Ind. 484) 292, 298. Alabama &c. Ry. Co. vs Bolding (1891, 69 Miss. 255, 13 So. 844, 30 Am. St. R. 541) 136. Alabama Nat. Bank vs Williams (1905, 144 Ala. 406, 38 So. 240) 422. Alcock vs Andrews (1788, 2 Esp. 542, n.) 89. Aldermen vs School Directors (1878, 91 111. 179) 58, 64. Alexander vs McKenzie (1870, 2 Rich. (S. C.) 81) 455. Allard vs Charlebois (1898, 14 Que. R. (S. C.) 310) 456. Allbee vs People (1859, 22 111. 533) 279. Allen vs Archer (1860, 49 Me. 346) 271. Allen vs Armstrong (1864, 16 Iowa, 508) 339. Allen vs Metcalf (1835, 34 Mass. (17 Pick.) 208) 174, 338. Allen vs McKean (1833, 1 Fed. Cas. (No. 229) 489, 1 Sumn. 276) 432. Allen vs McNeel (1817, 1 Mill. (S. C.) 229) 236. Ames vs Kansas (1883, 111 U. S. 449, 4 Sup. Ct. 437) 452, 453. Anderson vs Browning (1903, 140 Cal. 222, 73 P. 986) 227. Anderson vs Gossett (1882, 9 Lea. (Tenn.) 644) 456. Anderson vs Morton (1903, 21 App. Cas (D. C.) 444) 175, 410, 438. Andrews vs Eagle (4 Vin. Abr. 527) 75. Andrews vs Linton (1703, 2 Ry. (Ld.) 884, 92 Eng. R. 91, brief- ly reported in Salk. 265, and in Holt's R. 273) 411, 422. CASES CITED. [eefebences abb Andrews vs Portland (1887, 79 Me. 484, 10 A. 458, 10 Am. St. R. 280) 20S, 222, 226, 227. Andrews vs State (1885, 78 Ala. 483) 214, 262. Andrews vs State (1892, 69 Miss. 740, 13 So. 853) 464. Angell vs Steere (1888, 16 E. I. 200, 14 A. 81) 136, 422. Angel vs Town of Spring City (Tenn. Chy. App. 1899, 53 S. W. 191) 58. Anondaga Supervisors vs Briggs (1846, 2 Den. (N. Y.) 26) 240. Anonymous Case (1699, 12 Mod. 256) 121. Anonymous Case (1729, 1 Barnard, 279) 467. Argenti vs San Francisco (1860, 16 Cal. 256) 66. Armitage vs Fisher (1893, 74 Hun (N. Y.) 167, 26 N. Y. S. 364. 56 St. Rep. 384, reversing 4 Misc. 315, 24 N. Y. S. 650) 448. Arris vs Stukely (1678, 2 Mod. 260) 219, 230, 231, 433. Arthur vs Comm'rs of Sewers (1724, 8 Mod. 331) 437. Ashley vs Bd. of Supervisors of Presque Isle County (1893, 16 U. S. App. 709. 60 Fed. 55, 8 C. C. A. 455) 54, 64. Ashwell vs Bullock (1900, 122 Mich. 620, 81 N. W. 577) 431, 442. Askew vs Manning (1876, 38 U. C. Q. B. 345) 59, 64, 451, 462, 464, 470, 473. Aslatt vs Southampton Corp. (1880, L. R. 16 Ch. D. 143, 43 L. T. 464, 45 J. P. Ill, 29 W. E. 117) 207, 447a. Asphodel Tp., In re (1859, 17 U. C. Q. B. 593) 431. Atchison vs Lucas (1885, 83 Ky. 451) 231. TO SECTIONS] Atherton vs Sherwood (1870, 15 Minn. 221, 2 Am. R. 116) 209. Atty.-Gen. vs Barstow (1856, 4 Wis. 567) 472, 473. Atty.-Gen. vs Cain (1890, 84 Mich. 223. 47 N. W. 484) 470. Atty.-Gen. vs Compton (1842, 1 Y. & C. Ch. 417) 448. Atty.-Gen. vs Crocker (1885, 138 Mass. 214) 110, 174. Atty.-Gen. vs Dedliam Grammar School (1857, 23 Beav. 350, 26 L. J. Ch. 497, 3 Jur. (N. S.) 325, 5 W. R. 395) 447, 448. Atty.-Gen. vs Dixie (1805, 13 Yes. Jun. 519, 33 Eng. R. 388) 447. Atty.-Gen. vs Dover, Town of (1898, 62 N. J. L. 138, 41 A. 98) 57. Atty.-Gen. vs Drohan (1897, 169 Mass. 534, 48 X. E. 279, 61 Am. St. R. 301) 470. Atty.-Gen. vs Earl of Clarendon (1810, 17 Yes. 491, 34 Eng. R. 190) 447. Atty.-Gen. vs Erie &c. Ry. Co. (1884, 55 Mich. 15, 20 N. W. 696) 465. Atty.-Gen. vs James (1889, 74 Midi. 733, 42 N W. 167) 474. Atty.-Gen. vs Leaf (1849, 9 Hump. (Tenn.) 753) 455. Atty.-Gen. vs Liverpool (1835. 1 My. & Cr. 171, 40 Eng. R. 342, 2 M. & C. 613, 7 L. J. Ch. 51) 448. Atty.-Gen, vs Marston (1891, 66 N, H, 485, 22 A, 560, 13 L. R. A. 670) 163. Atty.-Gen. vs Mayor (1887, 143 Mass, 589, 10 N, E, 450) 438, 439a. Atty.-Gen. vs Mcgin (1885. 63 N. H. 378, 9 Am, & Eng. Corp, Cas, 68) 174, 313a. Atty.-Gen, vs Parsell (1894, 99 Mich. 381, 58 N". -w. 335) iq^ CASES CITED. [BEFEREKCES ABE Auditor-Gen. vs Longyear (1896, 110 Mich. 223, 68 N. W. 130) 334. Auditor-Gen. vs Supervisors of Me- nominee County (1891, 89 Mich. 552, 51 N. W. 483) 21, 102, 110, 111, 301, 311. Augero vs Keen (1886, 1 M. & W. 390, 2 Gale, 8, 1 Tyr. & G. 709, 5 L. J. Ex. 233) 288. Aulanier vs The Governor (1846, 1 Tex. 653) 138, 301, 337, 429. Austrian vs Guy (1884, 21 Fed. 500) 69, 70. Ayers vs Lattimer (1894, 57 Mo. App. 78) 30, 33, 396. Ayers vs Moulton (1878, 51 Vt. 115) 328. B. Baca vs. Parker (1906, 13 N. Mex. 466, 87 P. 465) 440. Badeau vs United States (1888, 130 U. S. 439, 9 Sup. Ct. R. 579) 240. Badger vs United States (1876, 93 U. S. 599) 121. Bailey vs Fisher (1874, 38 Iowa, 229) 301. Bailey vs ilanasquan (1890, 53 N. J. L. 162, 20 A. 772) 336. Baisley vs Baisley (1887, 15 Or. 183, 13 P. 888) 416a. Baker, In re (1855, 11 How. Pr. (N. Y.) 418) 209, 431, 435. Baker vs Baldwin (1880, 48 Conn. 131) 286. Baker vs Hobgood (1900, 126 N. C. 149, 35 S. E. 253) 77, 79, 302, 348. Baker, City of, vs Murphy (1895, 30 Or. 405, 42 P. 133, 35 L. R. A. 88) 293. Baker vs Shephard (1851, 24 N. H. 208) 429. TO SECTIONS] Baker vs State (1887, 69 Wis. 32, 33 N. W. 52) 174, 410. Baker vs State (1891, 80 Wis. 416, 50 N: W. 518) 422. Baker vs Wambaugh (1884, 99 Ind. 312) 409, 446. Baker vs Webber (1907, 102 Me. 414, 67 A. 144) 327. Ball vs United States (1890, 140 U. S. 118, 11 Sup. Ct. 761, 35 L. Ed. 377) 119, 186, 410. Ballard vs Thompson (1899, 21 Wash. 669, 59 P. 517) 297. Bamford vs Ilea (1849, 3 Ex. R. 380, 18 L. J. M. C. 49) 288. Bank of Mount Pleasant (1831, 5 Ohio 250) 461. Bank of North America vs McCall (1812, 4 Binn. (Pa.) 371) 398. Bansemer vs Mace (1862, 18 Ind. 27, 81 Am. Dec. 344) 131, 318. Banton vs Wilson (1849, 4 Tex. 400) 442. Barclay vs Plant (1869, 50 Ala. 509) 402. Barker vs Munroe (1834, 4 Dev. (N. C.) 412) 286. Barlow, In re (1861, 30 L. J. Q. B. 271, 5 L. T. 289) 441. Barlow vs Stanford (1876, 82 111. 298) 102, 123, 318. Barnes vs Adams (2 Bart. El. Cas. 760) 361. Barnes vs Barnes (1834, 6 Vt. 388) 70. Barnes vs Supervisors (1875, 51 Miss. 305) 367. Barnum vs Oilman (1881, 27 Minn. 466, 38 Am. R. 304) 462. 463. Barrett vs Reed (1826, 2 Ohio 409) 270. Barrett vs Sayer (1890, 34 N. Y. St. R. 325, affirmed 58 Hun (N. Y.) 608, 12 N. Y. S. 170) 124, 313a, 434. Bartley vs Phillips (1888-, 114 Ind. 189, 16 N. E. 508) 416. CASES CITED. [eeferences are to sections] Bartley vs State (1898, 53 Neb. 310, 73 N. W. 744) 258. Atty.-Gen. vs Sullivan (1895, 163 Mass. 446, 40 N. E. 843, 28 L. R. A. 452) 452, 461, 462, 463. Barton vs Latourette (1891, 55 Ark. 81, 17 S. W. 588) 330. Bassett vs Porter (1849, 4 Cush. (Mass.) 487) 70. Bates vs Dwyer (1848, 9 Humph. (Tenn.) 162) 158, 318. Bates vs Wilson (1890, 14 Col. 140, 24 P. 99) 66. Bath Commissioners vs Boyd (1840, 23 N. C. (1 Ired. L.) 194) 72. Bath vs Haverhill (1823, 2 N. H. 555) 154. Batman vs Megowan (1859, 1 Met. (Ky.) 533) 459. Batterton vs Fuller (1894, 6 S. Dak. 257, 60 N. W. 1071) 164. Baxter vs Brooks (1874, 29 Ark. 173) 219, 458. Beal vs Bass (1894, 86 Me. 325, 29 A. 1088) 66. Bean vs Thompson (1848, 19 N. H. 290, 49 Am. Dec. 154) 329. Bearce vs Fossett (1852, 34 Me. 575) 267. Beard vs Cameron (1819, 3 Murph. (7 N. C.) 181) 422. Beard vs Decatur (1885, 64 Tex. 7, 7 Am. & Eng. Corp. Cas. 145) 219, 220, 223. Beaty vs Knowler (1830, 4 Pet. (U. S.) 152) 323. Beaumont vs Samson (1907, 5 Cal. App. 491, 90 P. 839) 438. Becker vs People (1895, 156 111. 301, 40 N. E. 944 affirming 1894, 55 111. App. 285) 123, 405. Bedard vs Verret (1904, 25 Que. R. (S. C.) 537) 456. Bedford vs Rice (1878, 58 N. H. 446) 312. Bedingfield vs First National Bank (Ga., 1908, 61 S. E. 30) 416a. Beebe vs Robinson (1875, 52 Ala. 66, overruling Bruner vs Bryan (1874, 50 Ala. 522) 206, 337. Behan vs Davis (1892, 3 Ariz. 399; s. c. sub. nom. Behan vs Prison Comm'rs 1892, 31 P. 521) 186, 238, 239. Behrensmeyer vs Kreitz (1891, 135 ni. 591, 26 N. E. 704) 367. Belfast, In re (1842, Bar. & Aus. El. Cas. 553) 352. Belfast vs Morrill (1876, 65 Me 580) 174, 205, 301, 313a. Bell vs Faulkner (1892, 84 Tex. 187, 19 S. W. 480) 366. Bell vs State (Miss. 1905, 38 So. 795) 422. Bennett vs Chapman (1 Bart. El. Cas. 204) 363, 365. Bennett vs Colfax (1880, 53 Iowa, 687, 6 N. W. 36) 77, 304, 313a. Bennett vs State (1880, 58 Miss. 556) 143, 150, 284. Benson vs People (1897, 10 Col. App. 175, 50 P. 212) 474. Bentley vs Phelps (1858, 27 Barb. (N. Y.) 524) 139, 203, 254. Bergeron vs Hobbs (1897, 96 Wis. 641, 71 N. W. 1056, 65 Am. St. R. 85) 64, 68. Bernier vs Becker (1881, 37 Ohio St. 72) 316. Berry vs Hart (1871, 1 Col. 246) 301, 305. Berryman vs Wise (1791. 4 Term. (D. & E.) 366) 12, 102. 109. Bibb vs Avery (1871, 45 Ala. 691) 402. Bibb vs Hall (1893, 101 Ala. 79, 14 So. 98) 68. Bieneourt vs Parker (1864, 27 Tex 558) 92, 102, 108, 126, 162. Bier vs Gorrell (1887, 30 W. Va. 95, 3 S. E. 30, 8 Am. St. R. 17) 229, 231. CASES CITED. [itEFEIIENCES ABE Bigelow vs Bridge (1811, 8 Mass. 275) 289. Bilbie vs Lumley (1802, 2 East, 469, 6 R. R. 479) 240. Bilderback vs Freeholders of Salem County (1899, 63 N. J. L. 55, 42 A. 843) 438. Billings vs Dunav^'ay (1893, 54 Mo. App. 1) 64. Billingsley vs State (1859, 14 Md. 369) 251, 279. Birch vs Fisher (1825, 13 S. & R. (Pa.) 208) 337. Bird vs Perkins (1875, 33 Mich. 28) 64. Bishop vs Fuller (1907, 78 Neb. 259, 110 N. W. 715) 91. Bishop vs McGillis (1891, 80 Wis. 575, 50 N. W. 779) 89. Black vs Early (1907, 208 Mo. 281, 106 S. W. 1014) 58, 64, 340. Blackburn vs Oklahoma City (1893, 1 Okla. 292, 33 P. 708) 29, 50, 61. Blackburn vs State (1859, 3 Head. (Tenn.) 690) 154, 422. Blackman vs State (1859, 12 Ind. 556) 321. Blagrave vs Woods (1591, 1 Leon. 227) 412. Blain vs Chippewa Circuit Judge (1906, 145 Mich. 59, 108 N. W. 440) 80, 93, 124, 180, 207. Blair vs Barrett (1 Bart. El. Cas. 313) 361. Blake vs Sturtevant (1842, 12 N. H. 567) 267. Bland & Giles Judge Case (1880, 33 Gratt. (Va.) 443) 452, 473. Bledsoe vs Colgan (1902, 138 Cal. 34, 70 P. 924) 227. Bliss vs Day (1878, 68 Me. 201) 138, 318. Bloomfield vs Pierson (1885, 47 X. J. L. 247) 336. TO SECTIONS] Blore vs Bd. of Chosen Freeholders (1900, 64 N. J. L. 262, 45 A. 633, 81 Am. St. R. 495) 236, 237. Blydenburgh vs Comm'rs of Car- bon County (1899, 8 Wyo. 303, 56 P. 1106) 227. Board of Administrators vs Mc- Kowen (1896, 48 La. Ann. 251, 19 So. 328, 55 Am. St. R. 275) 297. Board of Aldermen of Denver vs Darrow (1889, 13 Col. 460, 22 P. 784) 439. Board of County Commissioners vs Sullivan (1905, 94 Minn. 201, 102 N. W. 723) 120. Board of Education vs Holt (1903, 54 W. Va. 167, 46 S. E. 134) 440, 451. Board of Education of S. Milvrau- kee vs State (1898, 100 Wis. 455, o. e. sub nom. State vs Bd. of Education of S. Milwaukee, 76 N. W. 351) 442, 444. Boardman vs Halliday (1843, 10 Paige (N. Y.) 223) 77, 120. Bodmin, In re (1791, 2 Fras. 236) 6, 7, 350. Boehme vs Monroe (1895, 106 Mich. 401, 64 N. W. 204) 175, 334. Bohannon vs State (1892, 89 Ga. 451, 15 S. E. 496) 119. Boileau, In re (1845, 2 Pars. Eq. Cas. (Pa.) 503, Brightly Elec. Cas. 268) 366, 367, 368. Bolt vs Riordan (1889, 73 Mich. 508, 41 N. W. 482) 473. Bon Aqua Improvement Co. vs Standard Fire Insurance Co. (1891, 34 W. Va. 764, 12 S. E. 771) 66. Bonner vs State (1849, 7 Ga. 473) 442. Booker vs Donohoe" (1897, 95 Va. 359, 28 S. E. 584) 229. CASES CITED. [references are Boone County vg Jones (1880, 54 Iowa 699, 37 Am. Rep. 229) 279, 281. Borden vs Houston (1847, 2 Tex. 594) 278, 279. Borough of Flemington, In re (1895, 168 Pa. St. 628, 32 A. 86) 66. Botts vs Crenshaw (1868, 3 Fed. Cas. (No. 1690) 976) 404. Boucher vs Wiseman (1595, Cro. Eliz. 440) 286. Bow vs Allenstown (1857, 34 N. H. 351, 69 Am. Dec. 489) 70, 72. Bowell vs Millbank (1772, 1 Term. (D. & E.) 399, n.) 433. Bowler vs Brown (1892, 84 Me. 376, 24 A. 879) 327. Bownes vs Jleehan (1883. 45 N. J. L. 189) 347. Boyd vs Bobcaygeon (1878. 43 U. C. Q. B. 35) 59. Boyer vs Fowler (1860, 1 Wash. Terr. 119) 29, 30. Boyle, In re (1859, 9 Wis. 264) 177, 317, 405, 410, 430, 435. Boyter vs Dodsworth (1796, 6 Term. (D. & E.) 681) 230, 433. Bradford vs Territory (1893, 1 Okla. 366, 34 P. 66) 455. Bradley, Matter of (1894, 141 N. Y. 527, 36 N. E. 598, 57 St. Rep. 816, affirming 49 St. Rep. 530) 209, 431. Bradley vs Georgetown (1904, 26 Ky. Law R. 614, 82 S. W. 303) 224, 225. Brady vs Howe (1874, 50 Miss. 607) 178, 348, 473. Brady vs Sweetland (1874, 13 Kan. 41) 207, 446. Braidy vs Theritt (1877, 17 Kan. 468) 80, 92. Brandenstein.vs Hoke (1894, Cal. 131, 35 P. 562) 52, 64. TO SECTIONS] Brearton, Matter of (1904, 44 Misc. (N. Y.) 247, 89 N. Y. S. 893) 431. Brenan, In re (1842, 6 U. C. Q. B. (O. S.) 330) 441. Brennan vs Weatherford (1880, 53 Tex. 330, 37 Am. R. 758) 64. 66, 70. Brenner, Matter of (1902, 170 N. Y. 185, 63 N. E. 133) 209. Breslin vs Quinn (1888, 2 X. Y. S. 577) 206. Brewster vs Hyde (1834, 7 X. 11. 206) 267. Briggs vs Voss (1906, 73 Kan. 41S. 85 P. 571) 416. Brinkerhoff vs Jersey City (1900, 64 N. J. L. 225, 46 A. 170) 74. 237. 347. Britton vs Steber (1876, 62 JIo 370) 438. Broking vs Van Valen (1893, 56 X. J. L. 85, 27 A. 1070) 72. Brooke vs Filer (1871, 35 Ind. 402) 404. Brooks vs Rooney (1852. 11 Ga. 423, 56 Am. Dec. 430) 318. Brown vs Atlanta Ry. & Power Co. (1901, 113 Ga. 462, 39 S. E. 71) 67. Brown vs Flake (1897, 102 Ga. 528, 29 S. E. 267) 186, 339. Brown vs Goben (1890. 122 Ind. 113, 23 N. C. 519) 472. Brown vs Jeffries (18S9, 42 Kan. 605, 22 P. 578) 455. Brown vs Lattimer (1860. 17 Cal. 93) 289. Brown vs Lunt (1854, 37 Me. 423) 102, 113, 119, 316, 405. Brown vs O'Connell (1870, 36 Conn. 432, 4 Am. Rep. 89) 186. 193, 196. Brown vs State (1901, 42 Tex. Crim. R. 417. 60 S. W. 548, 96 Am. St. R. 806) 136, 139, 214. CASES CITED. [KEFEKENCES ABE Brown vs State (1902, 43 Tex. Crim. R. 411, 66 S. W. 547) 105, 136, 214. Brown vs Taiua County (1904, 122 Iowa 745, 98 N. W. 562) 224. Browne vs Gear (1899, 21 Wash. 147, 57 P. 359) 439a. Brumby vs Boyd (1902, 28 Tex. Civ. App. 164, 66 S. W. 874) 79, 92, 190. Bryan vs Walton (1853, 14 Ga. 185) 109. Buck vs Eureka (1895, 109 Cal. 504, 42 P. 243) 40, 43, 45, 241, 252. Buckman vs Ruggles (1818, 15 Mass. 180, 8 Am. Dec. 98) 136, 318. Buckner vs Veuve (1883, 63 Cal. 304, 3 P. 862) 264, 440. Buffalo vs Mackay (1878, 15 Hun. (N. Y.) 204) 429. Buis vs Cooper (1895, 63 Mo. App. 196) 176, 318. BuUene vs Garrison (1878, 1 Wash. Terr. 587) 316. Bumsted vs Blair (1906, 73 N. J. L. 378, 64 A. 691) 438. Burditt vs Barry (1876, 6 Hun. (N. Y.) 657) 266. Burgess vs Davis (1891, 138 111. 578, 28 N. E. 817) 446, 473. Burgess vs Pue (1844, 2 Gill. (Md.) 11) 187, 338. Burke, In re (1890, 76 Wis. 357, 45 N. W. 24) 422, 435. Burke vs Cutler (1889, 78 Iowa 299, 43 N. W. 204) 109, 339. Burke vs Edgar (1885, 67 Cal. 182, 7 P. 488) 236. Burke vs Elliott (1844, 4 Ired. L. (N. C.) 355, 42 Am. Dec. 142) 88, 102, 108, 109, 301, 318. Burke vs Leland (1892, 51 Minn. 355, 53 N. W. 716) 446, 451. Burnham vs Rogers (1902, 167 Mo. 17. 66 S. W. 970) 70. TO SECTIONS] Burr vs Norton (1856, 25 Conn. 103) 431. Burrall vs Acker (1840, 23 Wend. (N. Y.) 606, 35 Am. Dec. 582) 89. Burt vs Winona etc. R. Co. (1884, 31 Minn. 472, 18 N. W. 285, 4 Am. & Eng. Corp. Cas. 426) 29, 37, 396. Burton vs Patton (1854, 2 Jones L. (N. C.) 124, 62 Am. Dec. 194) 110. Burton vs Schildbach (1S81, 45 Mich. 504, 8 N. W. 497) 67. Bush vs Glover (1872, 47 Ala. 167) 402. Butcher's Bank vs McDonald (1881, 130 Mass. 264) 68. Butler vs Callaghan (1895, 4 N. Dak. 481, 61 N. W. 1025) 124. Butler vs Pennsylvania (1850, 10 How. (U. S.) 402) 19. Butler vs Phillips (1907, 38 Col. 378, 88 P. 480) 200, 405, 422, 424. Butler vs State (1863, 20 Ind. 169) 292. Butler vs Walker (1893, 98 Ala. 358, 13 So. 261, 39 Am. St. R. 61) 174, 312. Byer vs Harris (N. J. 1909, 72 A. 136) 409, 438. Byrne vs State (1874, 50 Miss. 688) 278. Byrnes vs St. Paul (1899, 78 Minn. 205, 80 N. W. 959, 79 Am. St. .R. 384) 220. Cain vs Brown (1897, 111 Mich. 657, 70 N. W. 337) 466. Caldwell vs Barrett (1903, 71 Ark. 310, 74 S. W. 748) 29, 396. Caldwell Administrator vs Bell (1845, 6 Ark. 227) 416, 451, 461, 462. CASES CITED. [eefeeexces aee Caldwell vs High (Dist. Ct. 1881, 6 Wkly. Law Bui. 201) 410. Caldwell vs Wilson (1897, 121 N. C. 480, 28 S. E. 554, 61 Am. St. E. 672) 474. Call, Ex p. (1877, 2 Tex. App. (Crim. Cas.) 497) 151, 162, 407, 435. Callaghan vs Irvin (1905, 40 Tex. Civ. App. 453, 90 S. W. 335) 446. Callaghan vs Tobin (1905, 40 Tex. Civ. App. 441, 90 S. W. 328) 446. Calloway vs Pearson (1890, 6 Man. 364) 446, 447. Calloway vs Sturm (1870, 1 Heisk. (Tenn.) 764) 179, 186. Camden, City of, vs Greenwald (1900, 65 X. J. L. 458, 47 A. 458) 289, 296, 298. Cameron, In re Assessment of (1881, 14 Nov. Scot. (2 R. & G.) 177) 436. Cameron, Ex p. (1868, 1 Han. (N. B.) 306) 451. Cameron vs Parker (1894, 2 Okla. 277, 38 P. 14) 209. Campbell vs Commonwealth (1880, 96 Pa. St. 344) 186, 405, 408. Campbell vs Wolf den (1876, 74 N. C. 103) 206. Canaseraga vs Green (1903, 88 N. Y. S. 539) 113, 176, 188, 333. Candee, Ex p. (1872, 48 Ala, 386) 141. Cardigan vs Page (1833, 6 N. H. 182) 329. Cardoza vs Baird (1907, 30 App. (D. C.) 86) 301. Cargar vs Fee (1889, 119 Ind. 536, 21 N. E. 1080) 416, 416a. Carland vs Custer (1885, 5 Mont. 579, 6 P. 24) 198, 314, 429. Carleton vs People (1862, 10 Mich. 250) 29, 171, 177, 429. TO SECTION'S] Carlisle vs Saginaw (1890, 84 Mich. 134, 47 N. W. 444) 313. Carothers vs Seott (1817, Tappan (Ohio) 227) 270. Carpenter vs People (1876, 64 N. y. 483) 320. Carroll vs Sienbenthaler (1869, 37 Cal. 193) 219, 227, 235. Carter vs Prior (1883, 78 Mo. 222) 416. Carter vs State (1884, 43 Ark. 132) 123, 318. Carthage, City of vs Burton (Tex. Civ. App. 1908, 111 S. W. 440) 64. Cary vs State (1884, 76 Ala. 78) 102, 113, 119. Case vs Hall (1859, 21 111. 632) 266. Case vs State (1879, 69 Ind. 46) 89, 166, 277. Case vs Wresler (1855, 4 Ohio St. 561) 112, 313a. Casey vs Galli (1876, 94 U. S, 673) 68. Cate vs Furber (1875, 56 N. H. 224) 468. Cavis vs Robertson (1838, 9 N. H. 524) 136, 269, 272. Cawley vs Branchflower (1884, 1 B. C. (Part 2) 35) 11, 301. Central etc. Association vs Ala- bama etc. Co. (1881, 70 Ala. 120) 68. Central, City of vs Sears (1875, 2 Col, 588) 121, Chambers vs Adair (1901, 110 Ky. 942, 23 Ky, Law R, 373, 62 S, W, 1128) 177, 429, Chambers vs Jennings (1702, 2 Salk. 553) 440. Chambers vs Stringer (1S7S, 62 Ala. 596) 431. Chandler vs Attica (1883, 13 Abb. N. C. (N. Y.) 153) 313. CASES CITED. [EEFERENCES AKE Chandler vs Hughes County (1896, 9 S. Dak. 24, 67 N. W. 946) 224, 225. Chandler vs Starling (N. D. 1909, 121 X. W. 198) 443. Chandler vs Wartman (1883, 6 N. J. L. J. 301) 164. Chaplin vs School Board of Wood- stock (1889, 16 0. R. 728) 145, 206, 447, 451, 464, 473. Chapman vs Commonwealth (1875, 25 Gratt. (Va.) 721) 278. Chapman vs State (1897, 37 Tex. Crlm. R. 167, 39 S. W. 113) 368. Chase vs Miller (1862, 41 Pa. St. 403) 439a. Cheevers vs Duffel (1880, 32 La. Ann. 649) 29, 30. Chelmsford vs Demarest (1856, 7 Gray (Mass.) 1) 287, 295. Chesshire vs People (1886, 116 111. 493) 473. Chicago vs Bullis (1905, 124 111. App. 7) 439a. Chicago vs Burke (1907, 226 111. 191, 80 N. E. 720, reversing 127 111. App. 161) 29, 107, 246. Chicago vs Gage (1880, 95 111. 593) 284. Chicago &c. Ry. Co. vs Langlade County (1883, 56 Wis. 614, 14 N. W. 844) 29, 188, 194, 340. Chicago vs People (1875, 80 111. 496) 462. Chiles vs State (1885, 45 Ark. 143) 110. Chipping Sudbury Grammar School, In re (1829, 8 L. J. (0. S.) Ch. 13) 448. Chisholm vs Coleman (1869,- 43 Ala. 204, 94 Am. Dec. 678) 42. Choisser vs York (1904, 211 111. 56, 71 N. E. 940) 174, 365. TO SECTIONS] Chowning vs Boger (1885, £ Tex. App. Ct. (Civ. Cas.) 650, 9 Am. & Eng. Corp. Cas. 91) 73, 75, 178, 229, 231. Christian vs Gibbs (1876, 53 Miss. 314) 236. Chubb vs Upton (1877, 95 U. S. 665, 24 L. Ed. 523) 66, 68. Chubbuck vs Wilson (1907, .151 Cal. 162, 90 P. 524) 219, 229. Chumasero vs Potts (1875, 2 Mont. 242) 242. Churchill vs Walker (1882, 68 Ga. 681) 464. Cincinnati vs Gas Light Co. (1895, 53 Ohio St. 278, 41 N. E. 239) 240. Citizens' Bank vs Bry (1848, 3 La. Ann. 630) 136, 301. Claridge vs Evelyn (1821, 5 B. & Aid. 81. 24 R. R. 289) 164. Clark vs Commonwealth (1858, 29 Pa. St. (5 Casey) 129) 91, 196, 410, 424, 435, 451. Clark vs Easton (1888, 146 Mass. 43, 14 N. E. 795) 29, 307. Clark vs Ennis (1883, 45 N. J. L. 69) 137, 140, 143, 149, 318. Clark vs Hall (1 Bart. El. Cas. 215) 361. Clark vs People (1853, 15 111. 213) 472. Clark vs Stanley (1872, 66 N. C. 59) 15. Clerk vs Withers (1705, 2 Ld. Ry. 1072, 6 Mod. 290) 286. Cleveland vs McCanna (1898, 7 N. D. 455, 75 N. W. 90S, C6 Am. St. R. 670, 41 L. R. A. 852) 429. Clitheroe Case, In re (1693, 11 Jour. 77) 352. Coast Co. vs Spring Lake (1896, 56 N. J. Eq. 615, 36 A. 21) 57. Cobb vs Hammock (1907, 82 Ark. 584, 102 S. W. 382) 236. CASES CITED. [EEFEEENCES AEE TO SECTIONS] Cochran vs McCIeary (1867, 22 Iowa 75) 206, 429. Cocke vs Halsey (1842, 16 Peters (U. S.) 71, 10 L. Ed. 891) 179, 316. Cockerham vs State (Miss. 1895, 19 So. 195) 176. Coe vs Gregory (1884, 53 Mich. 19, 18 N. W. 541) 64, 72. Coffin vs State (1855, 7 Ind. 157) 19. Cohn vs Beal (1883, 61 Miss. 398) 77. Coit vs Wells (1829, 2 Vt. 318) 328. Colchester Case, In re (1789, 1 Peck. 503) 353. Cole vs Black River Falls (1883, 57 Wis. 110, 14 N. W. 906) 29, 202, 314. Cole vs Dyer (1859, 29 Ga. 434) 468. Coler vs Dwight School Tp. (1893, 3 N. D. 249, 55 N. W. 587) 59. Coles County vs Allison (1860, 23 III. 437) 177. Collins, In re (1902, 75 N. Y. App. Div. 87, 77 N. Y. S. 702) 107, 166. Collins vs Brown (12 Ky. Law R. 469) 317. Collins vs Huff (1879, 63 Ga. 207) 366, 464. Collins vs Masden (1903, 25 Ky. Law R. 81, 74 S. W. 720) 366. Coltharp vs Holmes (1891, 43 La. Ann. 1185, 10 So. 172) 233. Colton vs Beardsley (1860, 38 Barb. (N. Y.) 29) 203, 270. Colton vs Price (1874, 50 Ala. 424) 446. Comanche County vs Lewis (1890, 133 U. S. 198, 10 Sup. Ct. 286, 33 L. Ed. 604, affirming 35 Fed. 343) 7L Commercial Bank of Augusta vs Sandford (1900, 103 Fed. 98) 175, 337. Com. vs Adams (1860, 60 Ky. (3 Mete.) 6) 264. Com. vs Allen (1880, 128 Mass 308) 451, 461, 469. Com. vs Allen (1872, 70 Pa. St. 465) 473. Com. vs Arnold (1823, 3 Litt. (Ky.) 309) 136, 176, 317. Com. vs Athearn (1807, 3 Mass. 285) 466, 469. Com. vs Birchett (1816, 2 Va. Cas. 51) 469. Com. vs Bunn (1874, 10 Phila. 162, 31 Leg. Int. 340) 464. Com. vs Burrell (1847, 7 Pa. St. 34) 463. Com. vs Bush (Ky., 1909, 115 S. W. 249) 25, 264. Com. vs Clemmer (1899. 190 Pa. St. 202, 42 A. 675) 320. Com. vs Cluely (1867, 56 Pa. St. 270, 94 Am. Dec. 75) 463, 464, 465. Com. vs Cullen (1850, 13 Pa. St. 133, 53 Am. Dec. 450) 472. Com. vs Fairfax (1809, 4 Hen. &. M. (Va.) 208) 298. Com. vs Fletcher (1897, 180 Pa- st. 456, 36 A. 917) 464. Com. vs Garrigues (1857, 28 Pa. St. 9, 70 Am. Dec. 103) 459. Com. vs Gibbons (1900, 196 Pa. St. 97, 46 A. 313) 444. Com. vs Hawkes (1877, 123 Mass. 525) 473. Com. vs Jones (1849, 12 Pa. St. 365) 464, 468. Com. vs Kirby (1849, 56 Mass. (2 Cush.) 577) 170, 274, 405. Com. vs Lecky (1832, 1 Watts (Pa.) 66, 26 Am. Dee. 37) 435. Com. vs Leech (1863, 44 Pa. St. 332) 458. CASES CITED. 1 REFERENCES ARE Com. vs McCarter (1881, 98 Pa. St. 607) 464, 465, 467, 468. Com. vs McCombs, 1867, 56 Pa. St. 436) 39. Com. vs McWilliams (1849, 11 Pa. St. 61) 473. Com. vs Messer (1863, 44 Pa. St. 341) 458, 464. Com. vs Philadelphia County Comm'rs. (1851, 2 Pars. Eq. Cas. (Pa.) 220) 442. Com. vs Reigart (1826, 14 S. & R. (Pa.) 216) 466. Com. vs Rupp (1839, 9 Watts (Pa.) 114) 254. Com. vs Saulsbury (1893, 152 Pa. St. 554, 25 A. 610) 259. Com. vs Slifer (1855, 25 Pa. St. 23, 64 Am. Dec. 680) 236. Com. vs Smith (1863, 45 Pa. St. 59) 466. Com. vs Swank (1875, 79 Pa. St. 154) 463. Com. vs Swasey (1882, 133 Mass. 538) 472. Com. vs Taber (1877, 123 Mass. 253) 409. Com. vs Teal (1853, 14 B. Mon. (Ky.) 29) 283. Com. vs Valsalka (1897, 181 Pa. St. 17, 37 A. 405) 320. Com. vs Walter (1876, 83 Pa. St. 105, 24 Am. R. 154) 452, 461. Com. vs Woleott (1852, 10 Cush. (Mass.) 61) 264. Com. vs Wotton (Mass. 1909, 87 N. B. 202) 12, 260, 301. Comstock vs City of Grand Rap- ids (1879, 40 Mich. 397) 220, 234. Conlin vs Aldrich (1868, 98 Mass. 557) 442. Conner's Case, See Conner vs New York. Conner vs New York (1851, 5 N. Y. 285, 2 Sand. 355) 19, 221. TO SECTIONS] Conover's Case (1857, 5 Abb. Pr. (N. Y.) 73) 205, 209. Conover vs Devlin (1857, 15 How. Pr. (N. Y.) 470, 6 Abb. Pr. 228) 78, 79, 108, 266. Contant vs Chapman (1842, 2 Q. B. 771) 249a. Convery vs Conger (1891, 53 N. J. L. 658, 22 A. 549) 456. Conway vs Bd. of Aldermen (1869, 2 Brewst. (Pa.) 134) 365. Conway vs St. Louis (1881, 9 Mo. App. 488) 302. Cook vs Oliver (1870, 1 Woods (U. S.) 437) 403, 404. Cook vs State (1891, 91 Ala. 53, 8 So. 686) 122, 317. Cook vs State (1891, 90 Tenn. 407, 16 S. W. 471) 365. Cooke vs Hall (1844, 6 111. 575) 109, 316. Coolidge vs Brigham (1861, 83 Mass. (1 Allen) 333) 91, 410. Cooper vs Moore (1870, 44 Miss. 386) 409, 429, 446. Corey vs Borough of Edgewood (Pa. Com. PI. 1901, 31 Pittsb. Leg. J. (N. S.) 299) 58. Corey vs Morrill (1889, 61 Vt. 598, 17 A. 840) 66. Corrigan, In re (1877, 37 Mich. 66) 410, 435. Corum, In re (1900, 62 Kan. 271, 62 P. 661, 84 Am. St. R. 382) 119, 151, 162, 429. Costard vs Winder (1600, Cro. Eliz. 775, 78 Eng. R. 1005) 6, 152, 301. Cotter vs Sutherland (1858, 18 U. C. C. P. 357) 323. Coughlin V9 McElroy (1902, 74 Conn. 397, 50 A. 1025, 92 Am. St. R. 224) 224, 229. County Commissioners vs County Commissioners (1878, 50 Md. 245) 46. xl CASES CITED. [eefbkences ake to sections] County Courts of British Colum- bia, In re (1892, 21 Can. Sup. Ct. 446) 425, 427. County Life Assurance Co., In re (1870, L. E. 5 Cliy. App. 288, 39 L. J. Ch. 471, 22 L. T. 537, 18 W. E. 390) 6, 74. Courser vs Powers (1861, 34 Vt, 517) 267. Cox vs Houston &c. Ry. Co. (1887, 68 Tex. 226, 4 S. W. 455) 110, 112. Cox vs State (1879, 64 Ga. 374, 37 Am. Rep. 76) 320, 416a. Cox vs Thomas (1852, 9 Gratt. (Va.) 312) 278. 'Coxe vs State (1895, 144 N. Y. 396, 39 N. E. 400) 57. doyle vs Commonwealth (1883, 104 Pa. St. 117) 55. Coyle vs Sherwood (1874, 1 Hun (N. Y.) 272, 4 Thomp. & C. 34) 405, 409, 438. Cozart vs Fleming (1898, 123 N. C. 547, 31 S. E. 822) 446. 'Craig vs Norfollt (1675, 1 Mod. 122, 86 Eng. R. 780) 24, 230. Crawford vs Dunbar (1877, 52 Cal. 36) 164. Crawford vs Howard (1851, 9 Ga. 314) 137, 143, 284. Crawford vs Lawrence (1900, 154 Ind. 288, 56 N. E. 673) 416, 435. ■Creighton vs Commonwealth (1885, 83 Ky. 142, 4 Am. St. R. 143) 143, 150, 151, 213, 215. ■Creighton vs Piper (1860, 14 Ind. 182) 170, 204, 205, 429. ■Crew vs Vernon (1628, Cro. Car. 97, 79 Eng. R. 686) 116. Crieklade Case, In re (1689, 10 Jour. 72, 73) 355. Crieklade Case, In re (1775, 1 Doug. El. Cas. 293) 355. 'Cripple Creek vs People (1904, 19 Colo. App. 399, 75 P. 603) 442. Cromer vs Boinest (1887, 27 S. C. 436, 3 S. E. 849) 109, 113, 114, 122, 422. Cronin vs Gundy (1879, 16 Hun (N. Y.) 520) 76, 141. Cronin vs Stoddard (1884, 97 N. Y. 271) 76, 302. Crookshank vs MacFarlane (1853, 7 N. B. 544) 11, 135, 301, 413, 422. Crosbie vs Hurlie (1833, 1 Al. & Nap. (Ireland) 431) 219, 230, 231. Crovatt vs Mason (1897, 101 Ga. 246, 28 S. E. 891) 451, 464, 472. Cro well vs Lambert (1865. 10 Minn. 369) 209, 431. Crusin vs Whitley (1857, 19 Ark. 99) 416. Crutchfield vs Hewett (1894, 2 App. Cas. (D. C.) 373) 316. Culbertson vs City of Galena (1845, 7 in. (2 Gill.) 129) 408. Cullins vs Overton (1898, 7 Okla. 470, 54 P. 702) 42, 70, 399. Culver vs Eggers (1869, 63 X. c. 630) 429. Cummings vs Clark (1843, 15 Vt. 653) 266, 307. Curling vs Chalklen (1815, 3 M. & S. 502) 288. Curran vs Norris (1885, 58 Mich. 512, 25 N. W. 500) 209. Currey vs Wright (1882, 77 Tenn. (9 Lea.) 247) 233. Curtin vs Barton (1893, 139 N. Y. 505, 34 N. E. 1093) 196, 406, 409. Curry, Ex p. (1898, 1 Can. Ci-im. Cas. 532) 11, 129, 135, 413, 417, 420, 422, 435. Curry vs Wright (1888, 86 Tenn. 636. 8 S. W. 593) 277, 299. Cushing vs Frankfort (1868. 57 Me. 541) 174. Cushwa vs Lamar (1898, 45 W. Va. 326, 32 S. E. 10) 439a. CASES CITED. xli [BEFHIiENCES ARE Cuthbert vs Brooks (1873, 49 Ga. 179) 293. Cntts vs Scandrett (1899, 108 Ga, 620, 34 S. E. 186) 458. Cuyler vs Ferrill (1867, 6 Fed. Cas. (No. 3523) 1088, 1 Abb. (U. S.) 169) 404. D. Dabney vs Hudson (1890, 68 Miss. 292, 8 So. 545, 24 Am. St. E. 276) 115, 302, 422. Dacres Case (Lord) (1584, 1 Leon. 288, 74 Eng. R. 263) 6, 183. Dane vs State (1896, 36 Tex. Cr. R. 84, 35 S. W. 661) 139, 175, 319. Daniel vs Hutcheson (1893, 4 Tex. Civ. App. 239, 22 S. W. 278) 29, 30, 125, 396. Daniels vs Newbold (1904, 125 Iowa, 193, 100 N. W. 1119) 438. Daniels vs Towers. (1887, 79 Ga. 785, 7 S. E. 120) 435. Darley vs The Queen (1845, 12 CI. & Finn. 520) 16, 18, 451, 461, 465, 470. Darlington vs La Clede County (1877, 6 Fed. Cas. (No. 3577) 1191, 4 Dill. 200) 66. Darrow vs People (1885, 8 Col. 417, 8 P. 661) 164, 301, 459. 464. Daugars vs Rivaz (1859, 28 Beav. 233, 29 L. J. Ch. 685, 6 Jur. (N. S.) 854, 8 W. R. 225) 448. Dauphin County Election, In re (Pa. 1874, 11 Phila. 645, 32 Leg. Inst. 59) 366. Davenport vs Davenport (1906, 116 La. 1009, 41 So. 240) 106, 109, 132, 137, 316. Davenport vs' Elrod (1906, 20 S. Dak. 567, 107 N. W. 833) 440. Davidson vs State (1893, 135 Ind. 254, 34 N. E. 972) 170, 316. TO SECTIONS] Davis vs City Council of Dawson (1893, 90 Ga. 817, 17 S. E. 110) 446. Davis vs Davis (1894, 57 N. J. L. 203, 31 A. 218) 264, 474. Davis vs State (1889, 75 Tex. 420, 12 S. W. 957) 472. Davis vs Stevens (1900, 104 Fed. 235) 64. Day vs Dolan (1899, 174 Mass. 524, 55 N. E. 3^4) 314. Dean vs Gleason (1862, 16 Wis. 1) 177, 340. Dean vs Gridley (1833, 10 Wend. (N. Y.) 254) 255. Dean vs Miller (1898, 56 Neb. 301, 76 N. W. 555) 466. Deane vs Sup'rs of Greene County (1884, 66 How. Pr. (N. Y.) 461) 221, 239. Decker vs Judson (1857, 16 N. Y. 439) 89. Decorah vs Bullis (1868, 25 Iowa, 12) 29. Decorah vs Gillis (1859, 10 Iowa, 234) 64. DeGrave vs Corp. of Monmouth (1830, 4 C. & P. Ill) 6, 301, 313a. Delage vs Germain (1886, 12 Que. LawR. 149) 456. Delano vs Morgan (2 Bart. EI. Cas. 168) 360. Delgado vs Chavez or Delgado, In re (1891, 5 N. Mex. 643, 25 P. 948, affirmed in 11 Sup. Ct. 874, 140 U. S. 586, 35 L. Ed. 578) 434, 442, 445, 451. Demarest vs New York (1895, 147 N. Y. 203, 41 N. E. 405, affirm- ing 1893, 74 Hun, 517, 26 N. Y. S. 585) 202, 224. Demarest vs Wickman (1875, 63 N. Y. 320) 463, 464. Dennings. vs Norris (1679, 2 Lev. 243) 411, 422. xlii CASES CITED. [EEFEKENCES ARE TO SECTIONS] Denny vs Mattoon (1861, 2 Allen (Mass.) 361, 79 Am. Dee. 784) 92. Denver vs Hobart (1874, 10 Nev. 28) 442. Denver Bd. of Aldermen vs Dar- row (1889, 13 Col. 460, 22 P. 784) 439. Desmond vs McCarthy (1864, 17 Iowa 525) 208, 431, 451. De Turk vs Commonwealth (1889, 129 Pa. St. 151, 'l8 A. 757) 212. Deuster vs Zillmer (1903, 119 Wis. 402, 97 N. W. 31) 124, 429. Devlin's Case (1857, 5 Abb. Pr. (N. Y.) 281) 203, 209,435. Dew vs Judges of Sweet Springs (1808, 3 Hen. & Mun. (Va.) 1, 3 Am. Dec. 639) 442, 444. De Witt vs Hastings (1876, 40 N. Y. Sup. Ct. 463) 62. De Wolfe vs AVatterson (1885, 35 Hun (X. Y.) Ill) 313a. Dial vs Hollandsworth (1894, 39 W. Va. 1, 19 S. E. 557) 181, 368. Dickens vs Barnes (1878, 79 N. C. 490) 88. Dickerson vs Butler (1887, 27 Mo. App. 9) 78, 235, 237, 432. Dickson vs People (1855, 17 III. 191) 162. Dienstag vs Pagan (1907, 74 N. J. L. 418, 65 A. 1011) 75, 77, 199. Digby vs Lord Stirling (1831, 8 Bing. 55, 1 M. & Scot. 116, 1 D. P. C. 248) 7. Diggs vs State (1873, 49 Ala. 311) 74, 178, 260. Dillon vs Meyers (1844, Bright (Pa.) 426) 203, 236. Dingwall vs Detroit (1890, 82 Mich. 568, 46 N. W. 938) 185, 189. Dishon vs Smith (1859, 10 Iowa, 212) 367. Dive vs Meningham (1550, Plowd. 60) 89. Dodd vs Weaver (1855, 2 Sneed (Tenn.) 670) 439a. Dodge vs Brooks (2 Bart. El. Cas. 78) 360. Doe d. Bowley vs Barnes (1846, 8 Q. B. 1037, 15 L. J. Q. B. 293, 10 Jur. 520) 12. Doe vs Donston (1818, 1 B. & Aid. 230, 19 R. R. 300) 286. Dolan vs New York (1877, 68 N. Y. 274, 23 Am. Rep. 168. 8 Hun 440) 186, 219, 220, 221, 224, 229, 232, 234, 236. Dolan vs People (1876. 64 X. Y. 485. affirming 6 Hun 493) 320. Dolan vs Topping (1893, 51 Kan. 321, 32 P. 1120) 175. Dolliver vs Parks (1884, 136 Mass. 499) 137, 151, 236. Donahue vs Will County (1881, 100 III. 94) 438. Donegan vs Wood (1873, 49 Ala. 242, 20 Am. R. 275) 92. 186. Donnelly vs Washburne (5 Cong. El. Cas. 466) 360. Donough vs Dewey (1890, 82 Mich. 309, s. c. sub nom. Donough vs HoUister, 46 N. W. 782) 39, 157, 194, 438. Dorsey vs Ansley (1884, 72 Ga. 460) 468. Dorsey vs Smyth (1865, 28 CaL 21) 219, 226. Dorsey vs Vaughan (1850, 5 La. Ann. 155) 318. Doty vs Gorham (1827, 5 Pick- (Mass.) 487, 16 Am. Dec. 417) 318. Douglas County vs Bolles (1876, 94 U. S. 104, 24 L. Ed. 46) 66. Douglas vs Neil (1872. 7 Heisk. (Tenn.) 437) 136, 138, 315. 317. Douglass vs State (1869, 31 Ind. 429) 229, 231. CASES CITED. xliii [REFEKENCES ARE Douglass vs Wickwire (1849, 19 Conn. 488), 97, 320. Dows vs Irvington (1883, 66 How. Pr. (N. Y.) 93, 13 Abb. N. C. 162) 131, 333. Draper vs Johnson (CI. & H. EI. Cas. 702) 360. Dredla vs Baache (1900, 60 Neb. • 655, 83 N. W. 916) 301, 409, 416. Dresden vs Goud (1883, 75 Me. 298) 322, 327. Drew vs The King (1902, 11 Que. R. (K. B.) 477, 6 Can. Crim. Cas. 241, affirmed 1903, 33 Can. Sup. Ct. E,. 228, 6 Can. Crim. Cas. 424) 10. Dryden vs Swinburne (1882, 20 W. Va. 89) 439a. Du Page County vs Jenks (1872, 65 111. 275) 335. Duane vs McDonald (1874, 41 Conn. 517) 174, 442. Duer vs Dashiell (1900, 91 Md. 660, 47 A. 1040) 442. Dugan vs Farrier (1885, 47 N. .J. L. 383, 1 A. 751, affirmed in Far- rier vs Dugan, 1886, 48 N. J. L. 613, 7 A. 881) 83, 110, 113, 151, 336, 348. Dummer vs Corporation of Chip- penham (1807, 14 Ves. Jun. 245, 33 Eng. R. 515) 448. Dunphy vs Whipple (1872, 25 Mich. 10) 141, 287. E. Eastman vs Householder (1894, 54 Kan. 64, 37 P. 989) 444. Easton vs Scott (CI. & H. El. Cas. 273) 360. Eaton vs Aspinwall (18B9, 19 N. Y. 119, affirming 13 How. Pr. 184) 66, 68. Eaton vs Harris (1868, 42 Ala. 491) 317. TO SECTIONS] Eaton vs Walker (1889, 76 Mich. 579, 43 N. W. 638, 6 L. R. A. 102, 27 Am. & Eng. Corp. Cas. 310) 49, 50, 52, 67, 69. Eddy vs Kincaid (1895, 28 Or. 537, 41 P. 157) 293, 294. Edelstein vs Fraser (1894, 56 N. X. J. L. 3, 28 A. 434) 472. Edison vs Alray (1887, 66 Mich. 329, 33 N. W. 509) 123. Edwards vs United States (1S80, 103 U. S. 471) 162. Eggleston vs Strader (2 Bart. El. Cas. 897) 361. Eldodt vs Territory of New Mexico (1900, 10 N. Mex. 141, 61 P. 105) 209. Eldred vs Sexton (1831, 5 Ohio, 216) 270. Election Board of Police vs Brockville (1833, 3 U. C. Q. B. (0. S.) 173) 441. Eliason vs Coleman (1882, 86 N. C. 235) 470. Elkin vs People (1841, 4 111. 207, 36 Am. Dec. 541) 286. Elliott vs Burke (1902, 113 Ky. 479, 68 S. W. 445, 24 Ky. Law R. 292) 124, 207. Elliott vs Willis (1861, 1 Allen (Mass.) 461) 97, 137, 318. Ellis vs Board of State Auditors (1895, 107 Mich. 528, 65 N. W. 577) 240. Ellis vs Deaf & Dumb Asylum (1873, 68 N. C. 423) 110, 347. Ellison vs Aldermen (1883, 89 N. C. 125) 178, 444. Elizabeth City Academy vs Lind- sey (1846, 6 Ired. L. (N. C.) 476, 45 Am. Dec. 500) 64. El Paso vs Ruckman (1898, 92 Tex. 86, 46 S. W. 25) 58. Elzevir School Trustees vs Elzevir Corporation (1862, 12 U. C. C. P. 548) 441. xliv CASES CITED. [eefebences aee to sections] Empire Milla Ys Alston Grocery Co. (1891, 4 Tex. Ct. App. 346, 15 S. W. 505, 12 L. R. A. 366) 68. Ensley vs Nashville (1872, 2 Bax. (Tenn.) 144) 42.' Equalization Board vs Land Own- ers (1889, 51 Ark. 516, a. r. sub. nom. Stell vs Watson, 11 S. W. 822) 330. Erwin vs Jersey City (1897, 60 N. J. L. 141, 37 A. 732, 64 Am. St. R. 584, reversing Jersey City vs Erwin, 1896, 59 N. J. L, 282, 35 A. 948) 78, 108, 187, 194, 237, 347. Estis vs Prince (1872, 47 Ala. 269) 321. Eubank vs Montgomery County (1907, 32 Ky. Law R. 91, 105 S. W. 418) 236, 238. Evenson vs Ellingson (1887, 67 Wis. 634, 31 N. W. 342) 52. Ewing vs Thompson (1862, 43 Pa. St. 372) 446. Ewing vs Turner (1894, 2 Okla. 94,, 35 P. 951) 209, 431, 442, 444. F. Facey vs Fuller (1865, 13 Mich. 527) 410. Fancher va Stearns (1889, 61 Vt. 616, 18 A. 455) 156, 409. Farman vs Ellington (1887, 46 Hun (N. Y.) 41) 244, 245, 254. Farmers' & Merchants' Bank vs Chester (1846, 6 Hump. (Tenn.) 458, 44 Am. Dec. 318) 136, 316. Farrell vs Bridgeport (1877, 45 Conn. 191) 221. Farrier vs Dugan (1886, 48 N. J. L. 613, 7 A. 881, affirming Dugan vs Farrier, 1885, 47 N. J. L. 383, 1 A. 751) 366. Farrington vs New England In- vestment Co. (1890, 1 N. D. 102, 45 N. W. 191) 29, 340. Fawcett vs Superior Court (1896, 15 Wash. 342, 45 P. 23, 55 Am. St. R. 894) 94. Feaster vs Woodfill (1864, 23 Ind. 493) 416. Fedderwitz, Ex p. (1900, 130 Cal. XVIII, 62 P. 935) 435. Fenelon vs Butts (1880, 49 Wia. 342, 5 N. W. 784) 197. Fenn vs Beeler (1902, 64 Kan. 67, 67 P. 461) 229, 231. Fidelity T. & S. Vault Co. vs Mor- ganfield (1895, 96 Ky. 563, 29 S. W. 442) 365. Finley vs Walls (Smith El. Cas. 367) 360, 361. Fish vs Collens (1869, 21 La. Ann. 289) 164. Fitchburg Ry. Co. vs Grand Junc- tion etc. Ry. Co. (1861, 1 Allen (Mass.) 552) 97. Fitzgerald vs New Brunswick (1885, 47 N. J. L. 479) 439. Fitzsimmons vs Brooklyn (1886, 102 N. Y. 536, 2 St. Rep. 475) 219, 221, 222. Flanders vs Hahn (1 Bart. El. Cas. 438) 361. Plaucher vs City of Camden (1893, 56 N. J. L. 244, 28 A. 82) 29, 36. Fleming vs Mulhall (1880, 9 Mo. App. 71) 124, 405. Fletcher vs Tuttle (1894, 151 111. 41, 37 N. E. 683, 42 Am. St. R. 220, 25 L. R. A. 143) 446. Flournoy vs Clements (1845, 7 Ala. 535) 123, 318. Floyd vs State (1885, 79 Ala. 39) 154, 214, 218. Foot vs Prowse (1725, 1 Str. 625) 121. Foot vs Stiles (1874, 57 N. Y. 399) 24, 127, 142. Ford vs Cameron First Nat. Bank (1896, 34 S. W. 684) 416. Ford vs Clough (1832, 8 Me. 334, 23 Am. Dec. 513) 278, 281. CASES CITED. xlv [BEFEIiBNCES ABE Fortenberry vs State (1879, 56 Miss. 286) 241, 258. Fort Smith School District vs Bd. of Improvement of Sewer Dist- rict No. 1 (1898, 65 Ark. 343, 46 S. W. 418) 330. Foster vs Hare (1900, 26 Tex. Civ. App. 177, 62 S. W. 541) 50, 61, 64. Fowler vs Bebee (1812, 9 Mass. 231, 6 Am. Dee. 62) 177, 318, 429. Fowler vs Thompson (1883, 22 W. Va. 106) 439a. Fragley vs Phelan (1899, 126 Cal. 383, 58 P. 923) 368. Franklin vs Twogood (1868, 25 Iowa, 520, 96 Am. Dec. 73) 66. Franklin vs Vandernort (1901, 50 W. Va. 412, 40 S. E. 374) 102. Franklin Ave. G. S. Institute vs Bd. of Education (1882, 75 Mo. 408) 58, 66, 313. Franks vs Edwards (1852, 8 Ex. 214, 22 L. J. Ex. 42) 280. Eraser vs James (1902, 65 S. C. 78, 43 S. E. 292) 53. Fredrickton vs Fox (1884, 84 Mo. 59) 64. French vs Cowan (1887, 79 Me. 426, 10 A. 335) 442, 451. French vs Spalding (1881, 61 N. H. 395) 329. French vs Tumlin (1871, 9 Fed. Cas. (No. 5104) 798) 403. Fresno Canal & Irrigation Co. vs Warner (1887, 72 Cal. 379, 14 P. 37) 66. Frey vs Michie (1888, 68 Mich. 323, 36 N. W. 184) 442. Frichnicht vs Hulsaidt (1882, 6 N. J. L. J. 57) 410. Frost vs Frostburg (1860, 24 How. (U. S.) 278) 68. TO SECTIONS] Frost vs Mayor of Chester (1855, 5 El. & Bl. 531, s. c. sub. nom. R. vs Mayor of Chester 1855, 25 L. J. Q. B. 61, 2 Jur. (N. S.) 114, 4 W. R. 14) 87, 429, 451. Fulgham vs Johnson (1869, 40 Ga. 164) 474. Fuller vs Atty.-Gen. (1893, 9S Mich. 96, 57 N. W. 33) 451. Fuller vs Roberts County (1896, 9 S. Dak. 216, 68 N. W. 308) 224, 225. Fulton vs Town of Andree (1897, 70 Minn. 445, 73 N. W. 256) 73, 74, 77, 178, 313. Fylpaa vs Brown County (1895, 6 S. Dak. 634, 62 N. W. 962) 203, 225, 301. G. Galbraith vs McFarland (1866, 3 Coldw. (Tenn.) 267, 91 Am. Dec. 281) 119, 317. Gale vs Knopf (1901, 193 111. 245, 62 N. E. 229) 64. Gallagher, Ex. p. (1886, 26 N. B. 73) 437. Galloway vs Town of Tavares (1896, 37 Fla. 58, 19 So. 170) 50. Gano vs State (1859, 10 Ohio St. 237) 472, 474. Gardner, In re (1877, 68 N. Y. 467) 442. Garfield Tp. vs Crocker (1901, 63 Kan. 272,^65 P. 273) 219, 236. Garner vs Clay (1827, 1 Stewart (Ala.) 182) 318. Garrett vs State (1892, 89 Ga. 446, 15 S. E. 533) 119, 214. Genesee Tp. vs McDonald (1881, 98 Pa. St. 444) 77, 304. 313a. George vs Tucker (1875, 27 La. Ann. 67) 228. Gerber vs Ackley (1875, 37 Wis. 43, 19 Am. Rep. 751) 89. xlvi CASES CITED. [keferexces aee Gerino, Ex. p. (1904, 143 Cal. 412, 77 P. 166) 435. Gibb vs Washington (1858, 1 McAU. (U. S.) 430) 44, 429. Gibbs vs Somers Point (1887, 49 K J. L. 515) 462. Gibson vs McDonald (1885, 7 0. R. 401) 10, 425. Gilbert vs Luce (1851, 11 Barb. (N. Y.) 91) 162. Giles vs Hardie (1840, 23 X. C. (1 Ired. L.) 42) 461. Gilkey vs Town of How (1899, 105 Wis. 41, 81 X. W. 120, 49 L. E. A. 483) 52, 58. Gill vs Jackson (1856, 14 U. C. Q. B. 119) 11, 59, 74, 173, 326. Gilleland vs Schuyler (1872, 9 Kan. 569) 368. Gilliam vs Reddick (1844, 4 Ired. L. (X. C.) 368) 102, 119, 316, 396. Gilroy's Appeal (1882, 100 Pa. St. 5) 446. Gilson, In re (1886, 34 Kan. 641) 319. Gitsky vs Xewton (1898, 17 Ohio Cir. Ct. 484) 196, 405. Glascock vs Lyons (1863, 20 Ind. 1, 83 Am. Dec. 299) 219, 223, 229, 231, 232, 432. Globe Publishing Co. vs State Bank (1894, 41 Neb. 175, 59 N. W. 683) 68. Goddard vs Smithett (1854, 3 Gray. (Mass.) 116) 463. Gold vs Campbell (Tex. Civ. App. 1909, 117 S. W. 463) 89. Gold vs Fite (1872, 2 Bax. (Tenn.) 237) 422. Goldman vs Gillespie (1891, 43 La. Ann. 83, 8 So. 880) 207, 446. Goldsworthy vs Boyle (1896, 175 Pa. St. 246, 34 A. 630) 446. Gonzales vs Ross (1887, 120 U. S. 605, 7 Sup. Ct. 705) 301. TO SECTION'S] Gooding vs Wilson (42nd. Con- gress) 361. Goodwin vs Perkins (1867, 39 Vt. 598) 188, 274. Goodwin vs State (1906, 145 Ala. 536, 40 So. 122) 440. Gore vs Dickinson (1892, 98 Ala. 363, 11 So. 743, 39 Am. St. R. 67) 174. Gorlpy vs Louisville (1900, 108 Ky. 789, 55 S. W. 886) 220, 235, 432. Gorman vs Boise County Comm'rs. (1877, 1 Idaho 655) 224, 237, 429. Gorman vs People (1892, 17 Col. 596, 31 P. 335, 31 Am. St. K 350) 30. Gosman vs State (1885, 106 Ind. 203) 169. Gosselin vs Corp. of St. .Jean (1898, 16 Que. R. (S. C.) 449) 441. Goulding vs Clark (1856, 34 X". H. 148) 108. Gourley vs Hankins (1855, 2 Iowa 75) 266. Grace vs Teague (1888, 81 Me. 559, 18 A. 289) 266. 267. Gradnigo vs Moore (1855. 10 La. Ann. 670) 318. Graham vs Greenville (1886. 67 Tex. 62, 2 S. W. 742) 64. Grant vs Holmes (1881, 75 Mo. 109) 416. Gray vs State (1898, 19 Tex. Civ. App. 521, 49 S. W. 699) 458. Great Xorthern S. Fishing Co. vs Edgehill (1883, 11 Q. B.^D. 225) 457. Green vs Burke (1840, 23 Wend. (X. Y.) 490) 154, 203. 266, 310. Green vs Wardwell (1855. 17 111. 27S, 63 Am. Dec. 366) 170, 277, 279, 281. Greene vs Hewitt (1793. 1 Peake N. P. 182) 230, 433, 449. Greene vs Lunt (1870, 58 Me. 518) 327. CASES CITED. xlvii [REFEKENCBS ABB TO SECTIONS] Greene vs People (1899, 182 111. 278, 55 N. E. 341) 389, 390. Greene vs Rienzi (1906, 87 Miss. 463, 40 So. 17) 313. Greene vs Walker (1873, 63 Me. 311) 327. Greenleaf vs Low (1847, 4 Denio (N. Y.) 168) 136, 138, 405. Greenville vs Greenville Water- works Co. (1900, 125 Ala. 625, 27 So. 764) 66. Greenwood vs State (1889, 116 Ind. 485, 19 N. E. 333) 176, 416. Gregg Township vs Jamison (1867, 55 Pa. St. 468) 136, 151, 178. Gregory vs Woodbery (1907, 53 Fla. 566, 43 So. 504) 136. Griffin's Case (1869, 11 Fed. Cas. (No. 5815) p. 7) 4, 422, 435. Griffin's Ex'or vs Cunningham (1870, 20 Gratt. (Va.) 31) 97. Grondin vs Logan (1891, 88 Mich. 247, 50 N. W. 130) 207. Grove, District Tp. of, vs Myles (1899, 109 Iowa, 541, 80 N. W. 544) 446. Guay vs Fortin (1903, 24 Que. E. (S. C.) 210) 465. Guilbeau vs Cormier (1880, 32 La. Ann. 930) 160. Guilotte vs Poincy (1889, 41 La. Ann. 333, 6 So. 507, 5 L. R. A. 403) 207, 464. Gulley vs Daniel (1859, 6 Jones L. (N. C.) 444) 293. Gumberts vs Adams Express Co. (1867, 28 Ind. 181) 429. Gunn, In re (1893, 50 Kan. 155, 32 P. 470) 77. Gunn vs Tackett (1881, 67 Ga. 725) 136, 138, 301, 318. Gunton vs Ingle (1834, 11 Fed. Cas. (No. 5870) 116, 4 Cranch C. C. 438) 465. Guthrie vs Territory (1892, 1 Okla. 188, 31 P. 190) 50. Guthrie vs Wylie (1896, 6 Okla. 61, 55 P. 103) 29, 47, 50, 61. Guyer vs Andrews (1850, 11 111. 494) 136, 335. H. Hagan vs Brooklyn (1891, 126 N. Y. 643, 27 N. E. 265, affirming 1889, 5 N. Y. S. 425) 220, 235, 432. Hagner vs Heyberger (1844, 7 W. & S. (Pa.) 104, 42 Am. Dec. 220) 170, 206, 446. Haines vs Freeholders of Camden County (1885, 47 N. J. L. 454) 438, 439, 442, 451, 471. Hale vs Bischoff (1894, 53 Can. 301, 36 P. 752) 119, 338. Hale vs Gushing (1823, 2 Me. 218) 327. Hall vs Jankofsky (1895, 9 Tex. Civ. App. 504, 29 S. W. 515) 416. Hall vs Luther (1835, 13 Wend. (N. Y.) 491) 278. Hall vs Manchester (1859, 39 N. H. 295) 108. Hallgren vs Campbell (1890, 82 Mich. 255, 46 N. W. 381, 21 Am. St. R. 557, 9 L. E. A. 408) 73, 431. Halpin vs Calder (1876, 26 U. C. C. P. 501) 59. Hamilton vs Carthage (1860, 24 111. 22) 64. Hamilton vs County of San Diego (1895, 108 Cal. 273, 41 P. 305) 58, 64, 186, 332. Hamilton vs Pitcher (1873, 53 Mo. 334) 316. Hamilton School Trustees vs Neil (1881, 28 Gr. (Ont.) 408) 12, 301. Hamilton vs State (1899, 40 Tex. Cr. R. 464, 51 S. W. 217) 410. xlviii CASES CITED. [EEFEKENCBS AHB TO SECTIONS] Hamlin vs Dingman (1871, 5 Lans. (N. Y.) 61, reversing 41 How. Pr. 132) 176, 307, 333. Hamlin vs Kassafer (1887, 15 Ore. 456, 15 P. 778, 3 Am. St. R. 176) 21, 23, 73, 75, 78, 85, 88, 90, 102, 110, 124, 301, 405. Hammer vs State (1882, 44 N. .J. L. 667) 212. Hammond & McLay, In re (1864, 24 U. C. Q. B. 56) 433. Hammondsport Law etc. Ass'n vs Kinzell (1904, 43 Misc. (N. Y.) 505, 89 N. Y. S. 534) 119. Hand vs Deady (1894, 79 Hun (N. Y.) 75, 29 N. Y. S. 633) 80, 92. Hankey vs Bowman (1901, 82 Minn. 328, 84 N. W. 1002) 365. Harbaugh vs Winsor (1866, 38 Mo. 327) 3, 203, 317. Hardesty vs Taft (1865, 23 Md. 512) 446. Harding vs Eichinger (1898, 57 Ohio St. 371, 49 N. E. 306) 206. Hardwick vs Brown (1873, L. R. 8 C. P. 406, 28 L. T. 502, 21 W. R. 639) 144. Harris, In re (1837, 6 A. & E. 475, 8. c. sub. nom. R. vs Harris, 1 N. & P. 576, 6 L. J. K. B. 161) 466. Harris, Ex p. (1875, 52 Ala. 87, 23 Am. Rep. 559) 442, 451. Harris vs Babbitt (1877, 4 Dill. C. C. (U. S.) 185) 295. Harris vs Jays (1599, Cro. Eliz. 699, 78 Eng. Rep. 934) 6, 74, 103, 183, 412, 422. Harrison vs Greaves (1882, 59 Miss. 453) 461, 462, 464. Harrison vs Simonds (1877, 44 Conn. 318) 451. Harper County Comm'rs vs Rose (1891, 140 U. S. 71, 11 Sup. Ct. 710, 35 L. ed. 344) 72. Hart, Matter of (1900, 161 N. Y. 507, s. c. sub. nom. Hart vs State Bd. of Canvassers, 55 N. E. 1058) 451. Hart vs State Bd. of Canvassers (1900, 55 X. E. 1058, s. c. sub. nom. Hart, Matter of, 161 N. Y. 507) 451. Hartson vs United States (1S86, 21 Ct. CI. 451) 240. Hartt vs Harvey (1860, 32 Barb. (N. Y.) 55, 19 How. Pr. 245, 13 Abb. Pr. 332) 206. Harvey vs Philbrick (1887, 49 N. J. L. 374, 8 A. 122) 313a. Harwood vs Marshall (1856. 9 Md. 83) 442, 474. Haskell vs Dutton (1902, 65 Xeb. 274, 91 X. W. 395) 176, 317. Hassell vs Long (1814, 2 M. & S. 363) 288. Hathaway, Matter of (1877. 71 X. Y. 238, affirming 9 Hun, 79) 15, 416. Havird vs County Comm'rs. of Boise County (1890, 2 Idaho, 687, s. c. sub. nom. Havird, In re, 24 P. 542) 228, 231. Hawke vs McAllister (1894, 4 Ariz. 150, 36 P. 170) 151. Hawkins vs Jonesboro (1879. 63 Ga. 527) 174, 186, 339, 34S. Hawvcr vs Seldenridge (1867, 2 W. Va. 274, 94 Am. Dec. 532) 29, 42. Hayes vs Hanson (1841, 12 N. H. 284) 329. Heard vs Elliott (1905, 116 Tenn. 150, 92 S. W. 764) 102, 109, 112. Heaston vs Cincinnati etc. Ry. Co. (1861. 16 Ind. 275) 67. Heath, Ex p. (1842, 3 Hill. (N. Y.) 42) 457. Heath vs State (1860, 36 Ala. 273) 155, 214, 301. CASES CITED. xlix [BEPEHENCES AKE Heck vs Findlay Glass Co. (1898, 16 Ohio Cir. Ct. Ill, 8 Ohio Cir. Dec. 757) 29, 37. Hedricli vs People (1906, 221 111. 374, 77 N. E. 441) 45, 473. Heffran vs Hutchins (1896, 160 111. 550, 43 N. E. 709) 446. Henderson vs Davis (1890, 106 N. C. 88, 11 S. E. 573) 64, 70, 72. Henderson vs Glynn (1892, 2 Col. App. 303, 30 P. 265) 80, 205, 224, 228, 237. Hendry vs Cline (1874, 29 Ark. 414) 403. Henning vs Fisher (1873, 6 W. Va. 238) 316. Henry vs Commonwealth (1907, 31 Ky. Law R. 760. 103 S. W. 371) 11, 91, 109, 174. Herbster vs State (1881, 80 Ind. 484) 176, 416a, 422. Herford vs People (1902, 197 111. 222, 64 N. E. 310) 389. Herkimer vs Keeler (1899, 109 Iowa, 680, 81 N. W. 178) 73, 89, 105, 107, 304. Herring vs Lee (1883, 22 W. Va. 661) 92, 107, 304. Herring vs Modesto Irrigation Dis- trict (1899, 95 Fed. 705) 58. Herrington vs State (1898, 103 Ga. 318, 29 S. E. 931, 68 Am. St. R. 95) 259. Heuitt vs State (1823, 6 Har. & J. (Md.) 95) 297. Hewes, In re (1900, 62 Kan. 288, 62 P. 673) 136, 161, 416. Hewes vs People (1892, 48 111. App. 439) 297. Heydon's Case (1584, 2 Coke's Rep. 18) 377. Heyfron vs Mahoney (1890, 9 Mont. 497, 24 P. 93, 18 Am. St. R. 757) 367. Hickman vs Jones (1869, 9 Wall. (U. S.) 197) 404. TO SECTIONS] Highby vs Ayers (1875, 14 Kan. 331) 110, 416. Hildreth vs Mclntyre (1829, 1 J. J. Marsh (Ky.) 206, 19 Am. Dec. 61) 29, 35, 396, 398. Hilgert vs Barber Asphalt Paving Co. (1904, 107 Mo. App. 385, 81 S. W. 496) 33, 125, 312. Hill vs Armistead (1876, 56 Ala. 118) 403. Hill vs City of Kahoka (1888, 35 Fed. R. 32) 58, 64. Hines vs Vann (1896, 118 N. C. 3, 23 S. E. 932) 463. Hinkle, In re (1884, 31 Kan. 712, 3 P. 531) 29, 30, 125, 396. Hinsdale vs Lamed (1819, 16 Mass. 64) 66. Hinton vs Lindsay (1856, 20 Ga. 746) 166, 405, 429. Hinze vs People (1879, 92 111. 406) 473. Hipperholme Constables, In re (1847, 5 D. & L. 79, 2 B. C. Rep. 98, 11 Jur. 713) 436, 437. Hippsly vs Tuck'e (1677, 2 Lev. 184, 83 Eng. Rep. 510, reported also as Hippesley vs Tuck, 2 Salk. 249, and as Ipsley vs Turk, 2 Mod. 194) 6, 411, 422. Hoagland vs Culvert (1845, 20 N. J. L. 387) 191, 314. Hobbs vs Morey (1904, 1 K. B. 74, 73 L. J. K. B. 47, 68 J. P. 132, 52 W. R. 348, 89 L. T. 531, 20 T. L. R. 50, 2 L. G. R. 7) 164. Hoboken vs Harrison (1862, 30 N. J. L. 73) 277, 278. Hoeg vs Pine (Iowa, 1909, 121 N. W. 1019) 279. Hoglan vs Carpenter (1868, 4 Bush. (Ky.) 89) 163, 203. Hoglo vs Rockwell (1898, 20 Que. R. (S. C.) 309) 11, 117, 135, 301, 413, 419, 440. 1 CASES CITED. [HEFEEBNCES AEE Hoke vs Henderson (1833, 4 Dev. (N. C.) 1, 25 Am. Dee. 677) 19. Holland vs Lea (1854, 9 Ex. 430, 2 C. L. R. 532, 23 L. J. Ex. 122) 280. Holmes vs Oldham (1877, 12 Fed. Cas. (No. 6643) 421, 1 Hughes, 76) 446. Holmes va Sikes (1901, 113 Ga. 580, 38 S. E. 978) 472. Holt County vs Scott (1897, 53 Neb. 176, 73 N. W. 681) 137, 277, 278. Home Insurance Co. vs Tierney (1893, 47 111. App. 600) 236. Homer, Town of vs Merritt (1875, 27 La. Ann. 568) 277. Hooper vs Goodwin (1861, 48 Me. 79) 97, 409. Horn vs Lockhart (1873, 17 Wall. (U. S.) 570) 403. Horn vs Whittier (1833, 6 N. H. 88) 278. Horton vs Parsons (1885, 37 Hun (N. Y.) 42, affirming 1 How. Pr. (N. S.) 124) 24, 127, 142, 143, 211. Houston vs Estes (1904, 35 Tex. Civ. App. 99, 79 S. W. 848) 236. Howard, Matter of (1853, 26 Misc. (N. Y.) 233, 56 N. Y. S. 318) 443. Howard vs Cooper (1 Bart. El. Cas. 275) 360. Howard vs Sexton (1845, 1 Den. (N. Y.) 440, reversed on other grounds 1850, 4 N. Y. 157) 379. Howard ex rel. People vs Sup'rs. of Erie (1899, 42 N. Y. App. Div. 510, 59 N. Y. S. 476, af- firmed 160 N. Y. 687, 55 N. E. 1099) 443. Howard vs Wood (1679, 2 Lev. 245) 230, 433. Howe vs Dunlap (1903, 12 Okla. 467, 72 P. 365) 446. TO SECTIOXS] Hubbard vs Crawford (1878, 19 Kan. 570) 229. Hubbell va Armijo (1906, 13 N. Mex. 482, 85 P. 1046) 446. Huber vs Martin (1906, 127 Wis. 412, 105 N. W. 1031, 1135) 52, 64. Hubert vs Mendheim (1883, 64 Cal. 213, 30 P. 633) 289. Huffman vs Mills (1888, 39 Kan. 577, 18 P. 516) 431, 443. Hugg vs Ivins (1897, 59 N. J. L. 139, 36 A. 685) 94. Hughes vs James (1830, 26 Ky. (3 J. J. Marsh) 699) 268. Hughes vs Long (1896, 119 N. C. 52, 25 S. E. 743) 109, 126, 316. Hughes vs Smith (1808, 5 Johns. (N. Y.) 168) 289. Hull vs Superior Court (1883, 63 Cal. 174) 150, 205, 208, 438, 440, 451. Humphreys vs Stevens (1875, 49 Ind. 491) 187. Hunnicutt vs State (1889, 75 Tex. 233, 12 S. W. 106) 367. Hunter vs Chandler (1870, 45 Mo. 452) 229, 432, 451, 466. Hunter vs Ferguson (1874, 13 Kan. 462) 160, 191. Huntington vs Cast (1898, 149 Ind. 255, 48 N. E. 1025) 446, 448. Hussey vs Hamilton (1870, 5 Kan. 462) 442. Hussey vs Smith (1878, 99 U. S. 20, 25 L. Ed. 314) 102, 105, 112, 318. Hutchings vs Van Bokkelen (1852, 34 Me. 126) 109. Hyde vs State (1876, 52 Miss. 665) 143, 473. Hyllis vs State (1885, 45 Ark. 478) 123, 416a. Hyman vs Chales (1882, 12 Fed. R. 855, 4 McRary 246) 136, 318. CASES CITED. li [BEFEBBNCES ABE I. lekes vs State (1898, 16 Ohio C. C. 31) 159. Ipsley vs Turk (1677, 2 Mod. 193) 420; see also Hippsly vs Tucke. Irving vs Edrington (1889, 41 La. Ann. 671, 6 So. 177) 154, 318. Isaacs vs Wiley (1839, 12 Vt. 674) 328. Izer vs State (1893, 77 Md. 110, 26 A. 382) 391. Jackson vs Wayne (CI. & H. El. Cas. 47) 360. Jacob, Ex p. (1861, 10 N. B. 153) 436. James vs Brawn (1821, 5 B. & Aid. 243, 24 R. R. 347) 318. Jamieson vs People (1855, 16 111. 257, 63 Am. Dec. 304) 70, 72. Jayne vs Drorbaugh (1883, 63 Iowa, 711, 17 N. W. 433) 474. Jeffords vs Hine (1886, 2 Ariz. 162, 11 P. 351) 301, 316, 429. Jersey City vs Erwin (1896, 59 N. J. L. 282, 35 A. 948, reversed in Erwin vs Jersey City (1897), 66 N. J. L. 141, 37 A. 732, 64 Am. St. R. 584) 78, 348. Jester vs Spurgeon (1887, 27 Mo. App. 477) 29, 318. Jewell vs Gilbert (1885, 64 N. H. 13, 5 A. 80, 10 Am. St. R. 357) 90, 175, 301, 318. Jocelyn, Ex p. (1853, 2 Allen (N. B.) 637) 436. Johnson, In re (1884, 15 Neb. 512, 19 N. W. 594) 410, 435. Johnson vs McGinly (1884, 76 Me. 432) 170, 405. Johnson vs Okerstrom (1897, 70 Minn. 303, 73 N. W. 147) 49, 61. TO SECTIONS] Johnson vs Sanders (Ky. 1909, 115 S. W. 772) 163. Johnson vs Stedman (1827, 3 Ohio 94) 270. Johnson vs West India Transit Co. (1894, 156 U. S. 618, 15 Sup. Ct. R. 52(7) 403. Johnston, Ex p. (1894, 32 N. B. 556) 11, 138, 326. Johnston vs Wilson (1820, 2 N. H. 202, 9 Am. Dec. 50) 269. Joliet, City of, vs Tuohey (1877, 1 111. App. 483) 241. Jones vs Aspen Hardware Co. (1895, 21 Col. 263, 40 P. 457, 52 Am. St. R. 230, 29 L. R. A. 143) 68. Jones vs French (1846, 18 N. H. 190) 175. Jones vs Gallatin County (1879, 78 Ky. 491) 281. Jones vs Gibson (1818, 1 N. H. 266) 205. Jones vs Jones (1879, 80 N. C. 127) 347, 348. Jones vs Scanland (1845, 6 Humph. (Tenn.) 195, 44 Am. Dec. 300) 158, 283. Jordan vs Hopkins (1892, 85 Me. 159, 27 A. 91) 327. Jordan vs Ry. Co. (1904, 25 Pa. Sup. Ct. 564) 301. Joseph vs Cawthorn (1883, 74 Ala. 411) 301, 317. Jossey vs Speer (1899, 107 Ga. 828, 33 S. E. 718) 367. Judd vs Read (1857, 6 U. C. C. P. 362) 326. Judson vs Plattsburg (1874, 14 Fed. Cas. (No. 7570) 22, 3 Dill. 181) 53. Jump vs Spence (1867, 28 Md. 1) 221. Justices vs Clark (1824, 1 T. B. Mon. (Ky.) 82) 186, 204. lii CASES CITED. [EEB'EBBNCES AEE K. Kalamazoo vs Kalamazoo Heat etc. Co. (1900, 124 Mich. 74, 82 N. W. 811) 66. Kane vs People (1876, 4 Neb. 509) 456, 458. Kansas Town & Land Co. vs Ken- sington (1897, 6 Kan. App. 247, 51 P. 804) 58. Kaufman vs Stone (1869, 25 Ark. 336, 369, 429. Kavanaugh vs State (1868, 41 Ala. 399) 262. Kayser vs Trustees of Bremen (1852, 16 Mo. 88) 58. Keating vs Fitch (1895, 14 Misc. (N. Y.) 128, 35 N. Y. S. 641) 206, 225, 446. Keator vs People (1875, 32 Mich. 484) 392. Keeler vs Newbern (1868, 61 N. C. (Phil. L.) 505) 81, 92. Keeler vs Robertson (1873, 27 Mich. 116) 472. Keeling vs Railway Co. (1903, 205 Pa. St. 31, 54 A. 485) 33, 125, 312. Keene vs M'Donough (1834, 8 Pet. (U. S.) 308) 399. Keeney vs Leas (1863, 14 Iowa, 464) 106, 139, 369. Keith vs Fenelon Falls Union School Section (1883, 3 0. R. 194) 288. Keith vs State (1887, 49 Ark. 439, 5 S. W. 880) 414, 416, 424. Kellar vs Savage (1841, 20 Me. 199) 279. Keller vs Chapman (1868, 34 Cal. 635) 365. Kelley vs Story (1871, 6 Heisk. (Tenn.) 202) 136, 138, 315, 317. Kelly vs Macarow, In re (1864, 14 U. C. C. P. 313) 458, 459. Kelly vs State (1874. 25 Ohio St. 567) 137, 150, 281. TO SECTIONS] Kelly vs Wimberly (1884, 61 Miss. 548) 241, 242. Kemp vs Ventulett (1877, 58 Ga- 419) 440. Kempster vs Milwaukee (1897, 97 Wis. 343, 72 N. w. 743) 190, 225. Kendall, Matter of (1881, 85 N. Y. 302) 333. Kendall vs Raybauld (1896, 13 Utah, 226, 44 P. 1034) 227. Kenneally vs Chicago (1906, 220 111. 485, 77 N. E. 155) 29, 204. Kennedy vs State (1876, 53 Ind. 542) 416. Kent vs Mercer (1862, 12 U. C. C. P. 30) 11, 94, 285, 301, 315. Kepp vs Wiggett (1850, 10 C. B. 35, 20 L. J. C. P. 49, 14 Jur. 1137) 280. Kerr, Matter of (1908, 57 Misc. (N. Y.) 324, 108 N. Y. S. 591) 142. Kessell vs Zeiser (1886, 102 N. Y. 114, 6 N. E. 574, 55 Am. Rep. 769) 233. Ketchum vs Buckley (1878, 99 U. S. 188) 403. Keweenaw Ass'n vs School District No. 1 (1894, 98 Mich. 437, 57 N. W. 404) 70. Keyser vs McKissan (1828, 2 Rawle (Pa.) 138) 8, 136, 203, 251, 315. Kilpatrick vs Smith (1883, 77 Va. 347) 446, 451. Kimball vs Alcorn (1871, 45 Miss. 151) 107, 110, 203, 204, 266. Kimball vs Hendee (1894, 57 N. J. L. 307, 30 A. 894) 174, 205. Kimball vs Lamprey (1848, 19 N. H. 215) 431. Kimball vs Olmsted (1899, 20 Wash. 629, 56 P. 377) 442, 444. Kimball vs Penney (1897. 117 Ala. 245, 22 So. 899) 416. CASES CITED. liii [references are King V3 Patcman (1788, 2 Term. (D. & E.) 777) 473. King County vs Ferry (1893, 5 Wash. 536, 32 P. 538, 34 Am. St. Rep. 880, 19 L. R. A. 500) 289, 290, 297. Kingsbury vs Ledyard (1841, 2 W. & S. (Pa.) 37) 205, 269, 315, 337. Kirby vs State (1894, 57 N. J. L. 320, 31 A. 213) 36, 259. . Kirker vs Cincinnati (1891, 48 Ohio St. 507, 27 N. E. 898) 201. Kissimmee City vs Cannon (1890, 26 Fla. 3, 7 So. 523) 429. Kitson vs Julian (1855, 4 El. & Bl. 854, 24 L. J. Q. B. 202, 1 Jur. (N. S.) 754, 3 W. R. 371) 288. Kitton vs Fag (1714, 10 Mod. 288, 88 Eng. R. 732) 6. Kline vs McKelvey (1905, 57 W. Va. 29, 49 S. E. 896) 443. Kline vs State (1906, 146 Ala. 1, 41 So. 953) 52. Knight vs Corporation of Wella (1695, Nelson's Lutvy. 156, Lutw. 508) 6, 152, 171, 313. Knight vs Tovcn of West Union (1898, 45 W. Va. 194, 32 S. E. 163) 181, 313. Knowles vs Luce (1580, Moore 109, 72 Eng. R. 473) 6, 9, 82, 93, 116, 412, 422. Koontz vs Hancock (1885, 64 Md. 134) 129, 301, 338. Kottman vs Ayer (1848, 3 Strobh. (S. C.) 92) 12, 13, 284, 316. Kreidler vs State (1873, 24 Ohio St. 22) 122, 265. Kreitz vs Behrensmeyer (1894, 149 111. 496, 36 N. E. 983, 24 L. R. A. 59, affirming 52 111. App. 291) 219, 223, 229, 231. Kriekbaum's Contested Election, In re (Pa. 1908, 70 A. 852) 84, 367, 439a. TO SECTIONS] Kruttschmitt vs Hauck (1870, 6 Nev. 163) 289. Krutz vs Paolo Town Co. (1878, 20 Kan. 397) 50, 68. Kuhle vs People (1895, 65 111. App. 378) 410. Kyle vs Abernethy (Col. 1909, 102 P. 746) 202, 313. Laeasse vs Labontg (1896, 10 Que. R. (S. C.) 104) 11, 104, 105, 185, 302, .303. Laeasse vs Roy (1895, 8 Que. R. (S. C.) 293) 11, 103, 173, 185, 189, 343. Laeroix, In re (1836, 4 U. C. Q. B. (0. S.) 339) 431. Lacy vs Barrett (1882, 75 Mo. 469) 416. Lajeunesse vs Nadeau (1896, 10 Que. R. (S. C.) 61) 456. Lambert vs People (1879, 76 N. Y. 220, 32 Am. Rep. 293, revers- ing Lambert vs People 1878, 14 Hun (N. Y.) 512) 89, 106, 380. Lamoreaux vs Ellis (1891, 89 Mich. - 146, 50 N. W. 812) 461, 464. Lampasas vs Talcott (1899, 94 Fed. 457, 36 C. C. A. 318) 313. Lancaster & Carlyle Ry. Co. vs Heaton (1858, 8 El. & Bl. 952, 27 L. J. Q. B. 195, 4 Jur. (N. S.) 707) 6, 153, 325. Landes vs Walls (1903, 160 Ind. 216, 66 N. E. 679) 175, 206, 446. Landon vs Comet (1886, 62 Mich. 690, 28 N. W. 788) 416. Lane vs Harrison (1820, 6 Munf. (Va.) 573) 281. Lang vs City of Bayonne (1907, 74 N. J. L. 455. 68 A. 90) 29, 36, 37. Lang vs Scott (1825, 1 Black. (Ind.) 405, 12 Am. Dec. 257) 458. Uv CASES CITED. [EEFEEBNCBS ABE LaPointe vs O'Malley (1879, 46 Wis. 35, 50 N. W. 521) 124. Larsen vs St. Paul (1901, 83 Minn. 473, 86 N. W. 459) 225. Lask vs United States (1839, 1 Pin. (Wis.) 77) 319. Lathrop vs Brittain (1866, 30 Cal. 680) 332. Laurium vs Mills (1902, 129 Mich. 536, 89 N. W. 362) 289, 298. Laver vs McGIachlin (1871, 28 Wis. 364) 188, 274, 405. Law vs People (1877, 87 HI. 385) 429. Lawlor vs Alton (1873, 8 Ir. Com. L. 160) 219, 230, 232. Lawrence vs Leidigh (1897, 58 Kan. 676, 50 P. 889) 206, 225, 446. Leach vs Cassidy (1864, 23 Ind. 449) 75, 205, 210. Leach vs People (1887, 122 111. 420, 12 N. E. 726) 38, 201, 313. Leach vs Whitaker (1833, 5 B. & Ad. 409) 412. Leadley vs Evans (1824, 2 Bing. 32, 9 Moore, 102, 2 L. J. (0. S.) C. P. 108) 288. Leak vs Howel (1591, Cro. Eliz.' 533, 78 Eng. R. 780) 6, 109, 183. Le Boutillier vs Harper (1875, 1 Que. Law R. 4) 11, 82, 93, 103, 173, 301, 302, 304, 356. Ledbetter vs State (1907, 2 Ga. App. 631, 58 S. E. 1106) 136, 317. Lee vs State (1873, 49 Ala. 43) 366. Lee vs Wilmington (1895, 1 Marv. (Del.) 65, 40 A. 663) 175, 235, 432. Leech's Case (1682, 9 Cobbett's State Trials, 351) 6, 320. Leech vs State (1881, 78 Ind. 570) 75, 162. TO SECTIONS] Leeds vs Atlantic City (1890, 52 N. J. L. 332, 19 A. 780) 181, 444. Lehlbach vs Haynes (1891, 54 N. J. L. 77, 23 A. 422) 367, 368. Lemire vs Neault (1898, 15 Que. R. (S. C.) 33) 458. Leprohon vs Ottawa (1878, 2 Ont. App. R. 522) 40. Letcher vs Moore (CI. & H. EI. Cas. 756) 360. Levitt vs City of Wilson (1905, 72 Kan. 60, 83 P. 397) 58. Lewis, Ex p. (1903, 45 Tex. Crim. R. 1, 73 S. W. 811, 107 Am. St. R. 970) 187, 197, 430, 435. Xewis vs Brady (1889, 17 0. R. 377) 11, 135, 269, 326. Lewis vs Clarendon (1878, 15 Fed. Cas. (No. 8320) 474, 5 Dill. 329) 66. Lewis vs Jersey City (1889, 51 N. J. L. 240, 17 A. 112) 16. Lewiston vs Proctor (1860, 23 111. (13 Peck.) 533) 29, 405. Lexington & H. Turnpike Board Co. vs McMurtry (1845, 45 Ky. (6 B. Mon.) 214) 166, 405. Lichfield, Mayor of vs Simpson (1845, 8 Q. B. 65, 15 L. J. Q. B. 78, 9 Jur. 989) 457. Lightly vs Clouston (1808, 1 Taunt. 112) 433. Lincoln vs Chapin (1882, 132 :Mass. 470) 246, 247. Lindsey vs Luckett (1857, 20 Tex. 516) 442. Lindt vs Uihlein (1902, 116 Iowa, 48, 89 N. W. 214) 83. Lisbon vs Bow (1839, 10 N. H. 167) 136. List vs Joekheck (1898, 59 Kan. 143, 52 P. 420) 416a. Little vs Bessemer (1903, 138 Ala. 127, 35 So. 64) 446. Littleton vs Smith (1889, 119 Ind. 230, 21 N. E. 886) 409, 416. CASES CITED. Iv [KEFEEENCES AKE Livermore vs Peru (1867, 55 Me. 469) 240. Liverpool Election Case, In re (1729, 21 Jour. 476, 506, 508, 514) 355. Liverpool Waterworks vs Atkinson (1805, 6 East, 507, 2 Smith 654) 288. Livingston vs Jordon (1869, 15 Fed. Cas. (No. 8415) 675) 404. Lloyd vs Queen (1862, 2 B. & S. 656, 31 L. J. Q. B. 208) 473. Lockhart vs Troy (1872, 48 Ala. 579) 151, 313. Londegan vs Hammer (1870, 30 Iowa, 508) 270. Londonderry vs Chester (1820, 2 N. H. 268, 9 Am. Dec. 61) 315a. Londoner vs People (1891, 15 Col. 557, 26 P. 135) 464. Long vs Seay (1880, 72 Mo. 648) 292. Loper vs Millville (1891, 53 N. J. L. 362, 21 A. 568) 438, 439. Lopez vs State (1875, 42 Tex. 298) 317. Lorbeer vs Hutchinson (1896, 111 Cal. 272, 43 P. 896) 438. Lord vs Every (1878, 38 Mich. 405) 466. , Lord vs Parker (1891, 83 Me. 530, 22 A. 392) 327. Lorrillard vs Van Houten (1829, 10 N. J. L. 270) 66. Louisville & N. R. vs Herndon's Admr. (1907, 31 Ky. L. K. 1059, 104 S. W. 732) 416. Lower Terrebonne R. & M. Co. vs Police Jury (1906, 115 La. 1019, 40 So. 443) 107, 305, 307, 365. Lowry vs Bourdieu (1780, 1 Doug. 468) 240. Luce vs Bd. of Examiners (1891, 153 Mass. 108, 26 N. E. 419) 442. Lusher vs Scites (1870, 4 W. Va. 11) 53. TO SECTIONS] Lusk, Ex p. (1886, 82 Ala. 519) 444. Luzerene County vs Trimmer (1880, 95 Pa. St. 97) 233. Lynde vs Dummerston (1888, 61 Vt. 48) 328. Lyndon vs Miller (1863, 36 Vt. 329) 136, 203, 277, 281. Lyon vs Comm'rs of Granville County (1897, 120 N. C. 237, 26: S. E. 929) 442, 451. M. Mabry vs Turrentine (1847, 8 Ired. L. (N. C.) 201) 137, 318. Macey vs Stark (1893, 116 Mo. 481, 21 S. W. 1088) 316. Mack, In re (1906, 39 Nov. Scot. 394) 451. Macon vs Shaw (1854, 16 Ga. 172) 439a. Maddox vs Ewell (1817, 2 Va. Cas. 59) 170, 405. Magee vs Calaveras County (1858, 10 Cal. 376) 464. Magneau vs Fremont (1890, 30 Neb. 843, 47 N. W. 280, 27 Am. St. R. 436) 123, 312, 339. Mahony vs East Holyford Mining Co. (1875, L. R. 7 H. L. 869, 33 L. T. 383, Ir. R. 9 C. L. 306) 6, 110, 304. Mainville, Ex p. (1898, 1 Can. Crim. Cas. 528) 10, 135, 413, 417, 420, 435. Maley vs Tipton (1859, 2 Head. (Tenn.) 403) 120, 316. Mallett vs Uncle Sam Gold & Min- ing Co. (1865, 1 Nev. 188, 90 Am. Dec. 484) 186. Mallory vs Hiles (1862, 4 Mete. (Ky.) 53) 396. Manahan vs Watts (1900, 64 N. J. L. 465, 45 A. 813) 464, 472, 474. Ivi CASES CITED. [RErEKENCES ABE Manitoba Mortgage & Investment Co. vs Daly (1895, 10 Man. Law R. 425) 66. Manning vs Weeks (1891, 139 U. S. 504, 11 Sup. Ct. 624, 35 L. ed. 264, affirming Manning, In re 1890, 76 Wis. 365, 45 N. W. 26) 186, 405, 410, 422. Mannix vs State (1888, 115 Ind. 245, 17 N. E. 565) 431. Manor etc. Co. vs Cooner (1904, 209 Pa. St. 531, 58 A. 918) 337. Manor vs State (1898, 149 Ind. 310, 49 N. E. 160) 209, 210. Mapes vs People (1873, 69 111. 523) 320. Margate Pier Co. vs Hannam (1819, 3 B. & Aid. 266, 22 R. R. 378) 6, 133, 264, 273, 412, 422, 435. Marion vs Territory (1893, 1 Okla. 210, 32 P. 116) 365. Markey vs State (1904, 47 Fla. 38, 37 So. 53) 390. Markley vs Cape May Point (1892, 55 N. J. L. 104, 25 A. 259) 439. Marks vs Park (Pa. 1875, 7 Leg. Gaz. 70) 364. Marois vs Lafontaine (1905, 27 Que. R. (S. C.) 174) 456. Marsh vs Mathias (1899, 19 Utah, 350, 56 P. 1074) 66. Marshall Foundry Co. vs Killian 1888, 99 N. C. 501, 6 S. E. 680, 6 Am. St. R. 539) 66. Marshall vs State Reformatory (1903, 201 111. 9, 66 N. E. 314) 446. Martin vs Barbour (Ark. 1888, 34 Fed. 701, affirmed 140 U. S. 634) 330. Martin vs Crook (Ala. 1908, 46 So. 482) 186. Martin vs Hewitt (1870, 44 Ala. 418) 402. Mason, In re (1898, 85 Fed. 145) 175, 317. TO SECTIONS] Mason vs Nichols (1867, 22 Wis. 376) 66. Masterson vs Matthews (1877, 60 Ala. 260) 301, 396, 424. Matney vs King (Okla. 1908, 93 P. 737) 443. Matthews vs Copiah County (1876, 53 Miss. 715, 24 Am. R. 715) 236. Mattox vs State (1901, 115 Ga. 212, 41 S. E. 709) 53. Maverick Oil Co. vs Hanson (1892, 67 N. H. 203, 29 A. 461) 442. Mayfield vs Moore (1870, 53 111. 428, 5 Am. Rep. 52) 219, 229, 231, 233, 234. Mayo vs Stoneum (1841. 2 Ala. 390) 396. McAffee vs Russell (1855, 29 Miss. 84) 224, 293. McAllen vs Rhodes (1886, 65 Tex. 348) 206, 446. McAllister vs Swan (1897, 16 Utah, 1, 50 P. 812) 30. McBee vs Hoke (1843, 2 Speers L. (S. C.) 138) 138, 266, 284. McCahon vs Leavenworth (1871, 8 Kan. 437) 22, 73, 77, 78. McCain vs DesMoines (1899, 174 U. S. 168, 19 Sup. Ct. R. 644, 43 L. ed. 936) 54, 83. McCain vs DesMoines (1905, 128 Iowa, 331, 103 N. W. 979) 54. McCall vs Byram Mnfg. Co. (1S2T, 6 Conn. 428) 97. McCall vs Neely (1834, 3 Watts (Pa.) 69) 88. McCarthy vs Lavasche (1878, 89 111. 270, 31 Am. R. 83) 67. McCarthy vs Wilson (1905, 146 Cal. 323, 82 P. 243) 151, 366. MeCormick vs Fitch (1809. 14 Minn. 252) 340. McCracken vs Soucy (1888, 29 lU. App. 619) 248. McCraw vs Harralson (1867, 4 Coldw. (Tenn.) 34) 365. CASES CITED. Ivii [KEFEBENCES AEE McCraw vs Williams (1880, 33 Gratt. (Va.) 510) 25, 113, 115, 301, 405, 422. McCue vs Wapello County (1881, 56 Iowa, 698, 41 Am. Rep. 134, 10 N. W. 248) 219, 236. McDonald vs Bradshaw (1847, 2 Kelly (Ga.) 248, 46 Am. Dec. 385) 286. McDonald vs Doust (1905, 11 Ida- ho, 14, 81 P. 60, 69 L. R. A. 220) 52. McDonald vs United States (1895, 159 U. S. 596, 16 Sup. Ct. R. HI, 40 L. ed. 271) 186, 301. McElhanon vs Washington (1870, 54 111. 163) 284. McElrath's Case (1876, 12 Ct. CI. 201) 240. McFarlane vs Damon (18 Hawaii, 19) 219. McFarland vs Culpepper (CI & H. El. Cas. 221) 360. McGee vs State (1885, 103 Ind. 444, 3 N. E. 139) 431. McGhee vs Dickey (1893, 4 Tex. Civ. App. 104, 23 S. W. 404) 119. McGregor vs Balch (1842, 14 Vt. 428, 39 Am. Dec. 231) 163, 203, 405, 414, 429. Mclnstry vs Tanner (1812, 9 Johns. (X. Y.) 135) 438. Mclntyre vs Thompson (1881, 10 Fed. 531) 83. McKannay vs Horton (1907, 151 Cal. 711. 91 P. 598) 445. McKee vs Young (2 Bart. El. Cas. 422) 360. McKenzie vs School Trustees of Edinburg (1880, 72 Ind. 189) 66. McKim vs Somers (1830, 1 Pen. & W. (Pa.) 297) 429. McLean vs State (1873, 8 Heisk. (Tenn.) 22) 182, 186, 340. McLellan vs Omodt (1887, 37 Minn. 157, 33 N. W. 326) 83. TO SECTIONS] McLennan vs Hopkins (1895, 2 Kan. App. 260, 41 P. 1061) 68. McMahon vs Lennard (1858, 6 H. L. Cas. 970) 12. McManus vs Brooklyn (1889, 5 N. Y. S. 424) 219, 221, 224, 235. McMillan vs Hannah (1901, 106 Tenn. 689, 61 S. W. 1020) 70. McMillan vs Rowe (1884, 15 Neb. 520, 19 N. W. 504) 318. McMillin vs Richards (1895, 45 Neb. 786, 64 N. W. 242) 137, 235. McNutt vs Lancaster (1848, 9 S. & M. (Miss.) 570) 284. McPhail vs People (1896, 160 111. 77, 43 N. E. 382, 52 Am. St. R. 306) 465, 469. MePherson & Beeman, In re (1859, 17 U. C. Q. B. 99) 11, 343, 464. McQueen vs McQueen (1876, 55 Ala. 433) 403. McVeany vs New York (1880, 80 N. Y. 185, 36 Am. Rep. 600, re- versing 1 Hun 35) 94, 220, 221, 223, 224, 225. McWilliams vs Neal (1908, 130 Ga. 733, 61 S. E. 721) 162. Mead vs Ingham County (1877, 36 Mich. 416) 73, 77. Meagher vs County of Storey (1869, 5 Nev. 244) 196, 219, 236. Mearns vs Petrolia (1880, 28 Gr. (Ont.) 98) 207, 446, 448. Meehan vs Hudson County Free- holders (1844, 46 N. J. L. 276, 50 Am. R. 421) 224, 236, 237, 430. Memphis vs Woodward (1873, 12 Heisk. (Tenn.) 499, 27 Am. Rep. 750) 219, 227. Mendenhall vs Burton (1889, 42 Kan. 570, 22 P. 558) 58, 64. Mendota vs Thompson (1858, 20 111. 197) 64. Iviii CASES CITED. [HBPEItENCES ABB Merced Bank vs Rosenthal (1893, 99 Gal. 39, 31 P. 849, 33 P. 732) 122. Merchant's National Bank vs Mc- Kinney (1891, 2 S. Dak. 106, 48 N. W. 841) 29, 59, 189, 313. Meredith vs Sacramento County (1875, 50 Cal. 433) 235, 432. 442. Merkley vs Williams (1906, 3 Cal. App. 268, 84 P. 1015) 227. Merlette vs State (1894, 100 Ala. 42, 14 So. 562) 381. Merrill vs Palmer (1842, 13 N. H. 184) 136, 318. Merriman vs Magiveny (1873, 12 Heisk. (Tenn.) 494) 68. Merritt vs Farris (1859, 22 111. 303) 335. Merritt vs Hinton (1891, 55 Ark. 12, 17 S. W. 270) 232, 233. Merritt vs Portchester (1877, 71 N. Y. 309, 27 Am. R. 47) 333. Metropolitan National Bank vs Commercial S. Bank (1898, 104 Iowa, 682, 74 N. W. 26) 170. Metsker vs Neally (1889, 41 Kan. 122, 21 P. 206, 13 Am. St. K. 269) 444. Metz vs Anderson (1860, 23 111. 463, 76 Am. Dec. 704) 335. Meurer vs Detroit etc. Association (1893, 95 Mich. 451, 54 N. W. 954) 66. Miahle vs Fournet (1858, 13 La. Ann. 607) 434. Michel vs New Orleans (1880, 32 La. Ann. 1094) 224, 225. Midhurst vs Waite (1761, 3 Burr. 1259) 133. Milford School Town vs Zeigler (1890, 1 Ind. App. 138, 27 N. E. 303) 110, 119, 313a. Miller vs Callaway (1878, 32 Ark. 666) 266, 301. Miller vs English (1848, 21 N. J. L. 317) 464. TO SECTIONS] Miller vs Palermo (1873, 12 Kan. 14) 464. Miller vs Perris Irrigation District (1899, 92 Fed. R. 263) 58. Miller vs Seymour (1902, 67 N. J, L. 482, 51 A. 719) 461, 468. Miller vs Stewart (1824, 9 Wheat. (U. S.) 680) 289. Miller vs Utter (1833, 14 N. J. L. 84) 463, 466. Miller vs Warner (1899, 42 N. Y. App. Div. 208, 59 N. Y. S. 956) 19. Miller vs Washington (1901, 67 N. J. L. 167, 50 A. 341) 438. Millikin vs Fuller (1 Bart. EI. Cas. 176) 361. Millington, In re (1880, 24 Kan. 214) 416a. Mills vs State (1891, 2 Wash. 566, s. c. sub. nom. State vs Mills, 27 P. 560) 461, 463, 465. Mihvard vs Thatcher (1787, 2 Term (D. & E.) 81, 1 R. R. 431) 6, 162, 301, 412. 422. Miner vs Justices Court (1898, 121 Cal. 264, 53 P. 795) 29, 36, 430. Missouri vs Boone County Court (1872, 50 Mo. 317) 29. Missouri Pacific Ry. Co. vs Pres- ton (1901, 63 Kan. 819, 66 P. 1050) 109, 162. Mitchell vs Tolan (1868, 33 N. J. L. 195) 177, 429, 462, 466, 467. Mobley vs State (1872, 46 Miss. 501) 320. Mookett vs State (1903, 70 Neb. 518, 97 N. W. 588) 241, 252. Modstock Mining Co. vs Harris (1902, 40 Nov. Scot. 336) 11, 153. Moiles vs Watson (1886, 60 Mich. 415, 27 N. W. 553) 210. Monahan vs Lynch (1903, 2 Alas- ka, 132) 301, 446. CASES CITED. lix [references ABE Monroe v9 Hoffman (1877, 29 La. Ann. 651) 151, 188, 205. Monroe Water Co. vs Frenchtown Tp. (1894, 98 Mich. 431, 57 N. W. 268) 66. Monteith vs Commonwealth (1859, 15 Gratt. (Va.) 172) 137, 150, 277. Montgomery vs Chelf (1904, 118 Ky. 766, 82 S. W. 388) 367. Montgomery vs Hughes (1880, 65 Ala. 201) 297. Montgomery vs Odell (1893, 67 Hun (N. Y.) 169, 35 N. E. 205, 22 N. y. S. 412, affirmed (1894) 142 N. y. 665, 37 N. E. 570) 76, 302. Montgomery vs State (1895, 107 Ala. 372, 18 So. 157) 16. Moon vs Mayor (1905, 214 111. 40, 73 N. E. 408) 29, 45, 204. Moore, Ex p. (1878, 62 Ala. 471) 64. Moore vs Caldwell (1836, Freeman (Miss.) 222) 174. Moore vs Graves (1826, 3 N. H. 408) 128, 175, 318. Moore vs Holt (1904, 55 W. Va. 507, 47 S. E. 251) 440. Moore vs State (1858, 5 Sneed (Tenn.) 510, 174, 422. Moore vs Turner (1884, 43 Ark. 243) 136, 322, 330. Morford vs Territory (1901, 10 Okla. 741, 63 P. 958, 54 L.R.A. 513) 160, 393, 429. Morgan vs Hughes (1788, 2 Term. (D. & E.) 225) 273. Morgan vs Nunn (1898, 84 Fed. 551) 446. Morgan vs Quackenbush (1856, 22 Barb. (N. Y.) 72) 78, 91, 180. Morgan vs Vance (1868, 4 Bush. (Ky.) 323) 267. Morrell vs People (1863, 32 111. 499) 389. TO SECTIONS] Morris vs People (1846, 3 Denio (N. y.) 381) 196, 409. Morris vs People (1896, 8 Col. App. 375, 46 P. 691) 299. Morris vs Underwood (1856, 19 Ga. 559) 466. Morrison vs Sayre (1886, 40 Hun (N. y.) 465) 156, 309. Morriss vs Virginia Ins. Co. (1888. 85 Va. 588) 75. Morse vs Galley (1830, 5 N. H. 222) 318. Morton vs Broderiok (1897, 118 Cal. 474, 50 P. 644) 445. Morton vs Lee (1882, 28 Kan. 286) 124, 301. Mosely vs Tuthill (1871, 45 Ala. 621, 6 Am. Rep. 710) 402. Moss vs State (1847, 10 Mo. 338, 47 Am. Dec. 116) 289. Motley vs Wilson (1904, 26 Ky. Law R. 1011, 82 S. W. 1023) 181, 365. Moulton vs Reid (1875, 54 Ala. 320, reversing Reid vs Moulton, 1874, 51 Ala. 255) 446. Mowbray vs State (1882, 88 Ind. 324) 136. Muir vs State (1846, 8 Blackf. (Ind.) 154) 384. Mullen vs Tacoma (1896, 16 Wash. 82, 47 P. 215) 446. Munson va Minor (1859, 22 III. 594) 335. Murphy, Ex p. (1827, 7 Cow. (N. y.) 153) 467. Murphy vs Lentz (1906, 131 Iowa 328, 108 N. W. 530) 176. Murphy vs Moies (1892, 18 R. I. 100, 25 A. 977) 304. Murphy vs Shepard (1889, 52 Ark. 356, 12 S. W. 707) 136, 330. Muse vs Lexington (1903, 110 Tenn. 655, 76 S. W. 481) 72. bs CASES CITED. [hefekences abb N. Nail vs Coulter (1904, 117 Ky. 747, 78 S. W. 1110) 82, 107, 224 Kiilte vs Austin (1900, 23 Tex- Civ. App. 595, 56 S. W. 954) 337. Nares vs Rowles (1811, 14 East 510) 280. Nashville vs Thompson (1883, 12 Lea. (Tenn.) 344) 422. Nason vs Dillingham (1818, 15 Mass. 170) 138, 318. Nason vs Fowler (1900, 70 N. H. 291, 47 A. 263) 246. National Bank of Fairhaven vs Phoenix Warehousing Co. (1875, 6 Hun (N. Y.) 71) 66. National Life Insurance Co. vs Bd. of Education (1894, 62 Fed. 778, 10 C. C. A. 637) 58, 313. National Mutual Building & Loan Association vs Ashworth (1895, 91 Va. 706, 22 S. E. 521) 66. Neale vs Overseer (1836, 5 Watts (Pa.) 538) 203, 313a. Neeland vs State (1888, 39 Kan. 154, 18 P. 165) 73, 446, 451. Neiser vs Thomas (1889, 99 Mo. 224, 12 S. W. 725) 446. Nelson vs Kessinger (1884, 16 111. App. 185) 316. Nelson vs People (1860, 5 Parker Cr. R. 39, affirmed 1861, 23 N. Y. 293) 410, 414. New Orleans etc. Co. vs Tanner (1874, 26 La. Ann. 273) 317. Newell vs Whitingham (1885, 58 Vt. 341) 328. Newman vs Tiernan (1862, 37 Barb. (N. Y.) 159) 267. Newsom vs Cocke (1879, 44 Miss. 352, 7 Am. R. 686) 451. New York vs Flagg (1858, 6 Abb. Pr. (N. Y.) 296) 29, 228, 236, 266, 345. New York vs Tucker (1803, 1 Daly, (N. Y.) 107) 429. TO SECTIONS] New York vs Vanderveer (1904, 91 N. Y. App. Div. 303, 86 N. Y. S. 659) 333. Nicol School Trustees vs Maitland (1899, 26 Ont. App. R. 506) 59. Nichols vs Branham (1888, 84 Va. 923, 6 S. E. 463) 233. Nichols vs McLean (1886, 101 N. Y. 526, 5 N. E. 347, 54 Am. Rep. 730, affirming 19 Wkly. Dig. 96) 178, 203, 219, 221, 229, 232. Nofire vs United States (1897, 164 U. S. 657, 17 Sup. Ct. 212, 41 L. ed. 588) 109, 301. Norfleet vs Staton (1875, 73 N. C. 546) 82, 111, 347. Norridgewock vs Hale (1888, 80 Me. 362) 298. Xorris, Ex p. (1877, 8 Rich. (S. C. 408) 79, 139, 301, 311. Xorris vs State (1861, 22 Ark. 524) 278. North London Ry. vs Great North- ern Ry. (1883, 11 Q. B. D. 30, 52 L. J. Q. B. 380, 48 L. T. 695, 31 W. R. 490) 447a. Northrop vs Gregory (1870, 18 Fed. Cas. (No. 10,327) 373. 2 Abb. U. S. 503) 119. Northumberland vs Cobleigh (1879, 59 N. H. 250) 429. Northwestern Lumber Co. vs Che- halis Co. (1901, 25 Wash. 95, 64 P. 909, 87 Am. St. R. 747, 54 L.R.A. 212) 339. Northwestern JIutual Life Insur- ance Co. vs Seaman (1897, 80 Fed. R. 357) 175. Norton, In re (1902, 64 Kan. 842, 68 P. 639, 91 Am. St. R. 255) 29, 396, 397, 430. Norton vs Shelby County (1886, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. ed. 178) 3, 28, 34, 38, 40, 51, 52, 102, 171, 313. Norwich vs Yarrington (1848, 20 Vt. 473) 409, 410. CASES CITED. Ixi [EEFERENCES AKE TO SECTIONS] 0. Orme vs Commonwealth (1900, 21 Ky. Law R. 1412, 55 S. W. 195) 410. Orneville vs Palmer (1887, 79 Me. 472, 10 A. 451) 327. Orrock School District vs Dorton (1898, 145 Mo. 304, 46 S. W. 948) 115. Osborne vs State (1890, 128 Ind. 129, 27 N. E. 345) 429. Osgoode vs Jones (1881, 60 N. H. 543) 451, 471. Ostrander vs People (1883, 29 Hun (N. Y.) 513) 151, 422. Oswald vs Mayor of Berwick-Up- on-Tweed (1856, 5 H. L. Cas. 856, 25 L. J. Q. B. 383, 2 Jur. (N. S.) 743, 4 W. R. 738, affirm- ing 3 El. & Bl. 653) 288. Outhouse vs Allen (1874, 72 111. 529) 266, 268. Overall vs Madisonville (1907, 31 Ky. Law R. 278, 102 S. W. 278) 175, 185, 189. P. Pack vs United States (1906, 41 Ct. CI. 414) 219, 236, 252, 301, 369. Paducah Land etc. Co. vs Cochran (1896, 18 Ky. Law R. 465, 37 S. W. 67) 416a Painter vs Polk County (1890, 81 Iowa 242, 47 N. W. 65, 25 Am. St. R. 489) 240. Paldi vs Paldi (1890, 84 Mich. 346, 47 N. W. 510) 334. Palmer vs Bd. of Education (1900, 47 N. Y. App. Div. 547, 62 N. Y. S. 485) 446. Palmer vs Foley (1873, 36 N. Y. Super. Ct. 14, 45 How. Pr. 110, reversing 44 How. Pr. 308) 186. Palmer vs Charlotte etc. R. Co. (1872, 3 S. C. 580, 16 Am. Rep. 750) 320. Oates vs State (Tex. Crim. App. 1909, 121 S. W. 370) 190, 416a. O'Brian vs Knivan (1620, Cro. Jac. 552, 79 Eng. Rep. 473) 6, 74, 310, 412. Odiorne vs Rand (1880, 59 N. H. 504) 174, 329. O'Donnel vs Dusman (1877, 39 N. J. L. 677) 431. Offutt vs Commonwealth (1874, 10 Bush. (Ky.) 212) 289, 297. Ohio vs Ailing (1843, 12 Ohio 16) 125. Oklahoma City vs Richardson Lumber Co. (1895, 3 Okla. 5, 39 P. 385) 50. Old Dominion Bldg & Loan Ass'n vs Sohn (1903, 54 W. Va. 101, 46 S. E. 222) 170, 301, 310, 316, 429. Oldtown vs Blake (1883, 74 Me. 280) 315, 327. Oliver vs Jersey City (1899, 63 N. J. L. 634, 44 A. 709, 76 Am. St. R. 228, 48 L.R.A. 412, reversing 63 N. J. L. 96, 42 A. 782) 107, 119, 149, 151, 170, 301, 302, 312. Olmsted vs Dennis (1879, 77 N. Y. 378) 203, 244, 254. Olson vs Hawkins (1908, 135 Wis. 394, 116 N. W. 18) 175, 307. Olson vs Trego County (1898, 8 Kan. App. 414, 54 P. 805) 107, 123. Omro vs Kaine (1876, 39 Wis. 468) 297. O'Neil vs Atty.-Gen. of Canada (1896, 20 Can. Sup. Ct. 122, 1 Can. Crim. Cas. 303) 11, 117, 134, 301, 318. O'Neil vs Battle (1891, 61 Hun (N. Y.) 622, 15 N. Y. S. 818) 313a. Oregon, Territory of vs Pyle (1854, 1 Ore. 149) 203. txii CASES CITED. [REFERENCES ARE Paris vs Couture (1883, 10 Que. L. E. 1) 11, 73, 81, 82, 173, 429, 456. Parker vs Baker (1840, 8 Paige (N. Y.) 428, reversing Clarke Ch. 223) 186, 369. Parker vs Dakota (1860, 4 Minn. 59) 224. Parker vs Kett (1701, 12 Mod. 466, 88 Eng. R. 1454, 1 Ray. (Ld.) 658, 91 Eng. R. 1338, Salk. 95, Holt, 221) 6, 82, 84, 103, 184, 301, 412, 422. Parlcer vs Luffborough (1823, 10 S. & E. (Pa.) 249) 136, 337. Parker vs Overman (1855, 18 How. (U. S.) 137) 330. Parker vs Smith (1859, 3 Minn. 240, 74 Am. Dec. 749) 464. Parker vs State (1892, 133 Ind. 178, 31 IS. E. 1114) 194, 301. Parks, In re (1880, 3 Mont. 426) 29, 196, 424. Parka vs State (1893, 100 Ala. 634, 13 So. 756) 456. Parrott vs Byers (1871, 40 Cal. 614) 66. Parsons vs Durand (1898, 150 Ind. 203, 49 K E. 1047) 451. Patterson vs Freehold Tp. (1876, 38 N. J. L. 255) 289. Patterson vs Hubbs (1871, 65 N. C. 119) 206. Patterson vs Miller (1859, 2 Mete. (Ky.) 493) 161, 203, 267, 301. Patterson vs State (1887, 49 N. J. L. 326, 8 A. 305) 435. Payson vs Hall (1849, 30 Me. 319) 327. Peabody vs Boston (1874, 115 Mass. 383) 459. Pearce vs Hawkins (1852, 2 Swan. (Tenn.) 87, 58 Am. Dec. 54) 267. Peard vs State (1892, 34 Neb. 372, 51 N. W. 828) 364. Peck vs Holcombe (1836, 3 Port. (Ala.) 329) 94, 97, 206, 337. TO sections] Pelletier vs Village of de Lorimier (1898, 17 Que. E. (S. C.) 509) 441. Pence vs Frankfort (1897, 101 Ky. 534, 41 S. W. 1011) 119, 312. Penn vs Tollison (1871, 26 Ark. 545) 401. Penney vs Slade (1839, 5 Bing. (N. C.) 319, 7 Scott 484, 8 L. J. C. P. 221) 6, 172, 184, 306, 325, 429, 437. Pennywit vs Foote (1875, 27 Ohio St. 600, 22 Am. Rep. 340) 404. Penryn's Case, Mayor of (1724. 1 Stra. 582, 2 Bro. P. C. 294) 473, 474. Pentecost vs State (1895, 107 Ala. 81, 18 So. 146) 136, 262. People vs Ahearn (1906, 111 N. Y. App. Div. 741, 98 N. Y. S. 492) 444. People vs Alkenhead (1855, 5 Cal. 106) 293. People vs Albertson (1853, 8 How. Pr. (K. Y.) 363) 188, 379. People vs Allen (1884, 42 Barb. (N. Y.) 203) 209. People vs Alturas County (1899, 6 Idaho 418, 55 P. 1067, 44 L.R.A. 122) 70, 72. People vs Ammons (1848, 10 HI. 105) 110. People vs Anthony (1875, 6 Hun (N. Y.) 142) 203, 344. People vs Atty.-Gen .(1856, 22 Barb. (N. Y.) 114) 461. People vs Avery (1894, 102 Mich. 572, 61 N. AV. 4) 366. People vs Bangs (1860, 24 111. 184) 198, 405, 424. People vs Banvard (1865, 27 Cal. 470) 472, 474. People vs Bartlett (1831, 6 Wend. (N. Y.) 422) 119, 429. People vs Bates (1894, 79 Hun (N. Y.) 584, 29 N. Y. S. 894) 264, 265. CASES CITED. Ixiii [KEPEEBNCES ABE People vs Beeach (1875, 77 111. 52) 121, 277, 287, 293. People vs Bingham (1889, 82 Cal. 238, 22 P. 1039) 456, 457. People vs Bird (1886, 20 111. App. 568) 458. People vs Board of Police (1887, 46 Hun (N. Y.) 296) 365. People vs Board of Police (1872, 43 How. Pr. (N. Y.) 385) 439a. People vs Board of Police (1858, 26 Barb. (N. Y.) 481) 439a. People vs Board of Supervisors of Erie County (1898, 56 N. Y. S. 318) 94, 124. People vs Boyd (1889, 30 111. App. 608, affirmed in 132 111. 60, 23 N. E. 342) 467, 469. People vs Brady (1901, 166 N. Y. 44, 59 N. E. 701, reversing 53 N. Y. App. Div. 279, 65 N. Y. S. 844) 438. People vs Brennan (1865, 1 Abb. Pr. (N. S.) (N. Y.) 184) 225. People vs Brennan (1866, 30 How. Pr. (N. Y.) 417) 187, 225. People vs Brown (1888, 47 Hun (N. Y.) 459) 243, 245. People vs Bruennemer (1897, 168 111. 482, 48 N. E. 43) 472. People vs Bunker (1886, 70 Cal. 212, 11 P. 703) 246. People vs Callaghan (1876, 83 111 128) 471. People vs Carpenter (1861, 24 N". Y. 86) 473. People vs Carrique (1841, 2 Hill (N. Y.) 93) 162. People vs Carter (1859, 29 Barb. (N. Y.) 208) 187. People vs Clayton (1886, 4 Utah 421, 11 P. 206) 455, 472. People vs Clute (1872, 50 N. Y. 451, 10 Am. Rep. 508, affirming 12 Abb. Pr. (N. S.) 399, and re- versing 63 Barb. 356) 164. TO SECTIONS] People VS Cobler (1895, 108 Cal. 538, 41 P. 401) 258. People vs Collins (1811, 7 Johns. (N. Y.) 549) 97, 132, 314, 434. People vs Common Council (1879, 77 N. Y. 503) 170. People vs Connor (1865, 13 Mich. 238) 474. People vs Conover (1858, 6 Abb. Pr. (N. Y.) 220) 474. People vs Cook (1853, 8 N. Y. 67, 59 Am. Dec. 451, affirming (1852, 14 Barb. 259) 81, 186, 189, 274, 301, 364, 365, 367, 368, 379. People vs Cooper (1880, 21 Hun (N. Y.) 517) 439a. People vs Cover (1869, 50 111. 100) 442. People vs Covert (1841, 1 Hill (N. Y. 674) 130, 314. People vs Cronin (1890, 80 Mich. 646, 45 N. W. 479) 264. People vs Dashaway Association (1890, 84 Cal. 114, 24 P. 277) 455. People vs Dean (1830, 3 Wend. (N. Y.) 438) 154, 434. People vs Denton (1877, 35 Mich. 305) 474. People vs Dike (1902, 37 Misc. (IST. Y.) 401, 75 N. Y. S. 801) 107. People vs Dillon (1894, 26 N. Y. S. 778) 410. People vs Draper (1857, 24 Barb. (N. Y.) 265, 4 Abb. Pr. 333, 14 How. Pr. 233, 15 N. Y. 532) 206, 446, 473. People vs Edwards (1892, 93 Cal. 153, 28 P. 831) 121. People vs Fairchild (1876, 8 Hun (N. Y.) 334, 67 N. Y. 334) 461. People vs Farley (1884, 1 How. Pr. (N. S.) (N. Y.) 71) 206. People vs Farnham (1864, 35 111. 562) 72. People vs Gary (1902, 196 111. 310, 63 N. E. 749) 469. Ixiv CASES CITED. [EEFEEENCES AEE People vs Gobies (1887, 67 Mich.. 475, 35 N. W. 91) 410, 438. People vs Goetting (1892, 133 N. Y. 569, 30 N. E. 968, affirming 1890, 55 Hun 611, 8 N. Y. S. 742) 444. People vs Golden Rule (1885, 114 III. 34) 465. People vs Grand River Bridge Co. (1889, 13 Col. 11, 21 P. 898, 16 Am. St. R. 182) 463. People vs Hall (1880, 80 N. Y. 117) 455, 457, 458. People vs Hamilton (1886, 24 111. App. 609) 465. People vs Hartwell (1864, 12 Jlich. 508, 86 Am. Dec. 70) 466. People vs Hastings (1866, 29 Cal. 449) 332. People vs Hatch (1886, 60 Mich. 229, 26 N. W. 860) 461. People vs Havird (1889, 2 Idaho 531, 25 P. 294) 455. People vs Head (1861, 25 111. 325) 209, 431, 443. People vs Hecht (1895, 105 Cal. 621, 38 P. 941, 45 Am. St. E. 96, 27 L.R.A. 203) 29. People V3 Highland Park (1891, 88 Mich. 653, 50 N. W. 660) 167. People vs Hilliard (1862, 29 111. 413) 367. People vs Hills (1869, 1 Lans. (N. Y.) 202) 470. People vs Hoflfman (1901, 166 N. Y. 462, 60 N. E. 187, 54 L.R.A. 597) 439a. People vs Holden (1865, 28 Cal. 123) 458, 461. People vs Hopson (1845, 1 Den. (N. Y.) 574) 203, 204, 213, 214, 230. People vs Howe (1904, 177 N. Y. 499, 69 N. E. 1114, 66 L.R.A. 664) 224, 236, 446. People vs Huson (1889, 78 Cal. 154, 20 P. 369) 279, 281. TO sections] People vs Jackson (1901, 16 Col. App. 308, 64 P. 1051) 299. People vs Jenkins (1861, 17 Cal. 500) 279. People vs Keeling (1878, 4 Col. 129) 465, 467. People vs Kilduflf (1854, 15 III 492, 60 Am. Dec. 769) 431, 443. People vs Knopf (1900, 183 111. 410, 56 N. E. 155) 36, 38, 335. People vs Knox (1885, 38 Hun (N. Y.) 236) 472, 474. People vs Lane (1873, 55 X. Y. 217) 212, 432. People vs Larue (1885, 67 Cal. 526, 8 P. 84) 58. People vs Lieb (1877, 85 111. 484) 178, 205, 208, 335. People vs Lister (1901, 106. App. Div. (N. Y.) 61, 93 N. Y. S. 830) 313a. People vs Lodi High School Dis- trict (1899, 124 Cal. 694, 57 P. 660) 365. People vs Londoner (1889, 13 Col. 303, 22 P. 764, 6 L.R.A. 444) 456, 457, 458, 464, 472, 474. People vs Loomis (1832, 8 Wend. (N. Y.) 396, 24 Am. Dec. 33) 212, 466. People vs Matteson (1855, 17 111. 167) 451. People vs Maynard (1867, 15 Mich. 463) 57, 69. People vs Mayor (1879, 19 Hun (N. Y.) 441) 439a. People vs McAdoo (1905, 110 X. Y. App. Div. 432, 96 N. Y. S. 362) 76. People vs McCausland (1877, 54 How. Pr. (N. Y.) 151) 473. People vs McCuUough (1871, 11 Abb. Pr. (N. S.) (N. Y.) 129) 471. People vs McDowell (1893, 70 Hun (N. Y.) 1, 23 N. Y. S. 950, 10 N. Y. Crim. R. 462) 110, 314 CASES CITED. Ixv [REFEEENCES ABE People vs MclV^anus (1861, 34 Barb. (N. Y.) 620, 22 How. Pr. 25) 366. People vs Mellon (1871, 40 Cal, 648) 416. People vs Miller (1872, 24 Mich. 458, 9 Am. Rep. 131) 219, 229, 231. People vs Miller (1867, 16 Mich. 205) 264. People vs Miles (1852, 2 Midi. 348) 472. People vs Moore (1874, 73 111. 132) 468. People vs Murray (1878, 73 N. Y. 535, reversing 8 Daly 347) 345, 346. People vs Nelson (1890, 133 111. 565, 27 N. E. 217) 196. People vs New York (1802, 3 Johns. Cas. (N. Y.) 79) 442, 451. People vs Nolan (1886, 101 N. Y. 539, 5 N. E. 446, affirming (1884, 32 Hun 612) 232, 472, 474. People vs Nolan (1883, 65 How. Pr. (N. Y.) 468) 264, 265. People vs North Chicago Ry. Co. (1878, 88 111. 537) 461, 468. People vs Nostrand (1871, 46 N. Y. 375) 203, 211. People vs Oakland County Bank (1844, 1 Doug. (Mich.) 282, 467 People vs Orleans County Court (1882, 28 Hun (N. Y.) 14) 186. People vs Parker (1889, 117 N. Y. 86, 22 N. E. 752, affirming 45 Hun 432) 333. People vs Payment (1896, 109 Mich. 553, 67 N. W. 689) 137, 141, 405. People vs Peabody (1858, 6 Abb, Pr. (N. Y.) 228) 101, 108, 209, 226. People vs Pederson (1906, 220 111. 554, 77 N. E. 251) 48. People vs Perley (1880, 80 N. Y. 624) 472. TO SECTIONS] People vs Police Comm'rs (1903, 174 N. Y. 450, 67 N. E. 78, 95 Am. St. R. 596) 442, 444. People vs Police Comm'rs of New York (1879, 57 How. Pr. (N. Y.) 445) 365. People vs Porter (1856, 6 Cal. 26) 162. People vs Potter (1883, 63 Cal, 127) 226, 234, 236. People vs Prewett (1899, 124 Cal. 7, 56 P. 619) 367. People vs Regents (1897, 24 Col. 175, 49 P. 286) 461, 465. People vs Reid (1887, 11 Col. 138, 17 P. 302) 456. People vs Richardson (1825, 4 Cow. (N. Y.) 97n. (a.) )465. People vs Roberts (1856, 6 Cal. 214) 162, 320. People vs Rogers (1897, 118 Cal. 393, 1896, 46 P. 740, 50 P. 668) 466. People vs Rosborough (1859, 14 Cal. 180) 119, 422. People vs Ryder (1855, 12 N. Y. 433, 16 Barb. (N. Y.) 470) 464, 472, 474. People vs Sassovich (1806, 29 Cal. 480) 186, 407. People vs Scannell (1857, 7 Cal. 432) 209, 431. People vs Schafer (1907, 228 111. 17, 81 N. E. 785) 59. People vs Schermerhorn (1855, 19 Barb. (N. Y.) 540) 367. People vs Schiellein (1884, 95 N. Y. 124) 242, 429. People vs Schnepp (1899, 179 111. 305, 53 N. E. 632) 467, 468. People vs Schuyler (1850, 4 N. Y. 173) 89. People vs Sheehan (1908, 128 N. Y. App. Div. 743, 113 N. Y. S. 230) 444. Ixvi CASES CITED. [KEFEKENCES AEE People V3 Sherwood (1874, 4 Thomp. & C. (N. Y.) 34) 409, 438. People vs Shorb (1893, 100 Cal. 537, 35 P. 163, 38 Am. St. R. 310) 472. People vs Slocum (1866, 1 Idaho, 62) 281. People vs Snedeker (1856, 3 Abb. Pr. (N. Y.) 233) 474. People vs Stephenson (1893, 98 Mich. 218, 57 N. W. 115) 474. People vs Stevens (1843, 5 Hill (N. Y.) 616) 209, 345, 431, 442. People ex rel. Howard vs Sup'rs of Erie County (1899, 42 N. Y App. Div. 510, 59 N. Y. S. 476, affirmed 160 N. Y. 687, 55 N. R 1099) 443. People vs Sweeting (1807, 2 John. (N. Y.) 184) 465, 466. People vs Terry (1886, 42 Hun (N. Y.) 273, reversed on special ground in People vs Terry, 1887, 108 N. Y. 1, 14 N. E. 815) 29, 36, 174, 396, 405. People vs Thacher (1874, 55 N. Y. 525, 14 Am. R. 312) 472. People vs Tieman (1859, 30 Barb. (N. Y.) 193, 8 Abb. Pr. 359) 219, 236. People vs Toal (1890, 85 Cal. 333, 23 P. 203) 29, 36, 396. People vs Toomay (1887, 122 111. 308, 13 N. E. 521) 289. People vs Utica Insurance Co. (1818, 15 John. (N. Y.) 353, 8 Am. Dec. 243) 453, 472. People vs Waite (1873, 70 111. 25, 6 Chic. Leg. News 175) 468. People vs Weber (1878, 89 111. 347) 203. People vs Weber (1877, 86 111. 283) 203, 211, 430. People vs Welsh (1907, 225 111. 364, 80 N. E. 313) 29, 30. TO SECTIONS] People vs Whitcomb (1870, 55 111. 172) 466. People vs White (1840, 24 Wend. (N. Y.) 520, reversing 18.39, 22 Wend. 167) 196, 410, 422, 430, 435. Pepin vs Lachenmeyer (1871, 45 N. Y. 27) 402. Peppin vs Cooper (1819, 2 B. & Aid. 431) 288. Perkins vs Fielding (1893, 119 Mo. 149, 24 S. W. 444, 27 S. W. 1100) 33, 102, 125, 301, 312. Perrault vs Brochu (1860, 10 Low. Can. R. Ill) 358. Peterborough vs Lancaster (1843, 14 N. H. 382) 240. Peters vs Bell (1898, 51 La. Ann. 1621, 26 So. 442) 451. Petersilea vs Stone (1876, 119 Mass. 465, 20 Am. Rep. 335) 3, 97, 102, 119, 301, 318. Petit vs Rousseau (1860, 15 La. Ann. 239) 233, 234. Phelon vs Grenville (1886, 140 Mass. 386, 5 N. E. 269) 236, 430. Philadelphia vs Given (1869, 60 Pa. St. 136) 236. Philadelphia vs Rink (1886, 1 Sad. (Pa.) 390, 2 Cent. Rep. 289, 2 A. 505) 219, 229. Phillips vs Corbin (1890, 8 Col. App. 34G, 46 P. 224) 365. Phinizy vs Augusta & K, R. Co. (1894, 62 Fed. 678) 66. Pickett vs Russell (1900, 42 Fla. 116, 28 So. 764) 365. Pierce vs Edington (1881, 38 Ark. 150) 102, 110. Pierce vs Richardson (1858, 37 N. H. 306) 329. Pierce vs Weare (1875, 41 Iowa, 378) 339. Pike vs Hanson (1838, 9 N. H, 491) 329. CASES CITED. Ixvii [DEFERENCES ABE Pinsonnault vs Corp. de Laprairie (1901, 20 Que. R. (S. C.) 525) 135, 418. Place vs Banvard (1865, 27 Cal. 470) 474. Placer County vs Dickerson (1872, 45 Cal. 12) 287, 293. Piatt vs Stout (1862, 14 Abb. Pr. (N. Y.) 178) 229. Plymouth vs Painter (1846, 17 Conn. 585, 44 Am. Dec. 574) 97, 203, 266. Police Jury vs Haw (1830. 2 La. 41, 20 Am. Dec. 294) 279. Pontiac County vs Pontiac Junc- tion Ry. Co. (1888, 11 Leg. News (Que.) 370, affirmed in Pontiac County vs Ross (1889, 17 Can. Sup. Ct. 406) 173, 301, 313. Pontiac County vs Ross (1889, 17 Can. Sup. Ct. 406, affirming s. c. sub nom. Pontiac County vs Pontiac Pacific Junction Ry. Co. (1888), 11 Leg. News (Que.) 370) 11, 173, 301, 313. Pool vs Perdue (1871, 44 Ga. 454) 77, 405. Pooler vs Reed (1882, 73 Me. 129) 170, 266. Portsmouth, In re (1710, 16 Jour. 480) 7, 351. Portsmouth's Petition (1848, 19 N. H. 115) 94. Potter vs Luther (1808, 3 Johns. (N. Y.) 431) 270. Powell vs BuUis (1906, 221 111. 379, 77 N. E. 575) 439a. Powers, In re (1893, 65 Vt. 399, 26 A. 640) 170. Powers vs Braley (1890, 41 Mo. App. 556) 138, 318. Powers vs Commonwealth (1901, 110 Ky. 386, 61 S. W. 735, 22 Ky. L. R. 1807, 63 S. W. 976, 53 L.R.A. 245) 77, 79, 94, 311. Powers vs State (1903, 83 Miss. 691, 36 So. 6) 136. TO SECTIONS] Poyntz vs Shackleford (1900, 107 Ky. 546, 54 S. W. 855) 446. Pratt vs Board of Police (1897, 15 Utah, 1, 49 P. 747) 444. Pratt vs Breckenridge (1901, 112 Ky. 1, 65 S. W. 136, 23 Ky. Law R. 1356; Id. 66 S. W. 405, 23 Ky. Law R. 1858) 186, 188, 194, 365. Prentibs vs Davis (1891, 83 Me. 364, 22 A. 246) 70, 72. Preseott vs Hayes (1860, 42 N. H. 56) 97, 166, 316. Presque Isle County vs Thompson (1894, 61 Fed. 914, 10 C. C. A. 154) 70. Price vs Guinane (1888, 16 0. R. 264) 85. Priet vs De la Montanya (Cal. 1889, 22 P. 171) 293. Pritchard vs Mayor of Bangor (1888, 13 App. Cas. 241, 57 L. J, Q, B. 313, 58 L. T. 502, 37 W. R. 103, 52 J. P. 564) 434. Pritchett vs People (1844, 6 111. 525) 113, 119, 281, 321. Privett vs Stevens (1881, 25 Kan. 275) 164. Ptacek vs People (1900, 94 111. App. 571) 470. Public Institute Comm'rs vs Fell (1894, 52 K J. Eq. 689, 29 A. 816) 46. Pudding Norton, Norfolk Over- seers, In re (1864, 33 L. J. M. C. 136, 10 L. T. 386, 12 W. R. 762) 437. Pueblo County vs Gould (1895, 6 Col. App. 44, 39 P. 895) 429. Q. Quinn, In re (1897, 152 N. Y. 89, 46 N. E. 175) 29, 30, 125, 396. Quinn vs Commonwealth (1870, 20 Gratt. (Va.) 138) 422. Ixviii CASES CITED. [REFERENCES ABE Quinn vs Markoe {1887, 37 Minn. 439, 35 N. W. 263) 366, 367. Quint vs Hoffman (1894, 103 Cal. 506, 37 P. 514) 64. E. Radl, In re (1894, 86 Wis. 645, 57 N. W. 1105) 408, 440. Eahway vs Crowell (1878, 40 N. J. L. 207, 29 Am. R. 224) 294, 296. Railroad Co. vs Kearney County (1897, 58 Kan. 19, 48 P. 583) 52. Railroad Co. vs Shires (1884, 108 111. 617) 64. Railroad Co. vs Town of Kentwood (1897, 49 La. Ann. 931, 22 So. 192) 57. Railway Co. vs Holding (1891, 69 Miss. 255, 13 So. 844, 30 Am. St. R. 541) 318. Ramsey County vs Brisbin (1871, 17 Minn. 451) 139, 277, 281, 301. Rannels vs Rowe (1906, 145 Fed. 296) 66. Ransom vs Priam Lodge No. 145 (1875, 51 lud. 60) 66. Rany vs Governor (1835, 4 Blackf. (Ind.) 2) 289. Rasmussen vs Comm'rs of Carbon County (1899, 8 Wyo. 277, 56 P. 1098) 220, 224, 227. Rathbone vs Hopper (1896, 57 Kan. 240, 45 P. 610, 34 L. R. A. 674) 46. Ray vs Murdock (1859, 36 Miss. 692) 191, 331. Ray vs Thompson (1869, 43 Ala. 434, 94 Am. Dec. 696) 401. Raymond, Ex p. (1872, Steven's Digest (N. B.) 127) 11, 138, 326. TO SECTIONS] Read vs City of Buffalo (1867, 4 Abb. Dec. (N. Y.) 22, 3 Keyes 447) 122, 410. Readsboro vs Woodford (1904, 76 Vt. 376, 57 A. 962) 70. Reddy vs Tinkum (1882, 60 Cal. 458) 92. Redfield School District No. 12 vs Redfield Independent School District No. 20 (1901, 14 S. Dak. 229, 85 N. W. 180) 70. Reed vs Canal Corporation (1874, 65 Me. 53) 452. Reemilin vs Mosby (1890, 47 Ohio 570, 26 N. E. 717) 207, 446. R. vs Amer (1878, 42 U. C. Q. B. 391, 1 Cart. 722) 10. R. vs Bank of Upper Canada (1849, 5 U. C. Q. B. 338) 441. R. vs Bankes (1764, 3 Burr. 1452, 1 W. Bl. 452) 87, 181, 441. R. vs Bedford Corporation (1800, 1 East 79) 75. R. vs Bedford Level Corporation (1805, East, 356, 2 Smith Q. B. 535) 6, 22, 82, 87, 93, 107, 116, 302, 303, 309, 441, 470, 472, 474. R. vs Beer (1903, 2 K. B. 693, 72 L. J. K. B. 608, 67 J. P. 326, 89 L.T. 412, 52 W. R. 221, 10 Man- son 263, 1 L. G. R. 634) 456. R. vs Bennett (1882, 1 O. R. 445) 425. R. vs Benney (1831, 1 B. & Ad. 684, 9 L. J. (0. S.) K. B. 104) 468. R. vs Bingham (1802, 2 East 308) 433. R. vs Blizzard (1866. L. R. 2 Q. B. 55, 7 B. & S. 922. 36 L. J. Q. B. IS. 15 L. T. 242, 15 W. R. 105) 212, 466. R. vs Bolton (1841, 1 Q. B. 66, 4 P. & D. 679, 5 Jur. 1154) 378. R. vs Bond (17SS. 2 Term. (D. & E.) 767) 464, 467. CASES CITED. Ixix [BEFERENCES ARE R. vs Borret (1833, 6 Car. & P. 124) 255, 257. R. vs Boyle (1868, 4 Ont. Pr. R. 256) 10, 135, 273, 412, 413, 417, 419, 422, 435. R. vs Boyles (1729, 2 Str. 836, Ld. Ray. 1559) 470, 473. R. vs Bridgewater (1784, 3 Doug. K. B. 379) 357. R. vs Bridgewater, Overseers of, (1774, Cowp. 139) 306. R. vs Briggs (1864, 11 L. T. (N. S.) 372) 464. R. vs Buller (1807, 8 East 389) 357. R. vs Burke (1896, 29 Nov. Scot. 227) 11, 173, 180, 441. R. vs Calloway (1886, 3 Man. 297) 458, 466. E. vs Cambridge, Mayor of, (1767, 4 Burr. 2008) 87, 181, 441. R. vs Cambridge, Mayor of, (1840, 12 A. & E. 702, 4 P. & D. 294, Arn. & Hodg. 44, 10 L. J. Q. B. 25) 6, 24, 144, 239. R. vs Cann (1737, Andr. 14) 466. R. vs Carmarthen, Corporation of, (1759, 2 Burr. 869, 1 W. Bl. 187) 64, 462. R. vs Carpenter (1736, 2 Str. 1039) 466. R. vs Carter (1774, Cowp. 58) 466. R. vs Cheshire, J. J. (1840, 4 Jur. 484) 6, 162, 429. R. vs Chester, Bishop of (1786, 1 Term. (D. & E.) 396, 1 R. E. 237) 441. R. vs Chester, Mayor of, (1855, 25 L. J. Q. B. 61, 2 Jur. (N. S.) 114, 4 W. R. 14, s. c. sub nom. Frost vs Mayor of Chester, 1855, 5 E. & B. 531) 451. E. vs Coaks (1854, 23 L. J. Q. B. 133, 3 E. & B. 249, 2 C. L. R. 947, 18 Jur. 378) 164. TO sections] R. vs Colchester, Mayor of, (1788, 2 Term. (D. & E.) 259, 1 R. E. 480) 441, 451. R. vs Comm'rs of Sewers (1872, 1 Pug. (N. B.) 161) 10, 130, 145, 150, 326. R. vs Cooban (1886, 18 Q. B. D. 269, 56 L. J. M. C. 33, 51 J. P. 500) 456. E. vs Cornwall (180G, 25 U. C. Q. B. 293) 145, 168, 441, 451. E. vs Cousins (1873, L. E. 8 Q. B. 216, 42 L. J. Q. B. 124, 28 L. T. (N. S.) 116) 465, 467. E. vs Cowell (1825, 6 D. & E. 336) 464. R. vs Cudlipp (1796, 6 Term. (D. & E.) 503) 464, 468. R. vs Cusac (1876, 6 Ont. Pr. R. 303) 468. R. vs Davie (1781, 2 Doug. K. B. 588) 349. R. vs Davies (1828, 1 M. & R. 538) 464. R. vs Dawes (1767, 4 Burr. 2022, 1 W. Bl. 634) 466, 468. R. vs Derby Councillors (1837, 7 A. & E. 419, 2 N. & P. 589, W. W. & D. 671) 441. R. vs Dicken (1791, 4 Term. (D. & E.) 282) 467, 468. 469. R. vs Dolgelly Union Guardians (1838, 8 A. & E. 561, 3 N. & P. 542, 1 W. W. & H. 513, 7 L. J. M. C. 99) 6. R. vs Drummond, Ex p. Saunders (1903, 67 J. P. 300, 88 L. T. 833, 1 L. G. R. 567) 436. R. vs Dubord (1885, 3 Man. 15) 11, 431. R. vs Durham, Corporation of, (1713, 10 Mod. 146) 121. R. vs Ellis (1735, 9 East, 252) 24, 473. R. vs Fee (1883, 3 0. R. 107) 411, 416. Ixx CASES CITED. [BEFBRENCES ABE TO SECTIONS] R. vs Fox (1858, 8 E. & B. 939, 27 L. J. Q. B. 151, 4 Jur. (N. S.) 410, 6 W. R. 282) 470. R. vs Francis (1788, 2 Term. (D. & E.) 484) 453. R. vs Gardner (1810, 2 Camp. 513, 11 R. R. 784) 255. R. vs Cell (1867, 6 S. C. R. (N. S. W.) 239) 429. R. vs Gibson (1896, 29 Nov. Scot. 4) 11, 213, 214, 301, 429. R. vs Gloucestershire J. J. (1846, 10 Jur. 96, 15 L. J. M. C. 48, 3 D. & L. 542) 437. R. vs Godwin (1780, 1 Doug. 397} 429, 466. R. vs Gordon (1789, 1 Leach C. C. 515, 1 East P. C. 352) 12, 102, 215. R. vs Great Marlow (1802, 2 East 244, 6 R. R. 420) 437. R. vs Greene (1843, 2 Q. B. 460, 6 Jur. 777, 2 G. & D. 24) 468. R. vs Grimes (1770, 5 Burr. 2598) 341. R. vs Harris (1837, 1 N. & P. 576, 6 L. J. K. B. 161, s. c. sub nom. Harris, In re, 6 A. & E. 475) 466. R. vs Harwood (1802, 2 East 177) 471. R. vs Hawkins (1808, 10 East 211, affirmed 2 Dow. 124) 164. R. vs Hearle (1724, 1 Str. 625, 93 Eng. R. 742) 24. R. vs Hebden (1738, Andr. 388, 2 Str. 1109) 341. R. vs Herefordshire, J. J. (1819, 1 Chitty 700) 6, 133, 341, 412. R. vs Hertford (1699, 1 Salk. 374, 1 Ray. (Ld.) 426) 441, 473. R. vs Hertford College (1878, L. R. 3 Q. B. D. 693, 47 L. J. Q. B. 649, 39 L. T. 18, 27 W. R. 347) 441. R. vs Hodge (2 B. & Aid. 344, n.) 463, 464. R. vs Hodgins (1886, 12 0. R. 367) 11, 159, 264, 413, 419. R. vs Hodson (1842, 4 Q. B. 648) 466, 469. R. vs Hopkins (1841, 1 Q. B. 161, 4 P. & D. 550, 10 L. J. Q. B. 63) 431. R. vs Howard (1832, 1 M. & Rob. 187) 373. R. vs Hughes (1825, 4 B. & C. 368) 341. R. vs Hull (1724, 11 Mod. 390, 88 Eng. R. 1107) 24, 474. R. vs Jones (1863, 8 L. T. (N. S.) 503) 64. R. vs Jones (1741, 2 Str. 1146) 162. R. vs Kemp (1789, 1 East 46n.) 463, 464, 468. R. vs Kent, J. J. (1880, 44 J. P. 298) 419. R. vs Kirk (1892, 24 Nov. Scot. 168) 456. R. vs Lane (1710, 2 Ld. Ray. 1304, differently reported in 11 ilod. 270) 162. R. vs Latham (1764, 3 Burr. 1485, 1 Bl. Rep. 468) 466. R. vs Leeds, Mayor of, (1838, 7 A. & E. 963, 3 N. & P. 145, 7 L. J. Q. B. 80, 2 Jur. 545, 1 W. W. &H. 23) 144. R. vs Leigh (1768, 4 Burr. 2143) 472, 474. R. vs Lewis (1759, 2 Burr. 780) 466. R. vs Lisle (1738, 2 Str. 1090, 93 Eng. R. 1051, Andr. 163, 95 Eng. R. 345) 6, 23, 74, 94, 97, 98, 104, 172, 203, 301, 303, 341, 357. R. vs Lloyd (1783, Cald. 309) 436. R. vs London, Mayor of, (1692, 1 Show. 274) 474. R. vs Mack (1906, 41 Nov. Scot. 128) 456. CASES CITED. Ixxi [KEFEEENCES AEE R. V8 Maiden (1767, 4 Burr. 2135) 6, 357. R. vs Marsden (1765, 3 Burr. 1812) 452, 461. R. vs McCarthy (1859, 10 Ir. C. L. R. 312) 341. R. vs Mortlock (1789, 8 Term. (D. & E.) 300) 468. R. vs Morton (1892, 1 Q. B. 39, 61 L. J. Q. B. 39, 65 L. T. 611, 40 W. R. 109, 56 J. P. 105) 456. R. vs Nagle (1894, 24 0. R. 507) 464. R. vs Newling (1789, 3 Term. (D. & E.) 310) 467, 468. R. vs Newton (1844, 1 Car. & K. 469) 373. R. vs Ogden (1829, 10 B. & C. 230) 64, 462. R. vs Owen (1850, 15 Q. B. 476, 14 Jur. 953, 19 L. J. Q. B. 490) 473. R. vs Oxford, Mayor of, (1837, 6 A. & E. 349, 1 N. & P. 474, 6 L. J. K. B. 103) 441, 444, 451. R. vs Parham (1849, 13 Q. B. 858, 18 L. J. Q. B. 281, 13 Jur. 981) 420, 463. R. vs Parkyn (1831, 1 B. & Ad. 690, 9 L. J. (0. S.) K. B. 104) 468. R. vs Parry (1837, 6 A. & E. 810, 2 N. & P. 414) 462, 464, 465, 467, 468, R. vs Patteson (1832, 4 B. & Ad. 9, 1 N. & M. 612, 2 L. J. K. B. 33) 162. R. vs Payne (1818, 2 Chitty 369) 468. R. vs Phillips (1764, 3 Burr. 1564) 461. R. vs Phillips (1767, 4 Burr. 2089) 461. R. vs Phippen (1838, 7 A. & E. 966, s. c. sub nom. R. vs Rick- etts, 3 N. & P. 151) 473. TO SECTIONSJ R. VS Ponsonby (1755, 1 Ves. Jr. 1, 2 Bro. P. C. 311, 1 Ld. Ken. 1) 471. R. vs Quayle (1840, 11 A. & E. 508, 4 P. & D. 442, 10 L. J. Q. B. 99, 5 Jur. 386) 464, 471. R. vs Rees (1834, 6 Car. & P. 606) 257. R. vs Rice (1697, 5 Mod. 325) 434. R. vs Richmond, J. J. (1860, 8 Cox C. C. 314, 2 L. T. 373, s. c. sub nom. R. vs Huntingtower, 8 W. R. 562) 419. R. vs Ricketts (1838, 3 N. & P. 151, s. c. sub nom. R. vs Phip- pen, 7 A. & E. 966) 473. R. vs Roach (1859, 18 U. C. Q. B. 226) 459. R. vs Roberts (1878, 14 Cox. C. C. 101, 38 L. T. 690) 373. R. vs Rochester (1851, 17 Q. B. 1) 441. R. vs Ryan (1850, 6 U. C. Q. B. 296) 465, 468. R. vs Sargent (1793, 5 Term (D. & E.) 466) 465. R. vs Saunders (1802, 3 East, 119) 29, 463, 473. R. vs Serle (1724, 8 Mod. 332) 474. R. vs Shrewsbury, Mayor of, (1735, Cas. Temp. Hard. (Lee) 147, 95 Eng. R. 94) 6, 203. R. vs Slatter (1840, 11 A. & E. 505, 3 P. & D. 263, 4 Jur. 316) 471. R. vs Slythe (1827, 6 B. & C. 240, 9 D. & R. 226, 5 L. J. (0. S.) M. C. 41, 30 R. R. 312) 6, 342, 468. R. vs Smith (1816, 5 M. & S. 271) 357. R. vs Smith (1848, 4 U. C. Q. B. 322) 11, 163, 208, 210, 301, 315, 431, 441. R. vs Somersetshire, J. J. (1822, 1 D. & R. 443) 437. Ixxii CASES CITED. [KBrERENCBS ARE R. vs St. Clement's (1840, 12 A. & E. 177, 3 P. & D. 481, 4 Jur. 1059) 6, 172, 205, 301, 325, 429. E. vs St. Jean (1881, 46 U. C. Q. B. 77) 464. R. vs St. Martin's (1851, 17 Q. B. 149, 20 L. J. Q. B. 423, 15 Jur. 800) 470. R. vs Stacey (1785, 1 Term (D. & E.) 1) 466, 468. R. vs Standard Hill (1815, 4 M. & S. 378, 16 R. R. 490) 437. R. vs Staples (1867, 9 B. & S. 928, n.) 462. R. vs Stephens (1757, 1 Burr. 433) 467. R. vs Stoke Damerel (1836, 5 A. 6 E. 584, 1 N. & P. 56, 2 H. & W. 346, 6 L. J. M. C. 14) 433, 441. R. vs Stratford-upon-Avon (1811, 14 East, 348) 69. R. vs Street (1905, 6 Terr. Law R. (Can.) 136) 455. R. vs Street (1905, 1 W, Law R. (Can.) 202) 468, 472. R. vs Surrey, J. J. (1870, L. R. 5 Q. B. 466, 39 L. J. M. C. 145) 437. R. vs Tate. (1803, 4 East, 337) 471. R. vs Taylor (1840, 11 A. & E. 949, 3 P. & D. 652) 64, 462. R. vs Tewkesbury, Mayor of, (1868, 9 B. & S. 683, L. R. 3 Q. B. 629, 37 L. J. Q. B. 288, 18 L. T. 851, 16 W. R. 1200) 164, 305. R. vs Thatcher (1822, 1 D. & R. 426) 441. R. vs Thomas (1838, 8 A. & E. 183, 7 L. J. Q. B. 141, 2 Jur. 347. 3 N. & P. 288) 473. .R. vs Tizzard (1829, 9 B. & «... 418, 4 M. & R. 400, 7 L. J. (0. S.) K. B. 275) 162. TO SECTIONS] R. vs Trelawney (1765, 3 Burr. 1616) 461, 467. R. vs Trevenen (1819, 2 B. & Aid. 479, 21 R. R. 364) 465, 467, 468. R. vs Townsend (1841, Car. ': M 178) 257. R. vs Verelst (1813, 3 Camp. 432, 14 R. R. 775) 12, 173, 371, 373, 380, 383. R. vs Ward (1873, 8 L. R. Q. B. 210, 42 L. J. Q. B. 126, 28 L. T. (N. S.) 118, 21 W. R. 632) 467. R. vs Ward (1848, 3 Cox C. C. 279) 373. R. vs Wardroper (1766, 4 Burr. 1963) 465, 468. R. vs White (1836, 5 A. & E. 613, 1 N. & P. 84, 6 L. J. K. B. 23, 2 H. & W. 403) 462. R. vs \Yhite (1871, 21 U. C. C. P. 354) 419, 437. R. vs Whitwell (1792, 5 Term. (D. & E.) 85, 2 R. R. 545) 471. R. vs Williams (1813, 2 M. & S. 141) 357. R. vs Williams (1757, 1 W. BI. 93, 1 Burr. 402) 212, 466. R. vs Winchester, Mayor of, (1837, 7 A. & E. 215, W. W. & D. 525, 2 N. & P. 274, 6 L. J. K. B. 213, 1 Jur. 738) 91, 441. R. vs York (1792, 5 Term. (D. & E.) 66) 341. Reid vs Julian (1870, 2 Bart. El. Cas. 822) 359, 361. Reily vs Lancaster (1870, 39 Cal. 354) 332. Eenaud, Ex p. (1875, 3 Pug. (X. B.) 174) 11, 173. Renville County Comm'rs vs Gray (1895, 61 Minn. 242. 3 X. W. 635) 281. Reynolds vs McWilliams (1873, 49 Ala. 552) 237, 430, 434. Rej-nolds vs State (1878, 61 Ind. 392) 464. CASES CITED. Ixxiii [IIEFEKENCES AKE Eheinhart vs State (1875, 14 Kan. 318) 120, 321, 405. Rhodes vs Driver (1901, 69 Ark. 606, 65 S. W. 106) 207. Ehodes vs McDonald (1852, 24 Miss. 418) 136, 138, 203, 210. nice vs Commonwealth (1867, 3 Bush. (Ky.) 14) 175, 266, 415, 418. Rice vs McClelland (1874, 58 Mo. 116) 58, 70. Richards, Ex p. (1878, 3 Q. B. D. 368, 47 L. J. Q. B. 498, 38 L. T. 684, 26 W. R. 695) 466. Richards vs McMillin (1893, 36 Neb. 352, 54 N. W. 566) 235. Richardson vs Methley School Board (1893, 3 Chy. D. 510, 62 L. J. Ch. 943, 69 L. T. (N. S.) 308, 3 Eng. R. 701, 42 W. E. 27) 447a. Richman vs Adams (1896, 59 N. J. L. 289, 36 A. 699) 462. Riddell vs School District No. 72 (1875, 15 Kan. 168) 297. Riddle vs Bedford (1821, 7 S. & R. (Pa.) 386) 203, 236, 266, 301, 430. Riley vs Garfield Tp. (1897, 58 Kan. 299, 49 P. 85) 52, 55, 57, 313. Ritchie vs Mulvane (1888, 39 Kan. 241, 17 P. 830) 57, 70. Riverton & P. Water Co. vs Haig (1895, 58 N. J. L. 295, 33 A. 215) 57. Rives vs Petit (1842, 4 Ark. 582) 414, 424. Robb vs Carter (1886, 65 Md. 321, 4 A. 282) 121. Roberson vs Bayonne (1896, 58 N. J. L. 326, 33 A. 734) 438, 471. Roberts vs Calvert (1887, 98 N. C. 580, 4 S. E. 127) 368. Roberts vs Holmes (1874, 54 N. H. 560) 266, 348. TO SECTIONS] Roberts vs Shafer (1899, 63 N. J. L. 182, 42 A. 770) 438. Roberts vs State (1900, 126 Ala. 74, 28 So. 741) 416. Robie vs Sedgwick (1861, 35 Barb. (N. Y.) 319) 69. Robinson vs Jones (1873, 14 Fla. 256) 462. Roche vs Bruggeman (1890, 53 N. J. L. 122, 20 A. 730) 465, 467. Roche vs Jones (1891, 87 Va. 484, 12 S. B. 965) 166, 186, 312, 340. Rochester &c. R. R. vs Clarke Nat. Bank (1871, 60 Barb. (N. Y.) 234) 94. Rockville & W, Turnpike Road Co. vs Van Ness (1824, 20 Fed. Cas. (No. 11986) 1080, 2 Cranch C. C. 449) 66. Rodding vs Kane (1888, 14 Daly (N. Y.) 535, 2 N. Y. S. 55) 123, 416a. Rodman vs Harcourt (1843, 4 B. Hon. (Ky.) 224) 162, 163, 267, 274, 405, 430. Rogers vs Beauchamp (1885, 102 Ind. 33, 1 N. E. 185) 175, 410. Rogers vs Wood (1831, 2 B. & Ad. 245) 397. Romero vs United States (1889, 24 Ct. CI. 331, 5 L. R. A. 69) 236. Ronkendorff vs Taylor's Lessee (1830, 4 Pet. (U. S.) 349) 323. Roosevelt vs Edson (1885, 51 N Y. Sup. Ct. 227) 448. Rosell vs Board of Education (1902, 68 N. J. L. 498, 53 A. 398, affirmed in Rosell vs Borough of Avon 1904, 70 N. J. L. 336, 57 A. 1132) 136, 336. Rouleau vs Corp. of St. Lambert (1896, 10 Que. R. (S. C.) 85) 11, 103, 171, 181, 185, 301, 302, 304, 305. Rounds vs Bangor (1859, 46 Me. 541, 74 Am. Dec. 469) 267. Ixxiv CASES CITED. [HEFEKENCES ABE Rounds vs Mansfield (1854, 38 Me. 586) 267. Rounds vs Smart (1880, 71 Me. 380) 367. Roundtree, Ex p. (1874, 51 Ala. 42) 29, 36, 440. Roy vs Martineau (1902, 22 Que. R. (S. C.) 1) 458. Roy vs Thibault (1878, 22 L. C. Jur. 280) 451, 468. Royall vs Thomas (1877, 28 Gratt. (Va.) 130, 26 Am. R. 335) 473. Rude vs Sisack (Col. 1908, 96 P. 976) 200, 422. Rule vs Tait (1888, 38 Kan. 765, 18 P. 160) 232, 474. Rumsey vs People (1859, 19 N. Y. 41) 53, 55, 70, 72. Runion vs Latimer (1874, 6 Rich. (S. C.) 126) 80, 208, 241. Runkle vs United States (1884, 19 Ct. CI. 396) 236. Ruohs vs Athens (1891, 91 Tenn. 20, IS S. W. 400, 30 Am. St. R. 858) 64. Rushing vs Thompson (1884, 20 Fla. 583) 175. Ryder vs Cohn (1869, 37 Cal. 69) 399. S. Sadler vs Evans (1766, 4 Burr. 1984) 433. Saline County vs Anderson (1878, 20 Kan. 298, 27 Am. Rep. 171) 91, 224, 225. Salter vs Salter (1869, 6 Bush. (Ky.) 624) 416. Samis vs King (1873, 40 Conn. 298) 236. Samuels vs Drainage Comm'rs (1888, 125 111. 536, 17 N. E. 829) 335. Samuels vs Harrington (1906, 43 Wash. 603, 86 P. 1071) 224. Sanders vs Lacks (1897, 142 Mo. 255, 43 S. W. 653) 367, 368. TO SECTIONS] Sandlin vs Dowdall (1905, 143 Ala. 518, 39 So. 279) 126, 316. Sandoval vs Albright (1908, N. Mex., 93 P. 717) 229, 231. Satterlee vs San Francisco (1863, 23 Cal. 315) 205, 312. Saunders vs Catling (1879, 81 N. C. 298) 455. Savannah etc. Ry. Co. vs Jordan (1901, 113 Ga. 687, 39 S. E. 511) 72. Savings Bank of Hannibal vs Hunt (1880, 72 Mo. 597) 292. Sawyer, In re (1888, 124 U. S. 200, 8 Sup. Ct. 482) 446. Sawyer vs Dooley (1893, 21 'Nev. 390, 32 P. 437) 337, 429. Sawyer vs Wilson (1907, 81 Ark. 319, 99 S. W. 389) 330. Scadding vs Lorant (1851, 3 H. L. Cas. 418, 5 Eng. L. & Eq. 16, 15 Jur. 955, affirming 13 Q. B. 706) 3, 6, 172, 301, 325. Schenck vs Peay (1869, 21 Fed. Cas. (No. 12,451) 672, 1 Dill. 267) 92. Schlencker vs Risley (1842, 4 111. 483, 38 Am. Dec. 100) 268, 275. Schmulbaeh vs Speidel (1901, 50 W. Va. 553, 40 S. E. 424, 55 L. R. A. 922) 444. Schofield vs Watkins (1859, 22 111. 66) 335. Schoharie County vs Pindar (1870, 3 Lans. (N. Y.) 8) 136. School Directors vs Judice (1887, 39 La. Ann. 896, 2 So. 792) 281. School Directors vs National School Furnishing Co. (1893, 53 111. App. 254) 77, 174, 313a. School Directors No. 7 vs Tinglej (1897, 73 111. App. 471) 313a. School District No. 61 vs Alderson (1889, 6 Dak. 145, 41 N. W. 466) 66. CASES CITED. ,Ixxv [BEFERENCGS ABE School District No. 77 va Cowgill (1906, 76 Neb. 317, 107 N. W. 584) 174, 313a School District No. 54 vs Garrison (Ark. 1909, 119 S. W. 275) 313a. School District of Fort Smith vs Bd. of Improvement of Sewer District No. 1 (1898, 65 Ark. 343, 46 S. W. 418) 330. School District of Orrock vs Dor- ton (1898, 145 Mo. 304, 46 S. W. 948) 115. School District No. 8 vs Root (1886, 61 Mich. 373, a. c. sub nom. Tallmadge School District vs Town Treasurer, 28 N. W. 132) 178. School District vs School District (1891, 45 Kan. 543, 26 P. 43) 64. School District No. 13 of St. Johns- bury vs Smith (1895, 67 Vt. 566, 32 A. 484) 76. School District vs State (1882, 29 Kan. 57) 56. School District vs Thompson (1861, 5 Minn. 280) 46. School District vs Wallace (1898, 75 Mo. App. 317) 58, 64. School Trustees of Hamilton Tp. vs Neil (1881, 28 Gr. (Ont.) 408) 138, 173, 176. Schultze V. McLeary (1889, 73 Tex. 92, 11 S. W. 924) 416. Schwartz v. Flatboats (1859, 14 La. Ann. 243) 313a. Scott, Ex p. (1872, 47 Ala. 609) 431. Scott vs Clark (1855, 1 Iowa 70) 461. Scott vs Crump (1895, 106 Mich. 288, 64 N. W. 1, 58 Am. St. R. 478) 225. Scott vs Sheehan (1905, 145 Cal. 691, 79 P. 353) 80, 207. Scott vs State (1898, 151 Ind. 556, 52 N. E. 163) 463. TO SECTIONS] Scott VS Watkins (1861, 22 Ark. 556) 330. Scott County vs Ring (1882, 29 Minn. 398) 296. Scovill vs Cleveland (1853, 1 Ohio St. 126) 312, 337. Seay vs Hunt (1881, 55 Tex. 545) 459. Selby vs Portland (1886, 14 Or. 243, 12 P. 377, 58 Am. Rep. 307) 235, 432. Selleck vs Common Council of S. Norwalk (1873, 40 Conn. 359) 459. Sellers vs Smith (1905, 143 Ala. 566, 39 So. 356) 422. Seneca Nation of Indians vs Jime- son (1909, 114 N. Y. S. 401) 207, 446. Setterlee vs San Francisco (1863, 23 Cal. 315) 156. Severn vs The Queen (1878, 2 Can. Sup. Ct. 70) 40. Seymour vs Bennett (1742, 2 Atk. 482) 6, 184, 239. Shannon vs Portsmouth (1874, 54 N. H. 183) 221. Shapleigh vs San Angelo (1897, 167 U. S. 646, 17 Sup. Ct. 957) 48, 58, 64. Sharp vs Thompson (1881, 100 111. 447, 39 Am. R. 61) 136, 138, 176, 301, 316. Shaw vs Havekluft (1859, 21 111. 127) 278. Shaw vs. Lindsay (1871, 46 Ala. 290) 402. Shaw vs Pima County (1888, 2 Ariz. 399, 18 P. 273) 224. Shawhan vs Harrison County (1903, 116 Ky. 490, 76 S. W. 407) 340. Sheaf e vs Tillman (2 Bart. El. Cas. 907) 361, 363, 365. Sheehan's Case (1877, 122 Mass. 445, 23 Am. Rep. 374) 170, 410, 422, 435. bcxvi CASES CITED. [eefekences are Shelby vs Alcorn (1858, 36 Miss. 273, 72 Am. Dee. 169) 16, 89, 163. Sheldon vs Coates (1840, 10 Ohio 278) 337. Shell vs Cousins (1883, 77 Va. 328) 162. Shepard vs Staten (1871, 5 Heisk. (Tenn.) 79) 266, 430. Sheridan vs St. Louis (1904, 183 Mo. 25, 81 S. W. 1082) 158, 219, 236, 237. Sherill, In re or Sherill vs O'Brien (1907, 188 Js\ Y. 185, 81 N. E. 124, 117 Am. St. R. 841, revers- ing 114 N. Y. App. Div. 890, 101 N. Y. S. 858j 311. Sherman vs Clark (1868, 4 Nev. 138) 446. Sherwin vs Bugbee (1844, 16 Vt. 439) 70. Shores vs Scott River Water Co. (1861, 17 Cal. 626) 318. Short, In re (1891, 47 Kan. 250, 27 P. 1005) 55, 64. Short vs Symmes (1889, 150 Mass. 298, 23 N. E. 42, 15 Am. St. R. 204) 268. Sigouin vs Viau, (1899, 16 Que. R. (S. C.) 143) 456, 464, Sigur vs Crenshaw (1855, 10 La. Ann. 297) 229. Simmons vs People (1886, 18 111. App. 588) 459. Simon vs Hoboken (1890, 52 N. J. L. 367, 19 A. 259) 438. Simonton vs State (1902, 44 Fla. 289, 31 So. 821) 472. Simpson vs Loving (1867, 3 Bush. (Ky.) 458, 96 Am. Dec. 252) 92, 186, 316. Simpson vs McGonegal (1892, 52 Mo. App. 540 ( 33, 312. Sinclair vs Young (1902, 100 Va. 284, 40 S. E. 907) 442. Slate vs Blue Ridoo (1901, 113 Ga. 646, 38 S. E. 977) 366. TO SECTIONS] Smith VS Bondurant (1885, 58 Am. Rep. 438, s. c. sub nom. Smith vs Meador, 74 Ga. 416) 316. Smith vs Cansler (1885, 83 Ky. 367; 120, 316. Smith vs Howell (1897, 60 N. J. L. 384, 38 A. 180) 367. Smith vs Lynch (1876, 29 Ohio St. 261) 44, 337. Smith vs Meador (1885, 74 Ga. 416, s. c. sub nom. Smith vs Bondurant, 58 Am. Rep. 438) 106, 119, 316. Smith vs Messer (1845, 17 N. H. 420) 329. Smith vs New York (1868, 37 N. Y. 518, affirming 1862, 1 Daly 219) 221. Smith vs Petersville (1881, 28 Gr. (Ont.) 599) 207. Smith vs Redford (1866, 12 Gr. (U. C.) 316) 11, 173, 315. Smith vs State (1848, 19 Conn. 493) 320. Smith vs Sullivan (1903, 33 Wash. 30, 73 P. 793) 416, 419, 435. Smith vs Wood (1852, 13 Barb. (N. Y.) 209) 458. Smyth vs Latham (1833, 9 Bing. 692, 3 M. & S. 251, 2 L. J. Ex. 241, 1 C. & M. 547) 18. Snelson vs State (1861, 16 Ind. 29) 240. Snider's Sons Co. vs Troy (1890, 91 Ala. 224, 8 So. 658, 24 Am. St. R. 887, 11 L.R.A. 515) 47. 66. Snowball vs People (1893, 147 111. 260, 35 N. E. 538) 457, 458. Snuggs vs Stone (1860, 7 Jones L. (X. C.) 382) 293. Snyder, Ex p. (1876, 64 Mo. 58) 28, 29, 33, 396. Snyder vs Schram (1880, 59 How. Pr. (N. Y.) 404) 318. Snyder vs State Bank (1826, 1 111, ■ 161) 66. CASES CITED. Ixxvii [BBFEKBNCES ARE Snyder vs Studebaker (1862, 19 Ind. 462, 81 Am. Dec. 415) 52, 67. Somerset vs Somerset Banking Co. (1900, 109 Ky. 549, 60 S. W. 5) 77, 78, 178. Souoy vs People (1885, 113 111. 109) 468. Soudant va Wadhams (1878, 46 Conn. 218) 275. South Omaha vs O'Rourke (1903, 70 Neb. 479, 97 N. W. 608) 339. Spahr vs Farmer's Bank (1880, 94 Pa. St. 429) 66. Sparks vs Cherokee County (1907, 76 Kan. 280, 91 P. 89) 289, 297. Spear vs Ditty (1836, 8 Vt. 419) 328. Speck vs State (1872, 7 Bax. (Tenn.) 46) 55, 64. Speer vs Bd. of County Comm'rs (1898, 88 Fed. 749, 32 C. C. A. 101) 52, 53, 56, 57, 70. Speers vs Speers (1896, 28 0. R. 188) 11, 117, 301, 413, 422, 424, 429. Sprague vs Brown (1876, 40 Wis. 612) 132, 137, 250, 251. Sprague vs Norway (1866, 31 Cal. 173) 365, 368. Springett vs Colerick (1887, 67 Mich. 362, 34 N. W. 683) 137. Springfield vs Butterfield (1903, 98 Me. 155, 56 A. 581) 307, 327. Sprowl vs Lawrence (1859, 33 Ala. 674) 141, 251, 277, 278, 284. Spry vs Emperor (1840, 6 M. & W. 639, 10 L. J. Ex. 50) 230. St. George vs Hardie (1908, 147 N. C. 88, 60 S. E. 920) 177. St. Helena vs Burton (1883, 35 La. Ann. 521) 277. St. Johnsbury School District No. 13 vs Smith (1895, 67 Vt. 566, 32 A. 484) 76. St. Louis Col. Association vs Hen- essy (1882, 11 Mo. App. 555) 67. TO SECTIONS] St. Louis vs Shields (1876, 62 Mo. 247) 57, 66, 67. St. Louis County Court vs Sparks (1846, 10 Mo. 117, 45 Am. Dec. 355) 444. St. Louis Gas Light Co. vs City of St. Louis (1884, 84 Mo. 202) 66. St. Luke's Church vs Matthews (1815, 4 Des. Eq. (S. C.) 578) 97, 304. St. Pancras, Vestry of, vs Batter- bury (1857, 2 C. B. (N. S.) 477, 26 L. J. C. P. 243, 3 Jur. (N. S.) 1106) 458. St. Paul Gas Light Co. vs Sand- stone (1898, 73 Minn. 225, 75 N. W. 1050) 58, 64. St. Saviours, Southwark vs Bos- tock (1806, 2 Bos. & P. (N. R.) 175) 288. Stalhut vs Bauer (1897, 51 Neb. 64, 70 N. W. 496) 446, 448. Staight vs State (1883, 39 Ohio St. 496) 383. Stamper vs Roberts (1887, 90 Mo. 683, 3 S. W. 214) 70. Stanford vs Ellington (1895, 117 N. C. 158, 23 S. E. 250, 53 Am. St. R. 580) 472, 474. Stanwood vs Sterling Metal Co. (1903, 107 III. App. 569) 64. Staples vs Brown (1905, 113 Tenn. 639, 85 S. W. 254) 439a. Starr vs United States (1897, 164 U. S. 627, 17 Sup. Ct. R. 223) 119. State, Ex p. (1905, 142 Ala. 87, s. c. sub nom. State vs Judge, 38 So. 835) 196, 405. State vs Adams (1879, 65 Ind. 397) 458. State va Alexander (1899, 107 Iowa, 177, 77 N. W. 841) 206, 446. State vs Allen (1841, 2 Ired. L. (N. C. 183) 206, 440. Ixxviii CASES CITED. [KEFEEENCES ABE TO SECTIONS] State vs Allen (1869, 5 Kan. 213) 456. State vs Allen (1900, Tenn. Chy. App., 57 S. W. 182) 472. State vs Ailing (1843, 12 Ohio, 16) 167, 348, 396. State vs Anderson (1890, 26 Fla. 240, 8 So. 1) 457. State vs Anderson (1887, 45 Ohio St. 196, 12 N. E. 656) 461. State vs Anderson (1795, 1 N. J. L. 318, 1 Am. Dec. 207) 159. State vs Anone (1819, 2 Nott. & ■ McC. (S. C.) 27) 396, 416. State vs Ansel (1907, 76 S. C. 395, 57 S. E. 185) 438. State vs Archibald (1896, 5 N. Dak. 359, 66 N. W. 234) 443. State vs Ashley (1839, 1 Ark. 279) 453, 454, 463. State vs Auditor (1866, 38 Mo. 192) 292. State vs Babcock (1904, 106 Mo. App. 72, 80 S. W. 45) 224. State vs Badger (1901, 90 Mo. App. 183) 348. State vs Bailey (1861, 16 Ind. 46, 79 Am. Dec. 405) 66. State vs Bailey (Minn. 1908, 118 N. W. 676) 29, 396, 397, 410, 435. State vs Baker (1875, 38 Wis. 71) 455. State vs Baker County Comm'rs 1886, 22 Fla. 29) 367. State vs Baldwin (1880, 14 S. C. 135) 289. State vs Barnard (1892, 67 N. H. 222, 29 A. 410, 68 Am. St. R. 648) 90, 175, 186. State vs Bartlett (1874, 35 Wis. 287) 195. State vs Bates (1863, 36 Vt. 387) 277, 281, 301. State vs Baxter (1873, 28 Ark. 129) 459. State vs Beardsley (1896, 13 Utah, 502, 45 P. 569) 451. State vs Bednar (N. D. 1909, 121 N. W. 614) 410, 427. State vs Beecher (1847, 16 Ohio, 358) 469, 472. State vs Berg (1875, 50 Ind. 496) 292. State vs Berkley (1897, 140 Mo. 184, 41 S. W. 732) 461. State vs Bernier (Minn. 1888, 38 N. W. 368) 366. State vs Bernoudy (1865, 36 Mo. 279) 473. State vs Berry (1890, 47 Ohio St. 232, 24 N. E. 266) 459. State vs Bieler (1882, 87 Ind. 320) 464. State vs Bingham (1897, 14 Ohio Cir. a. 245, 7 Ohio Cir. Dec. 552) 29. State vs Birch (1905, 186 Mo. 205, 85 S. W. 361) 64. State vs Bloom (1863, 17 Wis. 521) 178, 186, 422, 435. State vs Blossom (1886, 19 Xev 312, 10 P. 430) 77, 78. State vs Boal (1870, 46 Mo. 528) 463. State vs Board of County Canvas- sers (1878, 17 Fla. 9) 367. State vs Board of Education of S. Milwaukee (1898, 76 N. W. 351 s. c. sub nom. Board of Educa- tion of S. Milwaukee vs State, 1898, 100 Wis. 455) 442. State vs Boone County Court (1872, 50 Mo. 317) 396, 398. State vs Boston C. & M. Ry. Co. (1853, 25 Vt. 433) 451, 452. State vs Bowen (1827, 4 McCord (S. C.) 254) 451. State vs Boyd (1891, 31 Neb. 682, 48 N. W. 739) 164. State vs Boyd (1892, 34 Neb. 435, 51 N. W. 964) 472. CASES CITED. Ixxix [BEFERENCES ABE State vs Brennan's Liquors (1856, 25 Conn. 278) 97, 138, 318. State vs Brocklin (1894, 8 Wash. 557, 36 P. 495) 438. State vs Brooks (1887, 39 La. Ann. 817, 2 So. 498) 429. State vs Brown (1867, 12 Minn. 538) 119, 407, 410, 422. State vs Brown (1857, 5 B.. I. 1) 451, 461, 465, 470, 474. State vs Bryce (1878, 11 S. C. 342) 123, 320. State vs Buekland (1880, 23 Kan. 259) 124, 458. State vs Buckley (1899, 60 Ohio St. 273, 54 N. E. 272) 469. State vs Burnett (1841, 2 Ala. 140) 466. State vs Bus (1896, 135 Mo. 325, 36 S. W. 636) 162. State vs Butman (1861, 42 N. H. 490) 429. State vs Buttz (1877, 9 Kich. L. (S. C.) 156) 162. State vs Callahan (1895, 4 N. Dak. 481, 61 N. W. 1025) 443. State vs Cansler (1876, 75 N. C. 442) 259. State vs CarneaU (1849, 10 Ark. 156) 143. State vs Carr (1891, 129 Ind. 44, 28 N. E. 88, 28 Am. St. R. 163, 13 L.K.A. 177) 219, 220, 227. State vs Carroll (1871, 38 Conn. 449, 9 Am. Rep. 409, 21 Am. Law Reg. 165) 3, 9, 22, 23, 38, 96, 100, 102, 113, 182, 185, 186, 187, 193, 195, 301, 304, 396, 422, 424. State vs Carter (1901, 49 W. Va. 709, 39 S. E. 61) 422. State vs Cartwright (1907, 122 Mo. App. 257, 99 S. W. 48) 110. State vs Central Pacific Ry. Co. (1890, 21 Nev. 75, 25 P. 296) 70. State vs Chatfield (1898, 71 Conn. 104, 40 A. 922) 472. TO SECTIONS] State vs Choate (1842, 11 Ohio, 511) 167. State vs Clark (1873, 52 Mo. 508) 229, 237. State vs Clark (1872, 44 Vt. 636) 318. State vs Clark (1867, 3 Nev. 566) 162. State vs Clark (1858, 1 Head, (Tenn.) 369) 279. State vs Cocke (1881, 54 Tex. 482) 337. State vs Coffee (1875, 59 Mo. 59) 473. State vs Coleman (1899, 54 S. C. 282, 32 S. E. 406) 170, 317, 429. State vs Collector (1876, 39 N. J. L. 75) 188, 336. State vs Common Council (1893, 53 Minn. 238, 55 N. W. 118) 439a. State vs Comm'rs of Pawneee County (1874, 12 Kan. 426) 71, 72. State vs Constable (1835, 7 Ohio (pt. 1) 7) 178. State vs Cook (1896, 17 Mont. 529, 43 P. 928) 301. State vs Cooper (1876, 53 Miss. 615) 137, 143, 284. State vs Cosgrove (1892, 34 Neb. 386, 51 N. W. 974) 366. State vs Craig (1900, 21 Ohio ar. Ct. 175) 451. State vs Cronan (1897, 23 Nev. 437, 49 P. 41) 470. State vs Crooks (1836, 7 Ohio (pt. 2) 221) 297. State vs Crowe (1897, 150 Ind. 455, 50 N. E. 471) 170. State vs Dahl (1897, 69 Minn. 108, 71 N. W. 910) 461, 463. State vs Davis (1892, 111 N. C. 729, 16 S. E. 540) 109. State vs Davis (1902, 64 Neb. 499, 90 N. W. 232) 472. Ixxx CASES CITED. [REFEEENCES AEE State vs Dean (1892, 49 Kan. 558, 31 P. 145) 265. State vs Deliesseline (1821, 1 MeC. L. (S. C.) 51) 461. State vs Des Moines, City of, (1896, 96 Iowa, 521, 65 N. W. 818, 59 Am. St. R. 381, 31 L.R.A. 186) 54. State vs Dews (1835, Charlt. E. M. (Ga.) 397) 19. State vs Dierberger (1886, 90 Mo. 369, 2 S. W. 286, ». c. 1888, 96 Mo. 666, 10 S. W. 168, 9 Am. St. R. 380) 136, 139, 203, 213, 216. State vs District Court of Ram- say County (1898, 72 Minn. 226, 75 N. W. 224, 71 Am. St. R. 480) 29, 36, 396. State vs Donahay (1863, 30 N. J. L. 404) 336. State vs Dorsey, County of (1873, 28 Ark. 379) 53. State vs Dorton (1898, 145 Mo. 304, 46 S. W. 948) 77, 246. State vs Douglass (1872, 50 Mo. 593) 424. State vs Douglass Road Co. (1881, 10 Ore. 198) 455, 461. State vs Dowlan (1885, 33 Minn. 536, 24 N. W. 188) 465. State vs Draper (1871, 48 Mo. 213) 237, 434, 442. State vs Duncan (1899, 153 Ind. 318, 54 N. E. 1066) 260. State vs Dunlap (1817, 5 Mart. (La.) 271) 444. State vs Dunn (1821, 12 Am. Dec. 25, note) 443. State vs Durkee (1873, 12 Kan. 308) 206, 446. State vs Elliott (1893, 13 Utah, 471, 45 P. 346) 175. State vs Elliott (1896, 13 Utah, 200, 44 P. 248) 465, 472. State vs Elliott (1898, 117 Ala. 172, 23 So. 43) 455, 457. TO SECTIONS] State vs Ely (1869, 43 Ala. 569) 141. State vs Ely (1907, 16 N. D. 569, 113 N. W. 711) 29. State vs Equitable Association (1897, 142 Mo. 325, 41 S. W. 916) 456. State vs Fahey (Md. 1908, 70 A. 218) 405, 429. State vs Farrier (1885, 47 N. J. L. 383) 125. State vs Fenderson (1876, 28 La. Ann. 82) 320. State vs Fentress (1906, 3 Ind. App. 245, 76 N. E. 821) 251. State vs Findley (1840, 10 Ohio, 51) 24, 281, 337. State vs Fisher (1856, 28 Vt. 714) 466, 467, 469. State vs Fitts (1873, 49 Ala. 402) 162. State vs Fitzgerald (1869, 44 Mo. 425) 457, 458. State vs Foster (1901, 130 Ala. 154, 30 So. 477) 472. State vs Fountain (1896, 14 Wash. 236, 44 P. 270) 161, 301, 409, 429. State vs Fowler (1895, 66 Conn. 294, 32 A. 162) 474. State vs Fransham(1897, 19 Mont. 273, 48 P. 1) 457. State vs Frazier (1890, 28 Xeb. 438, 44 N. W. 471) 451, 457. State vs Fritz (1875, 27 La. Ann. 689) 197, 416a. State vs Fuller (1888, 96 JIo. 165, 9 S. yv. 583) 58, 64. State vs Gamble (1870, 13 Fla. 9) 442. State vs Gardner (1896, 54 Ohio St. 24, 42 N. E. 999, 31 L.R.A. 660) 5, 29, 37, 54, 57, 383. State vs Gardner (1869. 43 Ala. 234) 473. State vs Gastinel (1868, 20 La. Ann. 114) 464. CASES CITED. Ixxxi [REFERENCES ARE State vs Gates (1886, 35 Minn. 385, 28 N. W. 927) 457, 458. State vs Gates (1892, 107 N. C. 832, 12 S. E. 319) 378. State vs Gilbert (1855, 10 La. Ann. 524) 321. State vs Gleason (1869, 12 Fla. 190) 301, 410, 453, 461, 463, 472. State vs Goflf (1887, 15 R. I. 505, 9 A. 226) 162. State vs Goldthait (Ind. 1909, 87 N. E. 133) 19. State vs Gordon (1882, 87 Ind. 171) 467, 468, 469. State vs Goss (1878, 69 Me. 22) 253, 258. State vs Grant (1905, 14 Wyo. 41, 81 P. 795) 445. State vs Gray (1888, 23 Neb. 365, 36 N. W. 577) 312. State vs Hall (1892, 111 N. C. 369, 16 S. E. 420) 464. State vs Hamilton (1837, 16 N. J. L. 153) 286. State vs Hammer (1880, 42 N. J. L. 435) 464. State vs Harrison (1888, 113 Ind. 434, 16 N. E. 384, 3 Am. St. R. 663) 121. State vs Harrison (1898, 141 Mo. 12, 41 S. W. 971, 43 S. W. 867) 438. State vs Hart (1901, 106 Tenn. 269, 61 S. W. 780) 156, 166, 301, 313a, 429. State vs Hascall (1833, 6 N. H. 352) 387. State vs Haskell (1879, 14 Nev. 209) 455, 472. State vs Hayward (1819, 1 Nott. & McC. (S. C.) 546) 385. State vs Heinmiller (1882, 38 Ohio St. 101) 472. State vs Herndon (1887, 23 Fla. 287) 472. TO SECTIONSj State vs Herreid (1897, 10 S. D. 16, 71 N. W. 319) 206. State vs Hill (1843, 2 Speers L. (S. C.) 150) 422. State vs Hill (1892, 70 Miss. 106, 11 So. 789) 19. State vs Hofl (1895, 88 Tex. 297, 31 S. W. 290) 465, 467. State vs Holmes (1891, 43 La. Ann. 1185, 10 So. 172) 233. State vs Holmes (1895, 12 Wash. 169, 40 P. 735, 41 P. 887) 416. State vs Hopkins (1880, 15 S. C. 153) 317. State vs Jackson (1875, 27 La. Ann. 541) 143. State vs Jacobs (1848, 17 Ohio, 143) 102, 167, 348, 466. State vs Jaynes (1886, 19 Neb. 161) 431. State vs Jenkins (1887, 26 S. C. 121, 1 S. E. 437) 378. State vs Jennings (1898, 57 Ohio St. 415, 49 N. E. 404, 63 Am. St. R. 723) 30, 125, 470. State vs John (1883, 81 Mo. 13) 237. State vs Johnson (1895, 35 Fla. 2, 16 So. 786, 17 So. 650, 31 L.R.A. 357) 209, 431, 443. State vs Johnson (1892, 30 Fla. 433, 10 So. 686) 209. State vs Judge (1904, 38 So. 835, s. c. sub nom. State, Ex p. 142 Ala. 87) 196. State vs Kearn (1891, 17 R. L 391, 22 A. 1018) 454, 472. State vs Kempf (1887, 69 Wis. 470, 34 N. W. 226) 458. State vs Kipp (1898, 10 S. Dak. 495, 74 N. W. 440) 443. State vs Knott (1907, 207 Mo. 167, 105 S. W. 1040) 439a. State vs Kurtzeborn (1883, 78 Mo. 98, affirming 1880, 9 Mo. App. 245) 292. Ixxxii CASES CITED. [eefeeences aee state vs Lake (1893, 45 La. Ann. 1207, 14 So. 126) 297. State vs Lake (1873, 8 Nev. 276) 29, 396. State vs Lane (1889, 16 R. I. 620, 18 A. 1035) 123, 474. State vs Lansing (1895, 46 Neb. 514, 64 N. W. 1104) 140, 143, 150, 284. State vs Laughlin (1879, 7 Mo. App. 529) 440. State vs Leatherman (1881, 38 Ark. 81) 70. State vs Lee (1891, 35 S. C. 192, 14 S. E. 395) 122, 320. State vs Lehre (1854, 7 Rich. (S. C.) 234) 473. State vs Leischer (1903, 117 Wis. 475, 94 N. W. 299) 464. State V3 Lewis (1890, 107 N. C. 967, 12 S. E. 457, 13 S. E. 247, 11 L.E.A. 100) 186, 405, 422. State vs Lewis (1883, 51 Conn. 113) 459. State vs Lewis (1870, 22 La. Ann. 33) 410. State vs Long (1877, 76 N. C. 254) 255. State vs Low (1883, 21 W. Va. 783, 45 Am. R. 570) 416. State vs Lusk (1853, 18 Mo. 333) 290, 292. State vs Maberry (1848, 3 Strob L. (S. 0.) 144) 255, 262. State vs Marlow (1864, 15 Ohio St. 114) 456, 458, 459. State vs Martin (1878, 46 Conn. 479) 177, 178, 464. State vs Mason (1882, 77 Mo. 189) 459, 463. State vs Matthews (1898, 44 W Va. 372, 29 S. E. 994) 461, 463 State vs McAllister (Tex. Civ. App. 1895, 31 S. W. 679) 233. State vs McDiarmid (1871, 27 Ark. 176) 472. TO sections] state vs McEntyre (1842, 3 Ired. L. (N. 0.) 171) 241, 245, 254, 255. State vs McFarland (1873, 25 La. Ann. 547) 92. State vs McGreary (1897, 69 Vt. 461, 38 A. 165, 44 L.R.A. 446) 466. State vs McJunkin (1875, 7 Rich. (S. C.) 21) 122, 320. State vs McKinnon (1880, 8 Ore. 494) 458. State vs McLaiu (1898, 58 Ohio St. 313) 473. State vs McLean County (1902, 11 N. D. 356, 92 N. W. 385) 54, 69, 465. State vs McMartin (1889, 42 Minn. 30, 43 N. W. 572) 196, 408, 409, 440. State vs McMillan (1891, 108 Mo. 153, 18 S. W. 784) 461. State vs McNaughton (1884, 56 Vt. 736) 467. State vs Mead (1883, 56 Vt. 353) 466, 467. State vs Meek (1895, 129 Mo. 431, 31 S. W. 913) 455, 471. State vs Meilike (1892, 81 Wis. 574, 51 N. W. 875) 121. State vs Meyers (1862, 29 N. J. L. 392) 175, 314. State vs Miles (1893, 210 Mo. 127, 109 S. W. 595) 444. State vs Miller (1892, 111 Mo. 542, 20 S. W. 243) 132, 408, 416. State vs Miller (1905. 110 Mo. App. 542, 85 S. W. 912) 70. State vs Milne (1893, 36 Neb. 301, 54 N. W. 521, 38 Am. St. R. 724, 19 L.R.A. 689) 224. State vs Miltenberger (1881, 33 La. Ann. 263) 472. State vs Jlinnesota Thresher Mfg. Co. (1889, 40 Minn. 213, 41 N. W. 1020) 455. CASES CITED. Ixxxiii State vs Moores (1904, 71 Neb. 522, 99 N". W. 504) 432. State vs Moores (1899, 58 Neb. 285, 78 N. W. 529) 464. State vs Morgan (1902, 79 Miss. 659, 31 So. 338) 464. State V9 Moriarty (1900, 82 Minn. 68, 84 N. W. 495) 466. State vs Morris (1896, 14 Wash. 262, 44 P. 266) 458. State vs Murdock (1882, 86 Ind. 124) 175. State vs Murphy (1893, 32 Fla. 138, 13 So. 705) 78, 92, 123. State vs Newark (1898, 8 Ohio S. & C. PI. Dec. 344, 6 Ohio (N. P.) 523) 236. State vs Nield (1896, 4 Kan. App. 626, 45 P. 623) 319. State vs Norman (1880, 82 N. C. 687) 473. State vs North (1875, 42 Conn. 79) 473. State vs Gates (1893, 86 Wis. 634, 57 N. W. 296, 39 Am. St. R. 912) 84, 124, 431, 443. State vs O'Brian (1878, 68 Mo. 153) 29, 33, 396. State vs O'Brien (1890, 47 Ohio St. 464, 25 N. E. 121) 458. State vs O'Grady (1879, 31 La. Ann. 378) 429. State vs Olson (Minn. 1909, 119 N. W. 799) 461. State vs Owens (1885, 63 Tex. 261) 451, 464, 474. State vs Palmer (1869, 24 Wis. 63) 472. State vs Parchmen (1859, 3 Head. (Tenn.) 609) 286. State vs Parker (1878, 25 Minn. 215) 473. State vs Passaic County (1856, 25 N. J. L. 354) 457. State vs Paterson (1871, 35 N. J. L. 190) 444. TO SECTIONS] State vs Pawtuxet (1867, 8 R. I. 521, 94 Am. Dec. 123) 469. State vs Peers (1885, 33 Minn. 81, 21 N. W. 860) 458. State vs Pell City, Town of (Ala. 1908, 47 So. 246) 72. State vs Perkins (1854, 24 N. J. L. 409) 131, 301, 336. State vs Perkins (1897, 139 Mo. 106, 40 S. W. 650) 107, 123, 302, 422. State vs Pertsdorf (1881, 33 La. Ann. 1411) 410, 435. State vs Phippen (1883, 62 Iowa, 54) 386. State vs Pierce (1874) 35 Wis. 93) 466. State vs Pierpont (1872, 29 Wis. 608) 473. State vs Pinkerman (1893, 63 Conn. 176, 28 A. 110, 44 Am. & Eng. Corp. Cas. 233) 107, 302. State vs Plambeck (1893, 36 Neb. 401, 54 N. W. 667) 442. State vs Police Jury (1907, 120 La. 163, 45 So. 47) 317. State vs Porter (1840, 1 Ala. 688) 284, 396. State vs Powell (1888, 40 La. Ann. 241) 297. State vs Powell (1897, 101 Iowa, 382, 70 N. W. 592) 131, 301, 347. State vs Powles (1896, 136 Mo. 376, 37 S. W. 1124) 472. State vs Price (1874, 50 Ala. 568) 455, 474. State vs Quint (1902, 65 Kan. 144, 69 P. 171) 102. State vs Recorder (1896, 48 La. Ann. 1375, 20 So. 908) 409, 438. State vs Rhoades (1871, 6 Nev. 352) 137, 251, 278. State vs Rice (1903, 66 S. C. 1, 44 S. E. 80) 446. State vs Rich (1855, 20 Mo. 393) 55. Ixxxiv CASES CITED. [EEFERENCES ARE TO SECTIONS] State vs Roberts (1830, 12 N. J. L. 114, 21 Am. Dec. 62) 286. State vs Rose (1906, 74 Kan. 262, 86 P. 296) 94. State vs Rose (1884, 84 Mo. 198) 461. State vs Ruff (1892, 4 Wash. 234, 29 P. 999) 143. State vs Sadler (1899, 25 Nev. 131, 58 P. 284, 83 Am. St. R. 573) 451. State vs Sadler (1899, 51 La. Ann. 1397, 26 So. 390) 170, 422. State vs Saxon (1889, 25 Fla. 792, 6 So. 858) 209. State vs Schnierle (1852, 5 Rich. (S. C.) 299) 461, 465. State vs Schram (1901, 82 Minn. 420, 85 N. w. 155) 236. State vs Scott (1853, 17 Mo. 521) 473. State vs Seavey (1894, 7 Wash. 562. 35 P. 389) 186. State vs Sellers (1854, 7 Rich. L. (S. C.) 368) 176, 263. State vs Shank (1892, 36 W. Va. 223, 14 S. E. 1001) 465, 472. State vs Sharp (1880, 27 Minn. 38) 461, 472. State vs Shay (1884, 101 Ind. 36) 457. State vs Sherwood (1870, 15 Minn. 221, 2 Am. Rep. 116) 443. State vs Shuford (1901, 128 N. C. 588, 38 S. E. 808) 29, 302, 396, 397, 430. State vs Simon (1891, 20 Ore. 365, 26 P. 170) 293. State vs Slover (1892, 113 Mo. 202, 20 S. W. 788) 439a. State vs Smith (1876, 48 Vt. 266) 465. State vs Smith (1886, 44 Ohio St. 348, 7 N. E. 447) 91. 311. State vs Smith (1861, 14 Wis. 497) 164. State vs Spaulding (1897, 102 Iowa, 639, 72 N. W. 288) 19. State vs Speaks (1886, 95 N. C. 689) 110. State vs Stein (1882, 13 Neb. 529, 14 N. W. 481) 464, 465. State vs Stevens (1896, 29 Or. 464, 44 P. 898) 472. State vs Stewart (1862, 32 Mo. 379) 465. State vs Stewart (1875, 26 Ohio St. 216) 442. State vs Stewart (1881, 6 Houst. (Del.) 359) 451, 463. State vs Stone (1875, 40 Iowa, 547) 241, 258. State vs Stroble (1904, 25 Ohio Cir. Ct. 762) 29, 37. State vs Stuht (1897, 52 ySeh. 209, 71 N. W. 941) 464. State vs Stumpf (1867, 21 Wis. 579) 368. State vs Superior Court (1908, 49 Wash. 392, 95 P. 488) 186. State vs Superior Court (1897, 17 Wash. 12, 48 P. 741, 61 Am. St. R. 893) 180, 207, 446. State vs Superior Court of Skagit County (1906, 42 Wash. 491, 85 P. 264) 137, 339, 438. State vs Supervisors of Beloit (1886, 21 Wis. 280, 91 Am. Dec. 474) 244. State vs Swearingen (1852, 12 Ga. 23) 164. State vs Sweeney (1898, 24 Nev. 350, 55 P. 88) 70. State vs Swigart (1861, 22 Ark. 528) 278. State vs Talbot (1894, 123 Mo. 69, 27 S. W. 366) 472. State vs Tallman (1901, 24 Wash. 426, 64 P. 759) 439a. State vs Taylor (1893, 50 Ohio St. 120, 38 N. E. 24) 463, 464. State vs Thompson (1878, 34 Ohio St. 365) 461. CASES CITED. Ixxxv [befeeences are state vs Tilford (1865, 1 Nev. 240) 30. State vs Tipton (1887, 109 Ind. 73, 9 N. E. 704) 468. State vs Tomlinson (1878, 20 KaJi. 692) 458. State vs Toomer (1854, 7 Ricli. (S. C.) 216) 141, 284. State vs Tosney (1879, 26 Minn. 262, 3 N. W. 345) 72. State vs Townsend (1837, 1 MeMul. (S. C.) 495) 368. State vs Tracy (1892, 48 Minn. 497, 51 N. W. 613) 462. State vs Trinkle (1904, 70 Kan. 396, 78 P. 854) 472, 473. State vs Tucker (1875, 54 Ala. 205) 141, 284. State vs Tufly (1890, 20 Nev. 427, 22 P. 1054, 19 Am. St. R. 374) 34. State vs Turner (1896, 119 N. C. 841, 25 S. E. 810) 186. State vs Vail (1873, 53 Mo. 97) 164, 461, 464, 472. State vs Van Brocklin (1894, 8 Wash. 557, 36 P. 495) 438. State vs Van Winkle (1855, 25 N. J. L. 73) 336. State vs Ward (1867, 17 Ohio St. 543) 466. State vs Wells (1872, 8 Nev. 105) 287. State vs Westport (1893, 116 Mo. 582, 22 S. W. 888) 467. State vs Wheatley (1903, 160 Ind. 183, 66 N. E. 684) 464. State vs Whitney (1894, 41 Neb. 613, 59 N. W. 884) 64. State vs Whitney (1879, 7 Or. 386) 188, 410. State vs Williams (1856, 5 Wis. 308, 68 Am. Dec. 65) 124, 311. State vs Williams (1879, 25 Minn. 340) 431, 442. State vs Williams (1883, 35 La. Ann. 742) 410. TO sections] state vs Williams (1900, 61 Kan. 739, 60 P. 1050, 60 Kan. 837, 58 P. 476) 383, 394. State vs Wilson (1883, 30 Kan. 661) 466, 473. State vs Winkley (1843, 14 N. H. 480) 315a. State vs Wisconsin Ry. Co. (1874, 34 Wis. 197) 451. State vs Withrow (1900, 154 Mo. 397, 55 S. W. 460) 446. State vs Young (1881, 29 Minn. 474) 440. State vs Zeibart (1874, 40 Iowa, 169) 215. State Bank vs Frey (1902, 3 Neb. (Unoff.) 83, 91 N. W. 239) 316. Stearns vs Sims (Olda. 1909, 104 P. 44) 224. Steelman vs Viekers (1889, 51 N. J. L. 180, 17 A. 153, 14 Am. St. E. 675) 57, 462. Steinbach vs State (1872, 38 Ind. 483) 123. Stemmler vs New York (1904, 179 N. Y. 473, 72 N. E. 581) 224. Stephens vs Campbell (1900, 67 Ark. 484, 55 S. W. 856) 236. Stephens vs Crawford (1846, 1 Kelly (Ga.) 574, 44 Am. Dec. 680, s. c. (1847) 3 Kelly 499) 284. Stephens vs Davis (Ala. 1905, 39 So. 831) 122, 405, 422. Stephens vs Treasurers (1822, 2 McC. (S. C.) 107) 141, 284. Steubenville vs Culp (1882, 38 Ohio St. 18, 43 Am. R. 417) 221. Stevens vs Carter (1895, 27 Or. 553, 40 P. 1074) 443. Stevens vs Wyatt (1855, 55 Ky. 16 B. Mon. 542) 164. Stickney vs Stickney (1889, 77 Iowa, 699, 42 N. W. 518) 318. Stine vs Berry (1894, 96 Ky. 63, 27 S. W. 809) 459. Ixxxvi CASES CITED. [EEPEKBNCES ARE TO SECTIONS] Stinson vs Sweeney (1883, 17 Nev. 309, 30 P. 997) 367. Stites vs Cumberland (1896, 58 N. J. L. 340, 33 A. 737) 439. Stockle vs Silsbee (1879, 41 Mich. 615) 334. Stoddard vs Prentice (1898, 6 B. C. 308) 420. Stoddard vs Williams (1884, 65 Cal. 472, 4 P. 452) 229. Stokes vs Aoklen (Tenn. Chy. App. 1898, 46 S. W. 316, affirmed orally by Supreme Court, Marcb 5, 1898) 151, 157, 316. Stokes vs Kirkpa trick (1858, 1 Mete. (Ky.) 138) 140, 141, 318. Stone vs Canfield (Ky. 1900, 55 S. W. 924) 235. Stone vs Small (1882, 54 Vt. 498) 431. Stone vs Wetmore (1871, 42 Ga. 601) 446. Stott vs Chicago (1903, 205 III. 281, 68 N. E. 736) 203, 236. Stout vs Zulick (1886, 48 N. J. L. 599, 7 A. 362) 66. Strahl, Ex p. (1864, 16 Iowa, 369) 430, 435. Strang, Ex p. (1871, 21 Ohio St. 610) 88, 186, 195, 301, 424, 435. Strange vs Oconto Land Co. (1908, 136 Wis. 516, 117 N. W. 1023) 340. Stratton vs Oulton (1865, 28 Cal. 44) 219, 226. Strickland vs Griffin (1883, 70 Ga. 541) 30. Strobach, Ex p. (1873, 49 Ala. 443) 429. Strong, In re (1838, 20 Pick. (Mass.) 484) 442. Stuart vs School District No. 1 of Kalamazoo (1874, 30 Mich. 69) 70. Stubbs vs Lee (1874, 64 Me. 195, 18 Am. R. 251) 430. Stuhr vs Curran (1882, 44 N. J. L. 181, 43 Am. R. 353) 229, 237. Sturgeon vs Commonwealth (Pa. 1888, 14 A. 41) 321. Sublett vs Bedwell (1872, 47 Miss. 266, 12 Am. Rep. 338) 164, 471. Sudbury vs Heard (1870, 103 Mass. 543) 174, 338. Suddereth vs Smyth (1852, 13 Ired. L. (N. C.) 452) 316. Sullivan vs State (1872, 66 111. 75) 335. Susanville vs Long (1904, 144 Cal. 362, 77 P. 987) 301, 312, 429. Sutliffe vs New York (1909, 117 N. Y. S. 813) 220, 222. Swepston vs Barton (1882, 39 Ark. 549) 164, 366. Swindell vs Warden (1860, 7 Jones L. (N. C.) 575) 318. Symmers vs Regem (1776, 2 Cowp. 489) 341, 429. T. Tampa vs Kaunitz (1898. 39 Fla. 683, 23 So. 416) 340. Tanner vs Deen (1899, 108 Ga. 95, 33 S. E. 832) 367. Tanner vs Edwards (1906, 31 Utah, 80, 86 P. 765) 219, 227. Tappan vs Gray (1842, 9 Paige, (N. Y.) 507, affirmed in (1843) 7 Hill, 259, reversing 1841, 3 Edw. Ch. R. 450) 206, 446. Tarbox vs Sughrue (1887, 36 Kan. 225, 12 P. 935) 458. Taunton Case, In re (1805, 1 Peck. 406, 58 Jour. 382) 7, 354. Taylor vs Commonwealth (1S30, 3 J. J. Marsh. (Ky.) 401) 432. Taylor vs Nichols (1856, 29 Vt. 104) 429. Taylor vs Skrine (1815, 2 Tread. Const. (S, C.) 696) 195, 424. CASES CITED. Ixxxvii [KBFESENCES AKE Taylor vs State (1875, 51 Miss. 79) 279. Taylor vs Taylor (1865, 10 Minn. 107) 366, 367. Terhune vs New York (1882, 88 N. Y. 247) 224, 229. Territory vs Armstrong (1889, 6 Dak. 226, 50 N. W. 832) 451, 461. Territory vs Hauxhurst (1882, 3 Dak. 205) 455. Territory vs Virginia Road Co. (1874, 2 Mont. 96) 454. Terry vs Staufifer (1865, 17 La. Ann. 306) 206, 446. Texas & P. Ey. Co. vs Harrison County (1880, 54 Tex. 119) 337. Thomas vs Summey (1854, 1 Jones L. (N. C.) 554) 289. Thompson, Ex p. (1876, 2 Que. Law R. 115) 437. Thompson vs Couch (1906, 144 Mich. 671, 108 N. W. 363) 192, 405, 408, 440. Thompson vs Ewing (1862, 1 Brewst. (Pa.) 67, 5 Phila. 102, 19 Leg. Int. 348) 302, 365. Thompson vs Holt (1875, 52 Ala. 491) 209. Thompson vs Johnson (1892, 84 Tex. 548, 19 S. W. 784 ( 316. Thompson vs Mankin (1871, 26 Ark. 586, 7 Am. Rep. 628) 401. Thompson vs People (1875, 6 Hun (N. Y.) 135) 320. Thompson vs State (1859, 37 Miss. 518) 293. Thompson vs State (1852, 21 Ala. 48) 178, 187, 314. Thompson vs Watson (1891, 48 Ohio St. 552, 31 N. E. 742) 461. Thorington vs Smith (1868, 8 Wall. (U. S.) 1, 19 L. Ed. 361) 42. Threadgill vs Carolina Central Ry. Co. (1875, 73 N. C. 178) 122,317. TO SECTIONS] Throop vs Langdon (1879, 40 Mich. 673) 16. Thrower vs State (1875, 52 Ala. 22) 122, 320. Tiffany vs Miller (1850, 6 U. C. Q. B. 426) 286. Tillman vs Otter (1893, 93 Ky. 600, 20 S. W. 1036) 451, 455, 472. Timms vs Grace (1871, 26 Ark. 598) 401. Tiusley vs Kirby (1881, 17 S. C. 1) 29, 277. Tisdale vs Minonk (1867, 46 111. 9) 64, Todd vs Perry (1861, 20 U. C. Q. B. 649) 246. Tompert vs Lithgow (1866, 1 Bush. (Ky.) 176) 418. Toney vs Harris (1887, 85 Ky. 453, 3 S. W. 614, 9 Ky. Law R. 36) 196. Topeka, City of vs Dwyer (1904, 70 Kan. 244, 78 P. 417) 55, 57, 58, 65. Tower vs Welker (1892, 93 Mich. 332, 53 N. W. 527) 132, 175, 369. Tower vs Whip (1903, 53 W. Va. 158, 44 S. E. 179) 136, 416. Tracey, Ex p. (Tex. 1905, 93 S. W. 538) 90, 96, 102, 109, 110, 186, 435. Treasurers vs Lang (1831, 2 Bailey (S. C.) 430) 293. Treble vs Frame (1829, 1 J. J. Marsh, (Ky.) 205) 29, 396. Trenton vs Dyer (1895, 24 Can. Sup. Ct. 474) 266, Trenton vs McDaniel (1859, 7 Jones L, (N, C) 107) 97, 174, Trescott vs Moan (1862, 50 Me, 347) 210, 246, 251, 281. Trevino vs Fernandez (1855, 13 Tex, 630) 399. Trinity College vs Hartford (1865, 32 Conn. 452) 136, 159, 314, Ixxxviii CASES CITED. [REFEEENCES AEE Trogman v. Grower (1901, 109 Wis. 393, 85 N. W. 358) 179. Trudel vs Boucher (1905, 28 Que. R. (S. C.) 192) 472. Trumbo vs People (1874, 75 III. 561) 38, 58, 335. Trustees Common School Dis. No. 88 vs Garvey (1882, 80 Ky. 159) 365. Tucker vs Aiken (1834, 7 N. H. 113) 97, 174, 322, 329. Tulare Irrigation District vs Shep- pard (1901, 185 U. S. 1, 122 Sup. Ct. 531, 46 L. ed. 773) 49. Tullos vs Lane (1893, 45 La. Ann. 333, 12 So. 508) 365. Tully vs Levvitz (1906, 50 Misc. (N. Y.) 350, 98 N. Y. S. 829) 205. Turner vs Baynes (1795, 2 H. Bl. 559, 3 R. R. 506) 6, 172, 184, 205, 210. Turney vs Dibrell (1873, 3 Bax. (Tenn.) 235) 19, 29, 178, 405, 422. Turtle vs Euphemia Tp. (1900, 31 0. R. 404) 11, 171, 181, 301, 304, 305. Twenty Per Cent Cases (1871, 13 Wall. (U. S.) 568) 17. Twombly vs Kimbrough (1866, 24 Ark 459) 330. Tyler vs Nelson (1858, 14 Gratt. (Va.) 214) 289. U. TO sections] U. S. vs Boyd (1841, 15 Pet. (U. S.) 187) 289. U. S. vs Evans (1 Cranch C. C. 149) 264. U. S. vs Harsha (1893, 56 Fed. R. 953) 434. U. S. vs Insurance Co. (1874, 22 Wall. (U. S.) 99) 403. U. S. vs Jackson (1895, 20 D. C. 424) 378. U. S. vs Jameson (1882, 16 Fed. R. 331) 293. U. S. vs Kirkpatrick (1824, 9 Wheat. (U. H.) 720) 289. U. S. vs Maurice (1823, 2 Brock. (U. S.) 96) 16, 246, 251, 277, 279. U. S. vs Mills (1898-, 11 App. Cas. (D. C.) 500) 438. U. S. vs Mitchell (1905, 136 Fed. R. 896) 161, 319. U. S. vs Spencer (1840, 27 Fed. Cas. (No. 16367) 1281, 2 Mc- Lean, 265) 289. U. S. vs Wright (1839, 28 Fed. Cas. No. 16775) 792, 1 McLean, 509) 162. Updegraff vs Crans (1864, 47 Pa. St. 103) 446, 471. Upton vs Hansbrough (1873, 28 Fed. Cas. (No. 16S01) 839, 3 Biss. 417) 66. Usher vs Telegraph Co. (1906, 122 Mo. App. 98, 98 S. W. 84) 191, 405. Underwood vs White (1872, 27 Ark. 382) 442. U. S. vs Addison (1867, 6 Wall. (U. S.) 291, 18 L. ed. 919) 222, 229, 231. U. S. vs Alexander (1891, 46 Fed. R. 728) 3, 77, 104, 110, 117, 123, 308, 422, 430. U. S. vs Board of Education (1905, 118 Ky. 355, 86 S. W. 1120) 340. Vacarri vs Maxwell (1855. 3 Blatch. (U. S.) 368) 415, 419. Van Amringe vs Taylor (1891, 108 N. C. 196, 12 S. E. 1005, 23 Am. St. R. 51, 12 L. R. A. 202) 80, 81, 92, 93, 102, 104, 111. 302, 365. Vanderberg vs Connoly (1898, 18 Utah, 112, 54 P. 1097) 193, 301, 429. CASES CITED. Ixxxix [EEFEIIENCES AEE Vanderver v3 Vanderver (1860, 3 Meto. (Ky.) 137) 416. Vanneman vs Young (1890, 3 Am. R. & Corp. Rep. 660, notes) 47, 68. Van Reypen vs Jersey City (1886, 48 N. J. L. 428) 438. Van Sant vs Atlantic City (1902, 68 N. J. L. 449, 53 A. 701) 432. Van Slyke vs Trempealeau County Farmers' Fire Insurance Co. (1876, 39 Wis. 390, 20 Am. Kep. 50) 197, 416a. Varner vs Thompson (1908, 3 Ga. App. 605, 60 S. E. 216) 269. Varney vs Justice (1888, 86 Ky. 596, 6 S. W. 457) 365. Vasser vs George (1873, 47 Miss. 713) 331. Venable vs Curd (1859, 2 Head (Tenn.) 582) 266, 422. Verner vs Seibels (1901, 60 S. C. 572, 39 S. E. 274) 209. Vestry of St. Pancras vs Batter- bury (1857, 2 C. B. (N. S.) 477, 26 L. J. C. P. 243, 3 Jur. (N. S.) 1106) 458. Vicksburg vs Groome (Miss. 1898, 24 So. 306) 156, 236. Vicksburg vs Lombard (1875, 51 Miss. Ill) 177, 301, 313. Voisin vs L6che (1871, 23 La. Ann. 25) 206, 464. Voss vs Union School Dis. No. 11 (1877, 18 Kan. 467) 70. Vrooman vs Michie (1888, 69 Mich. 42, 36 N. W. 749) 472. W. Wagner vs Louisville (Ky. 1909, 117 S. W. 283) 224, 235. Waite vs Santa Cruz (Cal. (1898, 89 Fed. 619) 123, 301, 313. Wakefield Case, In re (1842, Bar. & Aus. El. Cas. 270) 7, 349, 350, 356, 357. TO sections] Wakker, In re (1848, 3 Barb. (N. Y.) 162) 435. Waleott vs Wells (1890, 21 Nev. 47, 24 P. 367, 37 Am. St. R. 478, 9 L. R. A. 59) 29, 36, 102, 192, 199, 301, 405, 422, 440. Walden vs Headland (Ala. 1908, 47 So. 79) 432. Walker vs Burlington (1883, 56 Vt. 131) 328. Walker vs Phoenix Life Insurance Co. (1895, 62 Mo. App. 209) 30. Walker vs Sandford (1887, 78 Ga. 165, 1 S. E. 424) 366. Walker vs State (1895, 107 Ala. .5, 18 So. 393) 136, 381. Walker vs State (1905, 142 Ala. 7, 39 So. 242) 196, 405. Walker vs State (1905, 142 Ala. 32, 38 So. 241) 320. Wallace vs Anderson (1820, 5 Wheat. (U. S.) 291) 461. Waller vs Perkins (1874, 52 Ga. 233) 174, 339. Walnut Tp. vs Jordan (1888, 38 Kan. 562, 16 P. 812) 167. Wapello County vs Bigham (1859, 10 lovi'a, 39, 74 Am. Dec. 370) 137, 296. Ward, Ex p. (1898, 173 U. S. -452, 19 Sup. Ct. 459, 43 L. Ed. 765) 89, 435. Ward vs Cook (1898, 78 111. App. Ill) 29, 208. Ward vs Gradin (1906, 15 N. D. 649, 109 N. W. 57) 70. Ward vs State (1866, 2 Cold. (Tenn.) 605, 91 Am. Dec. 270) 4, 128, 314, 317. Ward vs Sweeney (1900, 106 Wis. 44, 82 N. W. 169) 446. Warden vs Bayfield County (1894, 87 Wis. 181, 58 N. W. 248) 225. Warner vs Myers (1870, 3 Or. 218) 443, 445. CASES CITED. [EEFERENCES ABB TO SECTIONS] Warner V8 People (1845, 2 Den. (N. Y.) 272, reversing 7 Hill, 81) 19. Warwick vs State (1874, 25 Ohio St. 21) 383. Washington County vs Miller (1863, 14 Iowa, 584) 339. Washington County Comm'rs vs Washington County School Comm'rs. (1893, 77 Md. 283, 26 A. 115) 210. Wason vs County Treasurer (1897, 10 Col. App. 181) 451. Waterloo Bridge Co. vs Cull (1858, 1 El. & El. 213, 28 L. J. Q. B. 70, 5 Jur. (N. S.) 464) 6, 153, 325. Watkins vs Inge (1880, 24 Kan. 612) 178, 338. Watson vs M'Grath (1904, 111 La. 1097, 36 So. 204) 110, 188, 194. Wayman vs Commonwealth (1879, 14 Bush. (Ky.) 466) 264, 265. Wayne County vs Benoit (1870, 20 Mich. 176, 4 Am. Rep. 382) 221, 224, 225, 227, 229, 232. Wayne County vs Randall (1880, 43 Mich. 137) 240. Weatherford vs State (1893, 31 Tex. Crim. R. 530, 21 S. W. 251) 139, 217. Webb's Case (1608, 4 Coke's Rep. 229) 449. Webb vs James (1840, 7 M. & W. 279, 9 D. P. C. 315, 10 L. J. Ex. 89) 280. Weeks vs Ellis (1848, 2 Barb. (N. y.) 320) 136, 141, 274, 405. Weir vs Mathieson (1865, 11 Gr. Ch. (Ont.) 383, reversed in 3 E. & A. 123) 448. Welch vs Ste. Genevieve (1871, 1 Dillon C. C. (U. S.) 130) 29. Wells, In re (1766, 30 Jour. 456, 466, 595) 355. Wells vs Taylor (1884, 5 Mont. 202. 3 P. 255) 367. Wendell vs Fleming (1857, 8 Gray (Mass.) 613) 251, 279, 281. Wenner vs Smith (1886, 4 Utah, 238, 9 P. 293) 231, 432. Wessner vs Bank (1904, 106 Mo. App. 668, 80 S. W. 319) 29, 33. Weston vs Sprague (1882, 54 Vt. 395) 137, 277. Wheeler vs Commonwealth (1895, 98 Ky. 59, 32 S. W. 259) 461. Wheeler vs Fire Comm'rs of New Orleans (1894, 46 La. Ann. 731, 15 So. 179) 448. Wheeler Mfg. Co. vs Sterrett (1895, 94 Iowa, 158, 62 N. W. 675) 138, 175, 317. Wheeling vs Black (1884, 25 W. Va. 266) 292. Wheelock's Case (1876, 82 Pa. St. 297) 367. Wheelock vs Kost (1875, 77 IIL 296) 66. Whipley vs McKune (1859, 12 Cal. 352) 367. Whipper, Ex p. (1890, 32 S. C. 5,. 10 S. E. 579) 209. Whipple vs Tuxworth (1907, 81 Ark. 391, 99 S. W. 86) 59. Whiston vs Dean & Chapter of Rochester (1849, 7 Hare 532, 1& L. J. Chy. 473, 13 Jur. 694) 447. Whitaker vs City of Topeka (1900, 9 Kan. App. 213, 59 P. 668) 219, 224. Whitby, Municipality of vs Flint (1859, 9 U. C. C. P. 449) 11, 135, 282, 326. Whitby Tp. vs Harrison (1859, IS U. C. Q. B.- 603, 606) 11, 135, 282, 315, 326. White, Ex p. (1894, 33 Tex. Crim. R. 594, 28 S. W. 542) 364. White vs Archibald (Pa. 1887, S A. 443) 313a. White vs Berry (1898, 171 U. S. 366, 18 Sup. Ct. 917, 43 L. ed. 199) 446. CASES CITED. [BEFERBNCES AKE White vs Cannon (1867, 6 Wall. (U. S.) 443) 403. White vs Reagan (1869, 25 Ark. 622) 416. White vs School District of Arch- bald Borough (1887, 5 Sadl. (Pa. Sup. Ct.) 323, 7 Cent. 155, 8 A. 443) 77. Whiting, In re (1848, 2 Barb. (N. Y.) 513, 1 Edm. (Sup. Ct.) 498) 209, 431. Whiting vs Ellsworth (1893, 85 Me. 301, 27 A. 177) 136, 327. Whittington vs Polk (1802, 1 Har. & J. (Md.) 236) 449. Wilcox vs Magruder (1850, 1 Ohio Dec. 350, 7 West. Law J. 505) 366. Wilcox vs Smith (1830, 5 Wend. (N. Y.) 231, 21 Am. Dec. 213) 12, 88, 101, 108, 173, 274, 301. Willeford vs State (1884, 43 Ark. 62) 446. Willey vs Windham (1901, 95 Me. 482, SO A. 281) 138, 313a. Williams vs Boynton (1895, 147 N. Y. 426, 42 N. E. 184, affirm- ing (1893), 71 Hun 309) 93, 94, 101, 105, 107, 110, 302. Williams vs Clayton (1889, 6 Utah, 86, 21 P. 398) 73, 92, 442. Williams vs Hewitt (1895, 47 La. Ann. 1076, 17 So. 496) 68. Williams vs School District (1838, 21 Pick. (Mass.) 75) 338. Williams vs Struss (1896, 4 Okla. 160, 44 P. 273) 416a. Williamsburg vs Lord (1863, 51 Me. 599) 327. Williamson vs Lake County (1903, 17 S. Dak. 353, 96 N. W. 702) 132, 315, 318. Williamson vs Woolf (1861, 37 Ala. 298) 91, 278, 284, 405. Willis vs Childe (1850, 13 Beav. 117, 20 L. J. Ch. 113, 15 Jur. 303, 51 Eng. E. 46) 448. TO SECTIONS] Wilmington vs Horn (1837, 2 Harr. (Del.) 190) 297. Wilson vs Fisher (1903, 140 Cal. 188, 73 P. 850) 227. Wilson vs Kimmel (1891, 109 Mo. 260, 19 S. W. 24) 156, 316. Wilson vs King (1823, 3 Litt. (Ky.) 457) 170, 321. Wilson vs McGuire (1883, 2 0. R. 118) 425. Wilson vs North Carolina (1898, 169 U. S. 586, 18 Sup. Ct. R. 435) 474. Wimberly, Ex p. (1879, 57 Miss. 437) 446. Wimberly vs Poland (1895, 72 Miss. 241, 16 So. 905) 154. Winchelsea, In re (1624, 1 Jour. 798, 1666, 8 Jour. 673) 7, 349, 351. Winconne, Town of vs Village of Winconne (1901, 111 Wis. 10, 86 N". W. 589) 52. Winget vs Quincy Bldg. Associa- tion (1889, 128 111. 67, 21 N. E. 12) 67. Wolfe vs Murphy (1882, 60 Miss. 1) 331. Wood, In re (1886, 34 Kan. 645, 9 P. 758) 30. Wood vs Lowden (1897, 117 Cal. 232, 49 P. 132) 286. Wood vs New York (1878, 12 J. & S. (N. Y. Sup. Ct.) 321) 221. Wood vs State (1892, 130 Ind. 364, 30 N. E. 309) 473. Wood vs State (1886, 47 Ark. 488, 1 S. W. 709) 258. Woodbury vs Brown (1899, 101 Tenn. 707, 50 S. W. 743) 58. Woodruff vs McHarry (1870, 56 111. 218) 316. Woods vs Inhabitants of Bristol (1892, 84 Me. 358, 24 A. 865) 92. Woodside vs Wagg (1880, 71 Me. 207) 170, 405, 422, 473. XQll CASES CITED. [REFERENCES ARE Woodson vs State (1887, 24 Tex. App. 153, 6 S. W. 184) 388. Woodstock vs Bolster (1863, 35 Vt. 632) 89, 328. Woodward vs Fruitvale Sanitary District {1893, 99 Cal. 554, 34 P. 239) 313. Wright vs Mattison (1855, 18 How. (U. S.) 50) 83, 88. Wright vs United States (1895, 158 U. S. 232, 15 Sup. Ct. R. 819) 131. TO SECTIONS] Yorks vs City of St. Paul (1895, 62 Minn. 250, 64 N. W. 565) 236. Yorty vs Paine (1885, 62 Wis. 154, 22 N. W. 137) 29, 177, 301, 340. Youngblood vs Cunningham (1882, 38 Ark. 571) 175, 318. Youville School District vs Belle- mere (1904, 14 Man. 511) 10, 145, 473. Z. Yonkey vs State (1866, 27 Ind. 236) 464. Zabel vs Harshman (1888, 68 Mich. 273, 42 N. W. 44) 110, 314. TABLE OF ABBKEVIATIONS. (A few abbreviations that may require explanation.) A Atlantic Reporter B. C British Columbia Reports Fed Federal Reporter 6r. (U. C. or Ont.) Grant's Chancery Reports, Upper Canada or Ontario L.R.A Lawyers' Reports, Annotated L. ed Lawyers' Edition Supreme Court Reports N. B New Brunswick Reports N. E Northeastern Reporter N. W Northwestern Reporter N. Y. S New York Supplement 0. L. R Ontario Law Reports O. R Ontario Reports P Pacific Reporter Que. R. (K. B.) Quebec King's Bench Reports Que. R. ( S. C. ) Quebec Superior Court Reports S. or South Southern Reporter S. E • • Southeastern Reporter S. W Southwestern Reporter Ter. Law R Territories Law Reports (Canada) U. C. C. P Upper Canada Common Pleas Reports U. C. K. B Upper Canada King's Bench Reports U. C. Q. B Upper Canada Queen's Bench Reports BOOK I. or THE DE FACTO DOCTEINE AKD OF PUBLIC OFFICES AND OFFICERS IN GENERAL. BOOK I. or THE DE FACTO DOCTKINE AND OF PUBLIC OFFICES AND OFFICEKS IN GENEKAL, CHAPTER 1. THE DE FACTO DOCTRINE— INTRODUCTORY REMARKS. § I. Definition of the de facto § 9. Same subject. doctrine. 10. Historical sketch of the de 2. Same subject. facto doctrine in Canada. 3. Necessity of the de facto 11. Same subject. doctrine. 12. De facto doctrine different 4. Universality of the same. from legal presumption as 5. Historical sketch of the de to official character. facto doctrine in England. 13. To what public officers de 6. Same subject. facto doctrine applicable. 7. Same subject. 8. Historical sketch of the de facto doctrine in the Unit- ed States. § 1. Definition of the de facto doctrine. — The de facto doctrine is a rule or principle of law which, in the first place, justifies the recognition of the authority of governments es- tablished and maintained by persons who have usurped the sovereign authority of the State, and assert themselves by force and arms against the lawful government; secondly, which recognizes the existence of, and protects from collat- eral attack, public or private bodies corporate, which, though irregularly or illegally organized, yet, under color of law, openly exercise the powers and functions of regularly created bodies ; and, thirdly, which imparts validity to the official acts of persons who, under color of right or authority, hold of- 3 4 THE DE FACTO DOCTRINE. [§ 2 fice under the aforementioned governments or bodies, or exer- cise lawfully existing offices of whatever nature, in which the public or third persons are interested, where the performance of such official acts is for the benefit of the public or third persons, and not for their own personal advantage. The doc- trine is grounded upon considerations of public policy, jus- tice, and necessity, and is designed to protect and shield from injury the community at large or private individuals, who, in- nocently or through coercion, submit to, acknowledge, or in- voke the authority assumed by the governments, corporate bodies, or officers, above mentioned. While this definition may be susceptible of improvement, yet, we think it accurately and sufficiently embodies the lead- ing features and scope of the de facto doctrine. Singularly enough, notwithstanding the abundance of literature written upon this subject by judges and text-writers, no general def- inition embracing the whole ground covered by the doctrine has, so far as we are aware, ever been attempted. § 2. Same subject. — The first part of the above defini- tion, as is obvious, relates to de facto governments and de facto corporations; the second, to the functionaries of such governments or corporations, and to ordinary illegal officers. The two classes of irregular officers are included together, be- cause the same color of title or authority is requisite to con- stitute an officer de facto under a de facto government or a de facto corporation, as is required under ordinary circiim- stances. It is true that the functionaries of the first class can never become more than de facto officers, however regular their appointment and qualification may be, because the of- fices they hold are tainted with the same illegality as the pow- er which gave them birth, or under which they are held. But, nevertheless, were a person to take charge of such an office. § 3] INTRODUCTORY REMARKS. 5 without at least color of authority, he would be regarded as a mere usurper, and his acts could not be upheld on any con- sideration. It must also be remembered that de facto corporations are of two kinds : those organized for the benefit of the public and generally denominated "municipal" or "quasi-municipal," and those incorporated for private ends or purposes. With private de facto corporations and their officers, however, it is not our intention to deal in this work, though the principles applicable to these are generally identical with the rules which obtain in regard to de facto public corporations and their of- ficials. Our purpose is to confine ourselves to a consideration and discussion of the de facto doctrine in its relation to pub- lic officers, and incidentally to treat of de facto public corpo- rations, de facto governments, and other collateral subjects. § 3. Necessity of the de facto doctrine. — The necessity of the de facto doctrine becomes manifest from whatever as- pect it is viewed. As regards the public and third persons, it would be unreasonable to expect them to inquire before- hand into the title of the officers with whom they purpose to deal, to ascertain whether or not reliance can be placed on their assumed authority. This would be making the validity of their official acts dependent on their official titles, which would be intolerable. On the other hand, were every officer bound to uphold or defend his title against every one who might choose to deny or attack it in a collateral way, he would often be so much thwarted in the performance of his official duties that his efficiency as an officer might at times be greatly impaired. Again, the doctrine is necessary to main- tain the supremacy of the law and to preserve peace and or- der in the community at large, since any other rule would lead to such uncertainty and confusion, as to break up the or- 6 THE DE FACTO DOCTRINE. [§ 3 der and quiet of all civil administration. Indeed, if any in- dividual or body of individuals were permitted, at his or their pleasure, to challenge the authority of and refuse obe- dience to the government of the state and the numerous func- tionaries through whom it exercises its various powers, or re- fuse to recognize municipal bodies and their ofScers, on the ground of irregular existence or defective titles, insubordina- tion and disorder of the worst kind would be encouraged, which might at any time culminate in anarchy. These are substantially the views expressed by all the au- thorities, both English and American. In Scadding vs Lor- anij^ in the House of Lords, the Lord Chancellor, dealing with the authority of vestrymen de facto to make a rate, said: "With regard to the competency of the vestrymen, who were vestrymen de facto, but not vestrymen de jure, to make the rate, your Lordships will see at once the im- portance of that objection, when you consider how many public officers and persons there are who are charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propri- ety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers, and it might also lead to persons, instead of re- sorting to the ordinary legal remedies to set anything right done by the officers, taking the law into their own hands." The language of Mr. Justice Field, delivering the opinion of the Supreme Court of the United States in Norton vs Shel- by County,'^ is to the same effect. "The doctrine," says the 1(1851), 3 H. L. Cas. 418, 5 2(1880), 118 U. S. 425, 6 Sup. Eng. L. & Eq. 16. Ct. 1121, 30 L. ed. 178. § 4] INTRODUCTORY REMARKS. 7 learned judge, "which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considera- tions of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices axe created for the benefit of the pub- lic, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and func- tions. For the good order and peace of society their au- thority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and deter- mined. It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question." * § 4. Universality of the de facto doctrine. — The principles involved in the de facto doctrine are not confined in their application to countries governed by the English law, but must of necessity be recognized in some form or other, and either expressly or tacitly, by all the civilized nations of the world. History, with its endless tales of strife, conflict and revolution in all parts of the world and in all ages, abundantly establishes the truth of this assertion. What empire, kingdom or state can boast of never having had its throne or sovereignty usurped by the conqueror or the revolu- tionary? If all the acts performed by usurpers and those holding under them, while the affairs of the state are under their control, were to be subsequently declared null and void. 3See also State vs Carroll (1876), 119 Mass. 465, 20 Am. (1871); 38 Conn. 449, 9 Am. Rep. Rep. 335; United States vs Alex- 409; Harbaugh vs Winsor (1866), ander (1891), 46 Fed. R. 728. 38 Mo. 327; Petersilea vs Stone 8 THE DE FACTO DOCTRINE. [§ 5 there would be no end of confusion, and the restoration of the lawful power would be worse than the usurpation. These views are tersely and eloquently laid down in an American case,* where it is said : "It is a fundamental maxim, not of the law, but of civilized society, that the acts of officers de facto are valid. Without it, there would be no security for life, or liberty, or property. It took form and shape in a stat- ute in the time of Edward, as to the rights of a king de facto, but its foundation was beyond that. Without the rights of de facto governments, who would recognize the ISTorman titles against the Saxon barons ? Who the varying rights of York and Lancaster, or Tudor and Plantagenet, of king and com- monwealth, and kings again, of Stuart and Orange, or Stuart and Brunswick ? Where would you find your resting place in the history of civilization ? In the Roman empire ? In its Gothic conquerors ? In the house of Charlemagne ? In that of Hughes Capet ? In the Bourbon or the Bonaparte ? The kingdom, the republic, the empire, the kingdom, the republic, the empire again. In 1789, in 1793, in 1800, in 1815, in 1848, or in 1852? When, where, and how, would you base your rights de jure ? Brandenburgh rises on the ruins of other houses, as Hapsburg before it, and will fall again, as Haps- burg has done. The history of the world is the history of kingdoms and empires, and civilizations de facto, becoming de jure, because they are de facto." * § 5. Historical sketch of the de facto doctrine in Eng- land. — The de facto doctrine originated in England cen- turies ago, and sprang into existence as soon as circumstances arose calling for its adoption and application. This is assert- 4Griffin's Case (1869), 11 Fed. (1866), 2 Cold. (Teim.)"605, 91 Cas. (No. 5,815) p. 7. Am. Dec. 270. 6See also Ward vs State § 5] INTRODUCTORY REMARKS. & ed by an American judge, who remarks : "The common law in relation to de facto officers had its origin in England; it was there laid upon a foundation as broad as their necessities required." * The first case on record is to be found in the Tear Books as far back as 1431, under the name of The Abbe de Fontaine.'' The action was on a bond given by one whO' illegally held the office of abbot of the convent of Fontaine, for supplies furnished the convent. The office was elect- ive, and though the unlawful holder had obtained only a minority of the votes, yet he had procured himself to be in- stituted and inducted by the ordinary, and had taken pos- session of the abbacy. Subsequently, however, the duly elect- ed abbot succeeded in displacing him, and was in turn inducted into office. The action being brought against the latter on the bond of his predecessor, he pleaded the in- validity of the same, on the ground that it had been given by one who never was the lawful abbot of the con- vent. There is nothing in the report to show that the case was ever finally decided, but from the general trend of the discussion between the counsel and the court, and among the judges themselves, it seems evident that the bond was con- sidered valid. The case is interesting from many points of view, but perhaps its most striking feature is that it shows that even then the principles of the de facto doctrine were not entirely new. This is evident from the language of Chief Justice Babington. In one part he says: "In every case, if a man be made abbot or parson erroneously, and then is removed for precontract, or any like matter, yet a deed made by him and the convent, or by the parson and the patron and the ordinary, is good ; as if an abbacy or chuch be vacant, and eBradbury, J., in State vs 79 H. VI., fol. 32. Gardner (1896), 54 Ohio St. 24, 42 N. E. 999, 31 L.R.A. 660 IQ THE DE FACTO DOCTRINE. [§ 6 a man who had no right pretended to be patron, and preferred one A, by force whereof he is installed, and then he is ousted by legal process inasmuch as the patron had no right; yet a deed which was made before is good." ISTot long after the trial of the above case, the de facto doctrine received a solemn recognition from an Act of Parlia- ment, passed in 1461. This was after the house of York had re-asserted its title to the Crown of England, and succeeded in establishing it in the person of Edward the Fourth. At the latter's accession to the throne, a statute® was enacted to indemnify those who had submitted to the kings of the house of Lancaster, and to provide for the peace of the king- dom, by confirming all honors conferred and all acts done by those who were now called usurpers, not tending to the disher- ison of the rightful heir. In that act Henry IV, Henry V, and Henry VI, are designated as "late kings of England in deed and not of right;" and in all the charters of King Ed- ward, whenever he has occasion to speak of the line of Lan- caster, he calls them "nuper de facto, et non de jure, reges Anglise."^ Thus arose in England the distinction between the kings de jure and the kings de facto; and the de facto doctrine was carried so far with respect to the English Crown that treasons committed under Henry VI, not in aid of the lawful claimant, were punished under Edward IV. Moreover, Bacon says that "it liath been settled, that all judicial acts done by Henry the Sixth, while he was king, and also all pardons of felony and charters of designa- tion granted by him, were valid."^" § 6. Same subject. — From that period the de facto doc- trine rapidly spread in England, and became firmly estab- 8Edw. IV., c. 1. lOBacon Abr. Prerogative (A). 9 Black. Comm. 204. § 6] INTRODUCTORY REMARKS. 11 lished. Following that of the Aibe de Fontaine came numer- ous other cases dealing with its various features, and expand- ing its principles to meet the requirements of diverse circum- stances and different times. These cases will be duly consid- ered in this work under appropriate headings, and a reference to them will make it evident that the de facto doctrine has been recognized in England by an unbroken current of author- ities for nearly five hundred years. Quite a number are cited here, as later on there will be no favorable opportunity of ad- verting to them collectively. Among those quoted in this place there are some which may bear only indirectly on de facto doctrine, but in all of them its existence as a well settled rule of law is fully acknowledged.^* iiKnowles vs Luce (1580), Moore, 109, 72 Eng. R. 473; Lord Dacres Case (1584), 1 Leon. 288, 74 Eng. R. 263; Harris vs Jays (1599), Cro. Eliz. 699, 78 Eng. R. «34; Leak vs Howell (1591), Cro. Eliz. 533, 78 Eng. R. 780; Costard vs Winder (1600), Cro. Eliz. 775, 78 Eng. R. 1005; O'Brian vs Knivan (1620), Cro. Jac. 552, 79 Eng. R. 473; Leech's Case (1682), fl Cnbbett's State Trials, pp. 351, 355; Knight vs Corporation of Wells (1695), Nelson's Lutw. 156, Lutw. 508 ; Parker vs Kett ( 1701 ) , 12 Mod. 466, 88 Eng. R. 1454, s. c. more briefly reported in 1 Ray. (Ld.) 658, 91 Eng. R. 1338; Kit- ton vs Fag (1714), 10 Mod. 288, 88 Eng. R. 732; R. vs Mayor of Shrewsbury (1735), Cas. Temp. Hard. (Lee) 147, 95 Eng. R. 94; R. vs Lisle (1738), Andr. 163, 95 Eng. R. 345, s. c. briefly reported in 2 Str. 1090, 93 Eng. R. 1051; Seymour vs Bennett (1742), 2 Atk. 482; R. vs Maiden (1767), 4 Burr. 2135; Bodmin Case (1791), 2 Eras. 236; Turner vs Baynes (1795), 2 H. Bl. 559, 3 R. R. 506; Milward vs Thatcher (1787), 2 Term. (D. & E.) 81, 1 R. R. 431; R. vs Bedford Level Corporation (1805), 6 East 356, 2 Smith K. B. 535; Margate Pier Co. vs Hannam (1819), 3 B. & Aid. 266, 22 R. R. 378; R. vs Herefordshire, J. J. (1819), 1 Chitty 700; R. vs Slythe (1827), 6 B. & C. 240, 30 R. R. 312; De Grave vs Monmouth Cor- poration (1830), 4 C. & P. Ill; R. vs Dolgelly Union Guardians (1838), 8 A. & E. 561, 7 L. J. M. C. 99; Penney vs Slade (1839), 5 Ring. (N. C.) 319, 7 Scott 484, 8 L. J. C. P. 221 ; R. vs St. Clem- ent's (1840), 12 A. & E. 177; R. vs Mayor of Cambridge (1840), 12 A. & E. 702, 10 L. J. Q. B. 25; R. vs Cheshire, J. J. (1840), 4 Jur. 484; Scadding vs Lorant (1851), 3 H. L. Cas. 418, 5 Eng. L. & Eq. 16, affirming 13 Q. B. 706; Lancaster & Carlyle Ry. Co. 12 THE DE FACTO DOCTRINE. [§ 7 Perhaps the most important of them is Parker vs Kett, de- cided in 1701, inasmuch as it contains a review of the prior cases, and enters into a thorough and instructive discussion of the principles underlying the doctrine. But it would be in- opportune at this present stage to press further an inquiry into the English case law on this subject. The foregoing is amply sufficient to convince any one that for ages, as already inti- mated, the de facto doctrine has been an integral part of the common law of England. Viner refers to it in his Abridge- ment and declares that acts done by an officer de facto, and not de jure, are good; for the law favors one in a reputed au- thority.^* § 7. Same subject. — Turning next to the English Par- liament, we see, in 1626, the doctrine being applied to a mem- ber of the House of Commons. Sir Edward Coke, being sheriff of Buckingham, was, in the second year of Charles I, returned for Norfolk, and sat till the dissolution of that Par- liament. But his right to sit was called in question, and both in the journals and in the debates, and in the writings of his contemporaries, he is talked of as only a member de faeto.^* However, he was accorded the same privileges as a member de jure. The entry of the order for allowing him privileges of Parliament is in the following words: "Upon question, Sir Edward Coke, standing de facto returned a member of this House, to have privilege against a suit in Chancery com- menced against him by the Lady Cleare." ■'^ vs Heaton (1858), 8 El. & Bl. 952, 5 Chy. App. 288, 39 L. J. Oh. 471. 27 L. J. Q. B. 195; Waterloo (Last two cases concern officers As Bridge Co. vs Cull (1858), 1 EI. facto of private corporations.) & El. 213, 28 L. J. Q. B. 70; i2Vin. Abr. Officer and Offices Mahony vs East Holy ford Mining (G. 4). Co. (1875), L. E. 7 H. L. 869, isiDoug. El. Cas. 425. Ir. R. 9 C. L. 306; In re County 141 Doug. El. Cas. 444. See also Life Assurance Co. (1870), L. R. Digby vs Lord Stirling (1831), 8 ^ S] INTRODUCTORY REMARKS. 13 About the same time, also, the House of Commons applied the de facto principles to its own elections, and laid down the rule that where an election of a member of Parliament has been fairly made, the same will be supported, even if it ap- pears that it was held or conducted by officers having only a de facto title to their office.-'® Finally, in 1837, the de facto doctrine was extended by statute,^ ^ to cases where theretofore its application had been denied. Until then the courts, unlike Parliament, had re- fused to uphold municipal elections presided over by merely de facto officers, unless they had been in office for at least six years previous to the election. •''' This anomaly was re- moved by the statute.** § 8. Historical sketch of the de facto doctrine in the United States. — The American jurisprudence being found- ed on the English law, it is obvious that the de facto doctrine has always been a part of the common law of America. In a work published in 1836, under the name of "American Common Law Cases," it is declared to be a "well settled rule and principle of law, that the acts of officers de facto, are valid, when they concern the public, or the rights of third persons, who have an interest in the act done, and the rule has been adopted to prevent a failure of justice." ^^ The same Bing. 55. The above ruling of Case (1805), 1 Peek. 406, 58 Jour. the House is not in conflict with 382; Wakefield Case (1842), Bar. the principle hereinafter referred & Aus. El. Cas. 270. to, that an officer de facto enjoys 161 Vic. c. 78, s. 1. no personal privileges by virtue of 1733 Geo. Ill, c. 58, s. 3. his office. Privileges of Parlia- is And now, see 45 & 46 Vic. c. ment are granted to members for 50, ss. 42 & 102, declaring acts of the benefit of the public. de facto corporate officers valid. i5Winohelsea Case (1624), 1 19 Vol. 7, p. 142, quoting from Jour. 798; Portsmouth Case Keyser vs McKissan (1828), 2 (1710), 16 Jour. 480; Bodmin Rawle (Pa.) 138. Case ( 1791 ) , 2 Fras. 236 ; Taunton 14 THE DE FACTO DOCTRINE. [§ 8 principle is enunciated by Kent, in his Commentaries on American Law.^° But it would be of little use to pursue authorities to prove recognition on the part of the American courts and jurists of the de facto doctrine, when a cursory reference to a digest will reveal hundreds and hundreds of cases bearing on it. With its essentially democratic institutions, requiring nearly all public offices to be filled by popular election, the American republic has offered the most propitious field for the develop- ment of the doctrine. In fact, without it, the American peo- ple could not, with any degree of satisfaction, carry on the public affairs of the country, whether in relation to the State, the administration of justice, or municipal government, and uncertainty would prevail everywhere, which at times might lead to great disorders. This controlling necessity directly suggests the reason for the vast number of cases to be found scattered through the various American reports. State and fed- eral, involving the consideration of almost every conceivable feature of the doctrine, and extending its limits to the fur- thest point warranted by reason and justice. Indeed, to the American courts credit must be given for having expounded the same along modern lines and for having imparted to it increased life and vigor. While it was not invented by them, yet they enlarged its usefulness and bestowed upon it a status, character and rank that it never had enjoyed in England. The English courts had sanctioned its application as far as it was necessary to meet the requirements of British institu- tions; the American judges started where their English col- leagues had left, and expanded its principles to satisfy the needs and conditions of a new country, with a different form of government and a different mode of filling public offices. When the de facto doctrine was implanted in America it 2 02 Kent. Comm. p. 295. § 9] INTRODUCTORY REMAKKS. 15 was, figuratively speaking, but a slender offshoot of the Eng- lish common law, but through the fostering care of judges and courts ever alive to the necessities of the people, it has become a vigorous tree with luxuriant branches spreading in every direction, occasionally serving to shelter national insti- tutions from the blasts of political strife and excitement. § 9. Same subject. — The leading case in America is un- doubtedly State vs Carroll/^ decided in 1871 by the Su- preme Court of Connecticut. The opinion of the tribunal was delivered by Chief Justice Butler, who, in an elaborate and exhaustive judgment, reviewed the older English cases and several of the American ones, and in a scholarly manner discussed the fundamental principles of the doc- trine. Possibly a quotation from this interesting opinion would not be without interest. "The de facto doctrine," says the learned Chief Justice, "was introduced in the law as a matter of policy and necessity, to protect the interests of the public and individuals, where those interests were involved in the oiEcial acts of persons exercising the duties of an office, without being lawful officers. It was seen as was said in Knowles vs Luce/'^ that the public could not reasonably be compelled to inquire into the title of an officer, nor be com- pelled to show a title, and these became settled principles in the law. But to protect those who dealt with such officers when apparent incumbents of offices under such apparent circumstances of reputation or color as would lead men to suppose they were legal officers, the law validated their acts as to the public and third persons, on the ground that, as to them, although not officers de jure, they were officers in fact, whose acts public policy required should be considered valid." 2138 Conn. 449, 9 Am. Rep. 409. 22(1580), Moore, 109, 72 Eng. R. 473. ^Q THE DE FACTO DOCTRINE. [§10 The only instance in America of refusal to recognize the de facto doctrine was that of Congress with reference to the elec- tion of its owi; members. For a considerable period that body was disinclined to support elections conducted by illegal officers, but in process of time it became converted to the prin- ciples universally enforced by the courts of the country. § 10. Historical sketch of the de facto doctrine in Canada. — In Canada, until a comparatively recent period, the de facto doctrine made no progress. It seemed to have been completely ignored at times, and a perusal of some of the Canadian reports compels one to wonder why in certain cases it was not invoked by counsel or applied by the courts. Among the several instances of the kind that can be found, may be quoted Gibson vs McDonald,^^ and B. vs Amer.^* In the first case, a County Court Judge had presided over a court in a county adjoining his, under the au- thority of an Act of the legislature of Ontario. It was claimed that the statute was unconstitutional, and hence that the judge had acted without jurisdiction. Upon a motion to prohibit him, however, the character of his judicial acts became of no consequence, inasmuch as the motion was disposed of on another ground. Nevertheless, the majority of the court declared the act ultra vires ; and the ir- resistible inference to be drawn from the language of the judges, as was apparently conceded by counsel, is that, had the validity of the acts of the judge been directly in question, the same would have had the fate of the Act itself and been declared null and void. Indeed, Mr. Justice O'Connor, one of the three judges, proceeds to deplore the terrible conse- quences that may possibly arise (in other cases) from a dec- laration that the Act is unconstitutional, and observes that "it 23(1885), 7 O. R. 401. 84(1878), 42 U. C. Q. B. 391. § 10] INTRODUCTORY REMARKS. 17 is impossible to calculate the evil results which may be ex- pected to result from the confusion created by so distm'bing a cause." Now this motion was argued by prominent counsel and decided by able judges, but neither in the arguments nor in the written judgments is there a single word suggesting that though the statute might be unconstitutional, yet the judicial acts performed under its authority and before it was declared ultra vires, might be valid and binding as the acts of a de facto judge.^^ In the other ease, two persons were convicted of murder at a special court of Oyer and Terminer and General Gaol De- livery presided over by a District judge. From the report it would appear, that no objection was raised to the presiding officer until the jury brought in a verdict of "guilty." Then the counsel objected to the passing of judgment upon the ground, among others, that a district judge was not qualified to sit as judge of the court. His appointment, however, was upheld on various grounds, but in no part of the arguments of counsel or of the judicial opinions was there even a mention of the de facto doctrine. There the judge had received two commissions authorizing him to hold the court, one from the federal and the other from the provincial government, and surely these were sufficient to afford him color of title, even if he were ineligible. True it was a special court, but the pris- oners could not take the chance of a favorable verdict, and then object to the jurisdiction of the presiding judge on ac- count of defects in his title. There is also a dictum found in a recent Manitoba case,^® which is not devoid of interest. The question in dispute there led the court to consider, whether certain school trustees had duly qualified by making the declaration of office prescribed 25See further as to this case, zcYouville S. Dist. vs Bellemere post, sec. 425. (1904), 14 Man. 511. De Facto— 2. 18 THE DE FACTO DOCTRINE. [§10 by statute. Eeferring to the declaration of one of such trustees, one of the learned judges remarked: "To reject it upon the ground taken by the Inspector, and, on that ground, to hold the trustee disqualified after he had been acting as such for two years, would be to raise serious questions as to every thing done by the Board during that period, in order to give effect to a petty technicality." This language speaks for itself and requires no comment.^^ In other cases the de facto doctrine is adverted to and dis- cussed, and while the results of the decisions may sometimes be unimpeachable, nevertheless it is felt that the courts did not fully grasp its underlying principles and its true scope as a doctrine.^* On the other hand, there are quite a number of cases in which is exhibited an accurate knowledge and a wise applica- tion of the de facto doctrine. Especially is this so since the appearance in Canada of a certain American work,^^ which has much contributed towards its introduction, or at least its development, in many sections of the country. In fact, in re- cent years, the American authorities are so copiously quoted, that the uninitiated might be led to believe that the doctrine is of American and not of English origin. But be this as it may, it is interesting to note that the doctrine has gradually and steadily expanded in Canada during the last few decades. There is no doubt that eventually the legal profession will be- come thoroughly familiarized with the principles it lays down, and that in practice it will be invoked whenever the circumstances are of a nature to warrant its application. 2 7See also R. vs Com'ra. of Sew- 424; Ex p. Mainville (1898), 1 ers (1872), 1 Pug. (N. B.) 161. Can. Crim. Cas. 528; R. vs Boyle 28Drew vs The King (1902), 11 (1868), 4 Ont. Pr. R. 256. Que. R. (K. B.) 477, 6 Can. Crim. 29The American and English Cas. 241, affirmed (1903), 33 Can. Encyclopedia of Law. Sup. Ct. R. 228, 6 Can. Crim. Cas. § 11] INTRODUCTORY REMARKS. 19 Thus a new field of knowledge will be opened to many a prac- titioner, who will realize how much easier and simpler it is to have recourse to it, than to endeavor by ingenious argu^ ments to uphold the constitutionality of legislative enact- ments, or the validity of elections or appointments, in order to sustain the acts of illegal officers. § 11. Same subject. — The following quotations will dem- onstrate that, though the Canadian courts have occasionally overlooked or failed to accurately appreciate the principles of the de facto doctrine, yet this has not always been the case. "The rule of law," says Chief Justice Strong of the Supreme Court of Canada, "is that the aists of a person assuming to exercise the functions of an office to which he has no legal title are, as regards third persons, that is to say, with refer- ence to all persons, but the holder of the legal title to the of- fice, legal and binding." ^^ So in an Ontario case, Mr. Justice Meredith, discussing the validity of an award made by a township engineer illegally appointed, ob- serves: "Then, can the defendants say that he was at all events de facto the engineer? If so, this attack upon the award must fail, for it would be intolerable if such an act of such a public officer would invariably depend for its legality upoa the regularity of his appointment." ^^ So in Rouleau vs Corporation of St. Lambert,^'' a Quebec case, the de facto doctrine is ably dealt with by Mr. Justice Routhier, who quotes with approval the leading propositions on this sub- ject contained in the American and English Encyclopedia of Law, and declares that "as a general principle it is incon- testable, that the acts of officers de facto illegally elected or 30O'Neil vs Atty.-Gen. of Cana- siTurtle vs Township of Euphe- da (1896), 26 Can. Sup. Ct. 122, 1 mla (1900), 31 O. R. 404. Can. Crim. Cas. 303. 32(1896), 10 Que. R. (S. C.) 85. 20 THE DE FACTO DOCTRIiSrE. [§ 12 appointed, are valid." ^^ Likewise, in a Nova Scotia case, where the doctrine is expounded and applied along the lines of the American authorities, Mr. Justice Meagher says : "The principle has long been recognized and acted upon, that the acts of officers de facto are valid as respects the public and the rights of third persons, and it is not permissible to assail the title of such officers in a collateral proceeding." ** Many other cases may be cited where similar statements of the law are found, or the principles involved therein have been applied, or at least adverted to.^® § 12. De facto doctrine different from legal presump- tion as to official character. — The de facto doctrine must not be confounded with a certain legal presumption, which at iirst sight may seem to bear some resemblance thereto, but 3 3 As to Quebec, it may be noted that the de facto principles have received statutory recognition in their relation to municipal officers. Que. Mun. Code, Art. 120. 3 4R. vs Gibson (1896), 29 Nov. Scot. 4. 3 6County of Pontiac vs Ross (1889), 17 Can. Sup. Ct. 406, af- firming s. u. sub. nom. County of Pontiac vs Pontiac Pacific Junc- tion Railway Co. (1888), 11 Leg. Nevps (Que.) 370; Speers vs Speers (1896), 28 0. R. 188; Lewis vs Brady (1889), 17 0. R. 377; R. vs Hodgins (1886), 12 0. R. 367; Smith vs Eedford (1866), 12 Gr. (U. C.) 316; Kent vs Mercer (1862), 12 U. C. C. P. 30; Munic- ipality of Whitby vs Flint (1859), 9 U. C. C. P. 449; Township of Whitby vs Harrison (1859), IS U. C. Q. B. 603, 606; Gill vs Jackson (1856), 14 U. C. Q. B. 119: R. vs Smith (1848). + U. C. Q. B. 322; In re McPher- son vs Beeman (1859), 17 U. C. Q. B. 99; Ex p. Curry (1898), 1 Can. Crim. Cas. 532; Hogle vs Rockwell (1898), 20 Que. R. (S. C.) 309; Lacasse vs Roy (1895), 8 Que. R. (S. C.) 293; Paris vs Couture (1883), 10 Que. Law R. 1; Lacasse vs Labontg (1896), 10 Que. R. (S. C.) 97, 104; Rouleau vs Corporation of St. Lambert (1896), 10 Que. R. (S. C.) 69, 85; Le Boutillier vs Harper (1875), 1 Que. Law R. 4; Crooksliank vs McFarlane (1853). 7 N. B. .544; Ex p. Johnston (1894), 32 X. a. 556; Ex p. Raymond (1872), Stev- en's Digest (N. B.) 127; R. vs Burke (1896), 29 Nov. Scot. 227; Ex p. Renaud (1875), 3 Pug. (X. B.) 174; ilodstock Mining Co. vs Harris (1902), 40 Nov. Scot. 336; Cawley vs Branchflower (1884). 1 B. C. (pt. 2) 35; E. vs Dubord (1885), 3 JIan. 15. § 12] INTRODUCTORY REMARKS. 21 which in principle and application is entirely different there- from. Such presumption, which makes the fact of acting in an official capacity prima facie evidence of good title to the office,^® constitutes merely a rule of evidence and per- tains to the adjective law, whereas the de facto doctrine forms part of the substantive law. The effect of this pre- sumptive evidence differs from that of the de facto doctrine in several essential particulars. Thus the presumption constitutes in the eye of the law the officeholder, an offi- cer de jure for the time being, and this is the reason that his acts are upheld. But in the case of an officer de facto, the court may be aware of defects in his title or qualification, and yet, so far as his official acts concern the public or third per- sons, they will be maintained, not, as is obvious, on account of any presumption, but simply because he is what he is, that is, an officer de facto. Again, the presumption only confers a prima facie de jure title which may be shown by rebuttal evi- dence to be illegal, and upon such proof, the acts of the re- puted officer will become void.^'' On the contrary, the de facto doctrine imparts to the officer a character which cannot be attacked collaterally, and his acts will always be upheld, unless of course they be performed for his own benefit. This distinction is clearly drawn by Sutherland, J., in a ISTew York case.** There the learned judge, after refer- ring to several cases on the de facto doctrine, says : "It will be observed that these cases do not go upon the ground that the claim by an individual to be a public officer, and his acting as such, is merely prima facie evidence that he is an officer de jure; but the principle they establish is this: that an 3 6Berryman vs Wise (1791), 4 3 7R. vs Verelst (1813), 3 Camp. Term (D. & E.) 366; MeMahon 432, 14 R. R. 775. vs Lennard (1858), .6 H. L. Cas. ssWilcox vs Smith (1830), 5 970, 984; Doe vs Barnes (1840), Wend. (N. Y.) 231, 21 Am. Dec. 8 Q. B. 1037. 213. 22 THE DE FACTO DOCTRINE. [§ 13 individual coining into an office by color of an election or ap- pointment, is an officer de facto, and his acts in relation to the public or third persons are valid until he is removed, although it be conceded that his election or appointment was ille- gal." 39 This distinction, apparent as it is, has not alv^ays been kept in sight in England or in Canada, and the legal presumption has often been confounded with the de facto doctrine. The reason undoubtedly is that under the peculiar circumstances of the cases, the application of the legal presumption was suf- ficient to meet the ends of justice ; but had any attempt been made to rebut that presumptive evidence, it is evident that the courts would have been compelled to fall back on the de facto doctrine. iNay more, there are many cases where the judges must necessarily have had in mind the principles of the doctrine, and still they only speak of the presumption of law.*» § 13. To what public officers de facto doctrine ap- plicable. — It is almost needless to say that the principles of the de facto doctrine are applicable to all classes of public officers, whether they be political, judicial, ministerial, mu- nicipal, military, or the like. The condition or rank of the officer is also immaterial, and it is of no consequence whether it be the highest or the lowest in the land. "The reason of the rule," says a learned judge, "and the rule itself, embrace every officer from the highest to the lowest." *^ There may be a de facto king, a de facto president of the United States, a de facto governor, a de facto member of a legislative body, 39See also Com. vs Wotton Leach C. C. 515, 1 East P. C. 312, (Mass. 1909), 87 N. E. 202; Kott- 315; Hamilton School Trustees vs man vs Ayer (1848), 3 Strob. (S. Neil (1S81),.28 Grant (Ont.) 408. C.) 92. iiKottman vs Ayer (1818), 3 'ho has the lawful right to an office, but is not the actual incumbent thereof, either because he has never been in possession of it, or has been ousted therefrom.^^ It 2 5 Black Diet. 27Hamlin vs Kassafer (1887), 2 6 Auditor-Gen. vs Superviaors 15 Or. 456, 15 P. 778, 3 Am. St. (1891), 89 Mich. 552, 51 N. \V. K. 176. 483. § 22] OFFICES AND OFFICERS. 31 is always in that restricted sense, that the term is used in connection with the de facto doctrine. § 22. Definition of an officer de facto. — "De facto" means in law, as well as elsewhere, in fact ; from, arising out of, or founded in fact; in deed; in point of fact; actually; really.^* "De facto" is the opposite of "de jure" in the language of the de facto doctrine ; and, as applied to an offi- cer, it means one who, though not lawfully an officer, is never- theless in the possession and exercise of an office. The definition of an officer de facto given by Lord Holt in Parker vs Kett,^° as generalized by Lord Ellenbor- ough in B. vs Bedford Level,^" has received universal recog- nition in England, and has been quoted with approval by numerous American authorities. It reads: "An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law." There are a great number of American definitions, but the most exhaustive, and the one most approved and fav- ored by all the authorities, is that of Chief Justice Butler in State vs Carroll.^ ^ "An officer de facto," says the learned judge, "is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the officer were exercised ; First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calcu- lated to induce people, without inquiry, to submit to or 28MeCahon vs Leavenworth 30(1805), 6 East 356. (1871), 8 Kan. 437. 31(1871), 38 Conn. 449, 9 Am. 29(1701), 12 Mod. 466, 88 Eng. Eep. 409. R. 1454, a. u. 1 Ray. (Ld.) 658. 91 Eng. R. 1338. 32 THE DE FACTO DOCTRINE. [§ 23 invoke his action, supposing him to be the officer he assumed to be ; second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like ; third, under color of a known elec- tion or appointment, void because the officer was not eligible, or because there was a want of power in the electing or ap- pointing body, or by reason of some defect or irregularity in its exercise, such as ineligibility, want of power, or defect being unknovsru to the public ; fourth, under color of an elec- tion or appointment by or pursuant to a public unconstitu- tional law, before the same is adjudged to be such." § 23. General characteristics of an officer de facto. — Notwithstanding the above definitions, it may not be amiss to give a general description of an officer de facto, and ex- hibit what his status is in the English and American juris- prudence. In R. vs Lisle^' it is said that he "is a notional creature only, erected by the law, in order to answer the «nds of justice and equity under particular circumstances.'' Hence he is a legal being, and although, as pointed out in State vs Garroll^^ it is the quality and character of his acts, which induce law to afford them validity, and not "because •of any quality or character conferred upon the officer, or attached to him by reason of any defective election or appoint- ment," yet it must be admitted that the law, in order to attain the end desired, is compelled to recognize in him a qualified official status. He is, therefore, ex necessitate a creature known to the law, possessing an individuality of his o^vn, distinct from and independent of that of an officer de jure. He is invested with certain rights, powers and duties ; is under certain responsibilities to the public and third persons ; 32(1738), Andr. p. 166. SS(1871), 38 Conn. 449, 9 Am. E. 409. § 24] OFFICES AM) OFFICERS. 33 and even his authority is protected by law to a certain degree. His official power is not the outcome of any relation between him and the rightful officer, as that between prin- cipal and agent, or officer and deputy, but is derived from the office itself. With respect to innocent persons dealing with him, he is a lawful officer, so far as the validity of his official acts is concerned. While he may be accountable to the de jure officer for the fees and emoluments which he is illegally in receipt of, and to the public for unlawfully hold- ing a public office — ^yet, so long as his title has not been adversely determined in a direct proceeding brought for the purpose, his assumed official character cannot be collat- erally assailed, unless he attempts to gain a personal advan- tage from his incumbency, or to justify as an officer in civil actions brought against him. To sum up, it may be said that he is a good officer so far as the interests of the public and third persons require him to be so, and to that extent he is recognized by law, but no further; and therefore he is not a good officer as to himself.^* § 24. Officers holding by defeasible title. — In l^ew York a distinction has been made between de facto officers whose original title is invalid, and those who have merely failed to qualify, after having been duly elected or appointed. "There are many loose expressions," says the New York Court of Appeals per Dwight, C, "in the law books concerning an officer de facto and de jure. Under the former term, judges have frequently grouped together persons who were mere usurpers, with those who had a colorable title, and even with those who were regularly inducted into office, and yet, had committed some act which would justify a 3oth cannot actually hold the office at the same time.* If SBrickell, J. — Diggs vs State Life Assurance Co. (1870), L. E. (1873), 49 Ala. 311. See also 5 Chy. App. 288; Gill vs Jackson Brinkerhoff vs Jersey City (1900), (1856), 14 U. C. Q. B. 119. 64 N. J. L. 225, 46 A. 170; Ful- 9R. vs Corp. of Bedford (1800), ton vs Andrea (1897), 70 Minn. 1 East, 79. As to offices filled by 445, 73 N. W. 256; In re County more than required number, un- De Facto— 8. 114 THE DE FACTO DOCTRINE. [§75 the de jure officer be in possession, his superior title will exclude all others, and any one attempting to discharge the duties of the office can be but a mere usurper. "It is," says one court, "not every person who assumes to execute official functions who is to be classed as an officer de facto, and whose acts can be successfully invoked by a third person. If there is an officer or board of officers having legal title to the office, and claiming to be in possession of the office, and being present ready to exercise its functions, no other officer or board of officers can, during the same period, by any color- able appointment to such office, or by any acts in professed execution of the office, acquire a de facto character. Such person or persons are but intruders into the office. In other words, where an officer by law is also an officer in fact, there is no room for any other officer in fact in the same office." ^^ It is probably in that sense that it is laid down in Andrews vs Eagle/^ that "if there be a churchwarden de jure, and a churchwarden de facto, in the same parish, the latter can- not justify the laying out of, or receiving money, but he is accountable to the churchwarden de jure; he is no more than another man, and he that is de jure may bring an indebitatus assumpsit against the other." On the other hand, if the actual possession be held by a de facto incumbent, there is no place left for the de jure officer, and he cannot exercise the office before the unlawful holder has been ousted. The public and third persons are not bound to determine at their peril which of the two claimants has the legal title, and their interests demand that the one in possession should be regarded as a good officer, until he is declared a usurper by a court of competent jurisdiction.^^ der authority of unconstitutional 114 Vin. Abr. 527. law, see sec. 199 et seq. i^Leaeh vs Cassidy (1864), 23' lODienstag vg Fagan (1907), 74 Ind. 449; Hamlin vs Kassafer N. J. L. 418, 65 A. 1011. (1887), 15 Or. 456, 15 P. 778, 3 § 76] NECESSITY OF POSSESSION. 115 § 76. Same subject — Illustrations. — The above doctrine is strikingly illustrated by a decision of the New York Court of Appeals. ^^ The action was brought by plaintiff, as over- seer of the poor of the town of German Flats, to recover penal- ties for alleged violations of the excise law in selling ale and beer without a license. Defendant justified under a license purporting to have been issued by the commissioners of excise of said town. It was signed by H. M. Bliss and J. W. Kinne as commissioners of excise. It appeared that one Bellinger was elected excise commissioner in March, 1876 ; he filed his oath of office March 11, and also an official bond, but the same was not approved by the supervisor of the town until after the town meeting in 1877. Bellinger met with the other commissioners as a member of the board of excise on the first Monday of May, 1876. At the town meeting in 1876, on the supposition that there was a vacancy, because of the failure of Bellinger to have his bond duly approved, votes were cast for J. W. Kinne "to fill vacancy, if any exist," and he was declared by the town clerk elected to fill vacancy, if any existed. On the first Monday of May, 1877, Lewis, Bliss and Bellinger met as the excise board and ad- journed for a year without granting licenses. Kinne filed an oath of office and a bond. In March, 1877, Bliss and Kinne notified Lewis to meet with them as a board of excise ; and this he declined to do. Bliss and Kinne met March 10, 1877, and claiming to act as such board signed the alleged license. It was held that the license afforded no defence, on the ground that Bellinger being an officer de jure in possession of the office, Kinne could not be regarded as an officer de Am. St. R. 176; Chowning vs Boger i3Cronin vs Stoddard (1884), 97 (1885), 2 Tex. App. Ct. (Civ. N. Y. 271. See also Cronin va Gas.) 650, 9 Am. & Bng. Corp. Gundy (1879), 16 Hun (N. Y.) Gas. 91. 520. 116 THE DE FACTO DOCTRINE. [§76 facto when signing the same. The court said: "The diffi- culty with the appellant's case is that when Kinne assumed to act as excise commissioner the office was already full. Bellinger, who was elected in 1876 for a term of three years, was in de jure, and in 1877 was performing the duties of his office. There was, therefore, no place in which another could act. And this is so although his official bond was not approved by the supervisor until after the time when Kinne claims to have been elected. The omission at the utmost af- forded cause for forfeiture of the office, but did not create a vacancy. That could be effected only by a direct proceed- ing for that purpose. ... It follows that Kinne had not even an apparent authority or color of title to act as excise commissioner, and the license granted by him furnishes no defence to the action." ^* In a subsequent ~Rew York case,^° a like question arose, but the application of the same principle led to an opposite result. It was contended, as in the previous one, that the defendant could not justify under his license because one Shepard, who had signed it with another commissioner, was neither a de jure nor a de facto officer ; and that the same should have been signed by one Hugg who, it was alleged, had succeeded to Shepard. The facts showed that although the term of one excise commissioner only had expired, three names were placed on the tickets of each of the two political parties, and all three names on the tickets cast by the ma- jority having received the same number of votes, the inspect- ors of election declared the three elected. Among them were Hugg and Shepard, the latter seeking re-election. Hugg at- tempted to discharge the duties of the office and sat on one or 14 See also People vs McAdoo 67 Hun (N. Y.) 169, 35 N. E. (1905), 110 N. Y. App. Div. 432, 205, 22 N. Y. Supp. 412, affirmed 96 N. Y. S. 362. 142 N. Y. 665, 37 N. E. 570. i6Montgomery vs O'dell (1893), § 77] NECESSITY OF POSSESSION. 117 two occasions with Shepard and the two other de jure com- missioners. On his behalf, it was urged that the certificate of the inspectors gave him apparent authority or color of title to act as such commissioner, and, hence, he became a com- missioner de facto upon qualifying and acting as such, and that he being a commissioner de facto to fill the vacancy caused by the expiration of Shepard's term, he was the only commissioner who could fill that vacancy, and Shepard was neither commissioner in law nor in fact. On the other hand, Shepard claimed that he had obtained one vote more than the other two, on account of a paster having been attached to one of the ballots on which his name only was written and voted for; and for that reason he had continued to exercise the office. The court held that the certificate of the inspectors failing to give more color of right to Hugg than to the two others on the ticket, he could not be deemed an officer de facto when the office was already filled by Shepard, who had a right thereto by his extra vote, or by the provision of the law declaring that an officer shall hold his office until his, successor is appointed. Hence, the license was held to be a good defense to the action.^* § 77. Same subject — Illustrations continued. — There are many other cases illustrative of the same principle. Thus, where some members of a city council attempted to fill a supposed vacancy in the council when none in fact existed, their appointee was not a de facto officer, though he qualified and acted as councilman, since the person whose place he was appointed to fill, though he failed to attend the meetings isFor further application of like 13 vs Smith (1895), 67 Vt. 566, principle, see School District No. 32 A. 484. 118 THE DE FACTO DOCTRINE. [§ 77 of the council, continued to be councilman, both de facto and de jure.-^'^ So where there was a contest between two boards of school trustees, each board claiming to be the lawful officers, and each proceeding as though the other board did not exist, it was held that the old board was the de jure board, and that the acts of the new board, before the statute under which they were elected had been declared unconstitutional, were invalid. The court said : "If an office is filled, and the duties appear- taining thereto are performed, by an officer de jure, another person, although claiming the office under color of title, cannot become an officer de facto." ^* So where a school warrant was issued by a woman, who, though ineligible, claimed to be a county superintendent de facto, the same was held invalid, because there was another de jure superintendent in possession of the office at the same time.^* So where there was a de jure House of Representatives in existence, holding its sessions and transacting business in the hall of the House of Representatives, it was held that there could not be at the same time another body entitled to be recognized as a de facto House of Representatives.^" Upon the same principle, it is held that where a person, legally appointed or elected to an office, qualifies and enters upon his official duties, his predecessor ceases to be an officer, I'Somerset V8 Somerset Bank- Dienstag vs Fagan (1907), 74 N. ing Co. (1900), 109 Ky. 549, 60 J. L. 418, 65 A. 1011; White vs S. W. 5. School District (1887), 5 Sadl. isstate vs Blossom (1886), 19 (Pa. Sup. Ct. Gas.) 323, 8 A. 443. Nev. 312, 10 P. 430. Also Genesee isCohn vs Beale (1883), 61 Township vs McDonald (1881), 98 Miss. 398. Pa. St. 444; McCahon vs Leaven- 20In re Gunn (1893), 50 Kan. worth County (1871), 8 Kan. 437; 155, 32 P. 470, 948. § 78] NECESSITY OF POSSESSION. 119 and any pretended official act performed by him afterwards is null and void.^^ But in a Georgia case,^^* it was held that one holding a com- mission as notary public from the Governor and acting as such, is a de facto officer, though the office is filled by a de jure incumbent, exercising the functions thereof. This, however, is not a well considered decision, and no authorities are cited in support of it. "We are of opinion," said the oourt, "that there can be but one legal commissioned notary in a district at one time, but the proper mode to settle this is by a proceeding for the purpose, and not, as is attempted here, by collaterally attacking his acts." § 78. Two officers de facto cannot hold office at same time. — For the like reason that an officer de jure and an officer de facto cannot simultaneously hold an office, so two persons cannot, at the same time, be in the actual occupation and exercise of an office, as officers de facto, when the law provides for one incumbent only. "Two physical bodies," says one judge, "cannot occupy the same space at the same time, and two persons cannot be officers de facto for the same office at the same time." ^^ JiUnited States vs Alexander good (1900), 126 N. C. 149, 35 S. (1891), 46 Fed. 728. See post, E. 253; Bennett vs Ck)lfax (1880) sec. 123. For further illustrations, 53 Iowa, 687, 6 N. W. 36. see School Directors vs Nat. School 2iaPool vs Perdue (1871), 44 Ga. Furnishing Co. •( 1893) , 53 111. App. 454. 254; Boardman vs Halliday (1843), 2 2Per Leonard, J. — in State vs 10 Paige (N. Y.) 223; Mead vs Blossom (1886), 19 Nev. 312, 10 Ingham County (1877), 38 Mich. P. 430. Also McCahon vs Leaven- 416; State vs Dorton (1898), 145 worth County (1871), 8 Kan. 437; Mo. 304, 46 S. W. 948; Powers Conover vs Devlin (1857), 15 How. vs Commonwealth (1901), 110 Ky. Pr. (N. Y.) 470, 6 Abb. Pr. 228; 386, 61 S. W. 735, 22 Ky. L. R. Hamlin vs Kassafer (1887), 15 Or. 1807, 63 S. W. 976, 53 L.R.A. 245; 456, 15 P. 778, 3 Am. St. R. 176; Fulton vs Andrea (1897) , 70 Minn. State vs Murphy (1893), 32 Fla. 445, 73 N. W. 256; Baker vs Hob- 138, 13 So. 705; Diekerson vs But- 120 THE DE FACTO DOCTRINE. [§ 79 Thus, in Morgan vs Quackeribush,'^^ two persons, Perry and Quackenbush, claimed the office of mayor under a charter election. Perry was first declared elected by the outgoing common council, and after qualifying, took possession of the office. But subsequently, the new council declared Quack- enbush elected, and he in turn assumed to act as mayor. It was held that as Perry had become a mayor de facto under color of the determination of the iirst board, Quackenbush, whatever his right, could not be a mayor in fact at the same time. "Indeed," said the judge, "I do not understand that two persons can be in possession of the same office at the same time. . . . They could not hold as tenants in common — each having a legal right to perform its functions. If Mr. Perry became a mayor de facto, the defendant Quackenbush, whatever his right, could not be mayor in fact at the same time." § 79. Where two rival claimants have each only a partial or imperfect possession of the office, neither is a de facto officer.— "Where one of the claimants has, in addi- tion to the partial or imperfect possession of an office, a known de jure title thereto, no difficulty arises, because, as already seen, the legal right excludes the consideration of any other claim. Thus, when two persons axe present at the seat of government, each claiming to be the Governor de ler (1887), 27 Mo. App. 9; Somer- versed by Erwin vs Jersey City set vs Somerset Banking Co. (1897) , 60 N. J. L. 141, 37 A. 732. (1900), 109 Ky. 549, 60 S. W. 5. 64 Am. St. E. 584, where it was Jersey City vs Erwin (1896), 59 held that one of the incumbents N. J. L. 282, 35 A. 948, holding was not an officer de facto. As to that the acts of two persons who offices filled by more than required had acted as city attorney, were number, under authority of uncon- valid, though the office could only stitutional law, see sec. 199 et seq. be legally filled by one, was re- 2S(1856), 22 Barb. (N. Y.) 72 § 79] NECESSITY OF POSSESSION. 121 jure, the one who has been adjudged Governor de jure is also Governor de facto. ^* But it is otherwise when the question of title arises collat- erally and it is not known which of two claimants has the legal right, and each claims to be an officer de facto by rea- son of some temporary or partial occupancy of the office in dispute. In such case, inasmuch as both lack that actual, exclusive, and peaceable possession, which is essential to con- stitute one an officer de facto, neither can be regarded as such an officer. Thus, in Conover vs Devlin^^ both the plaintiff and the defendant claimed the office of street commissioner. The facts showed that on the 12th of June, Conover was appointed by the Governor. On the 13th, he took the oath of office, and executed his official bond, and filed it. He was in the rooms or place of the official business, for a part of two days claim- ing a right to the office, and to the books and papers, and doing, as he claimed, one official act. On the 16th of June,, he was supplanted by Devlin, who claimed the office through an appointment made by the Mayor on that day. The new appointee, after duly qualifying, came into the same rooms that had occupied his predecessor, took possession of the books and papers, and was holding them on the 19th of June, when proceedings were commenced to compel him to deliver the same to Conover. Upon this state of facts, it was held that neither was entitled to be regarded as an officer de facto. The court observed that the circumstances had not permitted either of them, as against the other, to acquire the reputation of being the rightful and legal street commissioner; nor had the claims of either, as against the other, been acquiesced in by the public, so as to call upon the law to regard either of «*Powers vs Commonwealth Hobgood (1900), 126 N. C. 149, 35 (1901), 110 Ky. 386, 61 S. W. 735, S. E. 253. 22 Ky. L. R. 1807, 63 S. W. 976 26(1857), 15 How. Pr. (N. Y.V 53 L.ll.A. 245." See also Baker vs 470, 6 Abb. Pr. 228. 122 THE DE FACTO DOCTRINE. [§ 80 them as the street commissioner de facto, for the protection of the public. 2® But in a South Carolina case, in which was involved the validity of a pardon, it was held that where two persons are each in possession of the office of Governor and claiming by an apparent title, and the question as to which is entitled to discharge the functions of the office arises in a collateral proceeding, it must be decided by determining which has the best apparent right. '^'^ There, however, the person ad- judged Governor de facto had obtained the highest number of votes, though he had never been regularly installed; and though his adversary, who was his predecessor, had succeeded in getting himself inaugurated as if he had been elected and had taken possession in part of the office. Moreover, some of the reasons given for the decision rest on such high grounds that they could hardly be invoked in ordinary cases. § 80. Where one of two claimants has full possession, the other cannot deprive him of his de facto character by unlawfully dispossessing him. — This proposition is evident, for if a person once gains sufficient possession to be- come an officer de facto, he is entitled to retain the office until he is ousted by lawful proceedings,^* no matter what may be the color of title of his adversary. And the latter is not permitted by illegal means, whatever they may be, to dispossess him, and assume his official character. An unlaw- ful intrusion into an office occupied by another, can only constitute the intruder a usurper. In Braidy vs Theritt^^ the plaintiff and the defendant were 26See also Brumby va Boyd 27Ex p. Norris (1877), 8 S. C. (1902), 28 Tex. Civ. App. 164, 66 (8 Rich.) 408. S. W. 874, a case much in point 2 8Henderson vs Glynn (1892), 2 as to the facts, though decided on Colo. App. 303, 30 P. 265. another ground. «9(1877), 17 Kan; 468. § 80] NECESSITY OF POSSESSION. 123 opposing candidates for the office of councilman. Theritt claimed that he had received a majority of all ths votes cast, and that he was therefore duly elected, but Braidy on the other hand contended that the vote was a tie, and that the judges of the election under the law by lot had decided in his favor. Theritt, however, received the certificate of elec- tion, and qualified under the same by taking the proper oath, and was in the actual possession of the office when the C9uncil met. But the mayor, who was present and presided at the meeting, refused to recognize him as a councilman, claiming that Braidy had been elected to fill his place. Thereupon, Theritt with two other councilmen retired from the meeting. Braidy was then sworn in as a member of the council, and he with the remaining councilmen proceeded to do business as a city council, and the Mayor recognized them as such. It was held that Theritt had never created such a vacancy in his office that any other person could step in and become a councilman de facto, at least as between himself and Theritt. The court also pointed out, that it was evident the retiring councilmen had no intention of abandoning their offices when they withdrew from the council meeting, but that they simply intended to leave the council without a quorum, so that the Mayor and the two members of the council who recognized Braidy's claim, could not do any business. "It would be," said Valentine, J., "strange doctrine to announce, that when- ever an officer steps out of the place where he usually does business, that any person who may choose to claim the office may at once step in, and become immediately an officer de facto. Such a short road to obtain a contested office has never yet been opened. This is not the legal way to obtain the possession of a disputed office. The only legal remedy in such a case for the party out of office to obtain possession of the same is by a civil action in the nature of quo warranto." 124 THE DE FACTO DOCTRINE. [§ 81 So where two persons claimed the office of county treas- urer, and one being rightfully in possession of the tax dupli- cate, the other wrongfully entered his office during his absence and carried off the same, leaving a receipt therefor, it was decided that the former had a right to compel restora- tion thereof.^" The court said: "The mode of obtaining possession of the book was a wrong, and his (respondent's) possession of the record cannot be regarded as offering evi- dence of his actual possession of the office." Again, where a person was in possession of the office of city recorder by virtue of holding over and under a declara- tion of election made by the common council as the board of canvassers, it was held that he was a de facto officer, not- withstanding the existence of a bona fide dispute between him and another claimant as to the title to the office, and that the latter was not justified in attempting to take possession of the office by violence.^ ^ § 81. Possession of office by usurper affords no right. — A usurper being a mere trespasser, his possession cannot afford him any claim to be regarded as an officer de facto, unless he holds during such length of time and under such circumstances as to give him color of right by reputation, or acquiescence on the part of the public. Barring this excep- tion, his acts are absolutely void.^^ "I apprehend," says one judge, "while the law regards the acts of officers de facto, acting under color of legal title, valid as regards aoRunion vs Latimer (1874), 6 Hun (N. Y.) 75. 29 N. Y. Supp. Rich. (,S. C.) 126. 633. But see Scott vs Sheehan 3iBlain vs Chippewa (1906), (1905), 145 Cal. 691, 79 P. 353. 145 Mich. 59, 108 N. W. 440. See 3 2Van Amringe vs Taylor also Van Amringe vs Taylor (1891), 108 N. C. 196, 12 S. E. (1891), 108 N. C. 196, 12 S. E. 1005, 23 Am. St. R. 51, 12 L.R.A. 1005, 23 Am. St. R. 51, 12 L.R.A. 202. 202; Hand vs Deady (1894), 79 § 81] NECESSITY OF POSSESSION. 125 the public and third persons, it does not go the romantic length of giving sanction, in any case, to the acts of an officer where there is a plain usurpation of the office, without any show of legal title. The law holds the acts of the intruder void, both as regards the public and third persons." ** Thus, in Keeler vs Newhem,^* the plaintiff declared upon a special contract for his wages as a policeman in the city of Ifewbem for a part of the year 1865. He offered proof that certain persons were exercising the functions of Mayor and Councilmen of the city of Newborn in July, 1865, and that as such they employed him to serve as policeman from that time to January, 1866. He, however, produced no char- ter or Act of incorporation of the city, nor did he produce any evidence of the manner in which the said persons were inducted into office ; but it was shown that they had taken pos- session of the offices in July, 1865, and continued to act as incumbents until March following without interruption. Nevertheless, they had never been elected, and had never held office in any previous year; and it was admitted that the charter and the laws by which the city was governed, required an election of the Mayor and Councilmen. The court held that the persons acting as Mayor and Councilmen at the time of the contract with the plaintiff were mere intruders or usurpers, and had no authority to bind the city. "Per Mason, P. J. in People vs of Casault, J. in Paris va Couture Cook (1852), 14 Barb. (N. Y.) (1883), 10 Que. L. R. 1. 259, affirmed in 8 N. Y. 67, 59 34 (1868), 61 N. C. (Phill. Law) Am. Dec. 451. See also judgment 505. CHAPTEE 7. COLOR OF TITLE OR AUTHORITY NECESSARY TO CONSTITUTE AN OFFICER DE FACTO. § 82. Color of title, ground of dis- § 89. Color of office or colore of- tinction between officers ficii — By virtue of an of- de facto and usurpers. fice or virtute officii — , „ ... . Meaning of. 83. Color of title, definition of. „„ ^ , , i-n 4.1, •+„ 90. Color of title or authority, 84. Color of authority, defini- from what derived. tion of. 91. Same subject — Examples of circumstances giving color of title or authority. 86. Other expressions used by 92. Same subject — Examples of judges. circumstances giving no color of title or authority. 93. No color when official title- known to be bad. 94. Generally no color after title i. Same subject. judicially declared invalid. 85. Color of right, definition of. 87. Colorable — Colorable title- Colorable election — Defini tions of. § 82. Color of title, ground of distinction between of- ficers de facto and usurpers. — The third requisite to con- stitute a person an officer de facto, is color of title or authority on his part. This color of title or authority, often termed color of right, is the test or criterion by which the character of persons unlawfully in possession of offices, is determined. If their possession is accompanied by such color, they are- denominated officers de facto and their official acts are valid,. so far as the public and third persons are concerned; while if they have only a bare possession, without more, they are styled usurpers or intruders, and their acts are utterly void.*- iNall vs Coulter (1904), 117 Ky. 747, 78 S. W. 1110. 126 § 83] NECESSITY OF COLOR. 127 As put by an American Judge : "A usurper is one who takes possession without any authority . . . A de facto officer is one who goes in under color of authority." * Likewise, a Canadian Judge declares that an officer de facto "is one who exercises the duties of an office under claim and color of right" » Such is the principle found in the oldest English cases. Thus, in Knowles vs Luce* a distinction was taken by the Court between copyholds granted by a steward of a manor who had color, but no right to hold a court, and those granted by one who had neither color nor right, and who was there- fore a mere usurper. The former were deemed valid, — the latter void. And in Viner's Abridgement,^ it is said: "If a stranger, without the appointment of the lord, or consent of the right steward, or without any color of authority, will on his own head come into a manor, and keep a court, it seems that the performance of any judicial duty, or the executing of any acts whatsoever, will not be warranted." § 83. Color of title, definition of. — As a modifier, in legal parlance, color means appearance as distinguished from reality.^ Hence, "color of title" has been defined by the Supreme Court of the United States "to be that which in appearance is title, but which in reality is no title." ''' This is the ' definition generally concurred in by the courts.* 2Reade, J. — Norfleet vs Staton BSteward of Courts (G). (1875), 73 N. C. 546, 550. eper Peckham, J. — McCain vs. sStuart, J.— Le Boutillier vs Des Moines (1899) , 174 U. S. 168, Harper (1875), 1 Que. L. R. 4. 19 Sup. Ct. R. 644. 4(1580), Moore 109, 72 Eng. R. 7Per Daniel, J.— Wright vs Mat- 473, quoted with approval in R. tisou (1855), 18 How. (U. S.) 50, vs Corp. of Bedford Level (1805), 57. 6 East 356, 2 Smith K. B. 535; sMcIntyre vs Thompson (1881),. Parker vs Kett (1701), 12 Mod. 10 Fed. 531; Lindt vs Uihlein 466, 88 Eng. R. 1454, 1 Ray. (Ld.) (1902), 116 Iowa 48, 89 N. W. 658, 91 Eng. R. 1338. 214; Dugan vs Farrier (1885), 41 128 THE DE FACTO DOCTRINE. [§ 84 "Color of title," says another judge, "is that which is appar- ently good title, but which, by reason of some defect not ap- pearing on its face, does not in fact amount to title." * It has been said that "color of title to an office is analogous to <;olor of title to land." ^^ However, color of title to an office necessarily presupposes some form of an election or appoint- ment, for, unlike in the case of land, no one can acquire a statutory title to an office by mere possession, and therefore no color of title can exist, unless it is derived from some elec- tion or appointment. § 84. Color of authority, definition of. — "By color of authority," says a judge, "is meant authority derived from an election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer." ^^ This definition is evidently not comprehensive enough, for a per- son may hold an office under color of authority without ever having been elected or appointed to it. This occurs where the apparent authority is the result of long user of official power with public acquiescence. For instance, in Parker vs Kett,^^ "color and reputation of an authority" is made use of. It is a mistake, we think, to assign to "color of au- thority" the restrictive sense of "color of title." § 85. Color of right, definition of . — "Color of right" has been defined by a Canadian Judge, "to be such sem- blance or appearance of right as shows that the right is really N. J. L. 383, 1 A. 751, affirmed, uPer Winslow, J.— State vs 48 N. J. L. 613, 7 A. 881. Gates (1893), 86 Wis. 634, 57 N. sPer Mitchell, J.— McLellan vs W. 296, 39 Am. St. R. 912. Also Omodt (1887), 37 Minn. 157, 33 In re Krickbaum's Contested Elec- N. W. 326. tion (Pa. 1908), 70 A. 852. loPer Deady, J.— Ah Lee, In re 12(1701), 1 Salk. 95. (1880), 6 Sawy. (U. S.) 410, 5 Fed. 899. § 87] NECESSITY OF COLOE. 129 in dispute, for there may be color of right where there is no right." ^* This definition as applied to an office may also be too narrow to meet the requirements of all cases, because it is not always essential that a person's title be "really in dispute" to constitute him an officer de facto. He may have been an usurper ab origine, and therefore not have even a doubtful claim to the office. The following, though not strictly a definition, affords a more accurate idea of what is understood by color of right: "It may be said, then, that the color of right which consti- tutes one an officer de facto, may consist in an election or appointment, or in holding over after the expiration of one's term, or acquiescence by the public in the acts of such officer for such length of time as to raise the presumption of color- able right by election or appointment." ** § 86. Other expressions used by judges. — There are many other expressions used by judges to qualify the appar- ent title or authority of an officer de facto, found disseminated through the reports. They are generally used synonimously with the foregoing terms, and their import is obvious. A few, however, require special reference, because they are susceptible of different meanings, and are sometimes im- properly employed by the courts. § 87. Colorable — Colorable title — Colorable election — Definitions of. — Among the various meanings ascribed to the word "colorable" by the JSTew English Dictionary, are: "Capable of being presented as true or right ; having at least a prima facie aspect of justice or validity ; and again : "Covert, isPer Armour, C. J.— Price vs Kassafer (1887), 15 Or. 450, 459, Guinane (1888), 16 0. R. 264. 267. 15 P. 778, 3 Am. St. R. 176. liPer Lord, C. J. — Hamlin vs De Facto— 0. 130 THE DE FACTO DOCTRINE. [§87 pretended, feigned, counterfeit, coUusory, done for appear- ance's sake." It seems that in the English law "colorable" is often used in the latter sense, as the reverse of bona fide, or as meaning utterly void.^** In Etherington vs Wilson^^ the question was whether the defendant was a parishioner of a certain parish. The judg- ment of the Vice-Chancellor was reversed, and among the remarks of James, L. J., we find: "The Vice-Chancellor proceeded upon the ground that Wilson was not a bona fide householder and parishioner, that his qualification as a par- ishioner was colorable. Now I cannot help thinking that the fallacy of the judgment arose from the use of that word 'colorable' and the use of the words 'bona fide.' Of course, if the man never did become occupier — -if the man never did enter into a contract for taking, and never did take the house, but only got somebody to put up his name over the door, or something of that kind, then it would have been colorable and it would have been a sham. In that case he never would have been a parishioner, but if he was really a parishioner in point of law then the thing is not colorable, is not fictitious, is not mala fide." So in R. vs Bankes^^ Lord Mansfield said that where there was a "mere colorable election" mandamus would lie instead of quo warranto. In another case, it was likewise said that the ofiice "was not full" because there had been a "mere col- orable election," "a void election" and "as no election at all." " Again, in Frost vs Mayor of Chester, '^^ Coleridge, J., said: "What is colorable? I always thought that, where i4«Stroud's Jud. Diet. "R. vs Cambridge (1767), 4 16(1875), 1 Chy. Div. 160, 45 Burr. 2008. L. J. Ch. 153, 33 L. T. 652, 24 W. is (1855), 5 El. & B. 531. R. 303. 16(1764), 3 Burr. 1452, 1 W. Bl. 452. § 89] NECESSITY OF COLOR. 131 an authority existed, and there was a bona fide intention to execute it, the proceeding was not colorable though there might be a mistake in law." JSTevertheless, Lord EUenbor- ough, in discussing the de facto principles, used the expres- sion "colorable authority" in the sense of color of right or authority.^® § 88. Same subject. — In the United States, however, the words "colorable title," "colorable election," "colorable ap- pointment," "colorable right," "colorable authority,^' color- able claim," and the like, are seemingly used, at least with reference to the de facto doctrine, in the sense first given in the dictionary, as affording bona fide appearance of title. "Colorable title," says a judge, "then in appearance is title, but in fact is not, or may not be any title at all." ^^ Another judge says: "The definition of a colorable title, or as it is more frequently expressed 'color of title.' " ^^ "An apparent or colorable title" is used by the United States Supreme Court.^* Again, "colorable right," ^^ "presumption of color- able election or appointment," ^* "colorable authority," ^^ are common expressions found in the American reports and are used in the sense just mentioned. § 89. Color of office or colore officii — By virtue of an office or virtute officii — Meaning of. — These expressions, 19R. vs Corporation of Bedford 23Hamlin va Kassafer (1887), Level (1805), 6 East 356, 2 Smith 15 Ore. 456, 459, 15 P. 778, 3 Am. K. B. 535. St. R. 176. 2oraircloth, J. — Dickens vs 24Wilcox vs Smith (1830), 5 Barnes (1878), 79 N. C. 490, 491. Wend. (N. Y.) 231, 21 Am. Dec. aiGibson, C. .1.— McCallvsNeely 213; Burke vs Elliott (1844), 4 (1834), 3 \Yatts. (Pa.) 69, 72. Ircd. (N. C.) 355, 42 Am. Dec. 142. 22Per Daniel, J.— Wright va 26Ex p. Strang (1871), 21 Ohio Mattiaon (1855), 18 How. (U. S.) St. 610. 50. 132 THE DE FACTO DOOTRINE. [§90 strictly speaking, have no reference whatever to the officer's title, but to the quality of the acts performed by him, whether he be an officer de jure or de facto. "The words, colore officii, are always taken in mcdam partem, and differ from the words virtute officii, or, ratione officii, which are always taken in honam partem, and where the office is the just cause of the thing, and the thing is pursuant to the office. But colore officii implies that the thing is under pretence of office, but not duly, and the office is no more than a cloak to deceit, and the thing is grounded upon vice, and the office is as a shadow thereto." ^^ "The distinction," says Bronson, C. J., "is this : acts done virtute officii are where they are within the author- ity of the officer, but in doing it he exercises that authority improperly, or abuses the confidence which the law reposes in him ; whilst acts done colore officii, are where they are of such a nature that his office gives him no authority to do them." -' But though the above seems to be the true meaning of the words "color of office," a great number of judges use that phrase in the sense of color of title or authority.^* § 90. Color of title or authority, from what derived. — Generally it is found that color is derived from some election or appointment, but, as already intimated, it may sometimes 2 6 Argument apparently ap- Am. R. 751; Bishop vs McGillis proved by court in Dive vs Mening- (1891), 80 Wis. 575, 50 N. W. 779. ham (1550), Plowd. 60, 64.— Same zsEx p. Ward (1898), 173 U. S. doctrine in Alcock vs Andrews p. 456, 19 Sup. Ct. R. p. 460; Lam- (1788), 2 Esp. 542. bert vs People (1879), 76 N. Y. 27People vs Schuyler (1850), 4 pp. 238, 241; Case vs State (1879), N. Y. 173, 187. Also Gold vs 69 Ind. p. 48; Shelby vs Alcorn Campbell (Tex. Civ. App. 1909), (1858) , 36 Miss. pp. 293, 294: Her- 117 S. W. 463; Decker vs Judson kimer vs Keeler (1899), 109 Iowa, (1857), 16 N. Y. 439, 442; Burrall p. 683, 81 N. W. p. 179; Wood- vs Acker (1840), 23 Wend. (N. stock vs Bolster (1863), 35 Vt. Y.) 606, 35 Am. Dec. 582; Gerber p. 637. vs Ackley (1875), 37 Wis. 43, 19 § 91] NECESSITY OF COLOR. 133 arise from the mere exercise of an office, with public acquies- cence, under such circumstances as to create official reputa- tion.^' In the latter case the officer cannot be said to have color of title, but he has certainly color of right or authority, without which he would be a mere usurper. Indeed, if a person be in possession of an office and invested with all the insignia thereof, and the public generally regard him as a good officer, it would be absurd to say that such person has no color of lawful authority. Especially is this so when it is borne in mind that color must be viewed and appreciated from the standpoint of the public and third persons dealing with the officer, and not from the point of view of those possessing legal knowledge. As stated in a case involving the validity of the acts of a da facto deputy sheriff, the de facto "rule, being a law of justice and reason, and not an arbitrary ordinance enacted by a court, does not exclude the learned or the unlearned from its pro- tection, and did not require the plaintiff to try Graham's appointment by the test of such authority as would be appar- ent to the few who enjoy the advantage of a legal educa- tion." ^° Upon this principle it was held, that one who has re(?eived what purports to be an appointment to an office which is supposed by him to be valid is an officer de facto, although his appointment contains a defect which is apparent on its face to those skilled in the law, but not to people in general.^* § 91. Same subject — Examples of circumstances giv- ing color of title or authority. — But it is not always easy to determine when there is color of title or authority and 29HamUn vs Kassafer (1887), N. H. 13, 5 A. 80, 10 Am. St. R. 15 Or. 456, 458, 15 P. 778, 3 Am. 357. St. R. 176; Ex p. Tracy (Tex., siState vs Barnard (1892), 67 1905), 93 S. W. 538. N. H. 222, 29 A. 410, 68 Am. St. 30 Jewell VB Gilbert (1885), 64 R. 648. 134 THE DE FACTO DOCTKINK. [§ 91 when there is not. Each case must depend upon its own peculiar set of facts and circumstances. For although, as stated above, color is generally derived from some election or appointment, it must not be assumed that there is color every time there is proof of an election or appointment. There are often various collateral circumstances which go to increase, diminish, or even nullify the effect of the election or appointment upon the incumbent's title, and result in constituting him either an officer de facto or a mere usurper. This will be fully exemplified by numerous reported deci- sions in the next book, when we speak of the different kinds of officers de facto. Reference, however, is made here to a few cases to briefly illustrate the principle of the existence or absence of color, some of which being quoted chiefly because they exhibit rather extraordinary circumstances. Thus, where through the ignorance of the death of a person, a commission appointing him justice of the peace and in- tended as a renewal of a former one, was forwarded to his name and usual address, but was received and acted upon by another person of the same name, it was held that the latter while performing the functions of the office had "a color and show of right" under the commission, ami was an officer "de facto.*'' So where under a town charter there was at least a valid foundation for a bona fide claim by the intendant of the town, to be ex officio justice of the peace, and on the faith of his election as such intendant he proceeded to perform the duties of justice of the peace, he was deemed an officer de facto, though his claim was ill-founded in law.** So where a person is declared elected by the election officers or by a court of competent jurisdiction in an election contest. 32Coolidge vs Brigham (1861), ssWilliamson vs Wool! (1861), 1 Allen (Mass.) 333. 37 Ala. 298. § 92] KECESSITY OF COLOR. 135 and takes charge of the office, he becomes an officer de facto, though the election officers afterwards declare someone else elected, or the judgment is reversed on appeal. In the first instance he maintains his de facto character until ousted by quo warranto, and in the latter, until a final judgment is ad- versely pronounced against him.^* So, if pursuant to an opinion of the State Superintendent of Public Instruction, one of two contestants for the office of school director assumes the duties of the office and acts as such officer, he is while so acting a de facto officer of the dis- trict.^' Likewise a person assuming the duties of a super- visor of roads by virtue of a void election by a fiscal court, and discharging the duties of the office with the acquiescence of the court, even after the office has been declared vacant and another supervisor elected, is an officer de faeto.^® So where members of a legislature are seated by a vote of a number less than the constitutional quorum, they have suf- ficient color of title to their seats to constitute them officers de facto.'^ Again, where a judge exercises his functions within a county, attached by the legislature to his district, the Act thus extending his jurisdiction, even if invalid, af- fords him sufficient "color of title" to constitute him an officer de facto as to such county.^* § 92. Same subject — Examples of circumstances giv- ing no color of title or authority. — But a judge who acts in an adjoining county during a vacancy in the judicial office 3 4R. vs Winchester (1837), 7 seHenry va Commonwealth Ad. & El. 215; Saline County vs (1907), 31 Ky. L. R. 760, 103 S. Anderson (1878), 20 Kan. 298, 27 W. 371. Am. Rep. 171. See also Morgan s'State vs Smith (1886), 44 vs Quackenbush (1856), 22 Barb. Ohio St. 348, 7 N. E. 447. (N. Y.) 72. 3 8 Clark vs Com. (1858), 29 Pa. ssBishop vs Fuller (1907), 78 St. 129. Neb. 259, 110 N. W. 715. 136 THE DE FACTO DOCTRINE. [§ 92 there, without any commission or appointment, and without the least prima facie right to fill the office, has no color or show of authority, and is a mere intruder.^® So where at a school meeting, some one proposed that a certain person be elected school trustee, and the latter being under the influence of liquor, rose up and asked that all in his favor say "aye," and there being one response, he immedi- ately declared himself elected, but the chairman did not ask for the votes, and the meeting proceeded at once to elect an- other person as school trustee, who entered upon the duties of his office; and afterwards, the illegally elected trustee called upon the duly elected one and by means of a threat obtained possession of the district books, and acted for about a month, it was held that his pretended election did not af- ford him any colorable right to the office, and hence he was not an officer de facto.*" So it was held that a person appointed to an office with- out authority, and never performing any official duty as such officer, could not be deemed an officer de facto holding under color of right.*' So the performance of a single official act is insufficient to constitute one an officer de facto, when that act is the sole foundation for any pretended color of right to the office.*" So where, during the American civil war, a person at a county seat in possession of the Federal forces, assumed to act as deputy clerk of the county court, without any appoint- ment from the clerk, who had abandoned the county taking with him a portion of the records of the office and was within 39Denny vs Mattoon (1861), 2 ■•iSchenck vs Peay (1869), 21 Allen (Mass.) 301, 79 Am. Dee. Fed. Cas. (No. 12,451) 672, 1 Dill. 784. 267. 40Hand vs Deady (1894), 79 42Biencourt vs Parker (1S64), Him (N. Y.) 75, 29 N. Y. Supp. 27 Tex. 558; State vs Murphy 033. (1893), 32 Fla. 138, 13 So. 705. § 93] NECESSITY OF COLOR. 137 the Confederate lines, it was held that under the circum- stances he could not he considered a de facto deputy, — nor a de facto clerk because he had never assumed to act in that capacity.*^ Likewise, where two persons pretended, the one as clerk and the other as sheriff, to hold their offices and to exercise the functions thereof, under what they called the "McEnry government" in opposition to the authority of the United States and the laws and decisions of courts of Louisi- ana, they were denied the character of de facto officers.** § 93. No color when official title known to be bad. — It is obvious that there cannot be color of title or authority,, when the pretended official title is known to be bad. "An existing appearance of right," says a learned judge, "which may mislead, is the essential ground of the (de facto) doc- trine, for otherwise there is no excuse for the party deceived and no basis for a demand of protection." *^ And another judge referring to one who had unlawfully intruded into an office, says: "When without color of authority he simply assumes to act, to exercise authority as an officer, and the public know the fact, or reasonably ought to know that he is a usurper, his acts are absolutely void for all purposes." ** 43Herring vs Lee (1883), 22 W. Woods vs Inhabitants of Bristol Va. 661. (1892), 84 Me. 358, 24 A. 865; 4 4State vs McFarland (1873), Williams vs Clayton (1889), 6 25 La. Ann. 547. For further il- Utah 86, 21 P. 398; Brumby vs lustrations, see Donegan vs Wood Boyd (1902), 28 Tex. Civ. App. (1873), 49 Ala. 242, 20 Am. Rep. 164, 66 S. W. 874. 275; Simpson vs Loving (1867), 46Per Finch, J.— Williams vs 3 Bush. (Ky.) 458, 96 Am. Dec. Boynton (1895), 147 N. Y. 426, 42 252; Keeler vs Newbern (1868), N. E. 184, affirming (1893), 71 61 N. C. (Phill. Law) 505; Van Hun (N. Y.) 309. Amringe vs Taylor (1891), 108 N. 4 6Merrimon, C. J.— Van Am- C. 196, 12 S. E. 1005, 23 Am. St. ringe vs Taylor (1891), 108 N. C. R. 51, 12 L.R.A. 202; Braidy vs 196, 12 S. E. 1005, 23 Am. St. R. Theritt (1877), 17 Kan. 468; Red- 51, 12 L.R.A. 202. dy VB Tinkum (1882), 60 Cal. 458; 138 THE DE FACTO DOCTRINE. [§ 94 The same doctrine is found in the English and Canadian •cases.*^ Thus, in Knowles vs Luce, the reason given for up- holding the acts of a steward acting under color is that "those for whom such acts are done, know not the extent of the .steward's title." However, the occupant of an office may have color, though lis title be known to be disputed by another.*^ § 94. Generally no color after title judicially declared invalid. — Following the principle laid down in the preced- ing section, generally no color of title or authority can exist .after the incumbent's title has been declared invalid by a •court of competent jurisdiction. "We think," says a New York judge, "that .when by a judgment of the court of last resort, in a direct proceeding to determine the title of officers de facto, it has been adjudged that they have no right- ful title to the office, but are mere usurpers, then, at least, as to all who have notice of such proceeding and judgment, the color of authority has ceased, and this without regard to whether anybody else has been inducted into the office or not. As officers de facto there must be at least a presumption that they are rightfully in office. Such presumption cannot be said to exist after the decision of a competent tribunal to the contrary. To hold that persons who, according to the de- cision of the court having jurisdiction to decide so as to bind the parties and the public, are mere usiirpers, may still ■exercise the powers and discharge the duties of the usurper's 47Knowles vs Luce (1580), <8Blain vs Chippewa (1906). Moore 109, 72 Eng. R. 473. R. vs 145 Mich. 59, 108 N. W. 440. Foi Corp. of Bedford Level (1805), 6 further treatment of this subject, East 356, 2 Smith K. B. 535. Le see post, sec. 302 et seq. Boutillier vs Harper (1875), 1 ■Que. L. R. 4. § 94] NECESSITY OF COLOR. 139 office, is to deprive the judgment of ou&ter of all force or effect." *9 Accordingly, where the members of a board of chosen free- holders attempted to act after a judgment of ouster had been pronounced against them, it was held that they had no "color of authority" and were mere usurpers.®" So where in an election contest for the office of Governor, the decision of the General Assembly was given in favor of one of the contest- ants, it was held that the other was thereby deprived of all "color of title," and therefore could not be looked upon as an officer de facto.^^ However, as an adverse decision against one's title is a fact which may, for a time at least, remain concealed from a portion of the public, it is conceivable that a person dis- obeying such decision and continuing to act in contempt there- of, may still, under certain circumstances, and upon prin- ciples of justice, have to be considered an officer de facto as to innocent persons. ^^ 4 9Talcott, J.— Rochester etc. N. Y. 426, 42 N. E. 184, affirming Eailroad va Clark Nat. Bank (1893), 71 Hun (N. Y.) 309; Mc- (1871), 60 Barb. (N. Y.) 234. Veeny vs New York (1880), 80 N. BOHugg vs Ivins (1897), 59 N. Y. 185, 36 Am. Eep. 600, reversing J. L. 139, 36 A. 685. 1 Hun, 35; Fawcett vs Superior BiPowera vs Commonwealth Court (1896), 15 Wash. 342, 45 P. (1901), 110 Ky. 386, 61 S. W. 735, 23, 55 Am. St. R. 894; Peck vs 22 Ky. L. R. 1807, 63 S. W. 976, 53 Holcombe (1836), 3 Port. (Ala.) L.R.A. 245. See also State vs Rose 329; R. vs Lisle (1738), Andr. 163, (1906), 74 Kan. 262, 86 P. 296; 95 Eng. R. 345. People vs Board of Sup'rs. (1898), BzState vs Rose (1906), 74 Kan. 56 N. Y. Supp. 318; Portsmouth's 262, 86 P. 296. See also Kent vs Petition (1848), 19 N. H. 115; Mercer (1862), 12 U. C. C. P. 30. Williams vs Boynton (1895), 147 BOOK m. OF THE DIFFEEEKT CLASSES OE OFFICERS DE FACTO. BOOK III. OF THE DIITEKENT CLASSES OE OFFICEES DE FACTO. CHAPTER 8. INTRODUCTORY. § 95. Classification of officers de facto. § 95. Classification of officers de facto. — Officers de facto are divided into different classes according to the nature of the defects in their title. Chief Justice Butler, as we have already seen,^ groups them under four heads. But though his classification is very comprehensive and includes nearly all kinds of officers de facto, yet we find it necessary to further sub-divide them in order to ensure a thorough and exhaustive treatment of the subject. With this end in view, we shall distribute them into seven classes, to each of which will be devoted one chapter in this book. The classification is as follows: 1. Officers by reputation or acquiescence, without a known appointment or election. 2. Officers duly elected or appointed for a specified term, but acting before the commencement, or holding over after the expiration, of such term. 3. Officers under color of a known election or appoint- ment, but whose title is defective because they were ineligible, or have become disqualified to hold the office. iSee sec. 22. 143 144 THE DE FACTO DOCTRIXE. [§95 4. Officers under color of a known and valid appaintment or election, but who have failed to qualify as required by law. 5. Officers under color of an irregular election or appoint- ment. 6. Officers under color of an election or appointment by an unauthorized official person or body. 7. Officers under color of an election or appointment by or pursuant to an unconstitutional law. CHAPTEK 9. OFFICERS DE FACTO BY REPUTATION OR ACQUIESCENCE, WITHOUT A KNOWN APPOINTMENT OR ELECTION. § 96. Earlier American cases as to necessity of election or ap- pointment. 97. Same subject. 98. Probable cause of the erro- neous American defini- tions — R. vs Lisle. 99. Same case as reported by Strange. 100. Criticism of R. vs Lisle by Chief Justice Butler. 101. Later American cases declare color of election or ap- pointment unnecessary. 102. Same subject. 103. Same principle upheld by English and Canadian au- thorities. 104. What will constitute an of- ficer de facto by reputa- tion or acquiescence. 105. Reputation or acquiescence — Definition of terms. 106. Nature of office— Effect of open possession upon rep- utation. 107. Circumstances establishing or affecting reputation. 108. Same subject. 109. Same subject. 110. Acquiescence — Effect there- of upon assumed official character. 111. Usurpers may become offi- cers de facto by reputa- tion or acquiescence. 112. Officers de jure who usurp the official functions of other officers. § 96. Earlier American cases as to necessity of elec- tion or appointment. — The first part of Chief Justice But- ler's definition ^ relates to officers without a known appoint- ment or election, but under such circumstances of reputation or acquiescence as are calculated to induce people, without inquiry, to submit to or invoke their actions, supposing them to be the officers they assume to be. Several of the American iState vs Carroll (1871), 38 Conn. 449, 9 Am. Rep. 409. De Facto — 10. 145 146 THE DE FACTO DOCTRINE. [§ 9T cases, chiefly the earlier ones, seem to ignore that class of officers, and to countenance the theory that color of election or appointment is necessary in all cases to constitute one an officer de facto. But a close examination of those decisions will disclose that only a few were really intended to be au- thority for that proposition. "In most, if not all, of these cases, the officer held under color of title, and, of course, it was not necessary for the court to go farther in discussing the question." * § 97. Same subject. — But while this is undoubtedly true, it must be conceded that there are quite a number of authorities containing judicial language, which, if literally interpreted, would necessarily narrow down the application of the de facto doctrine to officers holding under color of an election or appointment. Thus, in St. Luke's Church vs Mat- thewSj^ the court declared that "being sworn in, and acting, do not, without an election constitute an officer de facto." ^ In McCall vs Byram Mfg. Go.^ the court observed that "there must be an apparent election to office, although for some cause, the person chosen is not de jure qualified for his sta- tion." « In Plymouth vs Painter, '' an officer de facto is defined as "one who exercises the duties of an office, under color of an appointment or election to that office." In Prescott vs Hayes, ^ it is said that "in order to constitute an officer de facto, there must be some color of right, some pretence or claim of title by some appointment or election." In TucJcer 2Henderson, J. in Ex p. Tracey 93 Eng. R. 1051, Aiidr. 163, 95 (Tex., 1905), 93 S. W. 538. Eng. R. 345, relied on. 3(1815), 4 Des. Eq. (S. C.) 578. 7(1846), 17 Conn. 585, 44 Am. was a treasurer de facto. ^* With reference to his attempted resignation, Robinson, C. J., remarked: "There is no dis- cretion in the member of the council to avoid his office by his act of resigning, nor any discretion in the other members of the council with whom he is serving, and by whom he was not appointed, to accept his resignation." So in Xew Hampshire it was held, that a collector of taxes of a previous year, who had not completed the collection of the taxes on his list, and had not been discharged from his liability to the town as collector, was within the prohibition of General Laws, c. 40 s. 5, and disqualified to hold the office of selectman, but as he had assumed the latter office under color of an election, he was an officer de facto. ^^ Per Curiam : "The defendant's resignation would not divest him of the office of collector xmless it was accepted." So where a State constitution provided that no person hold- ing any office of trust or profit under the United States, shall hold or exercise any office of trust or profit under the State, — the acceptance of the office of justice of the peace by a post- master, and his performance of the duties thereof, was held not to vacate his postmastership, though nevertheless consti- tuting him a justice de facto.^" Per Marshall, J., in the first quoted case : "The common law principle which declares the first office vacated by l!'o acceptance of another, which is incompatible with it, is applicable to cases where the two offices are held under the same authority or under authorities of which one is in strict subordination to the other." ^'' But in a Mississippi case it was held that the appointment 3 4R. vs Smith (1848), 4 U. C. or vs Balch (1842), 14 Vt. 428, 39 Q. B. 322. ■ Am. Dec. 231. 3 5 Attorney-General vs Marston s^See also Hoglan vs Carpenter (1891), 60 N. H. 485, 22 A. 500, (1808), 4 Bush. (Ky.) 89; John- 13 L.R.A. 670. son vs Saunders (Ky. 1909), 115 SBRodman vs Harcourt (1843), S. W. 772. 43 Ky. (4 B. Mon.) 224; McGreg- § 164] OFFICERS INELIGIBLE OR DISABLED. 225 of a member of the legislature, who was constitutionally ineli- gible to the office of license commissioner, was so utterly void that he could not even become an officer de facto.^® § 164. Votes cast for ineligible candidate not gener- ally void. — Before dismissing the subject of ineligibility, it may be of some interest to refer briefly to the law governing the casting of votes for an ineligible candidate at a popular election. In the United States the rule established "by a strong preponderance of authority is that the votes cast for such person are not to be entirely ignored ; that his opponent ■who has received a minority of the legal votes polled shall not, upon ouster of the disabled candidate, be inducted into the office. In such cases a vacancy is to be declared, and a new election ordered to fill the same." ^® It follows from this principle that an ineligible candidate who receives the highest number of votes is entitled to be declared elected by the election officers, to qualify for the office, and to enter upon the duties thereof as a de facto incumbent, until his title thereto is pronounced invalid in a direct proceeding and by a proper tribunal, unless in such case the outgoing incumbent is entitled to hold over.*" In England the above rule also prevails, but it is qualified by this : that if it be affirmatively shown that the voters for the ssShelby vs Alcorn (1858), 36 21 La. Ann. 289; Privett vs Stev- Miss. 273, 72 Am. Dec. 169. ens (1881), 25 Kan. 275; State va 39Per Helm, J.— Darrow vs Peo- Vail (1873), 53 Mo. 97; State vs pie (1885), 8 Col. 417, 8 P. 661; Boyd (1891), 31 Neb. 682, 48 N. Also State vs Smith (1861), 14 W. 739; Batterton vs Fuller Wis. 497; Chandler vs Wartman (1894), 6 S. Dak. 257, 60 N. W. (1883), 6 N. J. Law J. 301; Stev- 1071; Crawford vs Dunbar ( 1877 ) , «n3 vs Wyatt (1855), 55 Ky. (16 52 Cal. 36; Swepston vs Barton B. Mon.) 542; State vs Swearingen (1882), 39 Ark. 549. (1852), 12 Ga. 23; Sublett vs Bed- lODarrow vs People (1885), 8 well (1872), 47 Miss. 266, 12 Am. Col. 417, 8 P. 661. Rep. 338; Fish vs Collens (1869), De Facto — 15. 226 THE DE FACTO DOCTRINE. [§ 165 candidate highest in votes had such actual knowledge of his ineligibility that they must be taken to have thrown away their votes wilfully, then the second highest candidate becomes thereby elected. "It is a principle," says Lord Campbell, C. J., "of all election law and of good sense, that persons who knowingly vote for an ineligible candidate, throw away their votes just as much as if they voted for the man in the moon."*^ But nothing short of the clearest proof of actual knowledge or notorious ineligibility will produce that effect.** The English qualification of the rule has apparently been adopted in New York.** § 165. Disability arising during currency of term. — Hitherto we have treated of ineligibility existing at the time of the officer's election or appointment, but now we shall deal with disability or disqualification which arises subse- quently, that is, during the currency of the ofiicer's term, and thenceforth incapacitates him from legally holding the office. Through the commission of some act on his part, or the hap- pening of certain events, he loses his de jure character to become merely an officer de facto. § 166. Disability through change of residence. — Among such acts or events is change of residence in a manner legally inconsistent Avith the holding of the office. The rule in siich case is, that if the officer ceases to be a resident of the place where he is bound by law to reside, but continues "R. V9 Coaks (1854), 23 L. J. B. G29, 37 L. J Q. B. 288; Hobbs vs Q. B. 133, 3 E. & B. 249, 18 Jur. Morey (1904), 1 K. B. 74, 73 L. J. 378. Also R. vs Hawkins (1808), K. B. 47. 10 East, 211, affirmed 2 Dow. 124; ispeople vs Clute (1872), 50 N. Claridge vs Evelyn (1821), 5 B. & Y. 451, 10 Am. Rep. 508, affirming Aid. 81, 24 R. R. 289. 12 Abb. Pr. (N. S.) 399, and re- 4 2R. VS. Mayor of Twekesbury versing 63 Barb. 356. (1868), 9 B. & S. 683, L. R. 3 Q. § 167] OFFICERS INELIGIBLE OR DISABLED. 227 to perform tlie functions of his oiEce, he forfeits his lawful right to the latter, but nevertheless retains the character of an officer de facto. Thus, a "justice of the peace who, after his removal to an adjoining State, county or district, con- tinues to act in the locality in and for which he was elected or appointed, is an officer de facto-** So where a town clerk moves into another town, but continues to keep his office open in the former town, and is recognized as the clerk, he is an officer de facto, though the law declares that in such case the office shall be vacant.*^ The same principle was held to apply, under like circumstances, to a constable,*® a member of a municipal council,* ''and a school trustee.** § 167. Change of residence effected by law. — The same rule obtains where the change of residence is not the voluntary act of the officer, but is the result of alterations made by law in the boundaries of a county or municipality. In such case if the officer does not, within a reasonable time, move his residence within the newly prescribed territorial limits, he forfeits his legal title to the office,*^ but is not divested of a de facto character, while he continues to dis- charge official duties with public acquiescence. Thus, where a portion of a township was declared by a proclamation of the Governor to be a city of the second class, it was held that the remainder of such township still retained its organization, and the members of the township board were at least de facto 44Prescott vs Hayes (1860), 42 "Roche vs Jones (1891), 87 Va. N. H. 56; Hinton vs Lindsay 484, 12 S. E. 965. (1856), 20 Ga. 746; Lexington &c. isState vs Hart (1901), 106 Turnpike Go. vs McMurtry (1845), Tenn. 269, 61 S. W. 780. 45 Ky. (6 B. Mon.) 214. 49State vs Choate (1842), 11 45In re Collins (1902), 75 N. Y. Ohio 511. App. Div. 87, 77 N. Y. S. 702. 46Case vs State (1879), 69 Ind. 46. 228 THE DE FACTO DOCTRINE. [§ 168 officers, although they may have resided within the limits of the newly organized city.'" So where county commis- sioners, whose places of residence by the erection of a new county fell within the limits of such county, continued nev- ertheless to perform their official duties as commissioners of the old county, without changing their residences, they were deemed officers de facto.' ^ The same was held with respect to county court judges, who persisted to sit in a territory which has been detached from their county.'^ § 168. Disqualification by reason of insolvency — Can- adian illustrations. — Disqualification may also be the result of some change in the officer's status, civil or financial, which renders him incapable of holding the office. Thus, where a person was elected municipal Councillor and continued to exercise his office after he had made an assignment for the benefit of his creditors, he was held to be an officer de facto, although it was provided by the Municipal Act under which he was elected, that in case a member of co\m.cil applies for relief as an insolvent debtor, or assigns his property for the benefit of his creditors, his seat in the council shall thereby become vacant.'* § 169. Disqualification by reason of exhaustion of the constitutional period of holding. — Where the law or the constitution prescribes a limit to the holding of an office by the same person, if an officer continues to hold beyond such period, he cannot be an officer de jure, but he may be an 50Walnut Township vs Jordan Bsstate vs Ailing (1843), 12 (1888), 38 Kan. 562, 16 P. 812. Ohio 16. But compare People vs Highland 6 3R. vs Mayor of Cornwall Park (1891), 88 Mich. 653, 50 N. (1866), 25 U. 6. Q. B. 293. 'See W. 660. ante, sec. 145. siState vs Jacobs (1848), 17 Ohio, 143. § 170] OFFICERS INELIGIBLE OR DISABLED. 229 officer de facto. Thus, where the constitution provides that no person shall be eligible to the office of Circuit Court Clerk more than eight years in any period of twelve years, one who has been the incumbent of the office during the constitutional limit, cannot lawfully hold over upon the death, without qualifying, of the person chosen to succeed him, and a vacancy arises, yet if he remains in the actual discharge of his official duties, he will he an officer de facto.^* § 170. Disqualification by reason of acceptance of incompatible office. — As we have already explained, one who forfeits his right to an office of which he is the incumbent, by accepting another incompatible therewith, but continues to perform the functions of the office forfeited, may be an offi- cer de facto. Thus, if a notary public accepts the office of judge of a criminal court or that of deputy county recorder, but continues to act in his former office, he will be an officer de facto.®^ So one legally vacating the office of judge or jus- tice of the peace by accepting a seat as member of Congress or of the legislature, may still be an officer de facto, if he persists to discharge judicial functions.^^ So a judge accept- ing the incompatible office of code commissioner, becomes an officer de facto in regard to judicial duties perfonned by him thereafter.^'^ The same principle applies to a city street commissioner, who has accepted the office of colonel;^® to a justice of the 5 4Gosman vs State (1885), 106 363; Sheehan's Case (1877), 122 Ind. 203. Mass. 445, 23 Am. Rep. 374. 5501d Dominion Building & 57State vs Sadler (1899), 51 La. Loan Ass'n. vs Sohn (1903), 54 Ann. 1397, 26 So. 390. See also In W. Va. 101, 46 S. E. 222; David- re Powers (1893), 65 Vt. 399, 26 son vs State (1893), 135 Ind. 254, A. 640. 34 N. E. 972. ssOliver vs Jersey City (1899), 5 6Woodside vs Wagg (1880), 71 63 N. J. L. 634, 44 A. 709, 76 Am. Me. 207; Green vs Wardwell St. R. 228, 48 L.R.A. 412. (1855), 17 111. 278, 63 Am. Dec. 230 THE DE FACTO DOCTRINE. [§ 170 peace who has become a constable,^^ or a court clerk,®" or a coroner;*' to a district court clerk, who has accepted the office of receiver of an insolvent bank;**^ to a constable or deputy sheriff, after accepting the office of justice of the peace f^ to a township trustee who has accepted the office of postmaster;®* to a supervisor of roads, who has become a township trustee ;"' to a clerk of court after his acceptance of the office of intendant of a town f^ and to a school director who has accepted the office of commissioner of an incorpo- rated district.®'' But where an alderman of the city of !N^ew York, was, during his term, elected representative in Congress and accepted such office, it was held that thereby his office of alderman immediately became vacant, and he was no longer alderman de jure or de facto.®^ This was decided upon an appeal from an order of Special Term which directed the issuing of a peremptory writ of mandamus against the defendant, the common council, to compel a spe- cial election. The statute which prohibited an alderman from holding any other public office, declared that by an election to and acceptance of "such public office" during his term as alderman "his office as such alderman shall imme- diately become vacant." The court remarked that the office was as vacant as if the alderman "had never been born." There, however, no official act of his was in question. BsCom. vs Kii-by (1849), 56 64State vs Crowe (1897), 150 Mass. (2 Cush.) 577; Johnson vs Ind. 455, 50 N. E. 471. McGinly (1884), 76 Me. 432. 6i3Creighton vs Piper (1860), 14 60Adam vs Mengel (Pa. 1887), Ind. 182. 8 A. 006. ssstafe vs Coleman (1899), 54 eiMaddox vs Evvell (1817), 2 S. C. 282, 32 S. E. 406. Va. Cas. 59. s'Hagner vs Heyberger (1844), 6 2Metropolitan Nat. Bank vs 7 W. & S. (Pa.) 104, 42 Am. Dee. Coniniercial S. Bank (1898), 104 220. Iowa, (iS2, 74 N. W. 26. 6 8 People va Common Council csPooIer vs Reed (1882), 73 Me, (1879), 77 N, Y. 503. 129; Wilson vs King (1823), 3 Litt. (Ky.) 4.57. CHAPTER 13. OFFICERS DE FACTO UNDER COLOR OF IRREGULAR ELECTION OR APPOINTMENT. 171. General rule. 172. English illuatrations. 173. Canadian illustrations. 174. American illustrations — Ir- regular elections. 175. Same subject — Invalid ap- pointments. 176. OflScers verbally appointed. 177. Election or appointment held or made at improper time. § 178. Appointment to office not vacant. 179. Appointment for a term longer than warranted by law. 180. Certificate of election con- fers a prima facie title, though result of election wrongfully determined. 181. Irregularities in election or appointment must be bona fide. § 171. General rule. — A person in possession of an office and in the open exercise of its functions, under color of an election or appointment, will be deemed an officer de facto, though he may have been illegally or irregularly elected or appointed thereto. As expressed by one Judge, "all that is required where there is an office, to make an officer de facto, is, that the individual claiming the office is in posses- sion of it, performing its duties, and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary his election or appointment should be valid, for that would make him an officer de jure." ^ To the same effect are the words of the Supreme Court of the United States : "Where an office exists under the law, it matters not how the appointment is made, so far as the valid- iManning, J ,— Carleton vs People (1862), 10 Mich. 250. 231 232 THE DE FACTO DOCTRINE. [§ 172 ity of his (de facto officer's) acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions." ^ The above rule has apparently never been questioned in England. Thus, in an old English report, we read: "There is a distinction made in our books, between a person who usurps an office, and one who comes in by color of an election, viz. : The acts of the one are void, but not of the other; and therefore, where two abbots^ were chosen, one by the majority of the monks, and the other by the less number; and he got into possession by color of that undue election, though he was not the lawful abbot, but only abbot de facto, yet his acts are good and shall bind." * The same principle is recognized by the Canadian Courts. "As a general proposition," says a Quebec judge, "it is unde- niable that the acts of officers de facto illegally elected or appointed are valid." * Likewise an Ontario Judge remarks, that it would be intolerable if the act of a public officer "would invariably depend for its legality upon the validity of his appointment." ® § 172. English illustrations. — In R. vs St. Clement's/ the validity of a church-rate was attacked on the ground that it was levied at a meeting convened by churchwardens irreg- ularly elected. The irregularity seems to have been non- compliance with the statute,^ respecting the notices to be 2Field, J., delivering tlie opinion sRouthier, J. — Rouleau vs Cor- of Court in Norton vs Shelby poration of St. Lambert (1896), County (1886), 118 U. S. 425, 6 10 Que. R. (S. C.) 85. Sup. Ct. 1121, 30 L. ed. 178. eMeredith, J.— Turtle vs Town- sAbbe de Fontaine Case (1431), ship of Euphemia (1900), 31 0. Year Book, 9 H. 6, fol. 32. R. 404. 4Knight vs Corporation of Wells 7(1840), 12 Ad. i- El. 177, 3 (1695), Nelson's Lutw. 156, Lutw. P. & D. 481, 4 Jur. 1059. 508. 858 Geo. Ill, c. 69. § 173] OFFICERS IRREGULARLY APPOINTED. 233 given and published before a legal vestry meeting could be called. The churchwardens in question were elected at a meeting held pursuant to notice given on the preceding Sun- day only, whereas the Act required that the notice should also be affixed on the church door. Notwithstanding such irregularity, they were held to be authorized, as church- wardens de facto, to call vestry meetings and to complain of non-payment of rates, so as to give jurisdiction to jus- tices of the peace.® Likewise in Scadding vs Lorwtit ^° exception was taken to the validity of a rate for the poor on the ground that some of the vestrymen who had concurred in making the same had been irregularly elected. But the objection was over- ruled, the Court holding that it is as competent for vestrymen de facto to join in making a rate for the relief of the poor as for vestrymen de jure.-^^ § 173. Canadian illustrations. — In Smith vs Red- ford ^^ one of the questions involved concerned the validity of the payment of taxes. It was urged by Counsel for the defendant that the by-law appointing the collector, to whom the taxes had been paid, should be produced, to establish that he had been regularly appointed. But the Court was of opinion that "if he acted and was recognized as collector, the payment to him was good, even if there was an irregularity in the mode of his appointment." Again, in School Trustees of the Township of Hamilton vs Neil,^^ one Turner, who had been acting in the capacity sUnder 53 Geo. Ill, c. 127, s. 7. vs Baynes (1795), 2 H. BI. 559, 10(1851), 3 H. L. Gas. 418, 5 3 R. R. 506; Penney vs Slade Eng. L. & Eq. 16, 15 Jur. 955. (1839), 5 Bing. (N. C.) 319, 7 affirming 13 Q. B. 706. Scott, 484, 8 L. J. C. P. 221. iiSee also B. vs Lisle (1738), 12(1866), 12 Gr. (U. 0.) 31G. Andr. 163, 95 Eng. R. 345; Turner 13(1881), 28 Gr. (Ont.) 408. 234r THE DE FACTO DOCTRINE. [§ 174 of Secretary-Treasurer of the plaintiffs, but who had not been appointed in writing, absconded with certain moneys which had been received by him as such Secretary-Treasurer from the defendants. The school trustees sought to make the township responsible, upon the ground that Turner had never been legally appointed Secretary-Treasurer, and therefore that the money paid to him did not get into the proper hands. The plaintiff's contention, however, was overruled, and it was held that if a person acts notoriously as the oiEcer of a corporation, and is recognized by it as such, a regular appointment will be presumed, and his acts will bind the corporation, although no written proof is, or can be adduced, of his appointment. "I think," said Proudfoot, V. C, "it is too late now for them to say that he was not legally ap- pointed." From the language of the learned judge, it is manifest that he had in mind the principles of the de facto doctrine as well as of estoppel, though he refers specifically and in terms only to the rule founded on the legal presumption as to official character, — because the latter could not suffice where the appointment of the officer was admittedly invalid, such presumption not being presumptio juris et de jure.^* § 174. American illustrations — Irregular elections.— A person acting as justice of the peace under color of an election by the electors of a town and village combined, is an officer de facto, though he should have been elected by 14R. vs Verelst (1813), 3 Camp. nora. County of Pontiae vs Ross 432, 14 R. R. 775; Wilcox V9 Smith (1889), 17 Can. Sup. Ct. 400; (1830), 5 Wend. (N. Y.) 231, 21 Paris vs Couture (1883), 10 Que. Am. Dee. 213. As to other Cana- Law R. 1 ; Le Boutillier vs Har- dian cases, see Gill vs Jackson per (1875), 1 Que. Law E. 4; La- (1856), 14 U. C. Q. B. 110; Coun- casse vs Roy (1895), 8 Que. R. ty of Pontiae vs Pontiae Pac. (S. C.) 293; Ex p. Renaud (1875), Junction Ry. Co. (1888), 11 Leg. 10 N. B. (3 Pug.) 174; R. V9 News (Que.) 370, affirmed sub Burke (1890), 29 Nov. Scot. 227. § 174] OFFICERS IRREGULAELY APPOINTED. 235 tho electors of the village alone. '^ So where the law requires an election by joint ballot of two branches of a municipal body, an election by the separate action of each branch is sufficient to give at least color of title to the persons so elected, and to constitute them officers de facto.'® So per- sons elected by viva voce vote instead of by ballot as required by law, are officers de facto. ■'^ So persons elected at a town meeting as selectmen and act- ing as such, will be officers de facto, though the meeting at which they were elected was invalid by reason of a defect in the constable's return upon the warrant therefor.'* So where a town is incorporated under general laws, but after the lapse of a certain time, proceedings are again taken to re-incor- porate it under the mistaken belief that the temporary non- user of corporate rights has forfeited corporate existence, and officers are elected under the provisions respecting new cor- porations, the persons so elected are officers de facto, despite the obvious irregularity of their election.'® So where the office of collector was set up at auction, in town meeting, and struck off to the lovvest bidder, and the town afterwards chose the same person as collector, it was held that, though the proceeding was illegal, the collector was to be considered an officer de facto. ^* So where upon the failure of the regularly appointed election judges to ap- pear, other persons took their places without being properly i5Baker vs State (1887), 69 isQore vs Dickinson (1892), 98 Wis. 32, 33 N. W. 52. Ala. 363, 11 So. 743, 39 Am. St. isBelfast vs Morrill (1876), 65 R. 67. Me. 580. 20Tucker vs Aiken (1834), 7 N. iTSchool Dis. No. 77 vs Cowgill H. 113. Also Odiorne vs Rand (1906), 76 Neb. 317, 107 N. W. (1880), 59 N. H. 504. 584. IS Gushing vs Frankfort (1868), 57 Me. 541. 236 THE DE FACTO DOCTRINE. [§ 175 selected, but took the regular official oath, they were held to be at least judges de facto.^^ Again, a board of education, composed of persons actually elected as school trustees at a school meeting, and actuallj' acting as such, is a de facto board, and its status cannot be destroyed by the action of the county superintendent in ap- pointing other trustees upon the supposition that the election was illegally conducted ; his contention being that the votes of women were refused in open defiance of a statute giving them the right of suffrage.'^ So the validity of the election of town assessors cannot be impeached collaterally on the ground of an omission to use the check-list in the ballot, as required by statute. ^^ § 175. Same subject — Invalid appointments. — A per- son appointed road surveyor by resolution of the town com- mittee, but not under their hands and seals, as required by law, is a de facto officer.^* So an irregular or informal com- mission is sufficient to constitute one a deputy sheriff de fac- to. ^^ So a person serving a writ as a deputy specially ap- pointed by the sheriff, is an officer de facto for that purpose, 2iChoisser va York (1904), 211 vs McDaniel (1850), 7 Jones L. 111. 56, 71 N. E. 940. { X. C.) 107: Moore vs Caldwell 2 2Kiinball vs Hendee (1894). 57 (1836), Freeman (Miss.) 22-2; N. J. L. 307, 30 A. 894. Butler vs Walker (1893), 98 Ala. 23Sudbury vs Heard (1870), 103 358, 13 So. 261; Waller vs Perkins ilass. 543; Atty.-General vs Crock- (1874), 52 Ga. 233; Atty.-General cr (1885), 138 Mass. 214, See vs Megin (1885), 63 N. H. 378. 9 also Hawkins vs Jonesboro (1879), Am. & Eng. Corp. Cas. 68; Duane 03 Ga. 527; Allen vs Metcalfe vs McDonald (1874) , 41 Conn. 517. (1835), 34 Mass. (17 Pick.) 208; See also Moore vs State (1858), Henry vs Commonwealth (1907), 5 Sneed (Tenn.) 510. 31 Ky. Law R. 760, 103 S. W. 371: 24State vs Meyers (1862). 29 N. People vs Terry (1887), 108 N. Y. J. L. 392. 1, 14 N. E. 815; School Directors 2BMoore vs Graves (1826), 3 N. vs Nat. School Furnishinjr Co. H. 408. (1893), .53 HI. App. 2.-)4: Trenton § 175] OFFICERS IRREGULARLY APPOINTED. 237 although his written appointment is not under seal.^* So a referee appointed by a circuit court is a de facto officer, though the order appointing him is irregular.^' So the appointment of a judge pro tem. at one term of Court, to act at the next term, though irregular, gives such color of right to act at the next term as to constitute him a judge de facto.** So where a judge absent by reason of illness, intending to appoint a certain attorney judge pro tem., inadvertently signed an appointment without filling in the name of the intended appointee, and such appointment was handed to the latter, who bona fide inserted his name therein, and acted as judge, it was held that the appointment so filed being regular on its face was sufficient to constitute the appointee a de facto judge.*" So one who has been appointed deputy county attorney, and has taken the prescribed oath, is a de facto officer, though his appointment has merely been deposited in the office of the county clerk, instead of being recorded, and a formal consent to such appointment has not been obtained from the commissioners' court, as required by law.^" So one who receives a written appointment to be deputy clerk of a Court from the clerk, and discharges the duties of his office, is a de facto officer, though the appointment has not been con- firmed by the board of supervisors in conformity to law.^' Again, one holding the office of deputy sheriff, under a written appointment from the sheriff, is an officer de facto, 26Jewell vs Gilbert (1885), 64 zsRogers vs Beauchamp (1885), N. H. 13, 5 A. 80, 10 Am. St. R. 102 Ind. 33, 1 N. E. 185. 357, followed in State vs Barnard aoDane vs State (1896), 36 Tex. (1892), 67 N. H. 222, 29 A. 410, Cr. R. 84, 35 S. W. 661. 68 Am. St. R. 648. 31 Wheeler Mnfg. Co. vs Sterrett 2 7 Rushing vs Thompson (1884), (1895), 94 Iowa, 158, 62 N. W. 20 Fla. 583. 675. 2 8State vs Murdock (1882), 86 Ind. 124. 238 THE DE FACTO DOCTRINE. [§ 176 although there is no record evidence of the approval of his appointment, as prescribed by statute.^ ^ So an order ap- pointing a clerk of a Federal Court as master in chancery without assigning a special reason therefor, as required by 20 U. S. Stat. 415, is sufficient, however irregular, to clothe him with the insignia of the office and to constitute him an officer de facto.^^ § 176. Officers verbally appointed. — The invalidity of the appointment, as appears from one of the Canadian cases quoted a moment ago,^* may be due to the fact that it has been made orally instead of by writing, as prescribed by law. The informality in such case is treated like all other irregu- larities of a cognate character, and the authorities hold that the verbal appointment affords sufficient color of title to the appointee to constitute him an officer de facto. In Viner's Abridgement,^^ we read: "If a corporation retains a steward by parol, and he keeps a Court, punishes offences, decides controversies, takes surrenders, makes ad- mittances, either upon surrenders or descents; these acts, being judicial, shall ever stand for current, though his au- 3 2Youngblood vs Cunningham E. 679; Rice vs Commonwealth (1882), 38 Ark. 571. Also Com- (1867), 3 Bush. (Ky.) U; Ander- mercial Bk. of Augusta vs Sand- son vs Morton (1903) , 21 App. Cas. ford (1900), 103 Fed. 98. (D. C.) 444; Boehme vs Monroe 33Northwestern Mut. Life Ins. (1895), 106 Mich. 401, 64 N. W. Co. vs Seaman (1897), 80 Fed. 204; Tower vs Wellier (1892), 93 357; but see Dolan vs Topping Mich. 332, 53 N. W. 527; In re (1893), 51 Kan. 321, 32 P. 1120.— Mason (1898), 85 Fed. 145; Lee vs For further examples of irregular Wilmington (1895), 1 Marv. appointments, see State vs Elliott (Del.) 65, 40 A. 663; see also (1893), 13 Utah 471, 45 P. 346; Jones vs French (1846), 18 N. H. Olson vs Hawkins ( 1908) , 135 Wis. 190. 394, 116 N. W. 18; Overall vs s4School Trustees of Hamilton Madisonville (1907), 31 Ky. Law Tp. vs Neil (1881), 28 Gr. (Ont.) R. 278, 102 S. W. 278; Landes vs 408. Walls (1903), 160 Ind. 216, 66 N. ssTitle, Steward of Courts (G) § 176] OFFICERS IRREGULAKLY APPOINTED. 239 thority be grounded upon a wrong foundation ; for a corpora- tion cannot institute any such oifieer without writing: and so if the King's auditor or receiver retain a steward by parol, he may lawfully execute any judicial act." Accordingly, a water commissioner verbally appointed by a proper board is an officer de facto for the purpose of making an assessment, though such appointment is invalid as not being in writing.^" So a deputy clerk of a circuit court holding office continuously for a year or more under a verbal appointment from the duly constituted clerk, is an officer de facto.^^ So where a trustee of a school district verbally appoints a collector, and issues to him a warrant to collect a tax assessed for school purposes in his district, such collector is an officer de facto.''* So where a statute provides for the filing of the appoint- ment and hence impliedly requires it to be in writing, such provision will be construed as merely directory, and a verbal appointment will constitute the appointee a de facto officer.^® So where a deputy clerk of a court is required to be appointed by an order of the Court, and he is only verbally appointed by the clerk, he is an officer de facto.*" So one orally ap- pointed a deputy county auditor, to whom the usual oath is orally administered and who thereafter performs the duties of the auditor, is a de facto officer.*^ seCanaseraga vs Green (1903), iiMurphy vs Lentz (1906), 131 88 N". Y. S. 539. Iowa, 328, 108 N. W. 530. Also 37Haskell vs Dutton (1902), 65 State vs Sellers (1854), 7 Rich. L. Neb. 274, 91 N. W. 395. (S. C.) 368; Sharp vs Thompson ssHamlin vs Dingman (1871), (1881), 100 111. 447, 39 Am. Rep. 6 Lans. (N. Y.), 61, reversing 41 01; Cockerham vs State (Miss. How. Pr. 132. 1895), 19 So. 195; Greenwood vs 39Buis vs Cooper (1895), 63 Mo. State (1889), 116 Ind. 485, 19 N. App. 196. E. 333; but see Herbster vs Slate "Com. vs Arnold (1823), 3 Litt. (1881), 80 Ind. 484. (Ky.) 309. 240 THE DE FACTO DOCTRINE. [§ 177 § 177. Election or appointment held or made at im- proper time. — Again, though the manner of electing or ap- pointing an officer may be regular in form, yet the election or appointment may nevertheless be invalid because held or made at an improper time, that is, before or after the date fixed by law, or even before the coming into force of the en- actment under or pursuant to which it is assumed to be held or made. In such case the person so elected or appointed cannot as a rule be an officer de jure, because he derives his authority from a power either irregularly exercised, or ex- ercised at a time when it had merely a potential existence. But he can be, and is in fact, an officer de facto under color of irregular election or appointment, — the rule being that "if the power to appoint exists in any state of case, an ap- pointment though made in circumstances not warranted by law, constitutes the appointee a de facto officer." *^ Accordingly, where a statute created certain navigation commissioners, making their term of office begin April 15, 1907, and directing the Governor to appoint them on or be- fore April 5, of the same year, and they were appointed on March 13, 1907, it was held that they were de facto officers, even if their appointment was premature.*' So where an elec- tion for town officers was held on the day prescribed by law, but owing to some error, real or supposed, the officers elected refused to qualify, and another election was holden two weeks thereafter, at which all those elected at the former election were re-elected, save one who was substituted by another per- son ; and thereupon the persons so elected at the second elec- tion qualified and entered upon the duties of their office, it was held that they were at least officers de facto.** 4 2Vicksburg vs Lombard (1875), State vs Martin (1878), 46 Conn. 51 Miss. 111. 479. 43St. George vs Hardie (1908), 44CoIes County vs Allison 147 N. C. 88, 60 S. E. 920. Also (1800), 23 III. 437. See also § 177] OFFICERS IRREGULARLY APPOINTED. 241 In a New Jersey case the court went still further, and, relying on its discretionary power, refused to allow an in- formation in the nature of quo warranto against a person who was chosen as alderman at an election held on a wrong day, without objection, and by a pure mistake.*^ There, however, inasmuch as all the officers of the municipal cor- poration had been elected on the same day, a successful prosecution of the quo warranto proceedings would have resulted in the suspension of municipal government for near- ly a year. The court remarked that the persons elected were officers de facto, and as such could act without peril for the corporation, since their acts could not be collaterally as- sailed. Again, where a governor before the coming into force of a law creating a county, appointed a sheriff therefor, it was held that the latter was at least an officer de facto after the law became effective.** So it was held that, although at the time of the election of the judge and the clerk of a municipal county, the law establishing the same was not in force, yet as the persons respectively elected as judge and as clerk had been declared duly elected and had entered upon the actual discharge of their duties, they were officers de facto after the law took effect by publication.*'' So where un- der an Act passed in February, 1859, an election of officers was authorized to take place in "April next" and the election was holden in April, 1859, it was held that the officers chosen, whether lawfully elected or not, were officers de facto, though the Act took effect only in May, 1859.** Chambers vs Adair (1901), 110 *nn re Boyle (1859), 9 Wis. Ky. 942, 23 Ky. Law R. 373, 62 S. 264, followed in Dean vs Gleason W. 1128. (1862), 16 Wis. 1, and Yorty vs 45Mitchell vs Tolan (1868), 33 Paine (1885), 62 Wis. 154, 22 N. N. J. L. 195. See post, sec. 467. W. 137. 46Fowlcr vs Bebee (1812), 9 ^sCarleton vs People (1862), 10 Mass. 231, 6 Am. Dec. 62. Mich. 250. De Facto— 16. 242 THE DE FACTO DOCTRINE. [§ 178 § 178. Appointment to office not vacant. — Likewise, a person appointed to an office by an official person or body having a prima facie right to make the appointment, may be- come an officer de facto, though the office be not legally va- cant.** The principle of the rule is that v^here apparent au- thority exists to make an appointment under particular cir- cumstances, the Courts "will not collaterally inquire into the facts leading to such appointment to ascertain whether the power has been properly exercised or not. But of course the de jure officer must not be in possession of the office during the incumbency of the second appointee, as there cannot be two officers holding the same office at the same time.^* According to the above principle, where a Commis- sioners' Court in the exercise of its statutory power, appointed an overseer of a public road, but, sub' sequently, the judge of the County Court, who had power only to fill vacancies occurring after the Commissioners' Court had appointed, appointed another person who assumed to act (though there was no vacancy), it was held that such person was an overseer de facto. '"^ So an order of the circuit court, made by the presiding judge on the last day of the term, by which a person named therein is appointed "to act as solicitor pro tern, of this court until further orders" and the acceptance of the appointment by the person named, consti- tute him the county solicitor de facto, so long as he acts un- der the appointment, although there is no vacancy in the office of county solicitor at the time the order is made.^* So an appointment to the office of chairman of the board 49Diggs vs State (1873), 49 Ala. siThompson vs State (1852), 21 311. Ala. 48. soSomerset vs Somerset Banking 62Diggs vs State (1873), 49 Ala. Co. (1900), 109 Ky. 549, 60 S. 311. W. 5. See also ante, sec. 75. § 179] OFFICERS IRREGULARLY APPOINTED. 243 of supervisors of a town, made by the appointing board thereof, authorized to appoint only in case of vacancy, and the acceptance of the appointment by the appointee, consti- tute him the chairman of the board de facto, although no vacancy in fact exists.^^ So where a board of county com- missioners improperly declared the office of county treasurer vacant and appointed to fill the supposed vacancy a person who was not the regularly elected treasurer, such person was held to be a treasurer de facto.^* Again, where a person exercised the office of judge under an appointment by the Governor made without authority of law, there being at the time another person legally entitled to the office, the person so appointed was held to be a judge de facto.^® § 179. Appointment for a term longer than warranted by law. — An officer appointed for a longer term than that to "which he could have been lawfully appointed, will be an officer de facto during the whole period he exercises the office under color of such appointment. Thus, in Cocke vs Hal- sey^^ the regularity of the recording of a deed was chal- lenged, on the ground that the same had been recorded by one who had no color of authority to perform the duties of Clerk of the Probate Court. The latter had recorded the ssFulton vs Andrea (1897), 70 Boger (1885), 2 Tex. App. (Civ. Minn. 445, 73 N. W. 256. Cas.) 650, 9 Am. & Eng. Corp. Cas. 54Watldns vs Inge (1880), 24 91; Gregg vs Jamison (1867), 55 Kan. 612. Pa. St. 468; School Dis. No. 8 vs BSState vs Bloom (1863), 17 Root (1886), 61 Mich. 373, s. c. Wis. 521; Brady vs Howe (1874), sub nom. Tallraadge School Dist. 50 Miss. 607. Also State vs Mar- vs Town Treasurer, 28 N. W. 132; tin (1878), 46 Conn. 479; State vs People vs Lieb (1877), 85 111. 484; Constable (1835), 7 Ohio (pt. 1) Turney vs Dibrell (1873), 62 Tenn. 7; Ellison vs Aldermen (1883), 89 (3 Bax.) 235. N. C. 125; Nichols vs Maclean 56 (1842), 16 Pet. (U.S.) 71,10 (1886), 101 N. Y. 526, 5 N. E. L. ed. 891. 347, 54 Am. R. 730; Chowning vs 244 THE DE FACTO DOCTRINE. [§ 179 deed after the session of the Court at which he had been appointed to act as clerk during the absence of the lawful clerk, and the contention was that the power of the judge of the Probate Court to appoint a "clerk pro tem." was lim- ited to the term of the Court, and did not extend beyond that term. The objection was declared untenable upon sev- eral grounds, one of which was based upon the dc facto doc- trine. Mr. Justice Daniel, delivering the opinion of the Court, said : "That the judge had power to appoint a clerk pro tempore, seems never to have been questioned ; that he did not appoint is equally indisputable ; the irregularity al- leged is in the failure to limit the appointment to the term of the Court. Admit, for the present, that the appointment should have been thus limited, and that the clerk has admitted the deed to probate after the term; yet, in his character of clerk, was he not within the very definition of the authorities, and within the concessions of the counsel, clerk de facto, acting colore officii?" Evidently, an affirmative answer to this question is unavoidable. The same principle was upheld by the Supreme Court of Tennessee.^'' By the constitution of Tennessee of 1835, on the resignation of a Supreme Court Judge, the Governor had no power to fill the vacancy longer, than until the office could be filled by election (which election he was bound to order within a specified time) ; nevertheless, where the Gov- ernor appointed by commission a person to fill the unexpired term of a judge who had resigned, without calling an election, it was held that the appointee acting under color of the ir- regular commission, was a judge de facto.^* 5'CalIoway va Sturm (18T0), 1 (1901), 109 Wis. 393, 85 N. W. Heisk. (Tenn.) 764. 358. 5 8 Also Trogman vs Grower § 180] ( OFFICERS IKREGULAELY APPOINTED. 245 § 180. Certificate of election confers a prima facie title, though result of election wrongfully determined. — As is obvious, an election, though lawfully held and con- ducted, may yet not be the expression of the will of the people because of irregularities, illegalities, or errors in determining and declaring the result of it. ISTevertheless the rule in such case is, that the determination by the proper officers in favor of one of several candidates, however erroneous it may be, furnishes him with prima facie evidence of his election, and if he acts upon that evidence and takes charge of the office under color of the certificate issued to him, he becomes an officer de facto, although he may not have obtained the plurality of the votes cast at such election. Thus it was held in Morgan vs Qv/ickenhush^^ where the validity of an election for the office of Mayor came col- laterally into question. The two rival candidates were one Perry and one Quackenbush, and although the latter had ap- parently received the higher number of votes, yet his adver- sary was declared elected. The irregularity arose this way : At its next meeting after the election the common council pro- ceeded to canvass the inspector's return of votes, and to de- termine and declare who was elected to the office of Mayor; and they determined and declared that Perry had received the greater number of votes, and was duly elected Mayor, and made and filed a certificate of that determination. But the day Perry qualified and entered upon his duties, the new common council proceeded to re-canvass the votes for Mayor, and upon such re-canvass it was determined and declared that Quackenbush was duly elected Mayor, and a certificate of that determination was made and filed. • The difference in the two results arose from the fact that the old common council contrary to their duty which was purely ministerial, 59(1856), 22 Barb. (N. Y.) 72. 246 THE DE FACTO DOCTRINE. [§ 181 and consisted in a simple matter of arithmetic, received evi- dence tending to show fraudulent practices at the polls, and omitted on that ground to canvass the votes of two electoral districts. Apprised of this mistake, Quackenbush, after the second determination which apparently gave the real result of the votes, attempted to discharge the duties of Mayor. On an application for an injunction to restrain him from acting, it was held, that the determination of the first board in favor of Perry, however erroneous it might he, had furnished him with prima facie evidence of his election, and that, having acted upon that evidence, qualified, and entered upon the dis- charge of the duties of the office, he became Mayor de facto, and could not be displaced, except by an action brought for that purpose by some person claiming to be entitled to the office. Said the judge : "If the certificate of the canvassers declaring Mr. Perry elected, vested him with colorable title to the office, as I think it did, so that he had a right to enter upon the discharge of its duties, another effect of that deci- sion was, to exclude the defendant Quackenbush, as well as everybody else, from the office." ^^ § 181. Irregularities in election or appointment must be bona fide. — In conclusion, it may be further observed that in order that an irregular election may constitute one a de facto officer, at least so far as to render his title question- able only by quo warranto, the same must be carried on bona fide, and not fraudulently and with a dishonest intent, or with a culpable disregard of the law. "While it is true," says a learned judge, "that the illegality of the election, by virtue of which an incumbent has gained entrance to an office, soAlao Blain vs Chippewa 17 Wash. 12, 48 P. 741, 61 Am. St. (1906), 145 Mich. 59, 108 N. W. R. 893; R. vs Burke (1896), 29 440; State vs Superior Ct. (1897), N. S. 227. § 181] OFFICERS IRREGULAKLY APPOINTED. 247 does not prevent the office from being full of him de facto, it is also to be noted that from the earliest periods it has been held requisite that the illegality in question must be consistent with honesty of purpose. Elections based upon mistakes of fact or misconceptions of law may impart a color of right which will bar the allowance of a inandamus; but palpable disregard of law renders the action by which an office is seized merely colorable, and, in a clear case, will be brushed aside as affording no obstruction to the exercise of a plain legal duty." ®^ Thus, it has been held in England, that if the election is merely colorable, so as to be really no election at all, the office is not full in the sense that the in- cumbent can be ousted only by quo warranto-®^ It should not be assumed, however, that none of the acts performed by officers fraudulently elected may not sometimes have to be sustained in order to protect innocent third per- sons, ignorant of the fraud, even if the title of such officers be so far defective, that it can be declared invalid in pro- ceedings other than, quo warranto. It must also be noted that fraud will not generally invali- date an election, where it is only the act of persons who are merely agents in recording the votes or giving expression to the wishes of those having power to elect; the general rule, in such case, being that the misconduct or fraud of election officers will not vitiate an election unless it is shown that the result was thereby affected.^* 6 iPer Garrison, J. — Leeds vs At- C.) 85; Turtle vs Township of lantie City (1890), 52 N. J. L. Euphemia (1900), 31 0. R. 404. 332, 19 A. 780. esMotley vs Wilson (1904), 26 62R. vs Bankes (1764), 3 Burr. Ky. Law E. 1011, 82 S. W. 1023; - 14S2, 1 W. Bl. 452; R. vs Cam- Dial vs Hollandsworth (1894), 39 bridge (1767), 4 Burr. 2008. See W. Va. 1, 19 S. E. 557; Knight vs also Rouleau vs Corporation of St. Town of West Union (1898), 45 Lambert (1896), 10 Que. E. (S. W. Va. 194, 32 S. E. 163. CHAPTEE 14. OFFICERS DE FACTO UNDER COLOR OF IRREGULAR ELECTION OR APPOINTMENT BY AN UNAUTHORIZED OFFICIAL PER- SON OR BODY. § 182. General rule. § 189. Appointment without con- 183. English illustrations. currence of all having 184. Same subject. authority to appoint. 190. Same subject — Apparently 185. Canadian illustrations. 186. American illustrations. conflicting cases distin- guished. 187. Conflicting doctrine. igj. Where authority to appoint 188. Elective office filled by ap- exists only in particular pointment or vice versa. cases. § 182. General rule. — Where an official person or body assumes the power to appoint or elect to public office, and the person appointed or elected enters upon the office and performs its duties, he will be an officer de facto, notwith- standing want of power to appoint or elect in the body or person who professed to do so. "It is a mistake," says a judge, "to assume that to constitute a good officer de facto, he must be appointed or elected by the proper authority." ' This principle was apparently recognized in the first re- ported English case on the de facto doctrine. In The Abbe de Fontaine ^ Babington, C. J., says : "If an abbacy or church be vacant, and a man who had no right pretended to be patron, and preferred one A, by force whereof he is in- stalled, and then he is ousted by legal process inasmuch as iMcFarland, J.— McLean vs 2(1431), Year Book 9 H. VI, State (1873), 8 Heisk. (Tenn.), fol. 32. 22. 248 § 183] OFFICERS APPOINTED WITHOUT AUTHORITY. 249 the patron had no right; yet a deed which was made before him is good." And Chief Justice Butler,^ after exhaustively dealing with the question, concludes, "that upon the review of all the material English authorities running through iouv centuries, it will be seen that the idea that color can only be conferred by a body or person having power, or prima facie ■power, to elect or appoint in the particular case, has never been broached in England, but that the contrary has been holden." § 183. English illustrations.— In The Abhe de Fontaine case, above referred to, the court was apparently of the opin- ion, although it was not finally decided, that an obligation for goods sold for the use of a religious house, made by one who acted as abbot though he had obtained only a minor part of the votes at an election held to fill the office, was not void- able by the true abbot (after his recovery of the office), that is, by the one who had secured the majority of the votes, because the former had color of title when he made the obli- gation, and he who sold the goods was not bound to examine his title to the office. There the body that held the election was evidently invested with power to elect, but by a plurality of its votes, and not by a minority. The person, therefore, who took possession of the abbacy, as he had obtained only 8 votes as against his adversary 24, held under color of an election by a minority that had no right to elect. Yet the court did not seem to entertain any doubt as to the sufficiency of his color of authority, the only perplexing question being apparently whether the office was not already full of the abbot de jure, so that it could not be filled at the same time by an abbot de facto. 3SUte vs Carroll (1871), 38 Conn. 449, 9 Am. Rep. 409. 250 THE DE FACTO DOCTRINE. [§ 184 In Lord Dacres case * the steward of a manor appointed his servant to hold a manorial court. He had no authority to do so, yet the servant was holden a good officer de facto. In Leak vs Howel ^ which was a case of an information for bringing certain merchandise into the country, without paying, or agreeing for the payment of, the custom and sub- sidy due for them to the collector of the custom in London, or in any other port, or to his deputy, it was held that an agreement made at the custom-house in a particular port, with a person who had there exercised the office of deputy of one who was deputy of the collector of the customs there, was valid, although the person with whom such agreement was made was not a lawful officer, the deputy having no au- thority to appoint a deputy. In Harris vs Jays * a steward for one of the manors of the county, who could only be appointed by the lord, was appointed by the auditor and surveyor of the county, without any authority whatever, and acted as such; and it was held that he was steward de facto, and although he could not grant a copyhold which had escheated, because it was in prejudice to the Queen, nevertheless other acts done by him were good. § 184. Same subject. — In Parker vs Kett '' it was again holden that the deputy of a deputy, although his appointment was wholly without authority of law, derived sufficient color from it to constitute him an officer de facto. Hall, C. J-, said: "Osman Clarke is agreed to be a good deputy, and 4(1584), 1 Leonard, 288, 74 Eng. '(1701), 12 Mod. 466. 88 Eng. R. 263. R. 1454, 1 Ray. (Ld.) 658, 91 Eng. 6(1591), Cro. Eliz. 533, 78 Eng. R. 1338. R. 780. M1599), Cro. Eliz. C99, 78 Eng. R. 934. § 184J OFFICERS APPOINTED WITHOUT AUTHORITY. 251 takes upon himself to appoint a deputy; suppose it is so, ■which he cannot do, no more than an under-sheriff can make an under-sheriff, or a bailiff make a bailiff ; but still it gives a color, and here is the appearance and form of a legal pro- ceeding, and he is reputed to have an authority; and in such case, if surrender be taken and duly presented, it will be well, beyond dispute." In Seymour vs Bennett * the principal registers in the pre- rogative office disagreeing about the appointment of a clerk, the deputy appointed one Abbot, who for a twelvemonth officiated, and Lord Hardwicke held that he was an officer de facto. Again, in Penney vs Blade, ^ the action was trespass for seizing the goods of the plaintiff, under color of a warrant signed by the defendants, who were magistrates of the bor- ough of Poole (one of them being the Mayor), for the pur- pose of enforcing the payment of a poor-rate, which was al- leged by the plaintiff to be void, on the ground that the over- seers, by whom it was made, had not been duly appointed. The facts were as follows : Seven borough magistrates, in- cluding the Mayor, assembled to appoint overseers. The Mayor drew from his pocket two blank forms, with three seals ready attached, filled them up with the names of two persons of his own political party, handed them to the two magistrates sitting next to himself, and, on their being signed, immediately despatched them by a constable to be served. As soon as the constable had left the room, the four magistrates, who had not observed the Mayor's proceedings, requested him to nominate two other overseers, and, upon his refusal to put the question, appointed them without his concurrence. The Mayor afterwards caused a distress to be levied on plaintiff 8(1742), 2 Atk. 482. 9(1839), 5 Bing. (N. 0.) 319, 7 Scott, 484, 8 L. J. C. P. 221. 252 THE DE FACTO DOCTRINE. [§ 185 for revising to pay a rate made by the overseers appointed by the Mayor. PlaintifE having sued the Mayor in trespass, the jury were directed that they might find for plaintiff, if they thought the Mayor's appointment of overseers was fraudulent. The jury having found it not fraudulent, the Court refused a new trial, which was moved for on the ground that, whether the appointment was fraudulent or not, it was void, as being a judicial act done by the minority of the justices assembled, without opportunity of delibera- tion afforded to the entire body.^" § 185. Canadian illustrations. — In Lacasse vs Roy ^* the facts, as they were made to appear to the court, were sub- stantially as follows : A vacancy having occurred in a munic- ipal council, three of the councillors, without whom no quo- rum could be had, persisted in absenting themselves from the council board, in order to prevent the appointment of a proper person to fill the vacancy, their intention being to hin- der and obstruct the transaction of municipal affairs. After repeated but vain efforts of the three other councillors to obtain the co-operation of their fellow councillors in making an appointment to fill the vacancy, they determined, owing to the urgency of certain municipal business, to make the appointment themselves, and one Eomuald Valliere was ap- pointed and took possession of the office. Subsequently, the three absentee councillors having forfeited their offices by their continued absence, the remaining councillors, including Ro- muald Valliere, appointed other persons in their places. The case came before the court upon quo warranto, to determine the title of one of the three last appointees. It' was urged that Valliere who had joined in making the appointments bad no loSee also Turner va Baynes n (1895), 8 Que. E. (S. C.) 293 (1795), 2 H. Bl. 559. 3 E. R. 506. § 185] OFFICERS APPOINTED WITHOUT AUTHORITY. 253 right to do so since he had himself been appointed by a body lacking power to appoint, the three councillors who had chosen him not forming a quorum of the municipal council. The court, however, relying on State vs Carroll,^' held that notwithstanding the want of power in the appointing body, he was a de facto councillor, and as such had authority to join with the other councillors in making the disputed ap- pointments.** In subsequent cases, however, it was held that Valliere could not be regarded as an officer de facto, on the ground that his appointment was a notorious fraud and illegality of which everyone had notice, and therefore there was no room for the application of the de facto doctrine.'* Even Eouthier, J., who had delivered the first judgment, concurred in the latter opinion, while sitting in Revision. He observed that he saw no contradiction between his two rulings, inas- much as in the first case he was not cognizant of all the circumstances, and he had decided in the light of the facts which were before him. To the same effect were the remarks of Sir L. m. Casault, C. J. He pointed out that when the case was heard by his Brother Ilouthier, in the first instance, there was sufficient to justify the latter in holding that Val- liere was an officer de facto, since he was not aware of the cir- cumstances, but that this could not be so after the same were known. It is evident, therefore, that upon the question of law involved, the decision in Lacasse vs Roy was considered sound, and it was not intended in the subsequent cases to disagree with the principle it laid down. 12(1871), 38 Conn. 449, 9 Am. (1907), 31 Ky. Law R. 278, 102 Rep. 409. S. W. 278. isSee to the same effect two I'lRouleau vs Corp. of St. Lam- American t'ecisions: Dingwall vs bert (1890), 10 Que. R. (S. C.) Detroit (1890), 82 Mich. 5S8, 46 69,85; Lacasse vs Labontg (1896), N. W. 938; Overall vs Madisonville 10 Que. R. (S. C.) 97, 104. 254f THE DE FACTO DOCTRINE. [§ 18& § 186. American illustrations. — There are numerous American authorities upholding and sanctioning the rule enunciated in this chapter. Thus, it was held that a district judge acting in another district in which the office of judge is vacant, by virtue of an appointment made by a circuit judge, is an officer de facto, and his acts cannot be questionei on the ground that the circuit judge has no power of appoint- ment in the case of a vacancy in the office of district judge.-'* So a judge elected by a. county, having no power whatever under the constitution to elect him, is an officer de facto.'* So a person appointed justice of the peace by the selectmen of a county, who had no power to make such appointment, and commissioned by the Governor who was authorized to issue commissions to persons elected to such offices, is an officer de facto. '^ So where the Governor issues a commission to one of the judges of the Superior Court, authorizing him to hold certain terms of the Superior Court, and the judge under- takes to discharge the duties required of him, he is a de facto judge so long as he assumes to act in that capacity, even though the commission was issued without authority of law.i« Again, though a legislature has no power to appoint a board of election commissioners, yet if it does so, and the persons thus appointed act and are recognized as commissioners, they are de facto officers.^* So where a probate judge appoints iBMcDowell vs United States 'sstate vs Lewis (1890) , 107 N. (1895), 159 U. S. 59G, 16 Sup. Ct. C. 967, 12 S. E. 457, 13 S. E. 247, E. Ill, 40 L. ed. 271. Also Ball 11 L.R.A. 100; followed in State vs United States (1890), 140 U. S. vs Turner (1896). 119 N. C. 841, 118, 11 Sup. Ct. R. 761, 35 L. ed. 25 S. E. 810. See also In re Man- 377. ning (1891), 139 U. S. 504, 11 Sup. leCampbell vs Commonwealth Ct. R. 624, 35 L. ed. 264; State (1880), 96 Pa. St. 344. vs Bloom (1863), 17 Wis. 521. iTMallett vs Uncle Sam Gold isPratt vs Breckinridge (1901), etc. Mining Co. (1805), 1 Nev. 188, 112 Ky. 1, 65 S. W. 136, 23 Ky. 90 Am. Dec. 484. Law R. 1356, 6S S. W. 405. Also g 186J OFFICERS APPOINTED WITHOUT AUTHORITY. 255 managers to hold a stock-law election, and they act under color of such appointment, they are de facto officers, though the probate judge had no authority to appoint.^" So assessors appointed by a board of commissioners are officers de facto, though such board had no authority whatever to appoint, the power of appointment being vested in the County Court, or, in certain eases, in the chairman.''^ So, where the law provides that certain drainage commis- sioners shall be appointed by the County Court, and they are appointed by the County Judge who has no authority to make the appointment, the commissioners so appointed are officers die facto.^'^ So where a board of prison commissioners ap- points a superintendent of a territorial prison, and he quali- fies and acts as such until it is found that the appointive power is not in the board but in the Governor, who appoints a superintendent in his stead, the former superintendent is until then an officer de facto.^^ So a deputy chamberlain appointed by the chamberlain, who assumes to possess the power to make the appointment, is an officer de facto, though the chamberlain may not have any such power. ^* Brown vs O'Connell (1870), 36 vs Barnard (1892), 67 N. H. 222, Conn. 432, 4 Am. Rep. 89; Roche 29 A. 410, 68 Am. St. R. 648; vs Jones (1891), 87 Va. 484, 12 Brown vs Flake (1897), 102 Ga. S. E. 965. 528, 29 S. E. 267 ; State vs Seavey 2 0Martin vs Crook (1908, Ala.), (1894), 7 Wash. 562, 35 P. 389; 46 So. 482. State vs Superior Court (1908), 2iMcLean vs State (1873), 8 49 Wash. 392, 95 P. 488; Justices Heisk. (Tenn.) 22. vs Clark (1824), 1 T. B. Mon. 2 2People vs Orleans County (Ky.) 82; Calloway vs Sturm court (1882), 28 Hun (N. Y.) 14. (1870), 1 Heisk. (Tenn.) 764; Par- 23Behan vs Davis (1892), 3 ker vs Baker (1840), 8 Paige Ariz. 399, a. c. sub nom. Behan vs (N. Y.) 428, reversing s. c. Clarke Prison Comm'rs. 31 P. 521. Ch. 223; People vs Cook (1853), 24Palmer vs Foley (1873), 36 8N. Y. 07, 59 Am. Dec. 451, af- N. Y. Super. Ct. 14, 45 How. Pr. firming (1852), 14 Barb. 259; 110, reversing 44 How. Pr. 308. Dolan vs New York (1877), 68 N. Also State vs Carroll (1871), 38 Y. 274, 23 Am. R. 168; Hamilton Conn. 449, 9 Am. Rep. 409; State vs County of San Diego (1895), 256 THE DE FACTO DOCTRINE. [§ 187 § 187. Conflicting doctrine. — However, the foregoing doctrine has not received the unanimous support of all the authorities. For instance, the New York decisions do not seem to be in harmony with each other. Some, as can be seen from the above citations, maintain the general princi- ple laid down by us, while others uphold a different doctrine. Thus, in People vs Carter, "^^ where the Governor, without au- thority, had issued a coijimission to a person appointing him a justice of the peace in the place of a former incumbent, resigned, it was held that, as the Governor had no power to fill the vacancy, he could not bestow upon the appointee the outward signs and symbols of the office so as to give him color of title. This decision was approved and followed in People vs Brennan,^'^ where it was held that commissioners of taxes and assessments, appointed by the comptroller of the City of New York, under a supposed but invalid authority, were not officers de facto. *^ Again, we find some authorities declaring that there must be apparent or prima facie authority in the official person or body making the appointment. Thus, in an Alabama case, the following rule is laid down: "The true distinction between those irregular appointments of office which are void, and those which are voidable only, I apprehend to be this: where the authority under which the officer assumes to act, 108 Cal. 273, 41 V. 305; People vs 25(1859), 28 Barb. (N. Y.) 208. Sassovich (1866), 29 Cal. 480; Ex 26(1866), 30 How. Pr. (N. Y.) p. Strang (1871), 21 Ohio St. 610; 417. Hawkins vs Jonesboro (1S79), 63 27See also Burgess vs Pue Ga. 527; Ex p. Tracey (Tex., (1844), 2 Gill. (Md.) 11; Ex p. 1905), 93 S. W. 538. As to ap- Lewis (1903), 45 Tex. Crim. R. 1, pointments made by the govern- 73 S. W. 811, 107 Am. St. R. 970. ments of American rebellious Also Humphreys vs Stevens states, see Simpson vs Loving (1875), 49 Ind. 491. (1867), 66 Ky. (3 Bush) 458, 96 Am. Dec. 252; Donegan vs Wood (1873), 49 Ala. 242, 20 Am. E. 275. § 1S8] OFFICERS APPOINTED WITHOUT AUTHORITY, 257 shows, upon its face, that it emanates from a power which had no right to confer it, it is void ; but where it is regular on its face, and emanates from a source which has the legal or constitutional right to bestow it, and it requires a reference to facts not disclosed in the commission or order of appointment, to show that the power of appointment has been illegally or irregularly exercised, the appointment is voidable only. In the former case, all the acts of the appointee, done in refer- ence to such appointment, are void for every purpose, while in the latter they are valid as to the public and third per- sons." ^^ If this language means, as we assume it does, that prima facie authority is required in all cases, it is an attempted modification of the general rule which is not sanctioned by the current of authorities, old or modem, and is opposed to the great leading case of State vs Carroll-^^ Of course, it is conceivable that an appointment may be so manifestly illegal and absurd on its face so as to deceive no one, and under such circumstances it could hardly constitute the appointee an officer de facto. § 188. Elective office filled by appointment or vice versa. — But be this as it may, it is indisputable, notwith- standing the foregoing conflicting decisions and a few others which will be noticed later on, that the great weight of au- thority sustains the principle laid down at the beginning of this chapter. We shall proceed to further illustrate the same, by dealing with cases which exhibit particular cir- cumstances. 28Thompson va State (1852), 21 S9(1871), 38 Conn. 449, 9 Am. Ala. 48. See also Erwin vs Jersey Rep. 409. City (1897), 60 N. J. L. 141, 37 A. 732, 64 Am. St. R. 584. De Facto— 17. 258 THE DE FACTO DOCTRINE. [§188 Following the general doctrine, it is declared that a person appointed to an elective office, or elected to an ap- pointive office, and discharging the duties of the same under color of such unauthorized appointment or election, will gen- erally be deemed an officer de facto. Thus, where the trustees of a village assumed the right, under the charter, to ap- point a person justice of the peace to fill a vacancy, and he in good faith undertook the duties of the office, it was held that he was an officer de facto, even if the office could only have been legally filled by election.^" So a person ap- pointed by the Governor to fill a vacancy in the office of May- or, is an officer de facto, though the appointment was made without authority, the law requiring such vacancy to be filled by election.** Likewise, where a person was elected to a prudential com- mittee by the inhabitants of a district, to fill a vacancy, and obtained the papers and records appertaining to the office, and discharged the duties thereof, it was held that he was an officer de facto, whether the district had a right to elect a person to fill the vacancy (if it existed), or whether the vacancy should have been filled by appointment of the select- men of the town.*^ But in a ISTew York case it was held that a person ap- pointed justice of the peace, who under the constitution could only be elected, did not derive any color of title from soLaver vs McGlachlin (1871), La. Ann. 1097, 36 So. 204; Pratt 28 Wis. 364. vs Breckinridge (1901), 112 Ky. 3 iMonroe vs Hoffman (1877), 29 1, 65 S. W. 136, 23 Ky. Law R. La. Ann. 651. 1356, Id. 112 Ky. 1, 66 S. W. 405; 32Goodwin vs Perkins (1867), In re All Lee (1880), 6 Sawy. (U. 39 Vt. 598. See also Chicago & S.) 410, 5 Fed. 899; State vs Col- North Ry. Co. vs Langlade County lector of Ocean Tp. (1876), 39 N. (1883), 56 Wig. 614, 14 N. W. 844; J. L. 75; State vs Whitney (1879), Watson vs MoGrath (1904), 111 7 Or. 386. § 189] OFFICERS APPOINTED WITHOUT AUTHORITY. .259 his unauthorized appointment.^^ This case, however, is ad- versely criticised in In re Ah Lee, above quoted, the court ob- serving that "no authorities are cited, and, so far as appears, the distinction attempted to be made by it is not found in the books. The case was decided in the County Court, and the opinion delivered by the county judge." ^* § 189. Appointment without concurrence of all hav- ing authority to appoint. — It is also held that where power to appoint is vested in a specified number of, or in desig- nated, persons, the exercise of such power without the con- currence of all having authority, will give sufficient color of title to the appointee to make him an officer de facto. Thus, where a temporary appointment of inspectors of election was made by the supervisor, the town clerk, and one justice only, whereas the statute contemplated that at least two justices should sign it, without which in the county towns, there would not be a majority of the appointing body, it was held that, though such appointment was defective, yet it gave col- orable authority to the inspectors so appointed and made them de facto officers.^' So, under certain laws of the late Territory of Dakota, the organization of counties was effected by the Governor ap- pointing three commissioners, who in turn were empowered to appoint the necessary public officers to complete the county organization. Three commissioners were appointed by the Governor under the above provisions, but only two received their commissions and qualified. These two proceeded to ap- point a registrar of deeds, who was by statute ex officio county clerk. He qualified and entered upon the duties of his office, sspeople vs Albertson (1853), 8 35People vs Cook (1853), 8 N. How. Pr. (N. Y.) 363. Y. 67, 59 Am. Dee. 451, affirming 3 4 But see also Canaseraga vs (1852), 14 Barb. 259. Green (1903), 88 N. Y. S. 539. 260 THE DE FACTO DOCTRfXE. [§ 190 and it was held that such registrar of deeds and ex officio county clerk was a de facto officer.*^ "The appointment,'' said the Court, "may not have been valid, being made by only two commissioners, when three had been appointed by the Governor, but the person appointed was not an intrudei*. He was in under color of title, and that is all that is required to constitute an officer de facto." In the same case, the two commissioners, and the registrar of deeds, as ex officio countv clerk, appointed the third county commissioner under the provision of the statute which provided that a failure to qualify, as required by law, constituted a vacancy in the of- fice, and was by law to be filled in the case of a county com- missioner, by the remaining commissioners and county clerk, and probate judge. And it was held that, notwithstanding the non-concurrence of the probate judge, the commissioner so appointed was an officer de facto. Again, as we have already seen, appointments made by members of a public body not forming a quorum, have some- times been held sufficient to constitute the appointees de facto officers.*^ § 190. Same subject — Apparently conflicting cases distinguished. — But in Eempster vs MihvauJcee ** it was held that where the incumbent of the office of health commis- sioner is wrongfully removed, and the vacancy can by the charter only be filled by appointment of the Mayor and con- sent of the common council, an appointment by the Mayor alone, without the consent of the council, of a person as acting 36Merchants Nat. Bank vs Mc- (1890), 82 Mich. 568, 46 N. W. Kinney (1891), 2 S. Dak. 106, 48 938; Laeasse vs Roy (1895), 8 K. W. 841. Que. R. (S. C.) 293. 3T0verall vs MadisonviHe as (1897), 97 Wis. 343, 72 N. W. (1907), 31 Ky. Law R. 278, 102 743. S. W. 278; Dingwall vs Detroit § 190] OFFICERS APPOINTED WITHOUT AUTHORITY. 261 eommissiojier, to perforin the duties of that oiBce, does not make that person an officer de facto. There, however, the court remarked that there had been no attempt to fill the office of health commissioner, but only to appoint a person to the office of "acting commissioner" with duties identical with those of commissioner, an office which had no legal exist- ence. So in Brumby vs Boyd,^^ under a city charter providing that in case of vacancy in any elective office, the council, upon nomination by the Mayor, shall fill the same by select- ing some person by a majority vote of the aldermen, it was held that the power to fill vacancies being vested in the coun- cil, consisting of the Mayor and board of aldermen, an ap- pointment made by the Mayor alone, or by the aldermen, without the consent of the Mayor, was void and could not con- stitute the appointee an officer de facto; the ground taken being that where an appointment to office is not merely irregu- lar or informal, but is absolutely void, the appointee, though attempting to discharge the duties of the office, is not an officer de facto. However, the result of that decision was undoubtedly sound, because two health officers had been ap- pointed to fill a vacancy, one by the Mayor, and the other by the aldermen, but neither had ever obtained exclusive posses- sion and control of the office, and hence neither could be deemed an officer de facto. The court could have rested its decision on that ground without going any further, because it is indeed difficult to conceive that if a single person had been appointed health officer, either by the Mayor or the al- dermen, and had taken possession and exercised the duties of the office under color of such defective appointment, he could not have been considered a de facto officer. 39(1902), 28 Tex. Civ. App. 164, laid down by this authority, was 6 S. W. 874. The broad principle recently approved in a case in- 262 THE DE FACTO DOCTRINE. [§ 19] § 191. Where authority to appoint exists only in par- ticular cases. — It is almost superfluous to say that it is im- material whether the illegality of the appointment arises from a general want of power in the appointing body to make the appointment, or from a want of power to make the appoint- ment in the particular case. Indeed, if total want of power affords color of title, a fortiori, partial lack of power or want of authority under particular circumstances will be sufficient to bestow color of authority on the appointee. Thus, in one case the board of police had under the statute power to ap- point commissioners to classify lands, in the first instance, but seemingly no provision was made for the appointment of a successor, in case of the death or resignation of the commissioner. The board appointed a commissioner as pro- vided by the statute, but he resigned his office after he had commenced, and before he had completed the classification of the lands of the county, and the board accepted his resig- nation, and appointed a successor, who qualified, and proceed- ed to complete the classification; and it was held that, not- withstanding the absence of power to fill the vacancy thus occurring, yet as the board of police had power to appoint to the office under given circumstances, their appointment of a successor imparted sufficient color of authority to the appointee to constitute him an officer de facto.*" Again, where a statute provided that in case of the judge of the circuit court being interested in a case or otherwise disqualified to act, the parties to the suit should appoint an attorney to preside in his place, and upon their failing to do so, the appointment should be made by the clerk of the court, it was held that an attorney, appointed by the clerk and who Tolving the appointment of a spe- ■toRay vs Murdock (1859), 36 cial judge: Oates vs State (Tex. Miss. 692. Crim. App. 1909), 121 S. W. 370. § 191] OFFICERS APPOINTED WITHOUT AUTHORITY. 2C3 had presided over the court pursuant to such appointment, was an officer de facto, even if the circumstances giving the clerk authority to appoint did not exist in the particular in- stance.*^ This subject has already been incidentally dealt with in the preceding chapter where we spoke of appointments made to offices not legally vacant. The cases there quoted, though given as illustrations of irregular appointments, might like- wise be cited here to exemplify the present subject.*^ 4iHunter vs Ferguson (1874), Usher vs Telegraph Co. (1906), 13 Kan. 462. See also Hoagland 122 Mo. App. 98, 98 S. W. 84. vs Culvert (1845), 20 N. J. L. 387; «2See ante, sec. 178. CHAPTEE 15. DE FACTO OFFICERS UNDER COLOR OF AN ELECTION OR APPOINTMENT BY OR PURSUANT TO AN UNCONSTITU- TIONAL LAW. § 192. General rule. 193. No distinction between laws manifestly unconstitu- tional and laws of doubt- ful constitutionality. 194. General rule illustrated. 195. Same subject — De facto ju- dicial officers. 196. Same subject — Same sub- ject. 197. Conflicting authorities. § 198. Unconstitutional Act re- moving an officer and ap- pointing a successor. 199. Unconstitutional Act ap- pointing to an office which is and remains full in law and in fact. 200. Same subject. 201. Unconstitutional Act alter- ing constitution of office. 202. Unconstitutional Act alter- ing mode of filling an office. § 192. General rule. — One performing official duties under color of an election or appointment, by or pursuant to a public unconstitutional law before the same is adjudged to be unconstitutional, is generally regarded as an officer de fac- to. "While," says a Judge, "there can be no such thing as a de facto office, there may be a de facto officer, whose apparent right arises out of action taken by the electorate or the ap- pointing power under the supposed authority of an unconsti- tutional law before the same is declared unconstitutional." * Another court declares, that "from a review of the authorities bearing directly on the question, it clearly appears that it iMontgomery, J. — Thompson vs Couch (1906), 144 Mich. 671, 108 N. W. 363. 264 § 193] OFFICERS L'-N CONSTITUTIONALLY APPOINTED. 265 is sufficient if the officer claims and holds the office under some power having color to appoint, and that a statute, though it shall be found repugnant to the constitution, will give such color." ^ § 193. No distinction between laws manifestly uncon- stitutional and laws of doubtful constitutionality. — In the application of the above principle, the degree of uncon- stitutionality of the law is immaterial, since any law enacted by a legislature is sufficient to impart color of title. Such, however, has not always been the unanimous opinion of the courts. Thus, in Broiun vs O'Connell/ an attempt was made to establish a rule of much inconvenience and impracticabil- ity for the guidance of the public, especially with reference to the legal status of public officers. It was to the effect that a law passed by the legislature cannot have color of au- thority, or the semblance of authority, unless it appears prima facie to be law, and that it cannot so appear if it is manifestly repugnant to the constitution; that a law of doubtful con- stitutionality may be presumed to be constitutional until it is judicially decided to be otherwise ; but that a law manifest- ly unconstitutional is void upon its face, and unable to confer appearance or color of title.* These views are thus criticized by Chief Justice Butler : ^ "The inference to be drawn from these assumptions neces- sarily is, that a manifestly unconstitutional law is without any force whatever, and that whether manifestly unconsti- tutional or not, and whether to have the appearance and force of law or not, are questions for the private judgment of the JWalcott vs Wells (1890), 21 4See to the same effect, Vander- Nev. 47, 24 P. 367, 37 Am. St. E. berg vs Connoly (1898), 18 Utah, 478, 9 L.R.A. 59. 112, 54 P. 1097. 3(1870), 36 Conn. 432, 4 Am. sstate vs Carroll (1871), 38 R. 89. Conn. 449, 9 Am. Eep. 409. 266 THE DE FACTO DOCTRIXE. [§ It)! citizen. If these assumptions were true they would dispose of this case, but they are of novel imjaression, and funda- mentally erroneous. Every law of the legislature, however repugnant to the constitution, has not only the appearance and semblance of authority, but the force of law. It cannot be questioned at the bar of private judgment, and if thought unconstitutional resisted, but must be received and obeyed, as to all intents and purposes as law, until questioned in and set aside by the courts. This principle is essential to the very existence of order in society. It has never been ques- tioned by any jurist to my knowledge. . . . The doc- trine that a law of doubtful constitutionality may be pre- sumed to be constitutional until judicially decided otherwise, and that a law manifestly unconstitutional cannot be so presumed, has no existence as applicable to the citizen." We may add that such a rule of construction ^vould be entirely subversive of de facto principles. For where the private citizen cannot rely on color or appearance of right, but is compelled to inquire into an officer's title at his peril, the de facto doctrine disappears. § 194. General rule illustrated. — There are numerous rulings upholding the general proposition laid down at the be- ginning of this chapter. Thus, it was held that a person appointed corporation attorney by a board of finance under an Act empowering them to do so, was an officer de facto, even if it should be subsequently adjudged that the Act was unconstitutional.® So where a person was appointed city treasurer to fill a vacancy caused by death, it was held that he was a de facto treasurer, even assiuning that the charter provision for the appointment of a treasurer by the Mayor sErwin vs Jersey City (1897), 60 N. J. L. 141, 37 A. 732, 64 Am. St. E. 584. § 195] OFFICERS UNCONSTITUTIONALLY APPOINTED. 267 was unconstitutional, and he should have been elected by the people.'' Again, it was held that, notwithstanding the want of pow- er of a legislature to appoint a board of election commis- sioners (its assumption of such authority being an invasion of the powers of the executive), yet, as its appointees had acted and been recognized as commissioners, they were de facto officers.® So where an Act provided for the appoint- ment by the Governor of all county officers, except the chair- man and members of the county board, to hold their respec- tive offices during a designated period, it was held that even if such suspension of the right of the people of the county to elect their own officers was invalid, and the appointments made by the Governor were consequently illegal, yet as the offices had been properly created and existed de jure, and the persons appointed thereto had entered upon their official duties, they were officers de facto.* Like principles were held to apply to senators and representatives elected under an unconstitutional law; ^° and to a female elected to an office to which she was made eligible by a void enactment.'^ § 195. Same subject — De facto judicial officers. — In Mate vs Carroll ^^ a conviction for a libel and breach of the peace was attacked on the ground of illegality. The matter came before the Supreme Court upon a case reserved. It TWatson vs McGrath (1904), UDonough vs Dewey (1890), 82 111 La. Ann. 1097, 36 So. 204. Mich 309, a. c. sub. nom. Donough sPratt vs Breckinridge (1901), vs Hollister, 46 N. W. 782. See 112 Ky. 1, 66 S. W. 405, 23 Ky. also Atty.-Gen. vs Parsell (1894), Law R. 1356, 65 S. W. 136. 99 Mich. 381, 58 N. W. 335. sChicago & North Ry. Co. vs 12(1871), 38 Conn. 449, 9 Am. Langlade County (1883), 56 Wis. E. 409. 614, 14 N. W. 844. loParker vs State (1892), 133 Ind. 178, 31 N. E. 1114. 268 THE DE FACTO DOCTRINE. [§ 195 appeared that the court that had made the conviction was not presided over by its regular judge, but by a justice of the peace, who had been requested by the clerk of the court to act as judge during the absence of the former. This request was made in accordance with a statute providing that, in case of the sickness or absence of the judge of a city court, a justice of the peace should be called in by the clerk to hold a court. Upon argument, several irregularities were com- plained of, but the main objection was that the Act permitting the temporary appointment of a justice of the peace was un- constitutional; and that it being in direct violation of the city charter, the justice who presided the inferior court was a mere usurper. However, Butler, C. J., in an interesting judgment, where both the English and American authorities are exhaustively reviewed, held that whether the law was unconstitutional or not, the acting justice was an officer de facto, if not de jure, and judgments rendered by him were valid. So where under the provisions of a municipal code, the Mayor, in the absence or disability of the police judge, was authorized to select a member of the bar to hold the police court, who, it was declared, should have, for the time being, the jurisdiction and powers conferred upon judges of police courts, the person acting under such appointment was held to be a judge de facto, even assuming that the power of ap- pointment thus conferred on the Mayor was unauthorized by the constitution.-'* Likewise where an Act authorized the Governor to ap- point and commission some fit and proper person to sit as judge, in case of the sickness, indisposition or inability of the circuit judges, it was held that a decree pronounced by isEx p. Strang (1871), 21 Ohio St. 610. To the same effect: State \B Bartlett (1874), 35 Wis. 287. § 196] OFFICERS UNCONSTITUTIONALLY APPOINTED. 269 a judge so appointed and commissioned was valid and bind- ing, although the Act was subsequently declared unconsti- tutional. "The public acts of officers de facto," said the court, ''are often valid although the authority under which they act is void." ^* § 196. Same subject — Same subject. — Again, where the legislature, by a special law, made the aldermen of the City of New York ex officio judges of the oyer and terminer, and a prisoner was convicted of murder before that court, while two of the aldermen sat with the other judges, it was held that the aldermen were judges de facto, notwithstanding the unconstitutionality of the Act under which they acted. ^^ So where an Act of the legislature established a justice's court in one of the wards of the City of St. Paul, and au- thorized the Mayor to appoint the first justice to hold the ■office until the next election, it was held that a justice so appointed was a de facto officer, even if the Act was uncon- stitutional so far as it invested the Mayor with power to appoint.-^® So where a State constitution authorized the legislature, when the population of the State should equal 200,000, to provide by election for separate judges of the Supreme and Circuit Courts, and the legislature passed an Act providing for the election of such judges in June, 1880, and for their appointment by the Governor in the meantime, it was held that, admitting that the Act was unconstitutional because the population was less than 200,000 and the legislature could not lawfully authorize the Governor to make the appoint- KTaylor vs Skrine (1815), 2 l estate vs McMartin (1889), 42 Tread. (S. C.) 696. Minn. 30, 43 N. W. 572. iBPeople vs White (1840), 24 Wend. (N. Y.) 520, reversing s. c. 22 Wend. 167. 270 THE DE FACTO DOCTRINE. [§ 197 ment of such judges, nevertheless the acts of the lattei while holding office under the Governor's commission, were valid and conclusive as the acts of officers de facto. The Court said : "Thus it will he seen that the almost unhroken current of authority is against the claim made for the petitioner, that no one can be an officer de facto under a void law or an illegal appointment; and, admitting that the judges who tried and heard the action against the petitioner in the state courts were appointed judges of these courts under an uncontsitu- tional Act, yet they were at the least such judges under color of right and authority, and therefore they were and are judges de facto, and their acts are valid and binding as to third persons." ^^ § 197. Conflicting authorities. — There are a few eases in conflict with the foregoing principles. Thus, in Fenelon vs BuUs,^^ it appeared that the village of Waupun was organ- ized out of territory situated in two counties and in two judicial circuits, and for that reason an Act provided for the appointment of a court commissioner residing in the village, who might act in both counties, and exercise authority in each county to the same extent that a court commissioner properly appointed for such county might do. Pursuant to such enactment one Jacobs, a resident of Fond du Lac county, was appointed court commissioner by the circuit judge of I71n re Ah Lee (1880), 6 Sawy. Nelson (1890), 133 111. 565, 27 N. 410, 5 Fed. 899. For further cases, E. 217; Walker vs State (1905), see Brown vs O'Connell (1870), 36 142 Ala. 7, 39 So. 242; Gitsky vs Conn. 432, 4 Am. Rep. 89; Clarke Newton (1898), 17 Ohio Cir. Ct. vs Commonwealth (1858), 29 Pa. 484; Ex p. State (1905), 142 Ala. St. 129; Morris vs People (1840), 87; a. c. sub noni. State vs Judge, 3 Denio (N. Y.) 381; Meagher vs 38 So. 835. See also Toney vs Storey County (1869), 5 Nev. 244; Harris (1887), 85 Ky. 453, 3 S. W. In re Parks (1880), 3 Jlont. 426; 614, 9 Ky. Law R. 36. Curtin vs Barton (1893), 139 N. is (1880), 49 Wis. 342, 5 N. W. Y. 505, 34 N. E. 1093; People vs 784. § 197] OFFICERS UNCONSTITUTIONALLY APPOINTED. 371 that county. Acting under this appointment, Jacobs issued an order requiring the female plaintiff in the case, who was a resident of Dodge county, to appear before him, and answer concerning her property. She having refused to answer cer- tain questions, he committed her to the jail of Dodge county for contempt. An action for false imprisonment was brought against him, and it was held that the proceedings before him were void, and afforded no justification for the imprisonment complained of, since he could not be regarded as an officer de facto. Cole, J., delivering the opinion of the court, said: "We are all perfectly agreed that Jacobs could not properly be said to be a court commissioner de jure, and my brethren think he was not even one de facto. I have had some doubt upon the latter point, . . . but I defer to their judg- ment on the question." In Ex p. Lewis ^® it was held that an ordinance passed by a board of commissioners, three of whom had been appointed by the Governor of Texas under a charter provision violating the principles of the constitution, was a nullity, and that the acts of the officers so appointed, holding, according to the words of the court, by absolutely void commissions, were open to collateral attacks. Henderson, J., delivering the judgment of the Court, said : "But we do not know that it has ever been held, where a pretended officer is acting by virtue of a commission which is absolutely void, his acts can- not be questioned in a collateral proceeding. If such should be the case, the result would follow that if one assumed to act as judge, and undertook to try a person, although his com- mission be absolutely void, a person so arraigned and tried would be driven to some procedure to stay the trial, in order to enable him to resort to a writ of quo warranto to question the authority of the officer trying him." 19(1903), 45 Tex. Crim. R. 1, 73 S. W. 811, 107 Am. St. R. 970. 272 THE DE FACTO DOCTRINE. [§ 198 As is evident, the learned judge was of opinion, that one holding a de jure office by virtue of an appointment made under an unconstitutional Act, was a mere intruder. The inconvenience of denying the application of the de facto doc- trine under such circumstances, is amply demonstrated by the case itself, for it contains a powerful dissenting judgment maintaining the constitutionality of the Act. But if judges cannot agree upon questions of this kind, how can a person unskilled in the law be expected to pass upon the constitu- tionality of an Act before invoking the action of, or sub- mitting to, a public officer elected or appointed under it? In State vs Fritz '" it was held that a statutory provision empowering a judge to appoint a lawyer to preside in his court, being repugnant to the constitution, was void from the beginning of its enactment; and that an appointment made pursuant thereto was a nullity, and therefore the appointee could not be considered an officer de facto. A similar deci- sion is found in Wisconsin.^' In the last two cases, however, it is to be noted that the appointments were for a particular occasion or purpose only, i. e., pro hoc vice. Had the persons been appointed to a va- cant office, with general duties to perform, it is possible that the decisions would have been different. § 198. Unconstitutional act removing an officer and appointing a successor. — It seems that if an unconstitution- al law unlawfully deprives an officer of his office and confers the same on another, who enters upon and discharges the duties thereof, the latter will be regarded as an officer de facto, though the former is only temporarily ousted and re- 20(1875), 27 La. Ann. 689. (1876), 39 Wis. 390, 20 Am. Rep. 21 Van Slyke vs Trempealeau 50. County Farmers' Fire Ins. Co. § 199] OFFICERS UNCONSTITUTIONALLY APPOINTED. 273 mains an oiHcer de jure. A case in point is Carland vs Custer.^^ There an Act of the legislature declared the offices of County Commissioners of Custer County vacant, and appointed persons to fill the same in the place of those who were in possession at the time the Act was passed. The new officers took charge of the offices, and exercised the same to the exclusion of those who were unlawfully dispossessed; and it was held that they were de facto officers, since the Act in question, whether constitutional or not, was sufficient to afford them color of title. ^* § 199. Unconstitutional act appointing to an office which is and remains full in law and in fact. — A different doctrine, however, should prevail where the unconstitutional appointment or election is to fill an office already filled by an officer de jure, and which remains so while the new ap- pointee attempts to perform the duties attached to it. For, as we have seen elsewhere, there cannot be an officer de jure and an officer de facto holding the same office at the same time.^* Accordingly, it was held that the members of a board of excise commissioners who were appointed by an unconstitutional method, did not become de facto officers by assuming to act as such when it appeared that there was a de jure board, which, during the same time, were holding official meetings and claiming to be the only legal board. ^^ l^evertheless, the courts in their settled policy of support- ing the acts of officers appointed or elected under an uncon- stitutional law, will at times strain the same in order to give it a construction capable of affording such officers color of title. And when embarrassed by such a principle as that just 22(1885), 5 Mont. 579, 6 P. 24. 24See ante, sec. 74. 23See also People vs Bangs ssDienstag vs Fagan (1907), 74 (1860), 24 111. 184. N. J. L. 418, 65 A. 1011. De Facto— 18. 274 THE DE FACTO DOCTRINE. [§ 199 adverted to, or that an unconstitutional law can create no office, they will sometimes indulge in the most ingenious and refined distinctions, in order to attain the end desired, with- out infringing such principles. A case apposite is Walcott ■vs Wells ^' where the facts were these: By statute of 1885, the State of Nevada was made one judicial district with hut one judicial office in connection therewith, to wit, the office of district judge, and three district judges, each having equal and co-extensive jurisdiction and powers throughout the State to hold district courts in any county and to exercise all duties pertaining to the office of district judge. While this statute was in operation, the legislature by a statute of 1889, in- creased the number of judges to four, and the Governor, as by the latter Act empowered to do, appointed an additional dis- trict judge, who held the office jointly with the others and exercised the functions thereof for more than a year before his authority was questioned, and this with the acquiescence and recognition of the State, county officers, and people gen- erally. Upon this state of facts it was held that, irrespective of the question of the constitutionality of the statute of 1889, such district judge was an officer de facto. Hawley, C. J., in a well considered judgment, among other things, said : "This act did not create any new court or new officer. It simply provided for an increase of judges. . . . There was no first, second, third, or fourth judge. But there were four district judges, each commissioned to fill the one office of district judge; each apparently at least, authorized to hold court, not in any particular county, but in each and every county in the state- . . . Eespondent did not take the place of either of the three other judges, for there was no separate place for either to fill, except by the assignment of the presiding judge. He was acting by virtue of his com- 28(1890), 21 Nev. 47, 24 P. 367, 37 Am. St. R. 478, 9 L.R.A. 59. § 200] OFFICERS UNCONSTITUTIONALLY APPOINTED. 275 mission, in his own right by the consent of the other judges, and was assigned to the place by the presiding judge, and was the only judge presiding in the district court of the state in and for the county of "White Pine. He acted as a district judge, filled the office, and presided in court, under as much color of authority as either of the temporary judges in the cases referred to. Why should not the same shield of protection to the public be given to his acts ? " The opinion of the learned chief justice was concurred in by Murphy, J., who, not having heard the oral arguments, founded his decision upon an examination of the briefs filed, and the authorities bearing on the subject. Presumably Bigelow, J., also concurred. But the other judge, Belknap, J., dissented, declaring that in all the cases cited by the Chief Justice the question was, "whether an officer appointed or elected under an unconstitutional Act to a vacant office was a de facto officer. This question is not involved in the present case, because there was no vacancy in the legal organization of the court to be filled." The ground upon which is founded this dissenting opin- ion is undoubtedly entitled to much consideration, for if an office required to be filled by three persons can be filled by four, we see no reason why one capable of being held by one person only, cannot be jointly holden by two or more, which is manifestly against law. § 200. Same subject. — The doctrine laid down in Wal- cott vs Wells, however, was upheld by the Supreme Court of Colorado in Butler vs Phillips.^'' There the constitution provided for the election in each county of a judge of the county court, but the Denver City Charter increased the num- ber of judges of the county of Denver to two, and changed 27(1907), 38 Col. 378, 88 P. 480. 276 THE DE FACTO DOCTRINE. [§ 201 the time of tlie election. It was held that though the charter provision was unconstitutional, yet a county judge elected thereunder was an ofEcer de facto. The Court said: "The charter did not create or attempt to create the office of judge of the county court, such office being a constitutional office, created and existing by virtue of the sections of the Consti- tution above referred to. The charter simply attempted to provide for an increase of the number of persons who should exercise the functions and discharge the duties of such of- fice." ^^ For somewhat analogous cases, the reader is referred to the next section. § 201. Unconstitutional act altering constitution of office. — Where an office legally exists, but its constitution or outward form is modified or altered by an unconstitutional law, without the same being thereby destroyed, persons hold- ing the office in its altered form, in pursuance of such law, have been held to be officers de facto. Thus, in Leach vs Peo- ple,^^ it was shown that the "legislature had passed an Act which proved to be in violation of the constitution, whereby the management of the affairs of a county, acting under town- ship organization, was attempted to be taken from the super- visors of the several towns, and vested in a board of supervis- ors consisting of only five members, instead of fifteen as be- fore, to be elected in five districts, and hold their offices for five years. Supposing the Act to be valid, the new board were elected, and for a time acted without question, as the legally constituted tribunal having charge of the county affairs, and they were held to be de facto officers. The court said: "Wherever township organization prevails, there is, in every 28Case followed in Rude vs Sis- 29(iS87), 122 111. 420, 12" N. E. ack (Col., 1908), 96 P. 970. 726. § 201] OFFICERS UNCONSTITUTIONALLY APPOINTED. 277 county, a toard of supervisors for the transaction of the af- fairs of the county. The Act in question merely changed the number of the members of the board from fifteen to five, and the mode of election from towns singly, to tvyo or more to'vPns unitedly, and the term of office- Nothing was added to or taken from the powers or duties of the board. After the passage of the Act there still remained the board of super^ visors of Wayne County." . . . And later on, after quoting the definition of Chief Justice Butler, it added : "It appears to us that the case at bar is one which comes within the category last named. There was such a legal official body known to the law as the board of supervisors of Wayne County, the powers and duties of which official body were in the present case exercised by persons, under color of an election, as members thereof, in pursuance of a public uncon- stitutional law. The real cause of complaint is, that the office legally existing was illegally filled." *" So where by an unconstitutional Act, boards of public im- provements were abolished in certain cities, and replaced by boards of city affairs, and all the powers and duties of the boards of public improvements were vested in the boards of city affairs, and the latter were made in all respects the suc- cessors of the boards of public improvements, it was held that the members of a board of city affairs in the City of Cincin- nati, were officers de facto. The reasons given by the court were that "the Act did not in a legal sense create a new office. The board of city affairs was clothed with the same functions as the board of public improvements. If then, as can hardly be questioned, the identity of an office is to be determined by the functions that belong to it, the board of city affairs is, in law, the same as the board of public improvements: 80See also ante, sec. 38. 278 THE DE FACTO DOCTRIXE. [§ 202 For there is nothing in a name by which the essence of things can be changed." *^ § 202. Unconstitutional act altering mode of filling an officer — Again, notwithstanding the unconstitutionality of a law, altering the mode of filling a legal office, the persons elected or appointed by or pursuant thereto, will nevertheless be deemed officers de facto. Thus, in Wisconsin, where a village was a properly organized municipality under laws passed in 1866, and a subsequent Act (1871), which pur- ported to amend the Act of 1866, provided for filling the vil- lage offices in an unconstitutional manner, and was to that extent invalid, it was held that, assuming that the officers of the village had been elected in the illegal manner prescribed by the Act of 1871, yet they were officers de facto.^^ So in a New York case, the plaintiff and his assignors, who claimed to have been elected aldermen pursuant to chapter 137, Laws of 1870, as amended by chapter 574, Laws of 1871, urged that section 4 of chapter 335, Laws of 1873, under which other persons were elected, acted and were paid salaries, and which Act repealed the Acts of 1870 and 1871, was unconstitutional in that it provided for a system of mi- nority representation by restraining the right of a voter to vote for all the aldermen to be elected ; that consequently no legal office of alderman was created thereby, and there could be no incumbency under that Act. But it was held that, as the elective office of alderman already existed, and was not created by the Act of 1873, the fact that such office was ac- tually assumed by persons other than the plaintiff and his siKirker vs Cincinnati (1891), tee may be de facto officers, though 48 Ohio St. 507, 27 N. E. 898. elected by unqualified voters under 3 2Cole vs Black River Falls the provisions of an unconstitu- (1883), 57 Wis. 110, 14 N. W. 906. tional Act: Kyle vs Abernethy Members of a high school commit- (Col. 1909), 102 P. 746. § 202] OFFICERS UNCONSTITUTIONALLY APPOINTED. 279 assignors rendered such incumbents de facto officers, even though the provisions of law regulating their compensation and mode of election might have been unconstitutional.^* ssDemarest vs New York 405, aflSrming (1893), 74 Hun, 517, (1895), 147 N. Y. 203, 41 N. E. 26 N. Y. S. 585. BOOK IV. OF THE EIGHTS, POWEES, DUTIES, AND LIABIL- ITIES OF DE FACTO OFFICEES, INCLUDING LIABILITY OF THEIE SUEETIES. BOOK IV. OF THE EIGHTS, POWERS, DUTIES, AND LIABIL- ITIES OF DE FACTO OFFICERS, INCLUDING LIABILITY OF THEIR SURETIES. CHAPTER 16. INTRODUCTORY. § 202a. Preliminary remarks and divisions of this book. § 202a. Preliminary remarks and divisions of this book. — In a former portion of this work ^ we referred brief- ly to the general characteristics of that "notional creature erected by the law," called an officer de facto. These will become more apparent and be better understood, when his rights, powers, duties, and liabilities have been discussed at length and clearly set forth, which is the object of this book. It will then be perceived what status or character is to be attributed to him under various circumstances. In this part we shall also deal with the liabilities of an officer de facto's sureties, inasmuch as the same are closely connected with his own. The treatment of these several sub- jects will be in the following order and under the following heads : — 1. Officer de facto not generally entitled to any personal advantage or privilege, but enjoys rights for the benefit of the public. iSee ante sec. 23. 283 28 i THE DE FACTO DOCTRINE. [§ 202a 2. Eight of officer de facto to protection of criminal law in execution of his duties. 3. Kespective rights of officers de jure and officers de facto in regard to salary and emoluments of office. 4. Duties and civil liabilities of officer de facto. 5. Criminal responsibility of officer de facto. 6. De facto officer liable to penalties for usurpation and to damages when sued as a trespasser for acting without au- thority. 7. Liability of sureties on official bond of de facto of- ficer. CHAPTEE 17. OFFICER DE FACTO NOT GENERALLY ENTITLED TO ANY PER- SONAL ADVANTAGE OR PRIVILEGE, BUT ENJOYS RIGHTS FOR THE BENEFIT OF THE PUBLIC. 203. Officer de facto has no per- sonal privileges. 204. Same subject. 205. Right of officer de facto to act on behalf of public. 206. Injunction or prohibition not granted to prevent officers de facto from acting. 207. Officers de facto protected by injunction. § 208. Right to recover property of office. 209. Same subject. 210. Right to recover money per- taining to office. 211. Same subject — Conflicting decisions. 212. Right of officer de facto to defeat quo warranto pro- ceedings by perfecting his title. § 203. Officer de facto has no personal privileges. — The rule that validates the acts of de facto officers obtains only to protect the public and third parties, not to benefit the officer himself. Indeed, the de facto doctrine being the off- spring of public necessity, must be strictly limited to its object. "The incumbent himself has no privileges and is shielded from no responsibility. If he attempts to enforce a right grounded upon and flowing out of his office, his title is put in question and he must show a legal right." ^ The Supreme Court of Illinois uses similar language. "We be- lieve," says the Court, "the rule to be, when one claims rights as an officer by virtue of his office he must show that he is legally entitled to act; that he is an officer de jure ISimrall, J., in Kimball vs Al corn (1871), 45 Miss. 151. 285 286 THE DE FACTO DOCTRINE. [§ 20i as well as de facto. . . . The acts of a de facto officer are valid only so far as the rights of the public, or of third persons having an interest in such acts, are involved. But such officer can claim nothing for himself." ^ This principle is stated by English authority as follows r "The act of an officer de facto, where it is for his own benefit, is void, because he shall not take advantage of his own want of title which he must be cognizant of; but where it is for the benefit of strangers, or the public, who are presumed to be ig-norant of such defect of title, it is good." * § 204. Same subject. — The above rule is aptly illus- trated by the case of Kimball vs Alcorn.^ The facts there briefly were these: The legislature, in joint convention of 2People vs Weber (1877), 86 111. 283. 3R. vs Lisle (1738), Andr. 163, 95 Eng. R. 345, 2 Stra. 1090, 93 Eng. R. 1051. Also E. vs Mayor of Shrewsbury (1735), Cas. Temp. Hard. (Lee) 147, 95 Eng. R. 94; People vs Weber (1878), 89 111. 347; Stott vs Chicago (1903), 205 111. 281, 68 N. E. 736; Andrews vs Portland (1887), 79 Me. 484, 10 A. 458, 10 Am. St. R. 280; Ply- mouth vs Painter (1846), 17 Conn. 585, 44 Am. Dec. 574; Harbaugh vs Winsor (1866), 38 Mo. 327; State vs Dierberger (1886), 90 Mo. 369, 2 S. W. 286, s. c. 1888, 96 Mo. 666, 10 S. W. 168, 9 Am. St. R. 380; Lyndon vs Miller (18G3), 36 Vt. 329: McGregor vs Balch (1842), 14 Vt. 428, 39 Am. Dec. 231; Keyser vs McKissan (1S28), 2 Rawie (Pa.) 138; Riddle vs County ot Bedford (1821), 7 S. cSi R. (Pa.) 386; Fylpaa vs Brown County (1895), 6 S. D. 634, 62 N. W. 962; Patterson vs Mfller (1859), 2 Mete. (Ky.) 493; Oregon vs Pyle (1854), 1 Or. 149; Neale vs Overseers (1836), 5 Watts. (Pa.) 538; Dillon vs Myera (1844), Bright (Pa.), 426; Hoglan vs Carpenter (1868), 4 Bush. (Ky.) 89; Rhodes vs McDonald (1852), 24 Miss. 418; Nichols v» MacLean (1886), 101 N. Y. 526, 5' N. E. 347, 54 Am. R. 730; People- vs Nostrand (1871), 46 N. Y. 375; Olmstead vs Dennis (1879), 77 N. Y. 378; People vs Hopson (1845), 1 Den. (N. Y.) 574; Green vs Burke (1840), 23 Wend. (N. Y.) 490; People vs Anthony (1875), 6 Hun (N. Y.) 142; Bentley vs Phelps (1858), 27 Barb. (N. Y.), 524; Colton vs Beardsley (1860), 38 Barb. (N. Y.) 29; Devlin's Case (1857), 5 Abb. Pr. (N. Y.) 281; Adams vs Tator (1886), 42: Hun (N. Y.) 384. M1871), 45 Miss. 151. § 204] lilGHTS OF OFFICERS DE FACTO. 287 the two houses, elected Fisher and Kimball State printers, who entered upon the office, and for a short time performed its duties. Shortly afterwards they resigned. Thereupon, in May, 1870, the Governor nominated to the Senate the plaintiffs, who were confirmed. They continued to discharge the duties of the office until June, 1871, when they were re- moved by the Governor, and Alcorn and Fisher were ap- pointed in their stead. The plaintiffs, claiming to be the rightful public printers, notwithstanding the act of the Gov- ernor in displacing them, and appointing successors, at- tempted to obtain an injunction to restrain the latter from doing the public printing, and also a mandamus to compel the Secretary of State to deliver to them, the plaintiffs, all matter to be printed. But the court held, that the plaintiffs could not succeed, because their election should have been by a joint convention of the two houses instead of by the Governor by and with the advice and consent of the Senate ; that therefore they were only officers de facto, and as such could not claim any benefit for themselves or take advantage of their want of title of which they should have been cogni- zant. So it has been held that if an officer de facto sues for the recovery of damages for an injury received in the discharge of his assumed duties, such as an assault, it is a good defense that he was not a legal officer, but a wrongdoer, who might be lavyfuUy resisted.'^ Again, though the possession of an officer de facto may sometimes be protected by law on ac- count of the public, yet courts will not further the personal interests of claimants by assisting them in gaining or being restored to possession, unless they show a valid title.* How- BPeople vs Hopson (1845), 1 eMoon vs Mayor (1905), 214 111. Den. (N. Y.) 574; Creighton vs 40, 73 N. E. 408; Kenneally V9 Piper (1800), 14 Ind. 182. Chicago (1906), 220 111. 485, 77 N. 288 THE DE FACTO DOCTRINE. [§ 205 ever, as we shall hereafter see, a de facto officer may some- times derive benefit from his unlawful holding by being al- lowed, under certain circumstances, the fees or salary at- tached to the office. This subject is treated at length in a sub- sequent chapter. '' § 205. Right of officer de facto to act on behalf of public. — But however well founded is the principle that a de facto officer cannot derive any personal advantage from his intrusion, the rule is very different when he asserts rights or claims benefits as a public officer, not for himseK, but for the public and third parties. Despite his defective title, he is as much the agent or trustee of the public, while acting on its behalf, as if he were an officer de jure, and hence the law invests him with all the rights and powers which it deems essential for the protection of public interests. The policy of the law is that the functions of an office shall not cease or be suspended because of a doubt about the title of the incumbent, and in furtherance of such policy it acknowl- edges the apparent right of the officer, until he is ousted there- from by proper proceedings. Until then, he is entitled to hold the office and to act on behalf of the public as if he were an officer de jure.* Thus, churchwardens de facto may con- vene a vestry for laying a church-rate, and a rate laid at such a vestry is valid.® They may also complain of non-pay- E. 155; Justices vs Clark (1824), (1841), 2 W. & S. (Pa.) 37; Peo- 1 T. B. Mon. (Ky.) 82. pie vs Lieb (1877), 85 III. 484; ^See sec. 237. State vs Fahey (1908, Md.), 70 A. sConover's Case (1857), 5 Abb. 218. As to the validity of acts Pr. (N. Y.) 73; Belfast vs Mor- performed by officers de facto, see rill (1876), 65 Me. 580; Hull vs post, sec. 301, et seq. Superior Ct. (1883), 63 Cal. 174; SR. vs St. Clement's (1840), 12 Satterlee vs San Francisco (1863), Ad. & El. 177. 23 Cal. 315; Kingsbury vs Ledyard § 20o] RIGHTS OF OFFICERS DE FACTO. 289 ment of a rate/" so as to give jurisdiction to justices of the peace. ^^ So in. a proceeding by a road supervisor to recover a penalty against a person for obstructing a road, the defendant cannot defeat the action by showing that the supervisor is only an officer de facto. -^^ By the Court: "The suit having for its object the recovery of a penalty imposed by a public statute, plainly concerned the public, who, alone, were interested. He must, therefore, so far as he acted in bringing this suit, be held a supervisor de facto. It follows that a recovery, in this instance, cannot be legally resisted on the ground that his title to the office is defective." So the power of a de facto Mayor of a city (who acts under color of a legal appoint- ment), to represent the city in a legal proceeding, cannot be called in question collaterally.'* So it was held that to enable the commissioner of Public Charities of the City of New York to maintain an action upon an undertaking in the na- ture of a bail, it is sufficient that he is proven to be a de facto officer; it is not necessary that he is shown to hold the office de jure.'* So a de facto board of education may order the payment of school accounts, and if the township collector refuses to honor the warrants of such board, he will be compelled to do so by mandamus.'^ So upon the principle that pending liti- gation to determine the title to an office, the officer de facto has a right to discharge the duties thereof,'® an auditor was lOUnder stat. 53 G. 3 c. 127, s. 7. Misc. (N. Y.) 350, 98 N. Y. S. 11 Idem. Also Turner vs Baynes 829. See also Jones vs Gibson (1795), 2 H. Bl. 559, 3 R. R. 506. (1818), 1 N. H. 266. izCreighton vs Piper (1860), 14 isKimball vs Hendee (1894), 57 Ind. 182. N. J. L. 307, 30 A. 894. isMonroe vs Hoffman (1877), 29 isHenderson vs Glynn (1892), 2 I.a. Ann. 651. Col. App. 303, 30 P. 265. i4Tully vs Lewitz (1906), 50 De Faeto — 19. 290 THE DE FACTO DOCTRINE. [§ 206 compelled to recognize the official character of a school trustee de facto, whose title was being litigated. "^^ § 206. Injunction or prohibition not granted to pre- vent officers de facto from acting. — Upon the above prin- ciple, courts will not interfere by injunction or prohibition to restrain officers de facto from exercising the duties and functions of their office, while the title thereto is in dispute. "It may very well be, and indeed there is no doubt, that a man, being a public officer, may be restrained m a proper case from doing a particular act of an official character, but it by no means follows that a public office may be restrained from dispensing its benefits to the public. That is a very diilerent matter. The practical utility or benefit to the public of an office cannot be questioned before a court. The legislature, by creating it, have settled that question, and from that de- cision courts of justice entertain no appeal. The office itself is not only an emanation from sovereignty, but it represents, and in a measure embraces the principle of sovereignty itself. Courts, therefore, will not undertake to restrain the action or operation of it, which they would in effect do if they should restrain generally the incumbent, he, of necessity, being for the time, the only person through whom the public can have the benefit of the functions of the office." ^^ I'Leach vs Cassidy (1864), 23 19 How. Pr. 245, 1.3 Abb. Pr. 332; Ind. 449. Breslin vs Quinn (1888), 2 N. Y. isPeabody, J., in People vs Dra per (1857), 24 Barb. (N. Y.) 265, 14 How. Pr. 233, 4 Abb. Pr. 333 Also People vs Farley (1884), 1 How. Pr. (N. S.) (N. Y.) 71 Tappan vs Gray (1843); 7 Hil (N. Y.) 259, affirming s. c. (1842) 9 Paige, 507, reversing (1841), = S. 577 ; Patterson vs Hubbs (1871), 65 N. C. 119; Campbell vs Wolfenden (1876), 74 N. C. 103; McAIlen vs Rhodes (1886), 65 Tex. 348; Voisin vs Leche (1871), 23 La. Ann. 25; Terry vs Stauffer (1865), 17 La. Ann. 300: Harding vs Eichinger (1898), 57 c. 3 Edw. Ch. 450; Hartt vs Har- Ohio St. 371, 49 N. E. 306; Landes vey (1860), 32 Barb. (N. Y.) 55, vs Walls (1903), 160 Ind. 216, 01 § 207] RIGHTS OF OFFICERS DE FACTO. 291 Though the above language was used upon an application for an injunction, the same principle evidently applies where prohibition is soiight. In fact, in State vs Allen/^ the court observed that it had met with no case, ancient or modern, where the Court of King's Bench in England had issued a writ of prohibition, pending a dispute between competitors for a public office, to prohibit those, who were de facto in possession of the office, from exercising the functions thereof. But apart from the public necessity of having always some one in possession of the office to exercise the same, there is a further reason why courts of law or equity will not inter- fere by prohibition or injunction with officers de facto. It is that they could not grant the relief sought without determin- ing the question of title to the office, and this, as we amply explain elsewhere, can be effected only by proceedings in the nature of quo warranto. For this express reason, courts have sometimes refused to restrain by injunction the payment of the official salary to the de facto inciunbent, pending the contest of his title. ^^ § 207. Officers de facto protected by injunction. — On the other hand, courts of equity will sometimes protect by injunction officers de facto, and prevent them from being dis- turbed or molested in the exercise of their official duties, so long as their title is not adversely determined. Thus, in N.E. 679; State vs Durkee (1873), ruling (1874), 50 Ala. 522. See 12 Kan. 308; Cochran vs McCleary also sec. 446. (1867), 22 Iowa, 75; State V9 19 (1841), 2 Ired. L. (N. C.) 183. Alexander (1899), 107 Iowa, 177, 20Lawrence vs Leidigh (1897), 77 N. W. 841; Hagner vs Heyber- 58 Kan. 676, 50 P. 889; also cases ger (1844), 7 W. & S. (Pa.) 104, quoted under sec. 446. Compare 42 Am. Dec. 220; State vs Herreid also Keating vs Fitch (1895), 14 (1897), 10 S. D. 16, 71 S. W. 319; Misc. (N. Y.) 128, 35 N. Y. S. 641. Chaplin vs Woodstock School Bd. But see contra, George vs Tucker (1889), 16 0. R. 728; Beebe vs (1875), 27 La. Ann. 67. See also Robinson (1875), 52 Ala. 66, over- post, sec. 228. 292 THE DE FACTO DOCTRINE. [§ 207 Brady vs Sweetland,^^ the office of school-district treasurer was in dispute between two persons, one of whom was in pos- session and the other not, but both claimed to be legally en- titled to the office. The claimant not in possession com- menced an action of quo warranto against the other to obtain possession of the office. Nevertheless the clerk of the school- district, and the disputant in office, who was really treasurer de facto, if not treasurer de jure, hired a school teacher. The director and the other claimant hired another teacher. These three persons last mentioned took possession of the district school-house and prevented the other three from occupying, using or controlling the same. Under those circumstances, it was held that an injunction would lie in favor of the clerk and the treasurer de facto to restrain the director and the other two persons acting with him, from further interfering during the pendency of the action of quo warranto with the right of said clerk and treasurer de facto (they being a ma- jority of the school-district board, and acting for the board), to take charge of and use and control said school house. So in another case, where a de facto incumbent, apprehend- ing disturbance in the enjoyment of his office, applied to the court for an injunction to prevent a claimant from interfere ing with his possession, it was held that he was rightly en- titled to the remedy asked. ^^ The court observed that, while proceedings by injunction cannot be used as a means of de- termining disputed title, yet they may properly be used to protect the possession of officers de facto against the inter- ference of claimants whose title is disputed, until the latter shall have established their title by the proper judicial pro- ceeding provided by law.^^ Undoubtedly the same protec- = 1(1874), 13 Kan. 41. 23Also Goldman vs Gillespie 2 2Guilotte vs Poincy (1880), 41 (1891), 43 La. Ann. 83, 8 So. 880: La. Ann. 333, 6 So. 507, 5 L.R.A. Blain vs Chippewa (1906), 145 403. Mich. 59, 108 N. \T. 440; Elliott § 208] RIGHTS OF OFFICERS DE FACTO. 293 tion would be granted to a de facto officer, under like circum- stances, by the English and Canadian courts.^* § 208. Right to recover property of office. — The right to exercise an office, involving, as it must necessarily, the right to the means requisite to such exercise, it is manifest that an officer de facto is entitled to recover the insignia, books, records and all other property pertaining to the office, and which are necessary for a proper discharge of the duties thereof.^® Thus, where a person, who had been appointed municipal treasurer though ineligible, took possession of the office and entered upon its duties, it was held that notwith- standing the unlawfulness of his election, he, as officer de facto, could compel by mandamus his predecessor to deliver to him the books and papers of the office.^® "If by any dis- regard of the law," said the Court, "accidental or otherwise, a person has been placed in office, who cannot by law hold it, things must take their due course — the illegality must be as- certained and pronounced upon in a proper proceeding in- stituted to try the question ; and in the meantime, the person whom the District Council has actually elected treasurer, and who is treasurer for other purposes, must be treasurer also vs Burke (1902), 113 Ky. 479, 68 R. 117; Mearns vs Petrolia (1880), S. W. 445, 24 Ky. Law R. 292; 28 Gr. (Ont.) 98; Smith vs Peters- Scott vs Sheehan (1905), 145 Cal. ville (1881), 28 Gr. (Ont.) 599. 691, 79 P. 353; Reemilin vs Mosby Mandamus sometimes also lies to (1890), 47 Ohio St. 570, 26 N. E. protect de facto officers from in- 717; State vs Superior Ct. (18971, tei-ference: Grondin vs Logan 17 Wash. 12, 48 P. 741, 61 Am. St. (1891), 88 Mich. 247, 50 N. W. 130. R. 893; Rhodes vs Driver (1901), 2 5HulI vs Superior Court 69 Ark. 606, 65 S. W. 106; Senaca (1883), 63 Cal. 174; Desmond vs Nation of Indians vs Jimeson McCarthy (1864), 17 Iowa, 525; (1909), 114 N. Y. S. 401. See also Ward vs Cook (1898), 78 111. App. sec. 446. 111. 24Aslatt vs Corp. of Southamp- 26R. vs Smith (1848), 4 U. C. ton (1880), L. R. 16 Ch. D. 143, Q. B. 322. 43 L. T. 464, 45 J. P. Ill, 29 W. 294 EIGHTS OF OFFICERS DE FACTO. [§ 209 SO far as the custody of the books and documents and moneys is concerned, which are required to be in the office of the treasurer." So where one, claiming to be the lawful county treasurer, wrongfully entered the office of his opponent, who was de facto in possession of the treasurership and carried off the tax duplicate, leaving a receipt therefor, it was held that the de facto treasurer had a right to compel the other claimant to return the tax duplicate to him, and that mandamus was the proper remedy. ^^ Likewise, on analogous principle, it was held that where a county clerk delivers the assessor's book and blanks of a town to one who is at least an assessor de facto, he has dis- charged his duty, and cannot be compelled to deliver the same to another person claiming the same office. In proceed- ings by mandamus to compel him to make such delivery, the only question is as to the fact of the appointment of the per- son who has received the book, and not as to the rightfulness of it. 28 § 209. Same subject. — But an officer de facto cannot re- tain an office and the records thereof by virtue of his pos- session only, as against one who has a superior title to the same, though the contrary seemingly was held in a New York case. 2® Thus, in State vs Johnson,^'' which was a peti- tion for a mandamus to compel the surrender of the office, and books and papers thereof, to the claimant, the Court said: 27Runion vs Latimer (1874), 6 (1884), 42 Barb. (N. Y.) 203; Rich. (S. C.) 126. Devlin's Case (1857), 5 Abb. Pr. zsPeople vs Lieb (1877), 85 111. (N. Y.) 281; People vs Peabody 484. (1858), 6 Abb. Pr. (N. Y.) 228. znConovcr's Case (18.)7), 5 Abb. 30(1895), 35 Fla. 2. 16 So. 786, Pr. (X. Y.) 73; but see criticism 17 So. 650, 31 L.R.A. 357. of tbis decision in People vs Allen § 210J RIGHTS OF OFFICEIIS DE FACTO. 295 "We see no foundation in reason for the claim of the defend- ant, that the writ does not lie against him because he is an officer de facto. We do not think he can take advantage of a tenure of office which is prima facie wrongful, and stand upon the bare fact of such tenure when he is called upon to surrender the property of the office to the officer de jure." Hence, whether the proceedings be by mandamus or by sum- mary remedy under statute, the general rule is that the applicant is entitled to succeed as against the officer de facto, whenever he can show a clear prima facie title to the office, free from all reasonablo doubt. "A prima facie title to a public office," says a learned judge, "confers a right to exer- cise its functions, and a right to the possession of the insig- nia and property thereof. On this prima facie title the court will compel a delivery of the insignia and property, that the functions and duties of the office may be exer- cised." " § 210. Right to recover money pertaining to office. — The courts are divided in opinion as to whether an officer de siPer Brickell, C. J., Thompson P. 951; Cameron vs Parker (1894), vs Holt (1875), 52 Ala. 491. Also 2 Okla. 277, 38 P. 14; Eldodt vs In re Whiting (1848), 2 Barb. (N. K Mexico (1900), 10 N. Mex. 141, y.) 513, 1 Edm. 498; People vs 61 P. 105; Ex p. Whipper (1890), Allen (1884), 42 Barb. (N. Y.) 32 S. C. 5, 10 S. E. 579; Verner 203; People vs Stevens (1843). 5 vs Seibels (1901), 60 S. C. 572., Hill (N. Y.) 616; In re Baker 39 S. E. 274; Curran vs Norris (1855), 11 How. Pr. (N. Y.) 418; (1885), 58 Mich. 512, 25 N. W. Matter of Bradley (1894), 141 N. 500; People vs Scannell (1857), 7 Y. 527, 36 N. E. 598, 57 St. R. Cal. 432; Manor vs State (1898), 816, affirming 49 St. K. 530. Mat- 149 Ind. 310, 49 N. E. 160; State ter of Brenner (1902), 170 N. Y. vs Saxon (1889), 25 Fla. 792, 6 185, 63 N. E. 133; Crowell vs So. 858; State vs Johnson (1892), Lambert (1865), 10 Minn. 369; 30 Fla. 433, 10 So. 686; State vs Atherton vs Sherwood (1870), 15 Johnson (1895), 35 Fla. 2, 16 So. Miss. 221, 2 Am. R. 116; People 786, 17 So. 650, 31 L.R.A. 357. vs Head (1861), 25 111. 325; Ewing See also sec. 431. vs Ttirner (1894), 2 Okla. 94, 35 296 THE DE FACTO DOCTRINE. [§210 facto can recover moneys pertaining to his office. There would seem to be, however, no valid reason why an officer in the possession and exercise of an office, and holding under color of right, should not be empowered to demand and en- force payment of any moneys which should be deposited in his hands as trustee for the public. We submit that it might even become, under special circumstances, his clear duty to collect such moneys, since without them he might not be in a position to perform the functions of his office satisfactorily, and public interests might suffer detriment. The only occa- sion when it might be proper to refuse payment to an officer de facto is, where he is such because of failure to give bond as payment to him might then entail loss to the public. In no other case, we apprehend, can a satisfactory reason be assigned to preclude him from recovering such moneys, inasmuch as in any proceedings instituted by him for the purpose, he is, we submit, not acting for his own benefit, but solely in the interest of the public. Of this opinion, substantially at least, are several authori- ties. Thus, in Turner vs Baynes^^ it was held that church- wardens de facto may maintain an action against a former churchwarden, for money received by him for the use of the parish, though the validity of the election of the plaintiffs to the office be doubtful. So in R. vs Smith ^^ mandamus was granted at the instance of a treasurer de facto to compel his predecessor to deliver to him the books and monies apper- taining to the office. Again in another case, where two boards of school commissioners were in dispute as to which was the de jure board, the court held that it ought to aid the old board in obtaining the money which had been set apart for the maintenance of the public schools, so long as it was in 32(1795), 2 H. Bl. 559, 3 K. R. S3 (1848), 4 U. 0. Q. B. 322. 506. § 211] RIGHTS OF OFFICERS DE FACTO. 297 actual and visible possession of the office, in order that there should not be any stoppage of the public business.^* The Court observed that "it could never be tolerated that the course of public education should be arrested, while a con- test was waged to determine what individuals should adminis- ter the system. It is on considerations of this kind that the law recognizes a de facto officer, and not from any regard to his personal interests." The same doctrine was maintained in Mississippi, where it was held that a de facto president of a school board could sue upon a note payable to him as such officer.^ ^ The deci- sion was based upon the principle that "the acts of an officer de facto, done in regard to the public and to strangers" are valid. Likewise in Maine, it was held that a collector of taxes was legally bound to pay over to the treasurer de facto all taxes paid to him by the taxpayers.^* § 211. Same subject — Conflicting decisions. — But in New York a contrary doctrine has been upheld, upon the ground that when a person sets up a title to property, by virtue of an office and comes into court to recover it, he must show an unquestionable right. Thus, it was held that road commissioners were not entitled to mandamus to enforce pay- ment to them of the moneys collected by a supervisor for the construction of a road, where one of their number was only an officer de facto by reason of his having accepted an incompatible office, and that such defective title was a justifi- cation to the supervisor in refusing payment-*^ The same 84County Commissioners vs Moiles vs Watson (1886), 60 Mich. School Comm. (1893), 77 Md. 283, 415, 27 N. W. 553; Leach vs Cas- 26 A. 115. sidy (1804), 23 Ind. 449; Manor ssRhodes vs McDonald (1852), vs State (1898), 149 Ind. 310, 49 24 Miss. 418. N. E. 160. ssTrescott vs Moan (1862), 50 3 7 People vs Nostrand (1871), Me. 347. To same effect, see 46 N. Y. 375. 298 THE DE FACTO DOCTRINE. [§ 212 principle was laid down in a later case in the same State.^* Like views were entertained by the Supreme Court of Illi- nois in People vs Weber,^^ where an application for a writ of mandamus to compel a county collector to pay over to a treasurer de facto taxes collected by him, was refused owing to the treasurer's want of title. § 212. Right of officer de facto to defeat quo warranto proceedings by perfecting his title. — Before leaving this chapter, we might call attention to a subject which, though more or less foreign to the topics herein treated, yet deserves special mention. It has reference to a de facto officer's sup- posed right to perfect his title after the commencement of quo warranto proceedings in order to defeat the same. This privilege was accorded a de facto officer by the Supreme Court of Pennsylvania in DeTurh vs CommonweaUh/" thovigh this is apparently contrary to the general rule, that quo warranto proceedings may be prosecuted to final judg- ment, notwithstanding that the usurpation has not continued until the trial.** The facts of the case were as follows: One DeTurk was elected county commissioner, while he held the office of post- master, the two offices being incompatible under the consti- tution of Pennsylvania. A writ of quo warranto was granted and served upon him, the object being to oust him from the office of county commissioner. By his answer he admitted his election as commissioner, and his holding the office of postmaster at the time he was elected, but averred as a de- 3 sHorton vs Parsons (1885), 37 Bl. 93; R. vs. Blizzard (186G), Hun (N. Y.) 42, affirming 1 How. L. R. 2 Q. B. 55, 7 B. & S. 922, Pr. (N. S.) 124. 36 L. J. Q. B. 18, 15 L. T. 242, 39(1877), 86 111. 283. 15 W. R. 105; People vs Loomis 40(1889), 129 Pa. St. 151, 18 A. (1832), 8 Wend. (N. Y.) 396, 24 757. Am. Dec. 33; Hammer vs State cumstances.^^ In some States, also, there are statutory provisions for- bidding the payment of salary to public officers while their title is being litigated.*" But, notwithstanding such legislation, it has been held that a de facto officer would be entitled to receive the necessary expenses incident to the discharge of the duties of the office, that is, the expenses incurred in earning the fees and emolu- ments received, as those would belong to him even as against the officer de jure.*^ § 229. De jure officer may recover salary from de facto officer. — Again although, as we have seen, the great preponderance of authority holds that a de jure officer can- not recover from a public body salary bona fide paid to a de facto officer, this does not impair his right to recover the same from the person who unlawfully received it. As be- tween the officer de jure and the officer de facto, the latter is a mere intruder who is responsible to the former for the damages resulting to him from the intrusion.*^ The Su- 58 Kan. 676, 50 P. 889, and cases 42Nichols vs McLean (1886), 101 cited under sees. 225, 446. See N. Y. 526, 5 N. E. 347, 54 Am. Rep. also and compare Keating vs Fitch 730; Terhune vs New York (1882), (1895), 14 Misc. (N. Y.) 128, 35 88 N". Y. 247; Dolan vs New York N. Y. S. 641; Henderson vs Glynn (1877), 68 N. Y. 274, 23 Am. Rep. (1892), 2 Col. App. 303, 30 P. 265. 168; Piatt vs Stout (1862), 14 Abb. 39New York vs Flagg (1858), 6 Pr. (N. Y.) 178; United States Abb. Pr. (N. Y.) 296. vs Addison (1867), 6 Wall. (U. 40Idaho Rev. Stat. (1887), § 380; S.) 291, 18 L. ed. 919; Mayfield vs Cal. Polit. Code (1887) § 936, but Moore (1870), 53 111. 428, 5 Am. see new amendment of 1891. Rep. 52; Hunter vs Chandler 4iIIavird vs Boise County (1870), 45 Mo. 452; State vs Clark Coni'rs (1890), 2 Idaho, 687, s. c. sub nom. In re Havird, 24 P. 542. § 229] RIGHTS AS TO OFFICIAL SALARY. 321 preme Court of Illinois, after showing that this doctrine owes its origin to the common law, observes: "On the basis of a sound public policy the principle commends itself, for the reason that one would be less liable to usurp or wrong- fully retain a public office, and defeat the will of the people or the appointing power, if no benefit, but a loss, would result from such wrongful retention or .usurpation of an office. The question has frequently been before the courts of the different States and of the United States, and the gTeat weight of authority sustains the doctrine of the common law, as shown by the opinions of the judges in different States, and which, in most of the States, are based on the common law, without reference to any statute." *^ And it is gen- erally held that failure to qualify on the part of the rightful claimant, will not defeat his right to recover against the intruder.** Eut in Stuhr vs Curran *^ it was held by a divided court, that a de jure officer could not recover from a de facto officer who held in good faith. Beasley, C J., however, in a (1873), 52 Mo. 508; Stoddard vs 2 Tex. Civ. App. 650, 9 Am. & Williams (1884), 65 Cal. 472, 4 P. Eng. Corp. Cas. 91; Sandoval vs 452; Chubbuck vs Wilson (1907), Albright (N. Mex., 1908), 93 P. 151 Cal. 162, 90 P. 524; Coughlin 717. vs McElroy (1902), 74 Conn. 397, 4 3Kreit,z vs Behrensmeyor 50 A. 1025, 92 Am. St. R. 224; (1894), 149 HI. 496, 36 N. E. 983, Fenn vs Beeler (1902), 64 Kan. 24 L.R.A. 59, affirming 52 lU. App. ■67, 67 P. 461; Douglass vs State 291. (1869), 31 Ind. 429; Glascock vs 44Booker vs Donohoe (1897), 95 Lyons (1863), 20 Ind. 1, 83 Am. Va. 359, 28 8. E. 584; Pliiladelphia Dec. 299; Sigur vs Crenshaw vs Rink (1880), 1 Sad. (Pa.) 390, (1855), 10 La. Ann. 297; People 2 A. 505; Kreitz vs Behrensmeyer vs Miller (1872), 24 Mich. 458, 9 (1894), 149 111. 496, 36 N. E. 983, Am. Rep. 131; Wayne County vs 24 L.R.A. 59; but see contra, Hub- Benoit (1870), 20 Mich. 176, 4 Am. bard vs Crawford (1878), 19 Kan. Rep. 382: Bier vs Gorrell (1887), 570. 30 W. Va. 95, 3 S. E. 30, 8 Am. St. 45(1882), 44 N. J. L. 181, 43 H. 17; Chowning vs Boger (1885), Am. Rep. 353. See also sec. 237. De Facto — 21. 322 THE DE FACTO DOCTRINE. [§ 230 forcible dissenting judgment said : "With regard to the Amer- ican cases, I can say, after an extended research, that not one of them that has come to my attention, denies the right of the de jure officer to recover, in some form, for an intrusion into his office." § 230. Same subject — English rule. — The English rule is the same as the American rule with respect to the de jure officer's right to recover from the officer de facto. In fact, as already intimated, the American authorities upon this subject are generally founded upon the English commbn law, and the English decisions. In Selwyn *^ it is said, "that where a person has usurped an office belonging to an- other, and takes the known and established fees of office, an action for money had and received will lie at the suit of the party really entitled to the office, against the intruder for the recovery of such fees." Likewise in Arris vs Shikely,'^^ a head-note reads : "If a man receive the profits of an office on pretence of title, the person who has a right to the profits may recover them by an action of indebitatus assumpsit, as for monies had and received to his use." An action in tort for damages will also lie at the siiit of a de jure officer against an intruder for unlawful intrusion of the office.** But where an office has no fixed salary or regular fees attached to it, and the profits derived therefrom consist merely in gratuities given voluntarily by the public to the incumbent, no right of action exists to recover the same.^" *n Selwyn, N. P. 81. 6 Term. (D. & E.) 681; Crosbie vs 48 (1678), 2 Mod. 260. Also Spry Hurley (1833), 1 Al. & Nap. (Ire- vs Emperor (1840), 6 M. & W. land) 431. 639; Green vs Hewett (1703), 1 4 9Lawlor vs Alton (1873), 8 Ir. Peake, N, P. 182; Howard vs Wood R. C. L. 160; Arris vs Stukely (1679), 2 Lev. 245; Craig vs Nor- (1678), 2 Mod. 260. folk (167.5), 1 Mod. 1-22. 86 Eng. R. BOBoyter vs Dodsworth (1796), 780; Boyter vs Dodsworth (1798), § 231] RIGHTS AS TO OFFICIAL SALARY. 323 § 231. Amount recoverable from the de facto officer. — Where there is a fixed salary annexed to the office, the amount recoverable by the officer de jure from the intruder is the whole official salary received by such intruder during his incumbency, without any deduction for the serv- ices performed by him, or for what the de jure officer may have earned himself while ousted.®^ "A person," says a learned judge, "who usurps a public office commits a punish- able misdemeanor, where the public and not the person ex- cluded is the party directly injured. The perquisites are an- nexed to the office as such on grounds of public policy, and do not change their legal character by the amount of labor involved in the official duties. There are sinecure or honorary offices, there are offices which may be fulfilled entirely or chiefly by deputy, and there are offices where everything must be done in person. The assize lay in the one case as well as in the other, and lay for the deprivation of office and official perquisites. It sounded in tort and not in assumpsit, and recognized no relation between the party wronged and the wrong-doer. The right to a deduction can only spring from a duty dependent on a legal relation. The mere wrong-doer must be regarded as acting throughout in defiance of his ad- versary, and as a stranger to him in all respects." ^^ But where the compensation attached to the office depends upon fees for specific services rendered, the de jure officer is entitled to recover from the de facto incumbent only the profits of the office ; that is, the fees and perquisites, less the necessary expenses in earning them.^^ 6 Term. (D. & E.) 681; Spry vs Beeler (1902), 64 Kan. 67, 67 P. Emperor (1840), 6 M. & W. 639, 461; Crosbie vs Hurley (1833), 1 651. Al. & Nap. (Ir.) 431. BiPeople vs Miller (1872), 24 ezper Campbell, J. in People vs Mich. 458, 9 Am. Rep. 131; United Miller (1872), 24 Mich. 458, 9 Am. States vs Addison (1867), 6 Wall. R. 131. (U. S.) 291, 18 L. ed. 919; Fenn vs BSRier vs Gorrell (1887), 30 W. S24: THE DE FACTO DOCTRINE. [§ 232 But under no other circumstances will an intruder be per- mitted to retain a portion of the emoluments. He cannot reap a benefit from his wrong.^* § 232. Same subject — Assumpsit or tort. — It seems that the measure of damages is generally the same, whether the action against the intruder is founded on assumpsit or tort. In the latter case, the court or jury in assessing the damages will be guided by the amount of actual loss that resulted to the plaintiff by reason of the intrusion, which will be the entire salary where a fixed salary is affixed to the office, but only the net profits of the ofiice where the emolu- ments consist of fees.^^ Sometimes, however, a person has no choice between the two kinds of action, but his only remedy is in tort. Espe- cially is this so, when it is sought to recover from the intruder salary or fees not actually received by him. Thus, in Law- lor vs Alton,^^ the defendant, who had been illegally elected to the office of surgeon of a County Infirmary, entered into the office, and, though cautioned, kept out the plaintiff, who Va. 95, 3 S. E. 30, 8 Am. St. R. 5 4Wenner vs Smith (1886), 4 17; Chowning vs Roger (1885), 2 Utah, 238, 9 P. 293; Glascock va Tex. Civ. App. 650, 9 Am. & Eng. Lyons (1863), 20 Ind. 1, 83 Am, Corp. Cas. 91; Havird vs Dec. 299; Douglass va State (1869). Com'rs of Boise County (1890), 31 Ind. 429; Crosble vs Hurley 2 Idaho, 687, s. i;. sub. nom. In re (1833), 1 Al. & Nap. (Ir.) 431. Havird, 24 P. 542; Atchison vs ssDolan vs New York (1877), Lucas (1885), 83 Ky. 451; Ivreitz 68 N. Y. 274, 23 Am. Rep. 168; vs Behrensmeyer (1894), 149 111. People vs Nolan (1886) , 101 N. Y. 496, 36 N. E. 983; affirming 52 539, 5 N. E. 446, affirming (1884) 111. App. 291; Mayfield vs Moore 32 Hur, 612; Nichols vs McLean (1870), 53 111. 428, 5 Am. Rep. 52; (1886), 101 N. Y. 526, 5 N. E. 347, Sandoval vs Albright (N. Mex. 54 Am. Rep. 730; Wayne County 1908), 93 P. 717; Arris vs Stukely vs Benoit (1870), 20 Mich. 176, 4 (1678), 2 Mod. 260. But see con- Am. Rep. 382; Rule vs Tait(1888), tra, Douglass vs State (1869), 31 38 Kan. 765, 18 P. 160. Ind. 429. 66(1873), 8 Ir. R. C. L. 160. § 232] RIGHTS AS TO OFFICIAL SALARY. 325 had been lawfully elected. At the Spring Assizes, 1872, the Grand Jury of the county made a presentment for the sum of £47 to be paid to the defendant as salary for his serv- ices; the fiating of which the plaintiff, as a rate-payer, op- posed, and, at the suggestion of the judge, the defendant signed an undertaking that, in case the presentment should then be fiated, he would abide by such order as to the dis- possession or refunding of the £47 as should be made upon or after the hearing of quo warranto proceedings then pend- ing against him. Later on, the defendant being ousted by such proceedings, the plaintiff took possession of the office, and at the Summer Assizes the Grand Jury presented a fur- ther sum of £47 to be paid to him for his half-yearly salary as surgeon. The defendant opposed the fiating of that pre- sentment, and claimed so much of the sum of £47 as repre- sented his salary up to the 16th of May, 1872, the day upon which the quo warranto had been granted; but the judge rejected the presentment on the ground that the plaintiff had not discharged the duties of the office during that period, which, according to the statute, precluded him from recover- ing salary from the county.^'^ Subsequently, the plaintiff sued the defendant, the plaint containing two counts, one in tort, claiming damages for his exclusion from office ; and the other for money had and received by the defendant to the plaintiff's use; and the parties agreed that a case should be stated for the decision of the court, the questions submitted being: — First, whether the plaintiff was entitled to recover from the defendant the sum of £47 which the plaintiff would have obtained at the Spring Assizes, 1872, if he had been in occupation of the office, but which the defendant had received under the circumstances above mentioned; and, secondly, 676 & 7 Wm. IV, c. 116, s. 86. 326 THE DE FACTO DOCTRINE. £§ 232 whether the plaintiff was entitled to the further half-year's salary of £47, which he would have obtained at the Summer Assizes, 1872, if he had previously discharged the duties of surgeon, or to any and what other sum under the circum- stances above stated. On behalf of the defendant, it was contended that the plaia- tiff. could not succeed on the count for money had and received, because, as the money which the defendant had re- ceived could not have been obtained by the plaintiff by reason of the express statutory provision, it could not be held that it was money received to his use. And as to the count in tort, the argument was that the defendant had not prevented the plaintiff from exercising his office, but that this had been done by the governors of the Infirmary. It was held that the plaintiff could not recover upon the count for money had and received, but was entitled to succeed upon the count in tort. Whiteside, C. J., said: "When the first presentment was made at the Spring Assizes, 1872, the defendant obtained the money. The plaintiff was quite willing to discharge the duties, but was prevented by the defendant, and it seems a very reasonable thing that he should recover the sum which was then given to a person who was not entitled to it. At the Summer Assizes of the same year the plaintiff claimed the presentment, but the defendant interposed ; the result was that neither got the money. I can make no distinction between the two sums of £47- The question is, what injury has the plaintiff sustained from the act of the defendant? The person who was the active agent in the whole matter, and for whose benefit this illegal election was held, and who insisted upon his supposed right, and who held the office for ten months, must bear the responsibility. The question is not what has the defendant received^ hut what has the plaintiff lost? If he had obtained what he was legally ^ ^ZB] RIGHTS AS TO OFFICIAL SALARY. 327 entitled to he would have received the amount of both pre- sentments. Whether the defendant has received these sums is of no consequence; the plaintiff has lost them, and should now recover them. Upon these grounds v^e think judgment should be given for the plaintiff." It must not, however, be deduced from the above case that a person unlawfully excluded from an office, may always recover unpaid salary from the intruder by suing him in tort. There the statute prevented the de jure officer from recovering from the county salary earned by his unlawful predecessor, but the reverse is generally the rule ; and, there- fore, the intruder is usually liable only for salary actually received by him. Thus, in an Arkansas case, decided under a statute which provided that "if the contestant shall succeed in his action (in the nature of quo warranto), he shall not only have a judgment of ouster, but for damages, not exceed- ing the salary and fees of the office during the time he was excluded therefrom, with costs of suit," it was held to be error to render judgment against the incumbent of an office for the salary, where there was no evidence that he had received it.^^ § 233. Right to salary pending determination of title to office. — The general rule is that the right to recover the official salary is not affected by the fact, that the services for which it is the compensation were bona fide performed during the pendency of the legal proceedings to determine the title to the office ; and after the final adjudication the person declared the rightful officer is entitled to demand and recover the same.®* And this is so, even if the salary or fees were BSMerritt vs Hinton (1891), 55 La. Ann. 239; Coltharp va Holmes AtK. 12, 17 S. W. 270. (1891), 43 La. Ann. 1185, 10 So. SSPetit vs Rousseau (1860), 15 172; State vs Holmes (1891), 43 328 THE DE FACTO DOCTRINE. [§ 233 earned by the usurper while put in possession of the office by the judgment of a court of competent jurisdiction, if such judgment turns out to be erroneous and is finally reversed by an appellate court.®" The reason given is, that "the ease is not like one where rights acquired at a judicial sale are protected. The court did not appoint to office, nor did the appellant take anything on the faith of its order. On his invocation the court declared that he was already entitled to the office, and sought to remove the obstruction to its enjoyment. The subsequent reversal shows that dec- laration to have been a mistaken one — that he had in fact no title, and its effect was to leave the status of his adversary as it was before the action and himself in no better condi- tion than if his claim to office had never been heard or decided by any court. Of course he can claim no advantage by virtue of the erroneous judgment." But in a Virginia case,^^ where the plaintiff had been ousted upon quo warranto from a city office at the instance of a claimant, who, pending an appeal by the former, resigned his office, leaving a vacancy which was filled by the appoint- ment of the defendant, who exercised the office without objec- tion until the plaintiff asserted his right thereto after winning in appeal, it was held that as the plaintiff had made no demand for the office, or attempt to perform its duties, until the final decision in his favor, when it was promptly delivered to him, he could not recover from the defendant the fees received by him in his official capacity during the pendency of the appeal. In this case, however, the court did not deny La. Ann. 1185, 10 So. 172; Currey eoKessel ts Zeiser (1886), 102 vs Wright (1882), 77 Tenn. (9 N. Y. 114, 6 N. E. 574, 55 Am. R. Lea.) 247; State vs McAllister 769. (Tex. Civ. App. 1895), 31 S. W. siNicholls vs Branham (1888), 679; Mayfield vs Moore (1870), 53 84 Va. 923, 6 S. E. 463 111. 428, 5 Am. Rep. 52. § 235] RIGHTS AS TO OFFICIAL SALARY. 329i the soundness of the general principle above laid down, but distinguished the case from others on account of its special circumstances.®^ § 234. Good faith of de facto officer of no avail to him. — The fact that an officer de facto has entered into an office and performed its duties bona fide, believing himself rightfully entitled to it, will be of no assistance to him in an action by or against him to recover the official salary. It "is not a question of intention, but a question of legal title to the sum in dispute," and claimed as the compensation an- nexed to the office.** "The right of the intruder to recover is denied, not upon the ground of actual fraud on his part, for it often happens that he is in not only iinder a claim of right, but under a prima facie title, which he cannot or may not know to be invalid ; nor upon the ground that he is a mere volunteer, and that the government should not be obliged to pay him for his services, for in most cases they are rendered in good faith, and under the expectation, both on his part and on the part of the public, that he is to receive the emolu- ments of the office. The principle is, that the right follows the true title, and the courts will not aid the intruder by per- mitting him to recover the compensation which rightfully belongs to another." ^* § 235. Clear title must be shown by officer de jure to recover salary from State or intruder. — As the right of the officer de jure to the compensation of the office depends 62See also Luzerne County V8 R. 168; Petit vs Rousseau (1860), Trimmer (1880), 95 Pa. St. 97. 15 La. Ann. 239; Comstoek vs 63Mayfield vs Moore (1870), 53 Grand Rapids (1879), 40 Midi. 111. 428, 5 Am. Rep. 52. 397; People va Potter (1883), 03 6 4 Andrews, J., in Dolan vs New Cal. 127. But see ante, sec. 229. York (1877), 68 N. Y. 274, 23 Am. 330 THE DE FACTO DOCTRINE. [§ 236 upon the validity of his title, it follows that he is bound to prove a clear legal title in order to succeed in an action for the recovery of salary, either from the State or municipality, or from the intruder. This rule is aptly expressed in a ^Nebraska case,^® where it is said: "Another proposition, which we regard as well settled by authority, is that the plain- tiff below must recover upon the strength of his own title to the office, and not on account of any defect in that of his ad- versary. To state the same proposition differently, the fact that plaintiff in error may have been a de facto officer merely will not avail the defendant in error in this action, unless the latter was the de jure officer." "^ Hence, where the de jure officer's title is in dispute, his right to the office must be judicially determined in a proper proceeding, before an action for the salary can be successfully maintained by him.^^ But a different rule obtains in England, where the official title may be tried collaterally in an action for the recovery of salary. This subject, however, is treated elsewhere under the heading of collateral attacks on de facto officers.®* § 236. De facto officer cannot recover salary. — Upon the principle explained in the preceding section, that an offi- cer suing for salary must show a clear legal title, it is mani- fest that an officer de facto cannot recover the compensation G 5 Richards vs McMillin (1893), Ky. 789, 55 S. W. 886; Wagner vs 30 Neb. 352, 54 N. W. 566. Louisville (Ivy. 1909), 117 S. W- ssMcMillin vs Richards (1895), 283; Stone vs Canfield (Ky. 1900), 45 Neb. 786, 64 N. W. 242. 55 S. W. 924; Selby vs Portland 67Hagan vs Brooklyn (1891), (1886), 14 Or. 243, 12 P. 377, 58 126 N. Y. 643, 27 N. E. 205; Mc- Am. Rep. 307; Dickerson vs- Butler Manus vs Brooklyn (1889), 5 N. (1887), 27 Mo. App. 9; Lee vs Wil- Y. S. 424; Meredith vs Sacramento mington (1895), 1 Mary. (Del.) County (1875), 50 Cal. 433; Carroll 65, 40 A. 663. vs Sienbenthaler(1869)37 Cal. 193; ssSee post, sec. 433. Gorley vs Louisville (1900), 108 § 236] RIGHTS AS TO OFFICIAL SALARY. 331 annexed to an office, and such is the rule almost universally recognized.®* This declaration may seem almost superfluous after all that has been said in the foregoing pages. "While," says a learned judge, "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 offi- cer 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 him- ssRunkle vs United States (1884), 19 Ct. CI. 379, & 396; Ro- mero vs United States (1889), 24 Ct. CI. 331, 5 L.R.A. 69; Pack vs United States (1906), 41 Ct. CI. 414; People vs Hopson (1845), 1 Den. (N. Y.) 574; New York vs Flagg (1858), 6 Abb. Pr. 296; Peo- ple vs Tieman (1859), 30 Barb. (N. Y.) 193, 8 Abb. Pr. 359; Dolan vs New York (1877), 68 N. Y. 274, 23 Am. Rep. 168, quoted ap- provingly in People vs Howe (1904), 177 N. Y. 499, 69 N. B. 1114, 66 L.R.A. 664; People vs Potter (1883), 63 Cal. 127; Burke vs Edgar (1885), 67 Cal. 182, 7 P. 488; Phelon vs Grenville (1886), 140 Mass. 386, 5 N. E. 269 ; Christ- ian vs Gibbs (1876), 53 Miss. 314. Matthews vs Copiah County (1876), 53 Miss. 715, 24 Am. R. 715; Vicksburg vs Groome (Miss. 1898), 24 So. 306; Sheridan vs St. Louis (1904), 183 Mo. 25, 81 S. W. 1082 ; MeCue vs Wapello Coun- ty (1881), 56 Iowa, 698, 10 N. W. 248, 41 Am. Rep. 134; Samis vs King (1873), 40 Conn. 298; Meagh- er vs Storey County ( 1869) , 5 Nev. 244; State vs Newark (1898), 8 Ohio S. & C. PI. Deo. 344, 6 Ohio (N. P.) 523; Dillon vs Myers (1844), Bright (Pa.) 426; Cobb V9 Hammock (1907), 82 Ark. 584, 102 S. W. 382; Stephens vs Camp- bell (1900), 67 Ark. 484, 55 S. W. 856 ; Eubank vs Montgomery Coun- ty (1907), 32 Ky. Law R. 91, 105 S. W. 418; Yorks vs St Paul (1895), 62 Minn. 250, 64 N. W. 565; Home Ins. Co. vs Tierney (1893), 47 111. App. 600; Stott vs Chicago (1903), 205 111. 281, 68 N. E. 736; Allen vs McNeel (1817), 1 Mill. (S. C.) 229; Garfield Tp. vs Crocker (1901), 63 Kan. 272, 65 P. 273; Meehan vs Freeholders of Hudson County (1844), 46 N. J. L. 276, 50 Am. Rep. 421; Blore va Board of Freeholders (1900), 64 N, J. L. 262, 45 A. 633, 81 Am. St. R. 495. 332 THE DE FACTO D0CTR1-\E. [§ 237 self from an office he lipids de facto only." ^^* Thus, a per- son who has been appointed to and has accepted an office to which he is ineligible, is not entitled to maintain an action for the salary of such office.^" So where a statute provides that an officer shall be appointed in a certain way, if such officer be appointed in a way different from that provided by statute, he cannot recover for his services as an officer de facto.''* So where an officer fails to give bond or take the oath, as required by law, he is not entitled to recover the official salary.''^ § 237. Conflicting doctrine as to right of officer de facto to recover salary. — There are a few cases, however, which acknowledge in the de facto officer the right to recover the official salary, as against the State or the public corpora- tion responsible for the same. Thus, in Alabama and in Missouri, the courts have held that a person who has a prima facie title to an office, is entitled to its emoluments, and may enforce the payment thereof by legal proceedings.'^* But if such officer loses his prima facie title, such as by surren- dering possession, he cannot recover afterwards.''* Besides, the right of the officer de facto to be paid the official compensa- tion from the State or public body, will not interfere with the esaColburn, J., in Dolliver vs vs Sehram (1901), 82 Jlinn. 420, Parks (1884), 136 Mass. 499. 85 X. W. 155. But see Houston 70State vs Newark (1898), 8 vs Estes ( 1904) , 35 Tex. Civ. App. Ohio S. & C. PI. Dec. 344, 6 Ohio (N. 99, 79 S. W. 848. P.) 523; Vicksburg vs Groome "SRej'nolds vs IMcWilliams (Miss. 1898), 24 So. 306. (1873) 49 Ala. 552; State vs John 7iPhe]on vs Grenville (1886), (1S83), 81 Mo. 13; State vs Clark 140 Mass. 386, 5 N. E. 269. (1873), 52 Mo. 503; State vs Drap- 72Com. vs Slifer (1855), 25 Pa. er (1871), 48 Mo. '213. But see St. (1 Casey) 23, 64 Am. Dec. Sheridan vs St. Louis (1904), 183 680; Philadelphia vs Given (1869), Mo. 25. 81 S. W. 1082 60 Pa. St. 136; Riddle vs Bedford 7 4Dickerson vs Butler (1837), (1821), 7 S. & K. (Pa.) 386; State 27 Mo. App. 9. § 237] RIGHTS AS TO OFFICIAL SALARY. 333 right of action of the de jure officer to recover the same from him.^^ In ISTew Jersey, it is declared that one who becomes a public officer de facto, without dishonesty or fraud on his part, and renders the services required of such public offi- cer, acquires as against the public and the de jure officer an indefeasible right to the salary and fees accruing during his possession/^ But this rule will not be applied in favor of one who, by force, retains possession of a public office after the expiration of his term, against the lawful demand of his legally appointed successor; '''^ nor in favor of one who has intruded into a public office by force and fraud.'* So in Colorado, it was held that a de facto officer could maintain mandamus against the State auditor to compel the payment of the salary incident to the office, notwithstanding the fact that his election was contested in a pending action J* Likewise in Idaho, it was held that the right to compen- sation being an incident to the services rendered and not to the office, the incumbent of an office, though only an officer de facto, is alone entitled to compensation for the services performed by him.*" Such a broad holding, however, was not necessary for the decision of the case, as the question involved was simply whether a county could be compelled to pay a second time, salary already bona fide paid to a de facto officer. Testate vs Clark (1873), 52 Mo. (1900), 64 N. J. L. 262, 45 A. 633, 508. 81 Am. St. R. 495. 76Erwin vs Jersey City (1897), 'sMeehan vs Freeholders of 60 N. J. L. 141, 37 A. 732, 64 Am. Hudson Co. (1844), 46 N. J. L. St. R. 584; Stuhr vs Curran 276, 50 Am. R. 421. (1882), 44 N. J. L. 181, 43 Am. 70Henderson vs Glynn (1892), Rep. 353 ; Brlnkerhoff vs Jersey 2 Col. App. 303, 30 P. 265. City (1900), 64 N. J. L. 225, 46 A. soGorman vs Boise County 170. Com'rs (1877), 1 Idaho, 655. 77Blore vs Board of Freeholders 334: THE DE FACTO DOCTRINE. [§ 238 § 238. Doctrine that officer de facto entitled to com- pensation when there is no de jure officer. — Certain courts, while denying to the de facto officer the right to re- cover salary when there is a de jure officer entitled to the office, have thought that the rule should be different when there is no such officer in existence. This doctrine may un- doubtedly be supported on equitable grounds, since it seems unjust that the public should benefit by the services of an officer de facto, and then be freed from all liability to pay anyone for such services. Thus, in Behan vs Davis j^^ the Supreme Court of Arizona, after admitting that it is almost elementary that the right to the emoluments of an office are incident to the title to the office, and that as between an officer de facto and one de jure, notwithstanding the de facto officer may have performed all the duties of the office, the de jure officer is entitled to the legal compensation, pointed out that the question presented to them was however essentially differ- ent, because in the case under their consideration there was no dispute as to the title to the office ; no adverse contestant for it; there was no de jure officer. Therefore, the Court held that under such circumstances the de facto officer could recover the salary earned by him during his incumbency, and before the appointment of a de jure successor. This decision was followed in a later case, where a de facto officer was held entitled to recover, although the salary had been already paid to another person, who, however, was neither a de jure nor a de facto officer.^ ^ 81(1892), 3 Ariz. 399, s. c. sub. Asylum (1895), 4 Ariz. 327, 40 V. noin. Behan vs Board of Prison 185. But see contra Eubank vs Com'rs (1892), 31 P. 521. Montgomery County (1907), 32 szAdams vs Directors of Insane Ky. Law. R. 91, 105 S. W. 418. § 239] RIGHTS AS TO OFFICIAL SALARY. 335 § 239. Same subject. — An apparently analogous case in England is that of Seymour vs Bennett}^ There the princi- pal registers in the prerogative office disagreeing about the appointment of a clerk, the deputy nominated Abbott, who for twelve months officiated, and received the fees, amounting to £500. The plaintiff, who was one of the registers, sued Abbott for a recovery of the fees, on the ground that he should be allowed only a small salary, as an under officer, and that he was liable to account to him and the other principal regis- ter, for the whole profits. Lord Hardwicke, however, held that as Abbot was the officer de facto, he had a right to the stated fees, and to retain them without account; and he dis- missed the bill against him. And the learned Chancellor remarked, that there was no other person besides Abbot who could maintain an action for such fees. Hence, although this suit was not between a public body and an officer de facto, yet the language of Lord Hardwicke might possibly counte- nance the theory, that where there is no other person having a superior title and capable of suing for the salary, the de facto incumbent of an office may be entitled to recover com- pensation for the services performed by him as a public officer. There is a further English case which might lend support to the doctrine laid down by the Arizona Supreme Court, although decided wholly on other grounds.^* By statute 5 & 6 Wm. IV, c. 76, ss. 65, 66, power is given to municipal cor- porations to remove existing officers and appoint others, upon compensating the officers so removed. The council of a bor- ough, under the above Act, removed a town clerk who had been elected to hold during good behaviour, but had not made the declaration prescribed by 9 Geo. IV, c. 17, s. 2, and it was held that, as having been an officer de facto, he was entitled ««(1742), 2 Atk. 482. (1840), 12 Ad. & El. 702, 4 P. & 84R. vs Mayor of Cambridge D. 294, 10 L.,J. Q. B. 25. 336 THE DE FACTO DOCTRINE. [§ 240 to compensation. In this case, as in others of a cognate char- acter, the corporation was face to face with an oificer de facto, when there was no third party, a de jure officer, to whom it might be claimed the office and its compensation rightfully belonged. Again, there is a New York case, which has some analogy to Behan vs Board of Prison Com'rs,^^ so far at least as con- cerns the equitable grounds upon which it may be urged that an officer de facto is entitled to receive compensation. The decision affected the office of coroner, and there were two rival claimants, but the Supreme Court held that as the de jure officer, for reasons assigned in its judgment, could not recover the compensation of the office from the corporation, they would not grant a mandamus to cancel the audit of the de facto officer's account and thereby exempt the county from paying for his services of which it had had the full benefit.*® There, there was a de jure officer, but in view of the position taken by the Court, the case stood as if there had been none. § 240. Salary paid to a de facto officer cannot pre- sumably be recovered back. — It is a settled rule of the ■conmion law, that money paid by one with full knowledge of the circumstances, or the means of such knowledge in his hands, cannot be recovered back on account of such payment having been made under an ignorance of the law.*'' Whether such rule applies to governments and public bodies as well as to individuals, is a much debated question.** But whatever 86(1892), 31 P. 521. ssMcElraths' Case (1876), 12 ssDeane vs Sup'rs of Greene Ct. CI. 201; Hartson vs Unitod •County (1884), 66 How. Pr. (N. States (1886), 21 Ct. CI. 451: Ea- Y.) 461. deau vs United States (1888), 130 87Bilbie vs Lumley (1802), 2 U. S. 439, 9 Sup. Ct. R. 579; Ellis East, 469, 6 R. R. 479; Lowry vs vs Board of State Auditors (1805), Bourdieu (1780), 1 Doug. 468. 107 Mich. 528, 65 N. \V. 577; Cin- § 240] EIGHTS AS TO OFFICIAL, SALARY. 337 may be the result of the decisions on this point, we think it can be safely asserted that, in the absence of statutory pro- visions declaring a different rule, money paid as fees or salary by the State or a public corporation to a de facto officer, cannot in general be recovered back as money paid under a mistake of lav?. Indeed, it seems inferable from the authori- ties that a de facto officer will be allowed to retain such salary, either under the general principle above referred to, or merely upon equitable grounds, where the application of the principle in question is denied. For it must be borne in mind, that the payment of the legal salary of an office to a de facto officer for services performed by him, stands on a different footing from payment of an unlawful salary to a public officer; ^^ or a lawful salary to one who is neither a de jure nor a de facto officer.®" Still in some such cases,®-' it has been held that fees paid to an officer by a public corporation, under the erroneous supposition that he was lawfully entitled thereto, could not be recovered back as money paid under a mistake of law. A fortiori, payment of a lawful salary to a de facto officer, should be upheld as coming at least within the scope of those decisions. However, the only case really in point is that of Badeau vs United States.^^ There the court, though claiming that cinnati vs Gas Light Co. (1895), =.3 ilors (1895), 107 Mich. 528, 65 N Ohio St. 278, 41 N. E. 239; Peter- W. 577. borough vs Lancaster (1843), 14 soMcElrath's Case (1876), 12 N. H. 382; Livermore vs Peru Ct. CI. 201. (1807), 55 Me. 469; Snelson vs siPainter vs Polk County State (1861), 16 Ind. 29; Painter (1890), 81 Iowa, 242, 47 N. W. 65, vs Polk County (1890), 81 Iowa, 25 Am. St. R. 489; Anondaga 242, 47 N. W. 65; 25 Am. St. R. Sup'rs vs Briggs (1846), 2 Den. 489; Wayne County vs Randall (N. Y.) 26; Wayne County vs (1880), 43 Mich. 137; Anondaga Randall (1880), 43 Mich. 137. Sup'rs vs Briggs (1846), 2 Den. 92(1889), 130 U. S. 439, 9 Sup. (N. Y.) 26. Ct. 579. «9Ellis vs Board of State Aud- De Facto— 22. 338 THE DE FACTO DOCTRINE. [§ 240 the rule precluding the recovery of money paid under a mis- take of law did not apply to the United States, nevertheless held that inasmuch as the officer in question, if not an officer de jure, had acted as an officer de facto, he was not hound ex equo et bono to return money which he had received as salary, and that the same could not he recovered back by the United States. In McElrcdh's Case '^ the same prin- ciple ex equo et bono was applied, and it can be clearly in- ferred that if the officer there had been an officer de facto, he would have been allowed to retain the salary paid to him. We may finally observe that the equities favoring the reten- tion of salary under such circumstances, will not be im- paired or diminished by any consideration of the rights of the officer de jure, as such rights are not involved in those cases. For, although the officer de facto may have a valid equitable defence as against the State, or the public body, suing for the recovery of the salary paid to him, this does not mean that he would stand in a like position towards the officer de jure. 93(1876), 12 Ct. CI. 201. CHAPTER 20. DUTIES AND CIVIL LIABILITIES OF OFFICER DE FACTO. 241. General rule. 242. Officer de facto may be com- pelled to act by manda- mus. 243. Where mandamus directed to officer de facto in his official name. 244. Officer de facto cannot be compelled to act after he disavows his authority. 245. Officer de facto may some- times be civilly liable for acts of omission as well as of commission. 246. Officer de facto liable for money received by virtue of his office. § 247. Not liable for moneys he could not collect. 248. Not liable for moneys law- fully expended by him. 249. Liable for funds unlawfully expended. 249a. Liable in damages for per- mitting escapes. 250. Liable for acts of his deputy. 251. Liable on his official bond. 252. Contracts inconsistent with duties and responsibili- ties of officer de facto, void. § 241. General rule. — An officer de facto is generally charged with the same duties, and is subject to the same re- sponsibilities, as an officer de jure. While he holds himself out to the public as a duly qualified officer, and is in the en- joyment of the authority conferred by the office, it is only rea- sonable to expect that his intrusion should not be an impedi- ment or a detriment to the transaction of official business. Reason, justice, and public policy alike demand that he be not allowed to shirk obligations and responsibilities, that are simply correlatives of the rights and powers openly usurped and exercised by him. The courts therefore, applying the doctrine of estoppel, will deny him the right to assume, in pro- ceedings against him, a position to the prejudice of the public 339 340 THE DE FACTO DOCTRINE. [§ 242 or third parties, inconsistent with a previous course of con- duct. In other words, they will not permit him to plead the invalidity of his title to escape liabilities, or avoid the per- formance of official duties. "It is," says a learned judge in one case, "too clear for argument that appellant cannot re- main undisturbed in office and claim that he is not a de jure officer. While in office he can be compelled to perform every official act in behalf of another which the duties of such an office dictate." ^ Another court declares, that "it is the general rule upon grounds of plain justice and public policy that a de facto officer is forever estopped in civil or criminal actions from denying that he holds the office, and from escaping any of the responsibilities which attach to his incumbency." '^ § 242. Officer de facto may be compelled to act by mandamus. — According to the above principle, an officer de facto may be forced to act by legal process. Thus, where proceedings were taken against a town treasurer to compel him by mandamus to pay certain warrants drawn upon him by the Mayor, in satisfaction of an indebtedness due by the town, and he pleaded, among other things, that not having given bond, as provided by law, he was not the treasurer of the town, but he nevertheless admitted holding about one hun- dred dollars of the public funds of the corporation, it was held that though only an officer de facto, he was bound to pay the warrants, and mandamus was allowed to issue.^ So in Chumasero vs Potts* the application was for a per- iChaliners, J., in Kelly vs Wim- 12fi; Mockett vs State (1903), 70 berly (1884), 61 Jliss. 548. Xeb. 518, 97 N. ^Y. 588; State vs 2Buck vs Eureka (1895), 109 Stone (1S75), 40 Iowa, 547; Jo- Cal. 504, 42 P. 243. See also For- liet vs Tuohey (1877), 1 111. App. tenberry vs State (1879), 56 Miss. 483. 280; State vs McEntyre (1842), 3 sKclly vs Wimberly (1884), 61 Trod. L. (N. C.) 171; Runion vs Miss. ;i48. Latimer (1874), 6 Rich. (S. C.) M1875), 2 Mont. 242. § 243] OFFICERS DE FACTO CIVILLY LIABLE. 341 emptory writ of mandamus against the Governor, the secre- tary and the marshal of Montana Territory to compel them to perform certain acts in relation to a vote taken upon a bill passed by the Legislature, removing, subject to the approval of the inhabitants, the capital from the city of Virginia to the town of Helena. One of the contentions of defendants was that they being federal officers, the legislature had no power to impose upon them duties, such as had reference to the canvassing of votes in the Territory. They had, however, assumed the powers conferred upon them by the legislature. And Wade, C. J., in answering the objection observed, that even "if the Act did create a new office for the Governor, sec- retary and marshal, they are de facto officers, and cannot, in mandamus, deny that they are officers, as they have entered upon the performance of their duties." Likewise, the New York Court of Appeals held that a writ of mandamus would issue against justices of the peace, to enjoin them to discharge certain duties having reference to election proceedings, notwithstanding that one of them might be a de facto officer.^ "The writ here," says the Court, "finds him in the possession of the office, assuming to per- form its duties, and is therefore rightfully directed to him among others." § 243. Where mandamus directed to officer de facto in his official name. — But where a writ of mandamus is di- rected to an officer de facto in his official name, he is bound to perform the acts enjoined upon him only while he holds office, and may at any time surrender the office to the de jure officer, upon whom will devolve the obligation of continuing to discharge the duties commanded by the court. This was expressly decided in ISTew York, upon an appeal from an or- sPeople vs Schiellein (1884), 95 N. Y. 124. 342 THE DE FACTO DOCTRINE. [§ 244 der made at Special Term, directing a peremptory man- damus to issue against a de facto commissioner of highways, commanding him to proceed to the opening and working of a highway. Soon after the order was made, the commis- sioner gave up possession of the oiEce and was succeeded by a de jure officer. And the court held, that the order being directed to the commissioner de facto as "commissioner of highways" he was only bound to observe the directions of the order so long as he continued nominally to fill the place, and that it was the duty of his successor to take up the subject where he had left it, and observe the order of the court in the matter of opening the road.® § 244. Officer de facto cannot be compelled to act after he disavows his authority. — It follows that, though an officer de facto may be compelled to discharge all the du- ties of the office, while retaining the same, yet, imless con- strained by legal process, he is not bound to remain in office for the benefit of the public and third persons, and may at any time surrender possession of it and disavow hie authority, "without being compellable to act in future.^ A fortiori, persons who have never taken charge of an office, cannot be forced to act. Thus, persons elected supervisors of a town, but who refuse to qualify or serve, cannot be treated as super- Tisors de facto, and commanded to levy a tax.* § 245. Officer de facto may sometimes be civilly liable for acts of omission as well as of commission. — However, the language of some of the judges in the l^ew York cases sPeople vs Brown (1888), 47 sState vs Supervisors of Beloit Hun (X. Y.) 459. ■ (1866), 21 Wis. 280, 91 Am. Dec. 7 01m stead vs Dennis (1879), 77 474. X. Y. 378 ; Farman vs Ellington (1887), 46 Hun (N. Y.) 41. § 245] OFFICERS DE FACTO CIVILLY LIABLE. .343 quoted in the preceding section, might appear wider in scope than the proposition we laid down, and to be comprehensive enough to relieve from duty to act, and consequently from liability for not acting, all officers de f actb, whether disavow- ing their authority or not. Thus, in Farman vs Ellington,^ which was an action brought against the defendant town, to recover damages occasioned by the non-repair of a highway, it is intimated that if it had been shown that the commis- sioner of highways was only an officer de facto, he would have had no duty to perform, and could not be chargeable with negligence for mere failure to act or omission to act. Eut assuredly such lang-uage must be read with reference to the facts before the court, and cannot be taken as intended to establish a general proposition. Indeed, that an officer de facto who disclaims all title to an office and ceases to act, thereby frees himself from all liability for the future per- formance of official duties, is too reasonable to admit of doubt. But that such officer may undertake to exercise the functions of an office and remain in the undisturbed posses- sion of it, and nevertheless be at liberty to perform certain duties and omit others as he pleases, without incurring any liability for his omissions, is essentially opposed to all prin- ciples of justice, and manifestly against public policy. As already pointed out, while an officer de facto holds himself out to the world as a rightful officer, the public and third persons have a right to consider him so, and hence he ought to be liable for acts of omission as well as of commission. He has the choice between acting or refusing to act, but if he chooses the first alternative, he should discharge all the ■duties of the office, and not merely those he may choose to perform- It seems, therefore, that in principle and rea- son, an officer de facto, while in office, may not only be com- 9(1887), 46 Hun (N. Y.) 41. 344 THE DE FACTO DOCTRINE. [§ 246 pelled by mandamus to discharge official duties, but may like- wise be held responsible for omissions of duty, if thereby he causes damages to others.'" § 246. Officer de facto liable for money received by virtue of his office. — An officer de facto is not absolved on the ground of defective title, from the legal and moral obli- gation of accounting for public money which has been placed in his hands in consequence of his holding a public office. '"^ And no irregularities in his appointment or lack of qualifi- cation will enable such officer to take refuge behind them, and thereby empower him to hold money to which he is not entitled.'^ Thus, where a person was sued for the recovery of taxes collected by him the court observed, that "it not' appearing that the defendant was duly chosen collector, he can only be treated as collector de facto. As such, he would be accountable to the town for the payment of taxes actually collected by him. He could not be heard to deny that such taxes were committed to him." ^^ There is also a Canadian case which, by analogy, lends support to the above principle, though involving only a ques- tion of authority and not of title. It is Todd vs Perry}^ where Burns, J., one of the Court, says : "It would be, so far as the collector is concerned, a monstrous thing to hold that because the clerk neglected his duty, and delivered the roll a day or two after he was directed to do it to the collector, 10 state vs McEntyre (1842), 3 Mass. 470. Also Nason vs Fowlei Ired. L. (N. C.) 171. See also Peo- (1900), 70 N. H. 291, 47 A. 263. pie vs Brovpn (1888), 47 Hun (N. See further Chicago vs Burke Y.) 459, 464. (1907), 226 HI. 191, 80 N. E. 720, iiUnited States vs Maurice reversing 127 HI. App. 161; State (1823), 2 Broclc. (U. S.) 96. vs Dorton (1898), 145 Mo. 304, 46 i2Trescott vs Moan (1862), 50 S. W. 948: People vs Bunker Me. 347. (1880), 70 Cal. 212, 11 P. 703. isLincoln vs Chapin (1882), 132 14(1861), 20 U. C. Q. B. 649. § 248] OFFICEKS DE FACTO CIVILLY LIABLE. 3-1:5 the collector might collect the year's taxes and then turn round upon the corporation and say he was not the collector, and that he received the taxes under no legal authority, and he should keep the whole money." § 247. Not liable for moneys he could not collect. — An officer de facto, however, is not accountable for moneys refused to be paid to him on the ground that he had no legal authority to collect them. This is expressly held in Lincoln vs Chapin,^^ where the court exonerated the defendant from liability for his failure to collect taxes, and asserted argu- mentatively that "there is nothing in the statement of facts to show that the defendant, at any time while he was acting as collector, or afterwards, was able to collect the taxes in question. It does not appear that they were legally com- mitted to him, or that he had power to enforce the payment of them by the persons assessed therefor, or that he could have collected them as he collected the other taxes. On the other hand, it appears that the persons who have not paid their taxes refused to pay them on the ground that the de- fendant had no legal authority to collect them. As to such taxes, and under such circumstances, the defendant cannot be held responsible under the statute." § 248. Not liable for moneys lawfully expended by him. — Public funds expended by an officer de facto for law- ful purposes cannot afterwards be recovered from him. Thus, where a village supervisor de facto collected a certain sum, which the law provided could be applied towards the sup- port of schools and he did so apply the same, it was held that the mere fact that it was received and paid out by a de IB (1882), 132 Mass. 470. 346 THE DE FACTO DOCTRINE. [§ 249 facto o£5cer would not authorize a judgment against him, the money having been paid out by him in pusuance of law."^® § 249. Liable for funds unlawfully expended. — But the expenditure of funds coming into the hands of a de facto officer for an unauthorized purpose, is no defence to an action to recover the same, though such expenditure is for a useful purpose. In the case cited in the next preceding section, the supervisor de facto had collected certain moneys derived from the sale of commons, in addition to those re- ceived by him for the lease of commons. Only the funds obtained from the leases and the interest arising from the -sales, could be lavdFully expended by the supervisor. Defend- ant, however, applied the principal moneys collected by him from the sale of commons, together with other sums, to the support of the village schools. Held, that no authority ex- isted in anyone to use the said principal moneys, and the use of the same being unauthorized for any purpose, it coiild not help the case of defendant that he paid such sum for a purpose that was useful. § 249a. Liable in damages for permitting escapes. — An officer de facto permitting a prisoner to escape is as liable in damages as if he were an officer de jure. This prin- 'ciple was recognized in Contant vs Chapman" which, though decided on other grounds, contains some interesting com- ments on this subject. Lord Denman, C. J., said: "A pas- sage from Lord Coke's commentary on the Statute of West- minster 2, c. 11 (2 Inst. 382) was cited: that 'this Act ex- tends to all keepers of gaols, and therefore if one hath the keeping of a goal by wrong, or de facto, and sufPereth an es- leMcCraken vs Soucy (1888), 29 1T(1842), 2 Q. B. 771. 111. App. 619. § 251] OFFICERS DE FACTO CIVILLY LIABLE. 347 cape, he is -within this statute, as well as he, that hath the keeping of it de jure/ But this statute and the commentary both suppose a committal by proper authority : and Lord Coke only asserts that in such a case the wrongful officer shall not protect himself from answering to the lord in damages for the escape of his defaulting accomptant by his own wrongful usurpation. This is but just: the lord must have the party committed to the lawful goal within the county, and ought not to suffer by the fact that there is an usurping gaoler." ^^ § 250. Liable for acts of his deputy. — The responsibil- ity of an officer de facto extends to all official acts, and to any default or misconduct in office, of his deputy. The max- im, qui facit per alium facit per se, applies to him as much as if he were an officer de jure. Thus, where a sheriff de facto appointed a deputy, who, while acting as such, levied on the goods of B. as the property of A. (under an execu- tion against the latter) and sold them, it was held that the sheriff was liable to B. as for a conversion of the goods. ^^ It seems that in cases of this kind, the officer de facto is estopped from denying the validity of the deputy's appoint- ment, or his qualifications. As put by the Court in the above case: "It is very doubtful whether a sheriff can be heard to allege that one whom he has appointed his deputy, and who, he knows, is acting as such, is not his deputy, and thus shield himself from responsibility for the official acts of his appointee." § 251. Liable on his official bond. — A bond given by an officer de facto to secure the faithful performance of the duties of the office, is of the same validity as one given by a isSee also post, sec. 261. isSprague vs Brown (1876), 40 Wis. 612. 348 THE DE FACTO DOCTRINE. [§ 252 de jure officer; and he is estopped by such instrument from denying the official character which he assumes and solemnly acknowledges therein. Thus, where the constable of a town, which had voted that the taxes should "on the 1st of October pass into the hands of the constable for collection," gave a bond of that date to the town, reciting that he had been chosen "collector of taxes," and obliging him to pay over to the town treasurer all the taxes which he should be legally required to collect by the assessors, it was held that, he being a collector de facto, his bond was valid, and estopped him and his sureties to deny the legality of his appointment and the sufficiency of his warrant in an action on the bond to recover money received by him for taxes and not accounted for.^" So where a person had been acting deputy marshal for sev- eral months, it was held that he was estopped, in an action on his official bond for damages for unlawfully beating the plaintiff, from denying that he was an officer de jure.^^ § 252. Contracts inconsistent with duties and respon- sibilities of officer de facto, void. — Finally, it must be noted, and this is clearly inferable from the foregoing pages, that no act of his or of any other person can, so far as the public and third persons are concerned, relieve an officer de facto from the obligation of performing all the duties, and assuming all the responsibilities, which attach to his office. This is a logical deduction from the principle that, while in office, his duties and responsibilities are co-extensive and 20Wendell vs Fleming (1857), 8 369; Sprague vs Brown (1876), 40 Gray (Mass.) 613. Wis. 612; Keyser vs McKissan 2iState vs Frentress (1906), 37 (1828), 2 Rawl. (Pa.) 138; Tres- Ind. App. 245, 76 N. E. 821. See cott vs Moan (1882), 50 Me. 347; also United States vs Maurice Sprowl vs Lawrence (1859), 33 (1823), 2 Brock. (U. S.) 96; Bill- Ala. 674; State vs Elioadea (1871), ingsley vs State (1859), 14 Md. G Nev. 352. § 252] OFFICERS DE FACTO CIVILLY LIABLE. 349 identical with those of an officer de jure. A different rule ■would make the condition of an officer de facto better than that of an officer de jure. He would be allowed to profit by his defective title, and enjoy privileges that would be de- nied to a strictly legal officer. Hence any contract, conven- tion, or understanding made or entered into with an officer de facto, with a view to lessen, mitigate, or otherwise change the nature or extent of, his official duties and responsibilities, will be utterly void. Thus, in Buck vs Eureha,^^ it was held that a city attorney, who is required by virtue of his office, to attend to all suits and matters in which the city is inter- •ested, and who is precluded by the constitution from receiv- ing any compensation therefor, beyond his fixed salary, is €Stopped from setting up any contract or understanding with the city, whereby his duties were to be different or lesser than those imposed by law, and hence he cannot be heard to say that it was agreed he should be paid extra compen- sation for all important duties, and this is so even if he has only a de facto title to his office, as he cannot on that ground escape any of the responsibilities which attach to its incum- bency.^^ So in Mockett vs 8tate,^* it appeared that Mockett, the respondent, was employed by one of the parties to a proceed- ing had before the city council of the city of Lincoln sitting as a board of equalization, to appear at such hearing and take down the evidence in shorthand. The clerk of the board, who claimed the right to employ a reporter, and others interested, relying on the presence of Mockett, who was a ■competent reporter, made no further arrangements for a 22(1895), 109 Cal. 504, 42 P. 24 (igoS), 70 Neb. 518, 97 N. W. 243. 588. 2 3For an analogous case, see Tack vs United States (1906), 41 Ct. CI. 414. 350 THE DE FACTO DOCTRINE. [§ 252 record of the proceeding, regarding him as the official re- porter, to whom stipulations between the parties were dic- tated, and exhibits in the case delivered, and by whom all the evidence was taken down. It was held, that Mockett was under the circumstances an officer de facto, and that man- damus would lie to compel him to deliver a transcript of the evidence to the complainant in the proceeding, notwithstand- ing a secret agreement by the terms of which he was to de- liver a transcript only to one of the parties, he being estopped from pleading a private contract inconsistent with his duty to all. CHAPTEK 21. CRIMINAL RESPONSIBILITY OP OFFICER DE FACTO. § 253. Theory of criminal respon- sibility of de facto officer. 254. Officer de facto in general not criminally liable for non-feasance in office. 255. When liable for non-fea- sance. 256. Same subject. 257. Malfeasance in office — Em- bezzlement — English au- thorities. § 258. Same subjects — ^American authorities. 259. Extortion by officer de facto- 260. Officer de facto accepting bribe. 261. Permitting escapes — Eng- lish authorities. 262. Same subject — American authorities. 263. Misconduct in office. § 253. Theory of criminal responsibility of de facto officer. — It is said in Hawkins that an officer de facto is pun- ishable the same as as officer de jure, "for that the crime is in both cases of the very same ill consequence to the public ; and there seems to be no reason that a wrongful officer should have greater favor than a rightful officer, and that for no other reason but because he is a wrongful one."^ Although this language is used with reference to the commission of a par- ticular crime, that of permitting an escape, yet the reasons assigned in support of the principle apply with equal force to the commission of any other crime by an officer de facto. This is also the theory sanctioned by American authority. Thus, in State vs Goss,"^ the Court, after declaring that there is no good reason why an officer de facto should not be pun- 12 Hawk. P. C. c. 19, sees. 23 & 2(1878), 69 Me. 22. 28. 351 352 THE DE FACTO DOCTRINE. [§254 ished as an officer de jure, adds: "The moral wrong, the wickedness of the act, must be as great in the one as in the other; and if we punish the latter and allow the former to escape, we make it an object for men to obtain office by illegal rather than legal means ; thus encouraging instead of repressing illegalities. Nor are we aware of any authority for such a distinction." § 254. Officer de facto in general not criminally liable for non-feasance in office. — As a rule, however, a person cannot be held criminally liable for refusing to serve or stopping to act in an office, to which he has been illegally elected or appointed. Thus, in State vs Mclntyre/ the de- fendants were indicted on two counts. The first one charged them with refusal to qualify and take possession of the offices to which they were elected ; and the second, with failure to perform certain duties annexed thereto. It was held that they could not be found guilty on the first count, because the statute under which they were elected did not make it com- pulsory for them to accept the offices ; but even were it other- wise, their position would not be altered, inasmuch as their election was irregular and invalid. Xeither could they be found guilty on the second count, because they had never entered upon the offices. So in Commonwealth vs Riipp* it is pointed out that where an indictment is preferred against a constable for not serving, proof of his election or appoint- ment must be given, because if not legally elected or ap- pointed he is not bound to take the office. Again in Beniley vs Phelps/" which was an action at the suit of commissioners of highways against a de facto over- seer for the penalty prescribed by statute for his neglect of 3(1842), 3 Ired. L. (N. C.) 171. 6(1858), 27 Barb. (N. Y.) 524. 4(1839), 9 Watts (Pa.) 114. ,§ 255] OFFICERS DE FACTO CRIMINALLY LIABLE. 353 duty as such officer, it was held that he was not liable. "The defendant," said the Court, "having no lawful authority to act as overseer of the highways, cannot be liable for omis- sions of duty. He might be liable to the penalty for not accepting the office, but not for omitting to act when he ex- pressly disavowed his authority, and omitted to act because he was doubtful of his right to do so." And in Olmstead vs Dennis,^ it is said: "A de facto officer can never be com- pelled to act. He may stop short at any time in his official actions, and will incur no liability by his mere omission to act." ' § 255. When liable for non-feasance. — But, as we have already explained when speaking of the civil liability of de facto officers, the broad language of the New York courts must be taken to apply only to the case where the illegal officer has openly disavowed his authority, and entirely ceased to act; for he could not remain in office, and perform certain duties and neglect others, without incurring liabilities for his omissions.^ This is clearly pointed out in the case of State vs McEntyre,^ above referred to, where the Court says : ''There is an essential difference between failing to perform a duty of an office, into which a person has entered and which he is de facto filling, and refusing or failing to accept the office, and qualify himself. A person who undertakes an office and is in office, though he might not have been duly appointed, and, therefore, may have a defeasible title or not have been compellable to serve therein, is yet, from the pos- session of its authorities, and the enjoyment of its emolu- ments, bound to perform all the duties, and liable for their 6(1879), 77 N. Y. 378. sSee ante, sec. 245. 7See also Farraan vs Ellington 9(1842), 3 Ired. L. (N. C.) 171. <1887), 46 Hun (N. Y.) 41, 47. De Facto— 23. 354 THE DE FACTO DOCTRINE. [§ 256 omission, in the same manner as if the appointment were strictly legal, and his right perfect." In a foot-note in Mr. Bishop's work on Criminal Law,^* the opinion is expressed, that this language lays down a doc- trine quite too broad, but we cannot share that opinion. When it is proven that a person has been acting in an of- ficial capacity, which is sufficient evidence of his title in criminal prosecutions,^' he should not be allowed to say, to the detriment of others, that he was not what he publicly assumed and pretended to be. Thus, in State vs Long,^^ the defendant was indicted as an overseer of a public road for failing to keep it in repair and was convicted. From the con- viction he appealed on the ground that his appointment was proved by parol evidence and not by the court record. The proof was that he had professed to be overseer for three or four years, had summoned the road hands repeatedly, in other words had acted as overseer in all respects, except that he had failed to keep the road in good order at all times. It was held, reversing the court below, that the proof was suf- ficient, and that he was estopped from denying the legality of his appointment. § 256. Same subject. — It seems further upon principle, that there may be cases where an officer de facto might be compelled to act even after he disavows his claim to the office, under penalty of being held liable for omission of duty. This may occur where an officer de facto, who might have de- clined to act at all, undertakes to perform an official act or transaction, proceeds with it to a certain point, and then lOSee. 464. Gridley (1833), 10 Wend. (N. Y.l iiR. vs Borrett (1833), 6 Car. & 254; State vs Maberry (1848), 3 P. 124; E. vs Gardner (1810), 2 Strob. L. (S. C.) 144. Camp. 513, 11 R. R. 784; Dean vs 12(1877), 76 N. C. 254. § 257] OFFICERS DE FACTO CRIMINALLY LIABLE. "355 refuses to take any further step to complete it on the ground of lack of authority and this to the detriment of the public or third parties. It seems just that in such case he should not, in the course of carrying out the official action, be al- lowed to disclaim title ; he should have done so before acting at all. 13 § 257. Malfeasance in office — Embezzlement — Eng- lish authorities. — But whatever may be the criminal re- sponsibility of an officer de facto for non-feasance in office, there is not the slightest doubt as to his liability to punish- ment for malfeasance. In some English cases bearing on the subject, only a principle of evidence was involved, but obvi- ously the delinquents would not have been permitted to escape liability by impeaching that evidence. In fact those cases are quoted by several American authorities, to illustrate the principle that an officer de facto is criminally responsible. Thus, in R. vs Borrett,^^ the prisoner was indicted under Stat. 2 Will. 4, c. 4, as a "person employed in the public service of His Majesty" for embezzling the overcharge of a letter which came to his hands as a letter-carrier. No evi- dence was offered of the prisoner's appointment as a letter- carrier; but one of the witnesses proved incidentally that he acted as such. Upon objection raised on the ground that the prisoner's appointment ought to have been proven, the judges were all of opinion that evidence of his having acted as a letter-carrier was sufficient. So, on a trial of a person under 52 Geo. 3, c. 143, s. 2, for embezzling a letter con- taining a bill of exchange, he being at the time employed un- der the Postoffice, it was held sufficient to prove that such i3See Bishop's New Criminal i< (1833), 6 Car. & P. Ii54. Law, sec. 464, sub. see. 4, 356 • THE DE FACTO DOCTRINE. [§ 258 person, acted in the service of the Postoffice, and it was not necessary to go into proof of his appointment.^^ § 258. Same subjects — American authorities. — In State vs Goss '® it is laid down that a de facto collector of taxes is punishable for the embezzlement of money which comes into his possession by virtue of his office, the same as if his election or appointment was in all respects legal and formal.'-^ So in Bartley vs State ^^ it was held that in a pros- ecution for embezzlement, one who has filled out his entire term of office cannot be heard to urge as a defense that when the embezzlement took place he was not an officer de jure, since it is immateral in such case whether he was an officer de jure or de facto. ^^ So it has been decided that where one has been duly elected to an office and assumes the fimc- tions thereof, he cannot defend against the charge of em- bezzlement in office on the ground that having failed to take the oath of office prescribed by law, he was a mere usurper and not an officer de facto. ^^ But in Wood vs State,^^ it was held that the indictment for embezzlement against a public officer must allege that he took the oath of office. This case, however, can be explained by the peculiar wording of the statute under which it was decided. The Court said : "ISTo doubt it was a piece of folly to insert in the Act the qualifying clause 'who has taken an oath of office,' but having been inserted, the words become essential in the description of the offence and cannot be safe- 15R. va Eees (1834), 6 Car. & P. isSee as to sufficiency of evi- 606. See also R. vs Townsend dence in such cases, People vs Cob- (1841), Car. & M. 178. ler (1895), 108 Cal. 538, 41 P. 401. 16(1878), 69 Me. 22. zoFortenberry vs State (1879), I'See to same effect. State vs 56 Miss. 286. Stone (1875), 40 Iowa, 547. 2i(i886), 47 Ark. 488, 1 S. W. 18(1898), 53 Neb. 310, 73 N. W. 709. 744. § 259] OFFICERS DE FACTO CRIMINALLY LIABLE. 357 ly omitted from the indictment For an indictment upon a statute must state all the circumstances which constitute the statutory offence, no case being brought by construction with- in a statute unless it is completely within its words." § 259. Extortion by officer de facto. — Where one elected to an oiEce engages in the exercise of its duties, and misbehaves by taking unlawful and extortionate fees, he will be liable for such misbehaviour, and may be indicted there- for, though he has failed to take the oath of office. Thus it was held in a ease where a justice of the peace was charged with extortion of this character.^^ "It would be strange," said the Court, "if one who is in office and exercises the duties thereof could excuse himself for committing a crime in the manner of exercising the duties by showing that he had committed another crime in getting into the office." Such was also the ruling where a deputy constable was in- dicted for a like offence. ^^ But the incumbent of an office attempted to be created by an unconstitutional statute, ^^* and especially of one that has never been in existence even under color of legislative enactment, cannot be guilty of extortion, as he is neither a de jure nor a de facto officer. Thus, in Kirby vs State,^* license commissioners, whose offices were purported to be created by an unconstitutional Act, were indicted for extor- tionately demanding and receiving money from an individual to grant him a license to sell liquor, and it was held on the above ground that they could not be convicted. The same conclusion was reached where a county policeman was 22State vs Cansler (1876), 75 N. differently in a jurisdiction where Q ^42 S'l unconstitutionally created of- 2 3Commonwealth vs Saulsbury fice is recognized. (1893), 152 Pa. St. 554, 25 A. 6!0. 24(1894), 57 N. J. L. 320, 31 A. 3alt would of course be held 213. 358 THE DE FACTO DOCTRINE. [§ 260 charged with extortion, and it was shown that his supposed office was created by the commissioners of roads and revenues of a county, without any legislative authority whatever.^** § 260. Officer de facto accepting bribe. — A de facto officer is criminally liable for accepting a bribe given to him for the purpose of influencing him in the discharge of his du- ties. Thus, where an order of the Circuit Court was made by the presiding judge on the last day of the term whereby the person named therein was appointed "to act as solicitor pro tem. of this Court until further orders," and the appoint- ment was accepted by the person named, it was held that this constituted him an officer de facto, and that he was indictable for accepting a bribe given to him to prevent a prosecution against a certain person for notoriously living in a state of adultery. Brickell, J., one of the court, said: "If the de- fendant accepted the appointment, and exercised the duties of the office, he was an officer de facto, though there may have been a solicitor de jure claiming the office. The law, so long as he kept in the line of his official duty, would have extended him the protection afforded the rightful officer. Of- ficial responsibility, civil and criminal, is but just compensa- tion for this protection." ^^ So in Indiana, it was held that a gravel-road engineer, appointed under the provision of the Act of 1895,^"'^ is an officer de facto, although he was not a resident of the county when appointed, and in a prosecution for bribery could not raise the question as to whether or not he was an officer de jure.^® Likewise in Massachusetts, it was held that Eev. Laws 24aHerrmgton vs State (1898), 25aAets of 1895, p. 143. 103 Ga. 318, 29 S. E. 931, 68 Am. 26State vs Duncan (1899), 153 St. Rep. 95. Ind. 318, 54 N. E. 1066. 2BDiggs vs State (1873), 49 Ala. 311. § 262] OFFICERS DE FACTO CRIMINALLY LIABLE. 359 1902, c. 210, s. 7, declaring that a municipal officer who corruptly requests or accepts a gift or gratuity, or promise to make a gift or do any act beneficial to him, under an agree- ment or with an understanding that his opinion or judgment shall be given in any particular manner, etc., shall forfeit his office, and be forever disqualified to hold any public office, trust, appointment, etc., and shall be punished by fine or im- prisonment, is applicable to de facto as well as de jure of- ficers. ^^ § 261. Permitting escapes — English authorities. — Hawkins^^ says: "I shall take it for gTanted at this day that whoever de facto occupies the office of gaoler is liable to answer for such an escape; and that it is no way material whether his title to the office be legal or not." ^® So in Ba- con's Abridgment,^'' it is said "that a jailer de facto, who takes upon him without any legal authority to keep pris- oners, as also feme coverts and infants, is answerable for their miscarriages." Again in the same work,*^ after the quotation of several authorities,^^ it is observed that in those cases "it is said in general that jailers are liable for escapes; but the question being there touching the escape of a person committed for a criminal offence, must be understood of es- capes in those cases for which whoever de facto occupies the office of a jailer is liable to answer; nor is it material whether his title to the office be legal or not." ** § 262. Same subject — American authorities. — A per- son who, without having taken the oath prescribed by law, 27Com. vs Wotton (Mass. 1909), aiSheriff (H), (5). 87 N". E. 202. 222 Lev. 159; 2 Jon. 62; 2 Mod. 282 Hawk. P. C. c. 19, sec. 28. 124; and vide 5 Mod. 414, 416. S9See also Id., sec. 23. ssSee ante, sec. 249a. «oGaol and Gaoler (D). 360 THE DE FACTO DOCTRINE. [§ 263 acts under appointment from the sheriff, as a deputy sheriff, in mating an arrest, cannot defend against an indictment for a voluntary escape on the ground that he had not taken the oath required by law, since his appointment and acts thereunder constitute him a de facto officer.** So it is no valid objection to an indictment for an escape that the de- fendant, who, though not formally appointed and qualified as a constable, had assumed to act as such, was charged there- in with negligence as a lawful officer.^^ The ground taken by the court was that he was a lawful officer, so far as his official acts affected the public, and so far as his responsibility was concerned. But in Kavanaugh vs State ^® it was held that a special deputy "employed in particular cases" by a sheriff, is the mere agent of his principal in the particular case, and is not an officer within the meaning of the term as used in the consti- tution, and hence is not punishable for permitting an escape. This case, however, does not seem to meet with the entire ap- proval of the court in Andrews vs Stated'' where it is ob- served : "In Kavanaugh vs State,^^ it was said, that a special deputy, employed by a sheriff in particular cases, was not an officer within the meaning of section 4126 of the Code of 1876, prior to the amendment of January 24, 1876, relating to negligent escapes by sheriffs and other officers. This was a. dictum, however, and whatever may be our view as to its soundness in that particular ease, we decline to follow it in construing the statute now before us." § 263. Misconduct in office. — Again, an officer de facto is responsible for general misconduct in office and liable siPentecost vs State (1895), 36 (1868) , 41 Ala. 399. 107 Ala. 81, 18 So. 146. 37(1885), 78 Ala. 483. 36State vs Maberry (1848), 3 3 841 Ala. 399. Strob. L. (S. C.) 144. § 263] OFFICERS DE FACTO CRIMINALLY LIABLE. 361 imder the provisions of the criminal law on the subject. Thus, where a jailer was indicted for oificial misconduct in furnishing the prisoners under his charge with spirituous liquors, and in being habitually drunk himself, it was held that he could not show in defence that his appointment was. not in writing as required by statute.*^ ssstate vs Sellers(1854), 7 Rich. (S. C.) 368. CHAPTEE 22. DE FACTO OFFICER LIABLE TO PENALTIES FOR USURPATION. AND TO DAMAGES WHEN SUED AS A TRESPASSER FOE ACTING WITHOUT AUTHORITY. 263a. Introductory remarks. 264. De facto officer punishable for usurpation. 265. Not punishable when acting bona fide. 266. Officer de facto liable as a trespasser. 267. Same subject — Illustrations. 268. Evidence of official reputa- tion insufficient. 269. Conflicting authorities. 270. Same subject. § 271. Officer de facto liable foi acts done by his order. 272. What damages recoverable. 273. Person executing process issued by de facto officer not liable — English au- thorities. 274. Same subject — American au- thorities. 275. Persons assisting de facto officers not liable. § 263a. Introductory remarks. — A.s we have seen in the last two chapters, an officer de facto may be treated as a good officer, and be subjected to the same responsibilities, civil and criminal, as an officer de jure. But his liabilities do not end there. He may also be looked upon as a mere usur- per, and then, in addition to the ordinary responsibilities at- taching to his office, must be added those arising from hia usurpation and his unlawful performance of official duties. He is therefore, so to speak, at the mercy of the public and third persons, who may, at their pleasure and as it suits their purposes, treat him as a lawful officer or as an unlawful one. And the result is, that he is laboring under the double disad- vantage of being unable to escape liabilities, either by plead- ing his defective title in the first instance, or by setting up his official character in the second. 362 § 264] OFFICERS DE FACTO LIABLE AS USURPERS. 363 § 264. De facto officer punishable for usurpation. — In most of the American States, it is an offence punishable by fine and imprisonment to falsely assume to be and to act as an officer.-^ Accordingly, it has been held that one elected to and exercising the office of county attorney, but wholly ineligible thereto, from not having been a licensed practising attorney for two years, was guilty of usurpation of office, and might be proceeded against by indictment for the fine imposed as a penalty.^ So to act before giving a bond has been held to be criminally punishable.^ But merely to as- sume to be an officer, without acting as such, is not an of- fence.* Nor is it an offence to assume to exercise an office which has no lawful existence.^ Again, the American statutes relating to quo warranto gen- erally provide that, in addition to the judgment of ouster against a usurper, a fine may be imposed on him.® The impo- sition of such fine is usually in the discretion of the court.^ In England, the common law practice of fining an unlawful incumbent when ousted upon an information in the nature of quo warranto, has long ago become obsolete.^ But by some English, as well as Canadian, statutes, persons exercis- ing certain public offices without the proper qualifications, are liable to penalties.® iPeople TS Bates (1894), 79 eBuckner vs Veuve (1883), 63 Hun (N. Y.) 584. 29 N. Y. S. 894; Cal. 304, 3 P. 862. Wayman vs Commonwealth (1879), eDavis vs Davis (1894), 57 N. 77 Ky. (14 Bush.) 466; Com. vs J. L. 203, 31 A. 218; People vs Bush (Ky. 1909), 115 S. W. 249. Miller (1867), 16 Mich. 205; Peo- zCommonwealth vs Adams pie vs Nolan (1883), 65 How. Pr. (1860), 60 Ky. (3 Mete.) 6. (N. Y.) 468. sUnited States vs Evans, 1 'People vs Miller (1867), 16 Cranch. (C. C.) 149. Mich. 205. ^People vs Cronin (1890), 80 sQuo warranto is now a civil Mich. 646, 45 N. W. 479; Com- proceeding in England. See post, mon wealth vs Wolcott (1852), 10 sec. 45.3. Cush. (Mass.) 61. sMargate Pier Co. vs Hannam- 364 THE DE FACTO DOCTRINE. [§ 265 § 265. Not punishable when acting bona fide. — But whenever in the United States, it is sought to punish a person for usurping a public office, it is generally a good defence that the defendant held the office under a bona fide claim of right,^ which he might reasonably believe entitled him to take or retain possession.^** Thus it has been held in New York that, to justify the imposition of a fine, under Code, § 1956^ on one who has been adjudged guilty of usurping an office, the court should have before it evidence showing that defendant has been guilty of some act in taking or holding the office which was criminal, or at least grossly improper.^' So in Ohio, it has been decided that an officer legally appointed and qualified, continuing to act as such officer after the expira- tion of his term, in good faith, reasonably believing it to be his duty to discharge the duties of the office until his successor is qualified, is not to be regarded as criminally usurping the office within the meaning of a statute, which makes it punish- able for any person to "take upon himself to exercise or officiate in any office or place of authority in this State,, without being legally authorized." ^^ But in Kentucky, un- der Gen. St. c 29, art. 25, § 1, making it a misdemeanor, "if any person shall usurp any office," "or shall knowingly hold and pretend to exercise such office," it has been held that the usurpation is punishable, without regard to the usur- per's motives.-'* § 266. Officer de facto liable as a trespasser. — The general rule is that, when an officer sets tip his title to an (1819), 3 B. & Aid. 266, 22 R. R. i2Kreidler vs State (1873), 2* 378; R. vs Hodgins (1886), 12 0. Ohio St. 22. See also State vs R. 367. Dean (1892), 49 Kan. 558, 31 P. loPeople V3 Bates (1894), 79 145. Hun (N. Y.) 584, 29 N. Y. S. 894. isWayman vs Commonwealth iiPeople vs Nolan (1883), 65 (1879), 77 Ky. (14 Bush.) 466. How. Pr. (N. Y.) 468. § 5i66J OFFICERS DE FACTO LIABLE AS USURPERS. 365 office in defence of an action against him for his acts, he puts in issue his title to the office, and to justify must show that he has the legal title. It is not sufficient for him to show that he is exercising the duties of the office as an officer de facto. ^* Trom some of the numerous authorities support- ing this proposition, we quote the following pertinent extracts which explain the reason of the rule: "An officer de facto merely, without the legal right, has himself the benefit of a legal recognition as such, only in suits to which he is not a party. As to himself he is a mere usurper, though an officer de facto as to third persons interested in his acts." ^^ "The officer himself is bound to know whether he has a good title to the office ; and if he undertakes to perform its duties with- out legal right he does so at his peril." ^^ "The sound dis- tinction is that the office is void as to the officer himself, but valid as to strangers." ^'^ "Upon general principles a pub- lic officer who, in the name of the law, claims the, right to intrude upon the private rights of his fellow citizens, and the power to force them to obey his commands, must be pre- pared, when required, to satisfy them of his authority." ^* 14 Grace vs Teague (1888), 81 Rice vs Commonwealth (1867), 3 Me. 559, 18 A. 289; Pooler vs Bush. (Ky.) 14; Shepherd vs Stat- Eeed (1882), 73 Me. 129; Conover en (1871), 5 Heisk. (Tenn.) 79; vs Devlin (1857), 15 How. Pr. (N. Venable vs Curd (1859), 2 Head Y.) 470, 6 Abb. Pr. 228; Burditt (Tenn.) 582; McBee vs Hoke vs Barry (1876), 6 Hun (N. Y.) (1843(, 2 Speers (S. C.) 138; 657; Green vs Burke (1840), 23 Peek vs Holcombe (1836), 3 Port. Wend. (N. Y.) 490; Case vs Hall (Ala.) 329; also cases cited in (1859), 21 111. 632; Outhouse vs the next section. Allen (1874), 72 111. 529; Cum- isNew. York vs Flagg (1858), jnings vs Clark (1843), 15 Vt. 653; 6 Abb. Pr. (N. Y.) 296. Kimball vs Alcorn (1871), 45 isPeople vs Peabody (1858), 6 Miss. 151; Plymouth vs Painter Abb. Pr. (N. Y.) 228. (1846), 17 Conn. 585, 44 Am. Dee. "Riddle vs Bedford (1821), 7 S. 574; Gourley vs Hankins (1855), & R. (Pa.) 386. 2 Iowa, 75; Roberts vs Holmes isper Taschereau, J., — Town of (1874). 54 N. H. 560: Miller vs Trenton vs Dyer (1895), 24 Can. Callaway (1878), 32 Ark. 666; Sup. Ct. 474. 366 THE DE FACTO DOCTRINE. [§ 267 § 267. Same subject— Illustrations.— This rule is ex- emplified by numerous decisions. Thus, where a person is constitutionally ineligible to the office of sheriff by reason of lack of residential qualification and he is notwithstand- ing elected, takes the oath of office, and executes the bond pro- vided by law, he will not be protected in actions against him for trespass on person or property.^® Nor will a constable,^" or a tax collector,^^ likewise disqualified by reason of ineligi- bility. So where selectmen are sued in trespass for taking the plaintiff's goods, and causing them to be sold for payment of taxes, it is not sufficient to show that they were properly elected, but it must also ■ appear that they were duly quali- fied, by taking the oath prescribed by law.^^ So a surveyor of highways, chosen at a town meeting hold- en in pursuance of a warrant issued by a justice of the peace, who under the circumstances had no authority to issue a warrant for the purpose, has no legal title to the office of sur- veyor, and cannot, in an action of trespass, justify the tak- ing of goods, as such surveyor, for a tax assessed upon the plaintiff. ^^ Likewise, persons attempting to justify their acts as town officers, are bound to show the legality of the meeting at which they were elected, inasmuch as, if that was not a legal meeting, they have no official position, and have no greater rights than the other inhabitants of the town when defending as such officers. ^^ So a person, in order to justify his arrest and imprison- ment of another, by virtue of his authority as a justice of the peace, must show himself to have been at the time, not "Patterson va Miller (1859), 22Blake vs Sturtevant (1842), 2 Mete. (Ky.) 493. 12 N. H. 567. 20Pearce vs Hawkins (1852), 2 2 3Brewster vs Hyde (1834), 7 N, Swan (Tenn.) 87, 58 Am. Dec. 54. H. 206. ziMorgan vs Vance (1868), 4 a^Bearee vs Fossett (1852), 34 Bush. (Ky.) 323. Me. 575. § 268] OFFICERS DE FACTO LIABLE AS USUEPERS. 367 only de facto, but a de jure justice.^' Therefore, he cannot justify his arrest or other official acts when he has failed to take the oath prescribed by the constitution,^* or is acting while holding the incompatible office of postmaster,^'' or after his commission has expired.^^ So in a suit against a pound-keeper, he cannot justify as such pound-keeper, with- out showing that his bond was approved before the acts com- plained of were done.*^ § 268. Evidence of official reputation insufficient. — It follows that when an officer de facto is sued in trespass, he will not be permitted to rely on evidence of reputation to establish his official character, though, as we have seen, such evidence is sufficient in ordinary cases to clothe the person acting with a prima facie de jure title. Thus, in an action for false imprisonment, where the defendant justified his ar- rest of the plaintiff on the ground that it was properly made by him as a public officer, and there was evidence that he met the plaintiff and said to him, "I am a public officer, and I arrest you," for an offence named by him, and that he made a return upon a warrant issued upon a complaint subsequent- ly made by him against the plaintiff for that offence, which return recited the arrest, and was signed by him as a public officer; it was held that there was no evidence sufficient to warrant a finding that the defendant was a police officer.^* So where a person attempts to justify his act by pleading that he was deputy sheriff, if the fact that he was such officer be 25]Srewman vs Tiernan (1862), 29Rounds vs Mansfield (1854), 37 Barb. (N. Y.) 159. 38 Me. 586; Rounds vs Bangor 26Courser vs Powers (1861), 34 (1859), 46 Me. 541, 74 Am. Dec. Vt. 517. 469. See also cases cited in pre- 27Rodman vs Harcourt (1843), ceding section. 4 B. Hon. (Ky.) 224. soShort vs Sjrmmes (1889), 150 28Grace vs Teague (1888), 81 Mass 298, 23 N. B. 42, 15 Am. St. Me. 559, 18 A. 289. R. 204. 368 THE DE FACTO DOCTRINE. [§ 269 not admitted by the issue, proof that he acted as deputy sheriff "will be insufficient.*^ So in trespass for false imprisonment, the justice of the peace who issued the warrant, and the constable who made the arrest, are not allowed to justify by proving that they were recognized as officers by general reputation, but they must establish a strict legal title to their offices.*^ Again, where a defendant in a replevin suit sets up the defence that he was a constable, and took the property under an execution in his hands against the ovsmer of the property, and the direct question is raised as to whether he was a constable or not, he must show that he was a constable de jurej evidence that he was an acting constable is not sufficient.*^ § 269. Conflicting authorities. — There are a few cases which are opposed in toto or in some particulars to the doc- trine announced in the foregoing sections. Thus, it was held by the ISTew York Court of Appeals, that the omission of one elected to the office of Commissioners of Highways to execute and file an official bond as required by the statute, § 3, chap. 180, Laws of 1845, did not make his official acts void, in such a sense as to make him liable as trespasser there- for, as he was not simply an officer de facto, but held by a de- feasible title ; and until, in and by a strict judicial or other authorized proceeding the forfeiture was judicially declared, he was rightfully in office, and the question could not be raised collaterally. However, as is obvious, the decision in that case is not adverse to the principle that a mere officer de facto is liable for the consequences of his official acts, but siHughea va James (1830), 26 ssQuthouse vs Allen (1874), 72 Ky. (3 J. J. Marsh.) 699. 111. 529. See also eases cited in 3 2Sclilencker vs Risley (1842), next preceding two sections. 4 111. 483, 38 Am. Dec. 100. § 270] OFFICERS DE FACTO LIABLE AS USURPERS. 369 it holds that the commissioner there was for the time being a rightfvil officer.^* So in Kingsbury vs Ledyard,^^ which was an action against a tax collector for seizing, converting and disposing of the plaintiff's property, it was held that an officer who performs a public duty by the authority of proc- ess issued by those who have jurisdiction of the subject, is not a trespasser, although his appointment and qualification may not be in all respects according to law.^® § 270. Same subject. — There are also other authorities which, though acknowledging that an officer when justifying as such must prove his title, yet hold that he may establish the same by evidence of official reputation. Thus, in Londe- gan vs Hammer,^'' the action was against a justice of the peace for false imprisonment, and it was held that evidence on the part of defendant that he was such and had been act- ing as a justice of the peace, was admissible, and that imtil the contrary was shown he should be presumed to have been duly appointed to the office. So in Potter vs Lufher^^ the defendant pleaded that as one of the deputy sheriffs of Wash- ington County, he took the goods for which the action was brought upon a fieri facias, and offered to prove by reputa- tion that he was a general deputy to the sheriff. This tes- timony was objected to, but the Court admitted the evi- dence.*® Again, in Johnson vs Stedinan/° which was an action of trespass against a constable for taking and convert- 3 4See also Lewis vs Brady N. H. 202, 9 Am. Dec. 50; but see (1889), 17 0. R. 377. Cavis vs Robertson (1838), 9 N. 35(1841), 2 W. & S. (Pa.) 37. H. 524. 36See also Varner vs Thompson, 37(1870), 30 Iowa, 508. (1908), 3 Ga. App. 605, 60 S. E. 38(1808), 3 John. (N. Y.) 431. 216, where it is declared that a ssgee also Colton vs Beardsley de facto judicial officer is not lia- (18G0), 38 Barb. (N. Y.) 29. ble for his acts. See also dictum 40(1827), 3 Ohio 94. in Johnston vs Wilson (1820), 2 De Facto— 24. 370 THE DE FACTO DOCTRINE. [§ 271 ing goods, proof of general reputation and acting as eon- stable was considered competent evidence to prima facie es- tablish the constable's title.* ^ § 271. Officer de facto liable for acts done by his order. — An officer de facto is liable for acts done by another, at his request and by his order, when the acts are such that he would be responsible had he acted in person. This was directly decided in a case of trespass for seizing goods.* ^ The defendants had been illegally chosen assessors and the plaintiff sued them for acts done by one Jones, the collector, under their direction. They had made the assessments on the polls and estates of the residents of a school district and delivered the warrant with the tax bills and their certificate to the collector. The plaintiff refused to pay and his prop- erty was seized by Jones. In the judgment which was given against the defendants, the Court says : "The precise time of taking is not material, if it was within the statute of limi- tations. ISTor is it material whether the defendants took the oxen by their own hands, or by the hands of the collector, acting under their direction. The proof in the case shows satisfactorily that the taking by Jones was the act com- plained of in the plaintiff's writ, and was done by direc- tion of the defendants." § 272. What damages recoverable. — When the acts per- formed by an officer de facto are within the scope of the duties annexed to his office, and their invalidity is merely due to his defective title, only nominal damages are recoverable 4iAlso Eldred vs Sexton (1831), 42Allen vs Archer (1860), 49 5 Ohio, 216; but see Barrett vs Me. 346. Reed (1826), 2 Ohio 409, and Car- others vs Scott (1817), Tappan (Ohio) 227. § 273] OFFICERS DE FACTO LIABLE AS USURPERS. 371 against him. Thus, in Cavis vs Robertson*^ a collector of taxes was sued in trespass for taking and carrying away the plaintiff's oxen. The defendant had heen duly elected, but he had failed to take the oath of office. He was held liable in damages, but as the taxes collected by him were justly due, only nominal damages were awarded to the plaintiff. The Court said : "But a further question arises — what dam- ages is the plaintiff entitled to recover? His property has been taken from him by one who had not, legally, authority to take it — his action is well founded — ^but it by no means follows that he is now entitled to recover the full value of the oxen, or the whole amount of the tax for which they were sold. The damages he recovers are to be commensurate with the injury he has suffered. If the tax for which they were taken was legally assessed, and the defendant has pro- ceeded according to the provisions of the law, in all respects, except in not taking the oath, what damage has the plaintiff sustained by that? The provision that he should take an oath, was intended to ensure legal proceedings by him, and to add the sanction of conscience to the other obligations to perform his duty. But if it appears affirmatively that the duty has been performed, in the manner in which an officer duly qualified might have performed it; although, by the neglect to take the oath, the defendant must be regarded as acting without sufficient legal authority, and as liable to the plaintiff's action ; the plaintiff is certainly not injured to the extent he would have been, had the defendant stepped aside from the prescribed duty, and been guilty of fraud or op- pression." § 273. Person executing process issued by de facto officer not liable — English authorities. — Persons who 43(1838),. 9 N. H. 524. 372 THE DE FACTO DOCTRINE. [§ 273 execute the commands or mandates of de facto officers, and perform acts which are not unlawful in themselves, are pro- tected from all personal liability. This was directly decided in England in Margate Pier Co. vs Ilannani,** where it was held that the acts of a justice of the peace, who has not duly qualified, are not absolutely void; and therefore, persons seizing goods, under a warrant of distress, signed by a justice who had not taken the oaths at the general sessions, nor de- livered in the certificate required by 51 Geo. 3, c. 36, are not trespassers. Per Abbott, C. J. : "It is obvious that if the act of the justice, issuing a warrant, be invalid on the ground of such an objection as the present, all persons who act in the execution of the warrant will act without any au- thority; a constable who arrests, and a gaoler who receives a felon, will each be a trespasser ; resistance to them will be lawful ; everything done by either of them will be unlawful ; and a constable, or persons aiding him, may, in some possible instances, become amenable even to a charge of murder, for acting under an authority, which they reasonably considered themselves bound to obey, and of the invalidity whereof they were wholly ignorant. An exposition of these statutes, pregnant with so much inconvenience, ought not to be made, if they will admit of any other reasonable construction." This case has often been quoted with approval by the English and American Courts; and in a Canadian case,*^ Morrison, J., thus refers to it: "I perfectly concur in that decision and the grounds upon which the judgment is rested, viz: that the acts of a justice of the peace who has not duly quali- fied himself are not absolutely void, so that a seizure under 44(1819), 3 B. & Aid. 266, 22 46R. vs Boyle (1868), 4 Ont R. R. 378. Pr. R. 256. § 250] OFFICERS DE FACTO LIABLE AS USURPERS. 373 a warrant signed by him would not make the parties who executed it trespassers." *® § 274. Same subject — American authorities. — ^AU the American authorities are in harmony with the English rule on this subject. Thus, in an action of trespass for taking and driving away a mare belonging to the plaintiff, defend- ant justified under a rate bill of an assessed tax, with a war- rant annexed for the collection of the same. Plaintiff, how- ever, claimed that said rate bill was illegal and void because it was made by one Andrus who was not the legal prudential committee of the school district at the time of making up and certifying the same. But the court held that Andrus was prudential committee in fact, if not of right, and this was all that was necessary to enable the defendant, as the legal collector of the district, to justify under his acts.*^ So in Rodman vs Harcourt^^ the court held that a constable may justify under an execution issued by one who holds the com- mission and has qualified as a justice of the peace, though such person be not de jure a justice, and could not himself justify the issuing of the execution as such.*® So overseers of the poor, who have obtained from a magis- trate de facto a warrant in case of bastardy, can defend them- selves under such warrant against an action of trespass for assault and battery and false imprisonment, in like manner as if the warrant had been issued by a magistrate de jure.^° And evidence establishing the fact that the officer issuing the 46See also Morgan vs Hughes by (1849), 56 Mass. (2 Cush.) (1788), 2 Term. (D. & E.), 225. 677. 47Goodwin vs Perkins (1867), eoWeeksvs Ellis ( 1848), 2 Barb. 39 Vt. 598. (N. Y.) 320. Also People vs Cook 48(1843), 4 B. Mon. (Ky.) 224. (1853), 8 N". Y. 67, 59 Am. Dee. 49Also Laver vs McGlaehlin 451, affirming (1852) , 14 Barb. 259. (1871), 28 Wis. 364; Com. vs Kir- 374: THE DE FACTO DOCTRINE. [§ 275 process is an officer de facto, is not merely prima facie that he is an officer de jure, but it is conclusive for the protection of a ministerial officer required to execute such process.^' § 275. Persons assisting de facto officers not liable. — Persons assisting de facto officers in the discharge of their duties and acting at their request, are afforded the same pro- tection as if there were no defects in the officer's title. This principle was fully discussed and recognized in Soudant vs Wadhams.^^ The defendant was charged in trespass with breaking and entering into the plaintiff's house and seizing and carrying away certain liquors. He justified by alleging that he was commanded to make the seizure by a lawful con- stable of the town. But objection was raised to the qualifica- tion of the officer because of his neglect to give the bond re- quired by law. The objection, however, was overruled, and it was held that the defendant was justified in assisting the con- stable by reason of his de facto official character. And the court, after reviewing several authorities, said : "Upon these authorities it is quite certain that the defendant, knowing that Adams was exercising the office of a constable of the town of Goshen under such apparent circumstances of con- tinuance and reputation as would lead men to presume that he was the officer he assumed to be, could submit to his com- mand without instituting an inquiry into his title; and the law will hold the acts of Adams valid, by holding him to be an officer de facto, so far as to protect the defendant against this action for having obeyed him; and this irrespective of the question whether or not the defendant was' a party to the original proceeding." ^^ 5iWiIcox vs Smith (1830), 5 62 (1878), 46 Conn. 218. Wend. (N. Y.) 231, 21 Am. Deo. 6SSee also Schlencker vs Risley 213. (1842), 4 111. 483, 38 Am. Dec. 100. CHAPTER 23. LIABILITY OF SXIRETIES ON OFFICIAL BOND OF DE FACTO OFFICER. 276. General rule. 277. Official acts of officer de facto binding on his sure- ties. 278. Sureties of officer de facto estopped from denying his title. 279. Same subject — Irregularity of appointment. 280. Same subject — Same sub- ject — English authorities. 281. — Same subject — Defective qualification. 282. Same subject — Same sub- ject — Canadian authori- ties. 283. Liability of sureties where appointment declared void by statute. 284. Liability of sureties where statute declares forfeit- ure of office on non-per- formance of certain re- quirements. 285. Where forfeiture judicially declared, but officer de facto in office. 286. Same subject — Special du- ties of sheriffs. § 287. Liability of sureties of of- ficer de facto by reason of holding over — General principles. 288. Kule of construction of of- ficial bonds — English au- thorities. 289. Same subject — ^American authorities. 290. Where the statute provides for holding over. 291. Same subject. 292. Jurisdictions where sureties of holding over officers held liable — Officers de- jure. 293. Same subject. 294. Jurisdictions where sure- ties of holding over of- ficers held not liable — Of- cers de facto. Same subject. Same subject. Same subject. Liability of sureties where the bond provides for holding over. De facto officer's sureties not liable to de jure of- ficer for official salary or fees. 295. 296. 297. 298. 299. § 276. General rule. — The sureties on the bond of a de facto officer cannot avail themselves of his defective title to 375 376 THE DE FACTO DOCTRINE. [§ 277 escape liability for his misbehavior in office during the term covered by the bond, — the general rule being that the sureties are liable in all cases where they would be so liable, if their principal was an officer de jure. This rule rests chiefly upon two principles of law, though minor reasons and grounds are likewise advanced in support of it. The first one, based upon the de facto doctrine itself, is that the official acts of an officer de facto are binding on all persons, including his sureties. The other, not in any wise specially connected with the de facto doctrine but involving a general principle of jurisprudence, is the doctrine of estoppel, which precludes the sureties on an official bond from disputing their prin- cipal's title. This rule, however, will not generally oper- ate to make sureties responsible for the misbehavior in office of their principal after the expiration of his official term. Hence, they will not be liable for his breaches of duty while he holds over merely as a de facto officer. § 277. Official acts of officer de facto binding on his sureties. — ^This proposition is undisputed among the Ameri- can authorities. "As to the general public," says one of the courts, "an intruder under color of title is a de facto officer ; and to this class the bond is liable as much so as if he was an officer de jure." ^ Thus, in a suit against a defaulting town collector and his sureties for funds embezzled by him, one of the chief defences was that the collector had not been legally elected. But the court held that that question could not be raised in a collateral manner ; that since the principal on the bond had acted as collector, at least under color of authority, he was bound to account for the monies collected by him and the sureties were obliged to do so, if he did not.^ So in iCurry vs Wright (1S8S), 8G 2Homer vs Merritt (1875), 27 Tenn. 636, 8 S. W. 593. La. Ann. 568. § 278] LIABILITY OF SURETIES ON BOND. 377 another case, it was held that although a constable ceases to be a resident of the county in which he holds his office, yet he is still an officer de facto, and until he is removed from office by direct proceedings, his authority cannot be collater- ally assailed and his sureties remain liable for his misfeas- ance in office.* But, as a person cannot be an officer de facto of an office which has no legal existence, it has been held that the sureties on a bond for the faithful performance of the supposed duties of an office having no de jure status, could not be held responsible.* The court said: "It is true that under some circumstances the sureties of an officer de facto will be held liable just as if he were an officer de jure. But the surety will not be held liable in such case, unless the office in refer- ence to which the transaction takes place actually exists. A party who volunteers to perform the duties of an office which does not exist, and which, in the manner assumed, is in fact prohibited by law, can not, in any just sense of the term, be called an officer de facto, but a mere usurper." ® § 278. Sureties of officer de facto estopped from deny- ing his title. — ^s already explained, the sureties upon the official bond of a de facto officer cannot plead his lack of title in avoidance of their liability, they being in technical lan- sCase vs State (1879), 69 Ind. Lawrence (1859), 33 Ala. 674; 46. See also St. Helena vs Burton Ramsey County vs Brisbin (1871), (1883), 35 La. Ann. 521; Weston 17 Minn. 451; Monteith vs Com- vs Sprague (1882), 54 Vt. 395; monwealth (1859), 15 Grat. (Va.) Holt County vs Scott (1897), 53 172. Neb. 176, 73 N. W. 681; Lyndon vs iTinsley vs Kirby (1881), 17 S. Miller (1863), 36 Vt. 329; State C. 1. vs Bates (1863), 36 Vt. 387; Peo- 6 See also United States vs Mau- ple vs Beach (1875), 77 111. 52; rice (1823), 2 Brock. (U. S.) 96; Green vs Wardwell (1855), 17 111 but see Hoboken vs Harrison 278, 63 Am. Dec. 366; Sprowl vs (1862), 30 N. J. L. 73. 578 THE DE FACra DOCTRINE. [§ 279 guage estopped from so doing. The recital in their bond is a solemn acknowledgment of their principal's official char- acter, which the doctrine of estoppel precludes them from •controverting in any action brought against them upon such instrument. "No rule of the common law is better supported by reason and sound policy, than that which declares, that when a man solemnly admits a fact, and the admission is acted upon, he shall not be heard to gainsay it, with a view of escaping from liability." ® § 279. Same subject — Irregularity of appointment. — Upon the foregoing principle, sureties cannot set up any irreg- ularity in the election or appointment of their principal.'^ Thus, where an action on the bond of a county assessor was resisted by the sureties upon the ground, among others, that the official's election was absolutely void, the court remarked that "the principal obligor and his sureties are in no condition to question the regularity of the election of the principal, or his responsibility for acts done in an official capacity. The sPer Curiam, in Williamson vs (1874), 50 Miss. 688; State vs Woolf (1861), 37 Ala. 298. Also Rhoades (1871), 6 Nev. 352. :Sprawl vs Lawrence (1859), 33 'Taylor vs State (1875), 51 Ala. 674; Holt County vs Scott Miss. 79; People vs Huson (1889), (1897), 53 Neb. 176, 73 N. W. 681; 78 Cal. 154, 20 P. 369; Borden vs Hoboken vs Harrison (1862), 30 Houston (1847), 2 Tex. 594; Bil- N. J. L. 73; Cox vs Thomas lingsley vs State (1859), 14 Md. (1852),9Gratt. (Va.) 312; Chap- 369; State vs Clark (1858), 1 man vs Commonwealth (1875), 25 Head. (Tenn.) 369; Boone County 'Gratt. (Va.) 721; Shaw vs Have- vs Jones (1880), 54 Iowa, 699, 37 kluft (1859), 21 111. 127; Hall vs Am. Rep. 229; Green vs Wardwell Luther (1835), 13 Wend. (N. Y.), (1855), 17 111. 278, 63 Am. Dec. 491; Horn vs Whittier (1833), 6 366; Allbee vs People (1859), 22 N. H. 88; Norris vs State (1861), 111. 533; Kellar vs Savage (1841), •22 Ark. 524; State vs Swigart 20 Me. 199; Wendell vs Fleming (1861), 22 Ark. 528; Borden vs (1857), 8 Gray (Mass.) 613; Po- Houston (1847), 2 Tex. 594; Ford lice Jury vs Haw (1830), 2 La. -vs Clough (1832), 8 Me. 334, 23 41, 20 Am. Dec. 294. Am. Dec. 513; Byrne vs State ,^ 280] LIABILITY OF SURETIES ON BOND. 379 principal had at least the color of oiEce by his appointment, and the bond estops him and his sureties signing it from denying his official character." ® So where a person was illegally appointed tax collector of a county, and executed a bond for the faithful performance of his duties, though, by some strange omission, the statute did not require a tax col- lector to execute a bond, and he collected the taxes and made default, it was held that he and his sureties were precluded from setting up as a defense, that the bond was not required by the statute.® Again, in United States vs Maurice,^^ the sureties on a bond sought to escape liability by urging that the Secretary of War, who had appointed their principal, James Maurice, agent of fortifications, had no power to make such appoint- ment. But the court (Chief Justice Marshall) overruled the objection, saying: "The appointment of James Maurice having been irregular, is this bond absolutely void, or may it be sustained as a contract entered into by a person not legally an officer, to perform certain duties belonging to an office? ... If this contract does not bind the parties according to its expressed extent, its failure must be ascribed to some legal defect or vice inherent in the instrument. ... In such a case, neither James Maurice, nor those who undertook for him, can claim anything more than positive law affords them. . . . The justice of the case requires, I think, very clearly, that the defendants should be liable to the extent of their undertaking, and I do not think the principles of law discharge them from it." § 280. Same subject — Same subject — English author- ities, While it is indubitable that the English courts will, as sPeople vs Jenkins (1861), 17 Mias. 79. But see Hoeg vs Pine Cal, 500. (Iowa, 1909), 121 N. W. 1019. 9Taylor vs State (1875), 51 io(1823), 2 Brock. (U. S.) 96. 380 THE DE FACTO DOCTRINE. [§ 280 a general rule, hold a de facto officer's sureties responsible, and will not relieve them by reason of any irregularity in his appointment or election, yet it cannot be denied that the Eng- lish authorities construe very strictly the obligation of official sureties, and sometimes protect them to an extent which seem- ingly would not be warranted by the American decisions. A reference to a few cases which, even if not altogether in point, are at least analogous, will illustrate our statement. Thus, in Kepp vs Wiggettj^^ the condition in a bond recited that A. "had been duly nominated and appointed a collector for the year ending," etc. ; and that "duplicates of the assessments had been delivered and given in charge" to him, with a war- rant or warrants for collecting the same ; and it was held, in an action against the sureties, for A.'s default, that they were not estopped by these recitals from showing that there had been no complete appointment of A. as collector, and that the duplicate assessments and warrant to collect had not been delivered to him. It must not be supposed, however, that the judges in this case denied the application of the doctrine of estoppel in suits on bonds, but they held that, under the circumstances, the same was not infringed.'^ In Holland vs Lea ^^ the facts were as follows : — In ]\Iarch, 1845, R. L. was nominated and elected assistant overseer of the poor of the parish of W., by the inhabitants in vestry assembled, at the yearly salary of £27. In May following he entered into a bond, with two sureties, as a security for the faithful execution of the office, under the 59 Geo. 3, c. 12. The condition of this bond, which was in the usual form, recited that statute, and that R. L. had been duly nominated 11(1850), 10 C. B. 35, 20 L. J. 315, 10 L. J. Ex. 89; Nares vs C. P. 49, 14 Jur. 1137. Rowles (1811), 14 East, 510. 12 See also Webb vs James is (1854), 9 Ex. 430, 2 C. L. B. (1840), 7 M. & W. 279, 9 D. P. C. 532, 23 L. J. Ex. 122. § 280] LIABILITY OF SURETIES OX BOND. 381 and elected at the annual salary of £27. E. L. then pro- ceeded to perform the duties of the office. In March, 1846, at a vestry duly held, a resolution was come to, that the per- manent overseer's salary (meaning E. L.'s) should be raised from £27 to £35 a year, including all other extra charges. In June, 1846, a warrant of the appointment of E. L. as assistant overseer was signed and sealed by two justices of the peace. This warrant recited that E. L. had been nomi- nated and elected in March, 1846, at the yearly salary of £35. Subsequently to June, 1846, E. L. had acted as assistant overseer, but had become a defaulter to a considerable amount. In an action on the bond by the succeeding overseers against the sureties, it was held, that there never had been an appoint- ment by the justices upon the nomination and election of March, 1845, at an annual salary of £27, upon which the bond had been given, inasmuch as the appointment was made in pursuance of the resolution of March, 1846, at the in- creased salary of £35 ; and therefore, that E. L. had never been duly appointed assistant overseer, and the sureties were not liable. The majority of the court were of opinion that the resolu- tion of the 19th of March, 1846, had the effect of creating a new office, different from the former, and that to such new office, and to that alone, the justices had appointed the as- sistant overseer ; and that therefore, the bond was not really given for the discharge of the duties of the new office, but of another, and for that reason the sureties could not be held liable. The reasoning, however, of Martin, B., who dissented, was that E. L. having been really appointed assistant over- seer at the vestry meeting of the 27th March, 1845, the reso- lution of the 19th March, 1846, could only have the effect of increasing his salary; and that such increase of salary, 382 THE DE FACTO DOCTKINE. [§ 281 coupled even with the false recital or misrecital in the ap- pointment by the justices, could not affect the liability of the sureties on the bond. He relied on Franks vs Edwards/* where a reduction in an assistant overseer's salary had been held not to relieve the sureties. § 281. Same subject — Defective qualification. — Again, sureties are precluded from pleading lack of qualification of their principal, or his failure to qualify as required by law, or any irregularity whatever in the mode of or attempt at qualifying on his part, whether such failure or irregu- larity be attributed to his own fault or to that of any other officer or public body. Thus, they are estopped from raising the question of his eligibility.^^ Neither can they set up his failure to take the official oath.^® The same is also held with reference to other objections relating to the bond itself, such as its filing, sufficiency, or approval, or to other matters more remotely connected with it, all of which are liable more or less to affect the official character of the principal.''' § 282. Same subject — Same subject — Canadian. Au- thorities.— There are two Canadian cases upholding the 14(1852), 8 Ex. 214, 22 L. J. Gray (Mass.) 613; People v» Ex. 42. Huson (1889), 78 Cal. 154, 20 P. 15 Jones vs Gallatin County 369; Trescott vs Moan (1862), S& (1879), 78 Ky. 491; School Direc- Me. 347; Ford vs Clough (1832), tors vs Judice (1887), 39 La. Ann. 8 Me. 334, 23 Am. Dec. 513; Lane 896, 2 So. 792. vs Harrison (1820), 6 Munt. Instate vs Findley (1840), 10 (Va.) 573; Kelly vs State (1874), Ohio, 51; Green vs Wardwell 25 Ohio St. 567; County Com'rs (1855), 17 111. 278, 63 Am. Dec. vs Gray (1895), 61 Minn. 242, 63 366; Lyndon vs Miller (1863), 36 N. W. 635; Ramsey County vs Vt. 329; State vs Bates (1863), Brisbin (1871), 17 Minn. 451; 36 Vt. 387. Pritchett vs People (1844), 6 111. iTBoone County vs Jones (1880), 525; People vs Slocum (1866), 1 54 Iowa, 699, 37 Am. Rep. 229; Idaho, 62. Wendell vs Fleming (1857), 8 § 283] LIABILITY OF SURETIES ON BOND. 385 above principle. In Township of Whithy vs Harrison '® the sureties set up the failure of the ofScer, a tax collector, to sub- scribe the oath prescribed by statute, in defence of the action, but tiie court overruled the objection, saying: "It is possible, though not certain, that the defendant, when he became surety for the collector, looked upon this oath, which he might have supposed the collector must have taken, or must take, as af- fording some security for his integrity. We must not sup- pose that a sworn ofScer would not have more scruples about acting unfaithfully than one who was not sworn, otherwise it would be altogether idle in the legislature to exact such oaths. But we can find no authority that would warrant our holding that the omission to take the oath on the part of the collector furnished a legal excuse to the collector for not pay- ing over money that he had collected, or that it could be set up by his surety as a claim to exemption from liability on his part." And in another case, apparently upon the same bond, it was held that a corporation is not bound to see that their collectors take the oath of ofiice ; it is a duty which the statute imposes a penalty upon the collector himself for not ful- filling. ^^ § 283. Liability of sureties where appointment de- clared void by statute. — Again, though an appointment be made in violation of statutory provisions which declare it void, yet if the appointee enters upon the duties of the office, gives a bond, and incurs liabilities as an officer, he and his sureties are liable upon the bond. Thus, in violation of a statute, which provided "that no person shall be eligible to any office of profit or trust, who is a defaulter to the treasury, at the time of his election, and that the election of any such person 18(1859), 18 U. C. Q. B. 603. isMunicipality of Whitby vs Flint (1859), 9 U. C. C. P. 449. 384 THE DE FACTO DOCTRINE. [§ 283 shall be void," a defaulter was elected sheriff, he gave bond and was inducted into office. He collected taxes and failed to pay them over. Suit was brought upon his official bond, and judgnaent rendered against him and his sureties. On appeal it was urged that his election being void, the bond given by him was equally void. It was held, however, that though the election of the defaulter as sheriff was void, and his induc- tion into the office illegal, yet by intruding himself therein, and assuming its duties, he became sheriff de facto ; and that those who voluntarily bound themselves for the faithful per- formance of his duties could not absolve themselves from their obligation by insisting that he was no sheriff.^" Likewise in Kentucky, an Act passed in 1844 enacted, "that no person shall be appointed constable in any district, unless such person shall have been a citizen of the district at least six months next before his appointment," and the Act declared any appointment made contrary to its provisions null and void. Nevertheless, one Teal was appointed constable in a district in which he did not reside, and he and his sureties were held liable upon his official bond. The judgment of the Court which is rather instructive contains the following reasoning: "It is obvious, that under the provisions of this Act, the appointment of Teal, as constable, was null and void, and that the bond sued upon is not valid as a statutory bond. But it does not necessarily ensue that it is not obligatory as a common law bond on the parties who executed it. It was en- tered into voluntarily, and by its execution Teal was enabled to assume the character, and act in the capacity of constable, and thus get into his hands the money of the plaintiff. This constitutes a sufficient consideration to uphold the bond; and public policy, instead of prohibiting, requires the adoption of 20Jone3 vs Scanland (1845), 6 Humph. (Tenn.), 195, 44 Am. Dec. 300. § 284] LIABILITY OF SURETIES ON BOND, 385 the principle that makes such bonds binding on all the obli- gors, both principal and sureties." ^^ § 284. Liability of sureties where statute declares forfeiture of office on non-performance of certain re- quirements. — As we have seen elsewhere,^^ a statutory pro- vision declaring that the office shall be vacant upon failure or neglect on the part of the person elected or appointed there- to to comply with certain requirements, in regard to the giv- ing of bond, the taking of the official oath, or the like, does not ipso facto create a vacancy in fact, whatever effect it may have upon the legal title of the 'officer. It seems, therefore, that so long as those in authority allow a person, who has failed to qualify as required by law, to discharge the duties of the office, he should be regarded as an officer de facto, and his sureties should not benefit by his failure or neglect to escape liability. The authorities supporting these views are quite numerous. ^^ They generally proceed upon the principle that the stat- utory requirements, however stringent may be the language of the Act, are merely directory. Others claim that it is no part of the contract of the sureties to an official bond, that, before their liability shall attach, their principal shall strictly siCom. vs Teal (1853), 14 B. Crawford vs Howard (1851), 9 Ga. Mon. (Ky.) 29. 314; Stephens vs Crawford (1846), 2 2See sec. 140 et seq. 1 Kelly (Ga.) 574, 44 Am. Dec. 23State vs Toomer (1854), 7 680, s. c. (1847), 3 Kelly 499; Rich (S. C.) 216; Stephens vs Sprowl vs Lawrence (1859), 33 Treasurers (1822), 2 McCord (P. Ala. 674; Williamson vs Woolf C), 107; McBee vs Hoke (1843), (1861), 37 Ala. 298; State vs 2 Speers L. (S. C.) 138; Kottman Cooper (1876), 53 Miss. 615. But vs Ayer (1848), 3 Strob.(S. C.) 92; see McNutt vs Lancaster (1848), Chicago vs Gage (1880), 95 111. 9 S. & M. (Miss.) 570; Bennett 593; McElhanon vs Washington vs State (1880), 58 Miss. 556; County (1870), 54 III. 163; State State vs Tucker (1875), 54 Ala. vs Porter (1840), 1 Ala. 688; 205. De Facto— 25. 386 THE DE FACTO DOCTRINE. [§ 284 comply with all the requirements of the law, so as to consti- tute himself, before entering upon the duties of the office, an officer de jure, and not an officer de facto merely. Again others invoke the doctrine of estoppel. Some also hold that if the bond cannot be enforced as a statutory bond, it can as a common law bond. In State vs Toomer^* which was an action against one of the sureties of a late Master in Equity, who had failed to comply with an Act in several important particulars, it was held that this constituted no defence to the suit, though the Act provided that upon such failure his office was to be "deemed absolutely vacant." The Court said: "In all these cases the doctrine is affirmed, that the statutory provisions prescribing the manner of executing the bond, suing out the commission, or taking the oaths of office, are merely directory ; and that the omission to qualify, by giving the bond, suing out the commission or taking the oaths of office, is cause of forfeiture ; but so long as the officer appointed continues to exercise the duties of his office, his official acts as to third persons are legal." So in another case, a sheriff gave a bond after the expiration of thirty days, and it was held that he was an officer de facto, and his sureties were liable, al- though the statute declared, that if the bond was not given within thirty days, the office shall be vacant."" But it seems that even a mandatory construction is not in- consistent with responsibility on the part of the sureties, so long as their principal de facto occupies and exercises the office. This may be inferred from some of the cases above quoted, where the reasons given for the rulings would apply equally, whatever construction was placed upon the statute. In fact, a learned judge says : "The best considered of these 24(1854), 7 Rich. (S. C.) 216. 26Cra\vford vs Howard (1851), 9 Ga. 314. § 285] LIABILITY OF SURETIES ON BOND. 387 cases hold the bond valid, not because the statute fixing the time was directory merely, but because the officer became a de facto officer, or because the officer and his sureties were estopped from asserting the invalidity of the bond, they having tendered it and it having been accepted and the officer having acted under it." ^^ § 285. Where forfeiture judicially declared, but offi- cer de facto in office. — It has also been held in one case, that the sureties on the official bond of a sheriff are responsible for his misbehavior in office after his office is declared for- feited, but before the writ of discharge is served upon him.^' There the sureties were sued for the recovery of moneys re- ceived by the sheriff from a debtor under a fi. fa., placed in his hands after the declaration of forfeiture but before he had given possession to his successor. The forfeiture, however, was under a statute which made his acts valid until he was actually removed.^* "I am of opinion," said Draper, C. J., " he continued de facto in the possession of the office of sheriff, and answerable for all the acts done by him in that character." And further on, he added: "The words used, that Mercer 'shall -Weil and truly pay over to the person or persons entitled to the same of all such moneys as he shall receive by virtue of his said office of sheriff,' are by no means necessarily limited to moneys received by him during his tenure of office, and would certainly apply to a case where he had received a fi. fa., and commenced execution while he was in office, and had com- pleted the same and made the money after his removal and the appointment of his successor. In such a case I feel no 2 6lrvine, C. J., in State vs Lan- ' 2 85 & 6 Ed. VI, c. 16; 49 Geo. sing (1895), 46 Neb. 514, 64 N. Ill, c. 126. W. 1104. 2 7Kent V3 Mercer (1862), 12 U. C. C. P. 30. 388 THE DE FACTO DOCTRINE. [§ 286 doubt the sureties would be liable under the coTOuant, and I cannot satisfy myself that his removal in the manner stated in this case makes any difference." § 286. Same subject — Special duties of sheriffs. — It must be borne in mind, however, that sheriffs stand on a different footing from ordinary officers. They are authorized by common law to complete after the expiration of their term, duties commenced by them while in office. Thus, the same sheriff who commences execution is bound to perfect it, for the law regards it all as one act.^* Accordingly, "though the sheriff is out of his office, yet he is bound to sell the goods" seized by him while in office.^" And in Boucher vs Wise- man,^ ' it is said that the right of a sheriff to continue de facto in office "until he has regular notice of his discharge," has been long ago established. In view of this state of the law, it is evident that there is nothing improper or unjust in sometimes extending the lia- bility of the sureties on a sheriff's bond beyond his fixed official term, for they are presumed to have contracted with knowledge of and subject to such law. This principle is fully recognized in the United States, where it is held that a sheriff's bond covers his official acts performed after the expiration of his term of office, when it is part of his duty to perform such acts. The undertaking of the sureties, it is said, must be co-extensive with the duties of the principal.^^ 2 sTiffany vs Miller (1850), 6 U. 32Baker vs Baldwin (1880), 48 C. Q. B. 426. Conn. 131; State vs Roberts soPer Holt, C. J.— Clerk vs (1830), 12 N. J. L. 114, 21 Am. Withers (1705), 2 Ld. Ray. 1072, Dec. 62; State vs Hamilton (1837), 6 Mod. 290. Also Doe vs Donston 16 N. J. L. 153; Barker vs Munroe (1818), 1 B. & Aid. 230, 19 R. R. (1834), 4 Dev. L. (N. C.) 412; 300. Elkin vs People (1841), 4 111. 207, 31(1595), Cro. Eliz. 440. 36 Am. Dec. 541. § 287] LIABILITY OF SURETIES ON BOND. 389 Otherwise it is, -where the common law duties of sheriffs are altered by statute, and limited to the term of office.^* § 287. Liability of sureties of officer de facto by rea- son of holding over — General principles. — So far it has been shown that the sureties of an officer de facto are generally under the same responsibility for the defaults of their prin- cipal, as if he were an officer de jure. One of the plausible arguments in favor of this doctrine, is that it is immaterial to the sureties whether their principal is an officer de jure or an officer de facto, so long as their liability is not increased or extended. But this reasoning evidently can apply only to the sureties of an officer filling a regular term, and not to those of one who is merely holding over as an officer de facto. The de facto doctrine cannot be permitted to override the prin- ciples of contract, and create responsibilities never intended to be assumed by the contracting parties. The liability of a surety is strictissimi juris, and cannot be extended by con- struction beyond the fair scope of the agreement entered into by him. No doubt the official acts of an officer holding over may be valid and binding, but it does not follow that his bondsmen must guarantee their faithful performance. Attention is called to this distinction in the leading case of Chelmsford vs Demarest,^* where the Court points out that different considerations prevail when it is sought to charge the sureties of an officer holding over, and when only his official acts are drawn into question. As the court was deal- ing there with a private corporation, only the doctrine of es- toppel was given as a reason for upholding official acts, but as it is well known, the acts of de facto public officers are sus- ssMcDonald vs Bradshaw State vs Parchmen (1859), 3 Head. (1847), 2 Kelly (Ga.) 248, 46 (Tenn.) 609. Am. Dec. 385; Wood vs Lowden 34(1856), 7 Gray (Mass.) 1. (1897), 117 CaL 232, 49 P. 132; 390 THE DE FACTO DOCTRINE. [§ 288 tained on grounds of necessity and public policy. But if pub- lic policy can be invoked to validate the acts of de facto public oiEcers, it vi^ould certainly be directly against such public policy to violate the sacredness of contract, in order to prevent occasional losses to the public by reason of the defaults of their agents. If parties to a bond undertake to be responsible for the misbehavior in office of a person for a fixed period, their responsibility should not be extended by reason of the failure or neglect of the public or those in authority to appoint a successor, or to take steps to remove the unlawful incumbent. These principles are so consonant with reason that they never were seriously doubted. It is true that there are a few cases^^ which might be said to lend support to a different doctrine, but they are not well considered decisions. In some of them the conflict is merely to be found in some obiter dicta, which were unnecessary in view of the facts before the court; while in others it is diffi- cult to grasp the exact principles upon which they were de- cided. Possibly the Nevada case, cited below,^^ is the only one directly opposed to the doctrine universally accepted. But at all events, whatever weight these authorities may have, it can safely be concluded, and laid down as a general proposi- tion, that, in the absence of a clear and positive intention to the contrary, to be gathered from the bond itself, or from the law under which it was given, sureties will not be bound dur- ing their principal's holding over, inasmuch as this would be extending their liability beyond the period contracted for. § 288. Rule of construction of official bonds — English authorities. — The above will be apparent from an examina- tion of the principles governing the interpretation of official SBDunphy vs Whipple (1872), vs Dickerson (1872), 45 Cal. 12; 25 Midi. 10; State vs Wells People vs Beach (1875), 77 111. 52. (1872), 8 Nev. 105; Placer County § 288] LIABILITY OF SURETIES ON BOND. 391 bonds. The English rule of construction is, that where the condition of an official bond contains general words apparently extending the liability of the sureties for an indefinite pe- riod, such words must not be construed according to their literal and grammatical meaning, but must be restricted and narrowed down by reference to the regular term of office fixed by law, or where no definite term exists, then to the official period specified in the bond ; and they are not to be understood as creating a continuance of liability beyond the official term so fixed by law or so recited in the instrument, as the case may be. The leading case upon this subject is Lord Arlington vs Merrick.^^ There the bond recited that the Postmaster-Gen- eral had appointed Thomas Jenkins to be his deputy post- master for the period of six months, but the condition in the instrument was for the faithful performance of the duties of the office by Jenkins "during all the time that he shall continue deputy postmaster." The whole Court was of the opinion that the words "during all the time" should be in- tended only for the six months mentioned in the recital. This authority has constantly been followed by the English courts. Thus, where the bond was for the due performance of the duties of tax collector "from time to time and at all times thereafter" the surety was held not liable beyond a year, the office being an annual one.*^ So where a bond, after reciting the appointment of J. B. by churchwardens and overseers, as a collector of church and 36 (1673), 2 Saund. 403. Waterworks vs Atkinson (1805), 37Peppin vs Cooper (1819), 2 B. 6 East, 507, 2 Smith, 654; Keith & Aid. 431. Also Hassell vs Long vs Fenelon Falls United School (1814), 2 M. & S. 363; St. Sa- Section (1883), 3 0. R. 194; Kit- viours, Southvvark vs Bostock son vs Julian (1855), 4 El. & Bl. (1806), 2 Bos. & P. (N. R.) 175; 854, 24 L. J. Q. B. 202, 1 Jur. Bamford vs lies (1849), 3 Ex. (N. S.) 754, 3 W. R. 371. .SSO. 18 L. J. M. C. 49; Liverpool 392 THE DB FACTO DOCTRINE. [§ 289 poor rates, was conditioned for the duly accounting to the obligees and their successors for money received pursuant to and in execution of the ofEce of collector ; it was held, that the obligors were not responsible for receipts on account of any year subsequent to that during which the obligees were in office.^^ But of course the above rule of interpretation will not prevail, where by the bond it appears clearly that the intention was to extend the liability for an indefinite period.^* § 289. Same subject — American authorities. — When untrammeled by the provisions of their own statutes, the American authorities have been practically unanimous in adopting the English rule of interpretation. "Where the term of an officer," says one of the courts, "is for a definite or fixed period, the surety is only liable for his faithful performance during that period. This is clearly so when the bond itself specifies the period. If the bond is silent as to the length of the term, but the statute under which the bond is given fixes the term, the statute, in that regard, will be taken as a part of the contract." *° Thus, in Vnited States vs Kirhpatrich,'^^ the suit was upon a bond given to the United States, conditioned for the faithful discharge of the duties of a collector of direct taxes, by one Reed who was appointed to ssLeadley vs Evans (1824), 2 States vs Boyd (1841), 15 Pet. Bing. 32, 2 L. J. C. P. (0. S.) 108. (U. S.) 187; Miller vs Stewart 39Peppin vs Cooper (1819), 2 (1824), 9 Wheat. (U. S.) 680; B. & Aid. 431; Oswald vs Mayor United States vs Spencer (1840), of Berwick-upon-Tweed (1856), 5 27 Fed. Cas. (No. 16,367) 1281, 2 H. L. Cas. 856, 25 L. J. Q. B. 383, McLean, 265; Bigelow vs Bridge 2 Jur. (N. S.) 743, 4 W. R. 738, (1811), 8 Mass. 275; Rany vs Gov- affirming 3 El. & BI. 653; Curling crnor (1835), 4 Blackf. (Ind.) 2; vs Chalklen (1815), 3 M. & S. 502; Moss vs State (1847), 10 Mo. 338, Augero vs Keen (1836), 1 M. & 47 Am. Dec. 116; Patterson vs W. 390, 2 Gale, 8, 1 Tyr. & G. 709, Freehold Tp. (1876), 38 N. J. L. 5 L. J. Ex. 233. 255. <0People vs Toomay (1887), 122 41(1824), 9 Wheat (U. S.) 720. 111. 308, 13 N. E. 521. Also United § 289] LIABILITY OF SURETIES OK BOND. 893 that office. Reed was afterwards appointed for a succeeding term, but never gave any other bond or security ; and after his re-appointment he became a defaulter. It was held that the new commission revoked and vacated the first; and that his sureties were only bound for his acts under the first commis- sion, and not under the second. So where the term of an officer was limited to four years, it was held that he could not act by virtue of his original appointment and qualification after the expiration of the term, and hence that his sureties could not be held liable if he was permitted to unlawfully con- tinue in office.*^ So it is held that where the legislature has extended the term of an officer beyond the limit fixed by law at the time of his election and qualification, the sureties upon his bond cannot be held liable for his official acts during such extended term.** Again, where an officer takes a bond from his deputy to indemnify him during his continuance in office, such bond only covers the term of the principal's office then current, and cannot be held to embrace defaults during a succeeding term of the principal, whether the deputy continues to act without a new appointment or not.** However, as already pointed out, the bond itself, or the statute under which it is given, and sometimes the character of the office, may indicate that the liability of the surety is to be extended for an indefinite period, or at least beyond the fixed official term-*' Thus, a county treasurer and his 4 20f5futt vs Commonwealth Jones L. (N. C.) 554; Hubert vs (1874), 10 Bush. (Ky.) 212. Mendheim (1883), 64 Cal. 213, 30 4 3King County vg Ferry (1893), P. 633; Tyler vs Nelson (1858), 5 Wash. 536, 32 P. 538, 34 Am. 14 Gratt. (Va.) 214. But see St. E. 880, 19 L.R.A. 500; Sparks Hughes vs Smith (1808), 5 Johns, vs Cherokee County (1907), 76 (N. Y.) 168. Kan. 280, 91 P. 89; Brown vs Lat- 4 5Camden vs Greenwald (1900), timer (1860), 17 Cal. 93. 65 N. J. L. 458, 47 A. 458; Krutt- 44Thomas vs Summey (1854), 1 schnitt vs Hauck (1870), 6 Nev. 394 THE DE FACTO DOCTRINE. [§ 290 sureties were held liable for a defalcation committed by such treasurer more than two years after the execution of his offi- cial bond, there being at that time no law in the State where he held oifice, limiting the tenure of office of the county treasurers.*® § 290. Where the statute provides for holding over. — But though the American courts have generally acknowledged the correctness of the English doctrine, yet they have not all applied it with equal rigidity in the construction of their own statutes. Constitutional and statutory provisions, which to some appeared sufficient to exclude certain bonds from the operation of the rule, were construed differently by others. For instance, where the law provides that an officer shall hold the office for a fixed period, and until his successor is chosen, or is chosen and qualified, there is a great diversity of judicial opinion as to whether or not these words operate to make his sureties liable during his holding over. Both views are supported by many weighty and respectable authori- ties. The solution of the question would seem to depend on the character which is to be attributed to the officer, while he so holds over. If he is to be regarded as an officer de jure, then his sureties are answerable ; if merely as an officer de fac- to, they are not. In other words, the determinative test would seem to be, whether the period of holding over is to be con- sidered as part of the official term or not. As pointed out by a learned judge, the authorities holding the officers' sure- ties responsible "appear rather to sustain the position that he continues in office ; for, if the courts had entertained the opinion that the officers whose securities were sued, were out 163. See also Laurium vs Mills 46State v3 Baldwin (1880), 14 (1902), 129 Mich. 536, 89 N. W. S. C. 135. 362. § 291] LIABILITY OF SURETIES ON BOND. 395 of office at the expiration of the term of office specified, there would appear to be no difficulty or hesitation in declaring that the securities were not liable for defaults after the official powers of the principal had ceased." *^ And another judge, commenting on the same cases, says that such courts hold, "that the bond is given not only for the statutory term, but for the further time which may elapse between the end of the expressed statvitory term and the time when the successor is elected and qualified; that the law becomes incorporated into the bond; that the sureties are bound to know that his right of office niay extend beyond the year, and that this possible extension is taken into consideration and provided for in the bond." " § 291. Same subject. — It would be foreign to the pur- pose of this work to enter upon a close criticism of the cases to ascertain which of the two principles of construction, is better supported by authority and sound reasoning. More- over, the current of decision on both sides not only is unop- posed, but generally sustains the proposition we have pre- viously enunciated, to the effect that the sureties of an officer holding over merely as a de facto officer, cannot be saddled with responsibility for his defaults. In fact, as already pointed out, we could discover but three or four cases that might to any possible degree, countenance a different theory. Again, generally speaking, the subject involves a question of more academical than practical interest at this late day, when the views of the several courts upon the subject are known ; for the recognized judicial interpretation of a statute, being part of the case-law, is as much the law of the land as 4XGamble, J., in State vs Lusk vs Ferry (1893), 5 Wash. 536, 32 < 1853), 18 Mo. 333. P. 538, 34 Am. St. R. 880, 19 4 8 Dunbar, C. J., in King County L.R.A. 500. 396 THE DE FACTO DOCTRINE. [§ 2955 the statute itself. Then, inasmuch as a surety who becomes a party to a bond given under or pursuant to a statute, must be presumed to have contracted subject to such stat- ute as judicially interpreted in his jurisdiction, he cannot complain if afterwards he is held strictly to the terms of his contract as thus settled. Both views of the question, however, are given below with the authorities supporting them. § 292. Jurisdictions where sureties of holding over officers held liable — Officers de jure. — The Missouri courts are among those that favor a liberal construction of constitutional or statutory provisions authorizing holding over, by assigning to the words their full literal and gram- matical import. Thus, in Long vs Seay/^ it was held that the sureties on the bond of an officer, who by law holds until his successor is elected and qualified, remain liable so long as he continues to hold the office, though that be beyond the term for which he was elected. In another case the Court, referring to this subject, says : "The doctrine now well settled in this State is, that an officer elected or appointed to hold for a definite period of time and until his successor shall be duly elected and qualified, holds his office for the specified term, and if no successor be elected or appointed at the expira- tion of the time, his term of office continues until such appointment or election, and that the time during which he holds, after that specified time has expired and until a suc- cessor is elected and qualified, is as much a part of his term of office as the preceding time." ^^ Similarly, in Indiana it was held that the sureties upon 43(1880), 72 Mo. 648. State vs Auditor (1866), 38. Mo. soSavings Bank of Hannibal vs 192. Also State vs Kurtezborn Hunt (1880), 72 Mo. 597, citing (1883), 78 Mo. 98. affirming State vs Lusk (1853), 18 Mo. 333; (1880), 9 Mo. App. 245. § 293] LIABILITY OF SURETIES ON BOND. 397 the bond of a township trustee were bound to know that his right to the office might extend beyond the year, and they bound themselves for whatever time he might continue in office by virtue of such election. "As long as he continued in the office, his successor not having been elected and quali- fied, he was such officer, not de facto merely, but de jure." '^ In West Virginia, a person was elected by the council of the City of Wheeling collector of the city for the unexpired portion of the current term of said office, and continued to hold and exercise the duties of the office after the expiration of the term, and until his successor was elected and qualified. It was held that he was collector de jure of the city until his successor was elected and qualified; and that his sureties were bound to the same extent for his default while thus in office, after the expiration of the current term, as they were for defaults committed before.^^ § 293. Same subject. — In California it is laid down, that sureties on an official bond are liable for a breach of official duty committed by their principal during the term of office for which the bond was given, or committed by him after the expiration of his official term, and before he yields up the office to his successor.^^ In People vs Aikerihead,^^ however, a distinction was taken between the case where the officer is re-elected and the case where he is succeeded by an- other. The action was upon the official bond of a county treasurer, and the Court observed: "The appointment of Aikenhead as Treasurer was to continue until his successor siState vs Berg (1875), 50 Ind. ssPriet vs De la Montanya (Cal., 496, following Butler vs State 1889), 22 P. 171. (1863), 20 Ind. 169. See also 54(1855), 5 Cal. 106. Akers vs State (1856), 8 Ind. 484. 62Wheeling vs Black (1884), 25 W. Va. 266. 398 THE DE FACTO DOCTRINE. [§ 2y;> was qualified, and until this took place, ordinarily, his sure- ties would be bound. But Aikenhead was elected for a new term and ought to have given a new bond. It devolved upon another officer of the law to see to this, and the sureties upon the bond may well have rested in security under the impres- sion that the obligations of the law had been fulfilled. If another than Aikenhead had been elected and failed to quali- fy, so as to have continued the latter in office, the defendants would have been chargeable with notice, and indeed their con- tinued liability would have been but an incident of their con- tract," And in Placer County vs Dicherso'n?^ there is language that might be interpreted as meaning that even if a principal holds over merely as a de facto officer, yet his sureties might be liable. The suit was also upon the bond of a county treas- urer, and the Court said : "Dickerson was at that time still acting in his official capacity, and was de facto, at least, the County Treasurer of Placer County. Whether he was right- fully so or not is not material. The defendants were still held for his breaches of official duty, and could not be permit- ted to claim in their defence that de jure the office belonged to HoUenbeck, who had not then entered upon the discharge of his duties." »" In Oregon, it is declared that "whatever the rule at com- mon law may have been, it is clear that where by the consti- tution or law, officers are elected or appointed for a term, and until their successors are elected and qualified, they are there- by authorized to hold and exercise their offices until their successors are duly elected or appointed under some existing provision of the law." ^^ 65(1872), 45 Cal. 12. BTBean, J,, in State vs Simon B6For a similar dictum, see Peo- (1891), 20 Or. 365, 26 P. 170. Also pie vs Beach (1875), 77 111. 52. Eddy vs Kincaid (1895), 28 Or. § 294] LIABILITY OF SURETIES ON BOND. 399 The same principle of statutory interpretation has been adopted in North Carolina,^* in South Carolina,^^ in Mis- sissippi,*" in Georgia,*^ and in Nebraska.®^ § 294. Jurisdictions where sureties of holding over officers held not liable — Officers de facto. — On the other hand, there is quite a formidable array of authorities holding that, where one is elected to an office under a law which pro- vides that he shall hold the office for a fixed term, and until his successor is elected and qualified, and he is either re- elected at the expiration of the term, but fails to give a new bond, or a successor is regularly elected, but fails to qualify, and he is permitted to hold over, the sureties on his bond are not liable for a defalcation occuring after the expiration of the first term. "But these authorities," says a learned judge, "seem to proceed generally upon the theory that his holding over is wrongful, because his own re-election or that of his successor, and a failure to qualify, terminated his right to the office, and created a vacancy which should have been filled by the proper appointing power." ®* In those cases, as is evident, the statutory language is con- strued strictly by reference to the fixed term of office, and the meaning ascribed to it is that a reasonable time only is to be allowed, at the expiry of the official term, during which the outgoing officer may legally hold, in order that his suc- 537, 41 P. 157; Baker City vs Miss. 84; Thompson vs State Murphy (1895), 30 Or. 405, 42 P. (1859), 37 Miss. 518. 133, 35 L.R.A. 88. eiCuthbert vs Brooks (1873), 49 58GuIley vs Daniel (1859), Ga. 179. Jones L. (N. C.) 444; Snuggs vs 62United States vs Jameson Stone (1860), 7 Jones L. (N. C.) (1882), 16 Fed. R. 331. 382. 6 3 Per Bean, 0. J., in Eddy vs 59Treasurers vs Lang (1831), 2 Kincaid (1895), 28 Or. 537, 41 P. Bailey (S. C.) 430. 157. 6 oMeAffee vs Russell (1855), 29 400 THE DE FACTO DOCTRINE. [§ 295 cesser may be appointed and may qualify and take charge of the office; and after the expiration of such time, the rea- sonableness of which depends in each case upon statutory re- quirements and other circumstances, the officer holding over ceases to be an officer de jure, to become merely an officer de facto, whose sureties from that moment are relieved from all further liability. Notwithstanding that the opposite theo);y may have the balance of convenience on its side, it must be admitted in view of the rules generally controlling the interpretation of bonds, that this construction of the statutes can be supported by very strong and weighty arguments. "Certainly," says one judge, "a plausible argument can be made on each side of the question; but, upon mature reflection I have in- clined to the view that it is more in harmony with the general principle ruling this subject, and which has been already stated, to refuse to give to the stipulation in question the latitude requisite to support the action of the plaintiff." And further on, he adds: "Can we presume that virtually the city officials said to those sureties, this treasurer is appointed for a year, and you become his surety for that year; it is our duty to appoint his successor at the end of this year, but if we fail to perform that duty, you thereby become his sure- ty for all such time as we shall persist in such neglect, even though it may cover the whole life of the incumbent ? It seems to me that, in the language of the case cited from Saunders, this it is 'unreasonable to suppose.' " ^* § 295. Same subject. — Of the same opinion was Chief Justice Shaw, in a suit involving the liability of sureties on a bond of a treasurer who was to be "chosen annually," and 64Per Beasley, C. J., in Eahway vs Crowell (1878), 40 N. J. L. 207, 20 Am. R. 224. § 296J LIABILITY OF SURETIES ON BOND. 401 who was to hold his office until another should have been chosen and qualified in his stead.*^ Said the learned judge : "The law having directed that such officer shall be chosen annually, or at the annual meeting, it assumes and presup- poses that such direction will be complied with, and then the words in question must be construed to mean, till the next annual meeting, or meeting at which such annual election is to be made, and such reasonable time afterwards as shall be sufficient to enable the officer-elect to procure and deliver his bond, and do whatever else is required to complete his quali- fication; or if he fails thus to qualify, until the corporation can elect another and cause him to be qualified." And in Harris vs Babbitt ®® Judge Dillon concurred in the above views, and observed that the courts which support a different interpretation "do not seem, in general, to have had their attention called to the reasoning on the other side," and that their decisions are not as fully considered as the other line of adjudications. § 296. Same subject. — Upon the above principles, it was held in New Jersey that a clause in a bond of suretyship for a public official, guaranteeing the faithful discharge of his duties for a specified term and "until his successor is ap- pointed," will not hold the surety for defaults occurring be- yond a reasonable time after the expiration of his term ; but, what is a reasonable time is a question of fact for the jury, and not a question of law.®'' In Minnesota, the Supreme Court declared that the statu- tory provision for a contingent holding over was a precau- ssChelmsford vs Demarest S'Camden vs Greenvvald (1900), (1850), 7 Gray (Mass.) 1. 65 N. J. L. 458, 47 A. 458. Also 86(1877), 4 DiH. C. C. (U. S.) Rahway vs Crowell (1878), 40 N. 185. J. L. 207, 29 Am. R. 224; De Facto— 26. 402 THE DE FACTO DOCTRINE. [§ 297 tionary one, to prevent a possible vacancy or lapse in the of- fice, but was not intended to create an unlimited term, or to indefinitely extend the prescribed term.*® But one of the judges dissented, remarking that "the term of the treasurer, as an officer de facto and de jure, continues until his suc- cessor is elected and qualified. The interval between the end of the two years, and the election and qualification of the successor, is just as much a part of the term as is the period of two years itself." In Iowa, where a treasurer was re-elected and continued in office during a second term without being re-qualified, it was held that after the expiration of the term fixed for quali- fication he did not legally hold over, but remained treasurer de facto only ; and that the sureties on the bond executed by him, when he qualified for his first term, were not liable beyond that period.®' § 297. Same subject. — In Wisconsin, it has been judici- ally remarked that "as time must necessarily elapse after an election to enable the officer-elect to express his acceptance and qualify, it must be presumed that the sureties contracted that the old officer would perform his duty until a reasonable period was allowed for doing those things." '" In Delaware, it is held that a surety in the official bond of an officer whose appointment is annual, is not liable be- yond the year, though the officer continues by law until a successor is appointed.^ '^ By the Court: "It is another gen- eral principle, that if a person is surety for the fidelity of another in an office of limited duration, or the appointment ssScott County vs Ring (1882), 70Omro vs Kaine (1876), 39 29 Minn. 398. Wis. 468. 69Wapello County vs Bigham 'iWilmington vs Horn (1837), (1859), 10 Iowa, 39, 74 Am. Dec. 2 Harr. (Del.) 190. 370. § 298] LIABILITY OF SURETIES ON BOND. 403 to which is only for a limited period, he is not obliged beyond that period." In Kansas, the same principle of interpretation prevails. In an action upon a bond, which was not expressly limited as to time, the Court observed: "The silence of the bond as to its own duration, is immaterial. The law fixes the length of the principal's term, and the obligation of the sureties extends only to the term existing, and for which the bond is given. Nor does the failure of the people to elect a successor, or of the successor elected to qualify, ex- tend the term for which the principal was appointed. He may, it is true, be continued in office, as the statute has pro- vided, for preventing a vacancy between the close of the one term and the election and qualification of a successor; but he is simply filling a part of his successor's term." ^^ There are several other authorities maintaining the same doctrine in regard to the strict interpretation of bonds. ''^ § 298. Liability of sureties where the bond provides for holding over. — Where the official bond contains stipu- lations similar to the statutory provisions as to holding over, there is as much conflict in regard to the interpretation of such clauses among the Courts, as there is with reference to the construction of the statutes. Some assign to the words their grammatical meaning, and hold that the sureties are 72Riddell vs School District No. So. 126; Board of Administrators 72 (1875), 15 Kan. 168. See also vs McKowen (1896), 48 La. Ann. Sparks vs Cherokee County (1907), 251, 19 So. 328, 55 Am. St. E. 275; 76 Kan. 280, 91 P. 89. Montgomery vs Hughes (1880), 65 7 3Dover vs Twombly (1860), 42 Ala. 201; King County vs Ferry N. H. 59; Hewes vs People (1892), (1893), 5 Wash. 536, 32 P. 538, 34 48 111. App. 439; Heuitt vs State Am. St. R. 880, 19 L.R.A. 500; (1823), 6 Har. & J. (Md.) 95; Ballard vs Thompson (1899), 21 Staite vs Crooks (1836), 7 Ohio Wash. 669, 59 P. 517; Offutt vs (pt. 2) 221; State vs Powell Commonwealth (1874), 10 Bush. (1888), 40 La. Ann. 241; State vs (Ky.) 212. Lake (1893), 45 La. Ann. 1207, 14 40i THE DE FACTO DOCTRINE. [,§ 299 liable until a successor to their principal has duly qualified and entered upon the duties of the office.'^* Others limit the liability of the sureties to the default accruing within a reasonable time after the expiry of the official term.'^" And finally, some wholly deny any effect to such stipulations, and hold that the bondsmen cannot be liable beyond the specified term of office. "The fact that the bond contains the clause which in terms extends the liability 'until another is chosen and sworn in his stead,' does not, like a statutory clause of the same import, extend the legal liability beyond the expiration of the municipal year." ^® § 299. De facto officer's sureties not liable to de jure officer for official salary or fees. — It is held that the sure- ties on the official bond of an officer de facto are not liable to the officer de jure, upon his recovery of the office, for the fees, salary or emoluments thereof, which were received by the former while wrongfully exercising the functions of the office. "No case can be found" says one Court, "where the excluded party has sought to hold the sureties upon the official bond of the de facto officer liable for damages for such wrongful detention or for fees collected for services rendered by such intriider. This affords a strong presump- tion that there is no such liability." ^'^ It is further said that the bond is not an undertaking binding the sureties "to guarantee the validity of the title of their principal to the office he was exercising." '^ 7 4Laurmm vs Mills (1902), 12!) 77Curry vs Wright (1888), 86 Mich. 536, 89 X. W. 302; Akers Tenn. 636, 8 S. W. 593. vs State (1856), 8 Iiid. 484. 78ld.; also People vs Jackson 7B('amden vs Greenwald (1900), (1901), 16 Colo. App. 308, 64 P. 65 N". J. L. 458, 47 A. 458. 1051 ; but see Morris vs People TsPer Virgin, J., in Norrldge- (1890), 8 Colo. App. 375, 46 P. wock vs Hale (1888), 80 Me. 302. 691. See also Com. vs Fairfax (1809), 4 Hen. & M. (Va.) 208. BOOK V. or THE VALIDITY OF THE OEFICIAL ACTS OF DE FACTO OFFICEKS. BOOK V. OF THE VALIDITY OF THE OFFICIAL ACTS OF DE FACTO OFFICEKS. CHAPTEE 24. INTRODUCTORY. § 300. Scope of this book. § 300. Scope of this book. — In dealing with this sub- ject, it will be impossible to refer to every instance where the acts of de facto officers have been held valid, as this would involve the repetition in another form of all the cases al- ready considered in the preceding books. Therefore, after laying down general principles, we shall content ourselves with referring, by way of illustrations, to the decisions which are most likely to be of interest. There are, however, sub- jects which have a special importance, or about which there is conflict among the authorities. These will require to be treated separately. With these considerations in view, we shall investigate the subject-matter of this book under six heads, which will form so many chapters, as follows : — 1. Acts of de facto officers valid — Rule explained and il- lustrated. 2. Acts of de facto officers in relation to the levy and col- lection of taxes — Tax titles. 3. Appointment or election to office by de facto officers. 4. Acts of de facto officers in relation to elections. 5. Validity of oaths taken before de facto officers — Per- jury. 6. Validity of acts of de facto judicial officers — De facto courts. 407 CHAPTER 25. ACTS OF DE FACTO OFFICERS VALID— RULE EXPLAINED AND ILLUSTRATED. 301. General rule. < 302. Aots not valid when official character notoriously bad. 303. Acts not valid as to persons aware of the officer's want of title. 304. Same subject. 305. Knowledge of defective title of appointees not gener- ally imputable to ap- pointors — Liability of ap- pointors for acts of ap- pointees discussed. 306. Same subject — English au- thority. 307. Same subject — American authorities. 308. Where ignorance of detec- tive title is due to gross negligence, de facto rule cannot be invoked. 309. Conflicting ruling in New York in regard to effect of knowledge of defective title. 310. De facto rule does not tip- ply where same would work injury. 311. Acts of de facto Governors and Legislators in rela- tion to the passing of laws. 312. Ordinances or other meas- ures passed by de facto municipal bodies. 408 313. Bonds signed or issued by de facto municipal of- ficers. 313a. Contracts made by do facto officers binding on corporation. 314. Acts of de facto municipal officers in relation to var- ious matters. 315. Payments by or to officer de facto, valid and binding on all parties. 315a. Validity of marriages per- formed by de facto offi- cers. 316. Validity of instruments ac- knowledged before or registered by de facto officers. 317. Acts of de facto clerks and deputy clerks of courts. 318. Acts of de facto sheriffs and constables, and de facto deputies. 319. Acts of de facto prosecuting attorneys. 320. Validity of acts of de facto officers in relation to the selection and swearing of jurymen. 321. Validity of bonds or recog- nizances taken or ap- proved by officers de facto. § 301] VALIDITY OF ACTS. 409 § 301. General rule. — It is manifest from what has al- ready been said, that the acts of officers de facto, performed by them within the scope of their assumed oificial authority,' in the interest of the public or third persons, and not for their own benefit,^ are generally as valid and binding as if they were the acts of officers de jure. "This doctrine dates as far back as the Year-Books, and it stands confirmed, with- out any qualification or exception, by a long line of adjudica- tions, both in England and in the United States." * "Acts done by an officer de facto, and not de jure, are good," says Viner.* "There is no distinction in law," observes one judge, "between the official acts of an officer de jure, and those of an officer de facto. So far as the public and third persons are concerned, the acts of the one have precisely the same force and effect as the acts of the other. The only difference between the two is, that the latter may be ousted from his office by a direct proceeding against him in the nature of quo warranto, and the former can not. Their official acts are equally valid. The rule is one which is dictated alike by prin- ciples of justice and public policy. It would be a great hard- ship if innocent persons were made to suffer by the unknown negligence of officials, who, under color of office, were daily holding themselves out to the public as officers de jure." ^ Upon this principle, a third party bona fide procuring the services of a de facto officer, is no more responsible for his acts than if he were an officer de jure.® In fact, the question for determination in cases involving iBailey vs Fisher (1874), 38 4Vin. Abr. Tit. Officer and Of- lowa, 229. fices (G. 4). 2R. vs Lisle (1738), Andr. 163; eSomerville, J., in Joseph vs Pack vs United States (1906), 41 Cawthorn (1883), 74 Ala. 411. Ct. CI. 414; Jordan vs Ry. Co. See also Com. vs Wotton (Mass. (1904), 25 Pa. Sup. Ct. 564. 1909), 87 N. E. 202. sHeath vs State (1860), 36 Ala. cBerry vs Hart (1871), 1 Col. 273. 246. 410 THE DE FACTO DOCTRINE. [§ 301 the application of the de facto doctrine, is not as a rule whether the challenged acts, assuming the officer to be de facto such, are valid, but whether the person whose title is questioned, is or was really a de facto officer. As stated by a learned judge : "The rule that the acts of a de facto officer are valid as to the public and third persons is firmly estab- lished, although it is sometimes difficult to determine whether the evidence is such as to warrant a finding that a particular act or acts, the legality of which may be in issue in a given case, were those of a de facto officer." '' It follows from this, that the numerous cases referred to in previous parts of this work, upholding a de facto character in persons as- suming to hold office under various circumstances, are equally authority for the proposition laid down in this section. Nev- ertheless, for the sake of convenience and ready reference, it has been thought advisable to collect in this place a few authorities, selected from an overwhelming number of others of like import.* TDe Haven, J., in Waite vs Santa Cruz (Cal. 1898), 89 Fed. 619. sScadding vs Lorant ( 1851 ) , 3 H. L. Cases 418, 5 Eng. L. & Eq. 16, 15 Jur. 955, affirming 13 Q. B. 706; Parker vs Kett (1701), 12 Mod. 466, 1 Ray. (Ld.) 658; R. vs Lisle (1738), Andr. 163; Mil ward va Thatcher (1787), 2 Term. (D. & E.) 81, 1 R. R. 431; R. vs St. Clement's (1840), 12 Ad. & E. 177, 3 P. & D. 481, 4 Jur. 1059; De Grave vs Corp. of Monmouth (1830), 4 C. & P. Ill; Costard vs Winder (1600), Cro. Eliz. 775; (for other English cases sec ante, sec. 6)— O'Neil vs Atty.-Gen. of Canada (1896), 26 Can. Sup. Ct. 122, 1 Can. Crim. Cases 303; Pon- tiae County vs Ross (1889), 17 Can. Sup. Ct. 406, affirming ». c sub nom. Pontiac County vs Pon- tiac Pac. Junction Ry. Co. (1888), 11 Leg. News (Que.) 370; Speers vs Speers (1896), 28 0. R. 188; Turtle vs Euphemia Tp. (1900), 31 0. R. 404; Hamilton School Trustees vs Neil (1881), 28 Gr. (Ont.) 408; Kent vs Mercer (1862), 12 U. C. C. P. 30; R. vs Smith (1848), 4 U. C. Q. B. 322; Rouleau vs Corp. of St. Lambert (1896), 10 Que. R. (S. C.) 69 & 85; LeBoutillier vs Harper (1875), 1 Que. L. R. 4; Hogle vs Rockwell (1898), 20 Que. R. (S. C.) 309; R. vs Gibson (1896), 29 Nov. Scot. R. 4 ; Crookshank vs McFarlane (1853), 7 N. B. 544; Cawley vs 302] VALIDITY OF ACTS. 411 § 302. Acts not valid when official character notori- ously bad. — The acts of an illegal officer, however, are valid only when the defects in his title are unknown, for when the public or third persons have or should have a knowledge that the officer is not an officer de jure, there is no reason for val- idating his acts, and the law will no longer protect those Branchflower (1884), 1 B. C. (Pt. 2) 35; (for other Canadian cases see ante, sec. 11) — Nofire vs United States (1897), 164 U. S. 657, 17 Sup. Ct. 212, 41 L. ed. 588; Gonzales vs Ross (1887), 120 U. S. 605, 7 Sup. Ct. 705; McDowell vs United SUtes (1895), 159 U. S. 596, 16 Sup. Ct. Ill, 40 L. ed. 271; Cardoza vs Baird (1907), 30 App. (D. C.) 86; Masterson vs Matthews (1877), 60 Ala. 260; Miller vs Callaway (1878), 32 Ark. 666; Monahan vs Lynch (1903), 2 Alaska, 132; Jeffords vs Hine (1886), 2 Ariz. 162, 11 P. 351; Susanville vs Long (1904), 144 Cal. 362, 77 P. 987; Darrow vs People (1885), 8 Colo. 417, 8 P. 661; State vs Carroll (1871), 38 Conn. 449, 9 Am. Rep. 409; State vs Gleason (1869), 12 Fla. 190; Gunn vs Tackett (1881), 67 Ga. 725; Sharp vs Thompson (1881), 100 111. 447, 39 Am. Rep. 61; Par- ker vs State (1892), 133 Ind. 178, 31 N. E. 1114; State vs Powell (1897), 101 Iowa, 382, 70 N. W. 592; State vs Perkins (1854), 24 N. J. L. 409; Morton vs Lee (1882), 28 Kan. 286; Patterson vs Miller (1859), 2 Mete. (Ky.) 493; Citizens Bank vs Bry (1848), 3 La. Ann. 630; Belfast vs Morrill (1876), 65 Me. 580; Abbott vs Chase (1883), 75 Me. 83; Koontz vs Hancock (1885), 64 Md. 134; Petersilea vs Stone (1876), 119 Mass. 465, 20 Am. Rep. 335; Au- ditor-Gen. vs Sup'rs (1891), 89 Mich. 552, 51 N. W. 483; Ramsey County vs Brisbin (1871), 17 Minn. 451; Vicksburg vs Lombard (1875), 51 Miss. Ill; Perkins vs Fielding (1893), 119 Mo. 149, 24 S. W. 444, 27 S. W. 1100; State vs Cook (1896), 17 Mont. 529, 43 P. 928; Dredla vs Baache (1900), 60 Neb. 655, 83 N. W. 916; Walcott vs Wells (1890), 21 Nev. 47, 24 P. 367, 37 Am. St. R. 478, 9 L.R.A. 59; Jewell vs Gilbert (1885), 64 N. H. 13, 5 A. 80, 10 Am. St. R. 357; Oliver vs Jersey City (1899), 63 N. J. L. 634, 44 A. 709, 76 Am. St. R. 228, 48 L.R.A. 412, reversing 63 N. J. L. 96, 42 A. 782; Wilcox vs Smith (1830), 5 Wend. (N. Y.) 231, 21 Am. Dec. 213; People vs Cook (1853), 8 N. Y. 67, 69 Am. Dec. 451, affirming (1852), 14 Barb. 259; Burke vs Elliott (1844), 4 Ired. L. (N. C.) 355, 42 Am. Dec. 142; Ex p. Strang (1871), 21 Ohio St. 610; Hamlin ys Kassafer (1887), 15 Or. 456, 15 P. 778, 3 Am. St. R. 176 ; Riddle vs Bedford County (1821), 7 S. & R. (Pa.) 386; Ex p. Norris (1877), 8 S. C. (8 Rich.) 408; Fylpaa vs Brown County (1895), 6 S. Dak. 634, 62 N. W. 962; State vs Hart (1901), 106 Tenn. 269, 61 S. W. 780; Au- lanier vs Governor (1846), 1 Tex. 412 THE DE FACTO DOCTRINE. [§ 302 M'ho have submitted to them.' "However much color of au- thority," says the Supreme Court of Missouri, "may clothe the person who assumes to perform the functions of an ofSce and discharge its duties, yet, if the public or third persons are not deceived thereby, if they know the true state of the case, the reason which gives origin or existence to the rule which validates the act of an officer de facto, ceases ; and with it cease also all of its ordinary validating incidents and con- sequences." ^° A fortiori, if the pretended officer be a mere intruder, act- ing without color of right, and without recognition by the public, no one should believe him to be an officer and deal with him as such, for no one can reasonably believe a fact to exist for which he has no reasonable grounds. ■''^ In other words, when the defects in the title of an officer are notorious, those relying on his acts are chargeable with such knowledge.^^ Thus, in R. vs Corporation of Bedford Level,^^ the registra- tion of deeds by a deputy registrar after the death of his principal, was held invalid, because the fact of the death was a matter of common knowledge. "When that fact," says Lord EUenborough, "was notorious to the owners of land in this Level, no one could have registered his deeds with him under a belief that he was acting as the assistant of one, who by the course of nature had ceased to fill the office, in the exe- 653; Vanderberg vs Connoly lOState vs Perkins (1897), 139 (1898), 18 Utah, 112, 54 P. 1097; Mo. 106, 40 S. W. 650. State vs Bates (1863), 36 Vt. 387; nDabney vs Hudson (1890), 6S Old Dominion Building etc. Ass'ii Miss. 292, 8 So. 545, 24 Am. St. vs Solin (1903), 54 W. Va. 101; R. 276. McCraw vs Williams (1880), 33 i2Nixon, J., in Oliver vs .Jersey Gratt. (Va.) 510; State vs Foun- City (1899), 63 N. J. L. 634, 44 tain (1896), 14 Wash. 236, 44 P. A. 709, 76 Am. St. R. 228, 48 270; Yorty vs Paine (1885), 62 L.R.A. 412, reversing 03 N. J. L. Wis. 154, 22 N. W. 137. 96, 42 A. 782. sLeBoutillier vs Harper (1875), ' 13(1805), 6 East, 356, 2 Smith, 1 Que. L. R. 4. K. B. 535. § 302] VALIDITY OF ACTS. 413 cution of whicli he was to be assisted by tbe deputy." And further on, referring to Moor 112, he adds: "It is said in that book, that the acts of such steward (i. e. a steward de facto) are good, because the suitors cannot examine his title ; but when his authority has notoriously ceased, no such rea- son obtains." So where a pretended municipal councillor whose election was a patent illegality and nullity, took his seat and con- curred in the nomination of other councillors, it was held that his official action could not be sustained as that of an officer de facto, because the illegality of his nomination was a matter of public notoriety in the municipality, and there- fore he could not have had the reputation of being a good officer.''* So where a person was seated as a town supervisor by the board of supervisors, after his opponent had been declared elected and had received a certificate of election, pursuant to an order of the court directing the board of can- vassers to recount the votes and to issue a certificate to the candidate having the greater number of ballots, and he himself had been directed to deliver the books and papers of the office to his opponent, — it was held that he could not be deemed an officer de facto, and that his concurrence in .passing a resolution rendered the same void, when his vote was essential to constitute the required majority.'" It was there pointed out that the de facto doctrine does not apply where the official action of an officer has been challenged at the outset, and before any person has been or can be misled by it, and where no rights have as yet accrued upon its faith, either of a public or private character.'® i4Lacasse vs Labont6 (1896), 10 147 N. Y. 426, 42 N. E. 184, af- Que. R. (S. C.) 97, 104; Rouleau firming (1893), 71 Hun (X. Y.) vs Corp. of St. Lambert (1896), 309. 10 Que. R. (S. C.) 69, 85. isSee also Van Amringe vs Tay- isWilliams vs Boynton (1895), lor (1891), 108 N. C. 196, 12 S. E. 414 THE DE FACTO DOCTRINE. [§ 303 § 303. Acts not valid as to persons aware of the of- ficer's want of title. — Moreover, according to the authori- ties, though a person's title to an office may not be so no- toriously bad as to render all his acts invalid, yet his official character will be no protection to those who happen to know that he is an illegal officer. In other words, he may be a usurper as to certain persons, and a good officer as to others. This was laid down by Andrews, J., in Lacasse vs La- honte/'' where the learned Judge, after quoting the defini- tion of Lord EUenborough, observes : "From this definition it is apparent that a man in one place, at one time, and among certain persons, might 'have the reputation of being the officer he assumes to be,' and the same man in a different place, or at a diiferent time, or among different persons, might not have such reputation. Therefore it is plain that whether the man is a de facto officer or not cannot be decided absolutely, once for all, and as to all, but on the contrary depends on the knowledge possessed by those with whom he deals as to his true status. As Chief Justice Lee said in the case of R. vs Lisle (1738), Andr. 163, 'In these cases the proper question is whether a person be an officer de facto as to the particular purpose under consideration.' Conformably to this we find that in the case of B. vs Bedford Level (1805), 6 East, 356, the Court held the acts of the officer in question therein in- valid as to certain parties who were aware of the fact which rendered him incompetent, viz., the death of the officer whose deputy he had been, but intimated that they would be valid 1005, 23 Am. St. R. 51, 12 L.R.A. son vs Ewing (1862), 1 Brews. 202; Baker vs Hobgood (1900), 126 (Pa.) 67; State vs Shuford (1901). N. C. 149, 35 S. E. 253; Cronin vs 128 N. C. 588. 38 S. E. 808; Con- Stoddard (1884), 97 N. Y. 271; way vs St. Louis (1881), 9 Mo. Montgomery vs O'Dell (1893), 67 App. 488; State vs Pinkerman Hun (N. Y.) 169, 35 N. E. 205, (1893). 63 Conn. 176, 28 A. 110, 44 22 N. Y. S. 412, affirmed in (1894), Am. & Eng. Corp. Cas. 233. 142N. Y.665, 37 N. E. 570; Thomp- 17(1896) 10 Que. R. (S. C.) 104. § 304] VALIDITY OF ACTS. 415 in favor of those unaware of that fact. This is perfectly reasonable and is in accord with the general principles of law applicable to such matters." § 304. Same subject. — This principle is clearly exempli- fied by the case of St. Luke's Church vs Matthews.^'^ There a clergyman entered into a contract with a vestry, who were not legally elected, but who were yet the vestry de facto, for a year's service in the church. He was ignorant of the ille- gality of the election, and there was no collusion. He per- formed the duties, and it was held that he was entitled to the benefit of his contract. But in the ensuing year he entered into another contract with the same vestry, when apprised of the illegality of their election. The Court ruled that this furnished sufficient proof of collusion, and a per- petual injunction was decreed against any suit for the serv- ices rendered the second year. The same principle was also applied in Murphy vs Moies.'^ The question in that case was whether the plaintiff's claim had been duly presented to the town council, pursuant to a statutory requirement. The council to which the claim was presented had been declared elected, and had qualified and organized, but the day after the members were sworn in, quo warranto proceedings were commenced to oust them from office, on the ground that their election was invalid. The plaintiff was the attorney of the council in the quo warranto proceedings, and he presented his claim to them after the commencement of such proceedings. It was held that in so doing he assumed the chances of the legality or illegality of the council, and hence the judgment of ouster against them was fatal to his claim, "He knew," said the Court, "that their 20(1815), 4 Des. Eq. (S. C.) 21(1892), 18 R. I. 100, 25 A. 977. 578. 416 THE DE FACTO DOCTRINE. [§ 304 title was not only in question, but in litigation at the time, and that their right to act, in any capacity, depended upon the fact of plainly fraudulent votes, which he, himself, as town solicitor, had advised should be counted. ... If, in this state of affairs the plaintiff chose to submit his claim to that body he took the chance of its ultimate legality. Cer- tainly he is not within the class of persons and the reason for which the rule in regard to de facto officers was established." So where two school boards were assuming to act in the same district, each claiming to be the lawful board, and a school teacher was hired by one of them, but before she entered upon her duties, she was notified by the other board, who was lawfully in office, not to teach under the authority of the persons who had engaged her, it was held that the hiring con- tract, though partly performed, was not binding on the school district.^ ^ So in another ease, which was also on a teacher's contract, it was held that the plaintiff could not recover if the circumstances known to her were such as to preclude her, as a reasonable person, from believing that the person with whom she had entered into the contract, was subdirector by right. 23 So where a to^vnship drainage engineer had been appointed by a municipal council without their having complied with the formalities prescribed by the Act under which the ap- pointment was made, it was held that as to such council who knew or should have known that his appointment was invalid, he could not be regarded as an officer de facto, and an award made by him was set aside. "How can those," said Mere- dith, J., "who so recently attempted to appoint him say that he had the reputation of being the engineer ? " ^* 22Genesee Tp. vs McDonald 2 Pet. (U. S.) 152. 18 U. C. C. P. 357. sRonkendorff vs Taylor's Lessee (1830), 4 Pet! (U. S.) 349. 456 THE DE FACTO DOCTRINE. [§ 324 whatever may be the title of the acting oiEcer. Hence, it seems that the refusal to apply the de facto doctrine, under such circumstances, is not supported by sound reasoning ; but is the result of misapprehension, caused by confounding the acts or proceedings themselves with the agency whereby they are performed or carried on. Real property ought not to be held more sacred than human life ; yet it is now firmly established that if an individual is convicted and sentenced to death by a de facto judge, such conviction and sentence cannot be quashed or set aside, on account of any defect in the Judge's title or qualification. § 324. Order in which the authorities are reviewed. — Having intimated the conflicting views of the authorities upon the subject of taxes, brief reference will now be made to th6 rulings found in various jurisdictions. The English and Canadian decisions will be first dealt with. The American cases will next be referred to, by State, in the following order, viz.: (1.) States where the authorities deny the application of the de facto doctrine; (2.) States where the authorities are conflicting; and (3.) States where the acts of de facto tax ofiicers are placed on a level with those of other de facto officers. § 325. English rulings. — In Viner's Abridgment'' it is said, that "if he that is a churchwarden de facto makes a rate for repairing the church, this will bind the parishioners." In Scadding vs Lorant * the action was replevin against the defendants, two tax collectors of the parish of St. Pan- eras, in England, for a distress made by them to levy a poor rate. There were numerous objections raised to their proceed- 'Tit. Church-wardens (A. 2). L. & Eq. 16, 15 Jur. 955, affirming 8 (1851) , 3 H. L. Cas. 418, 5 Eng. 13 Q. B. 706. § 326] ACTS OF DE FACTO TAX OFFICERS. 45T ings, one being that the rate had not been made by de jure vestrymen. This objection, however, was overruled on ap- peal, and Alderson, J., delivering the judgment of the Ex- chequer Court, which was subsequently affirmed by the House of Lords, said: "One objection was, that the forty-six ves- trymen appointed in May 1839 were not duly elected, as was the fact; and that no notice of the meeting was given to some of the vestrymen, who, if their election was to be held void, still continued to act like legal vestrymen. The answer to that objection is that, as the forty-six vestrymen were de facto vestrymen, the rate made by them or all of them, hav- ing had due notice, was vialid as the rate of the church- wardens and overseers de facto." Likewise, in B. vs St. Clements,^ it was held that a vestry summoned by churchv;ardens de facto may make a valid rate. So in Waterloo Bridge Co. vs Cull ^° it was held by the Court, of Exchequer Chamber, affirming the judgment of the Court of Queen's Bench, that an assessment and levy was not invalidated by reason of the want of qualification, in respect of residence, of collectors and assessors appointed and acting in fact. So it has been held that a rate or assess- ment is valid, though made or levied by overseers irregu- larly appointed, ^^ or by tithe valuers ineligible to the office, by reason of interest.^* § 326. Canadian rulings. — In Municipality of Whitby vs Flint ^* the right of a tax collector to act was incidentally called into question on the ground that he had not taken 9(1840), 12 Ad. & El. 177, 3 P. izLancaster & Carlisle Ry. Co. & D. 481, 4 Jur. 1059. vs Heaton (1858), 8 El. & BI. 952, 10(1858), 1 El. & El. 213, 28 L. 27 L. J. Q. B. 195, 4 Jur. (N. S.) J. Q. B. 70, 5 Jur. (N. S.) 464. 707. See also, sec. 153. iiPenney vs Slade (1839), 5 13 (1859), 9 U. C. C. P. 449. Bing. (N. C.) 319, 7 Scott. 484. 458 THE DE FACTO DOCTRINE. [§ 326 the official oath. But the Court overruled the objection, say- ing: "So soon as Hodgson became collector it became his duty to take it; the statute which subjects him to a penalty 'upon default' emphatically recognizes the duty. But the omission to take it does not vacate the appointment, nor ren- der him incompetent to discharge the other duties apper- taining to it." ^'^ The same was held where a collector had not made and subscribed the solemn declaration prescribed by statute. ^^ Again, where a collector had failed to give a bond before entering upon his duties as required by statute, it was held that collecting the rates without such compliance was not an illegal act.^^ So, in Gill vs Jackson,^'' it was held that a school rate imposed by trustees de facto was legal. So, in New Brunswick, it was held that a district assessment will not be quashed because the secretary to school trustees has not given the bond required by law.'® Likewise where the county treasurer had not given a bond.*' But in B. vs Conn, of Sewers for Hopewell,^" under an Act providing that commissioners of sewers shall be sworn into office within one week after their election, or shall be deemed to have refused, it was held that the statute was imperative, and that a commissioner elected on the 2nd of August could not be legally sworn in on the 8th of Septem- ber — the office at that time being vacant ; and that his join- ing with the other commissioners in making an assessment rendered it void. 14A1S0 Township of Wliitby vs , it (1856), 14 U. C. Q. B. 119. Harrison (1859), 18 U. C. Q. B. 603. isEx p. Johnston (1894), 32 N. isLewis vs Brady (1889), 17 0. B. 556. R. 377. i9Ex p. Raymond (1872), Stev. isjudd vs Read (1857), 6 U. C. Dig. (N. B.) 127. C. P. 362. 20(1872), 14 N. B. 161. § 327] ACTS OF DE FACTO TAX OFFICERS. 459 § 327. Rulings in Maine. — In this State it was laid down as late as 1907, that it is indispensable to the validity of a sale of real estate made by a tax collector for non-pay- ment of taxes, that the collector be shown to have been le- gally elected and qualified to act in that capacity. ^^ Among the older decisions the leading case appears to be Payson vs Hall.^^ There a tax sale was set aside because the col- lector had not taken the official oath. The language of the Court is interesting. It is in part as follows : "With refer- ence to the first answer it may be observed, that when con- stables or sheriffs perform acts by virtue of judicial pre- cepts, it is usually sufficient to show, that they were officers de facto, without producing proof, that they were legally qualified to do so. A person injured by such acts has a rem- edy by action against the officer, and his rights are secured by a final resort to the official bond. But one injured by the misconduct of a collector of taxes cannot be protected by a resort to his official bond for redress, that having been made for the security of the town alone. He must be per- mitted to avoid the acts of one assuming without lawful au- thority to be a collector, or be in many cases without remedy. If a person without election and legal qualification could act as a collector of taxes and as such make sale of an es- tate, and the production of a deed made by him in that ca- pacity were to be considered as effectual without proof of iis election and qualification, there would be no effectual security for the faithful discharge of his duties. Such was not the intention of the Legislature. The party is required to produce the collector's deed, not the deed of a person assuming without right to act in that capacity. The tax 22Baker vs Weliber (1907), 102 23(1840), 30 Me. 319. Me. 414, 67 A. 144. 460 THE DE FACTO DOCTRINE. [§ 328 payer is entitled to have his interests protected in the sale of his property by the obligations imposed by the official oath." Subsequent cases have approved and followed this doctrine. Thus, Springfield vs Butterfield ^* vpas an action of debt for taxes assessed in the year 1900. The only defence set up V7as that one of the assessors of the plaintiff town for that year was ineligible to the office, and hence that, although regularly elected and sworn, he was only an officer de facto, and not de jure. The court upheld the defendant's conten- tion and gave judgment in his favor, on the ground that "the rule is too firmly established in this state to be now over- ruled, or questioned, that taxes assessed by a de facto board of assessors, or by a board one of whose members is a de facto assessor are void and uncollectable, and that the ques- tion may be raised in a suit for the taxes by the town." ^ But in Maine the acts of officers de facto in relation to taxes are not always absolutely void. Thus, where a tax was received by the collector who was not sworn but was acting under color of his office, it was held that he was a collector de facto, and had the right, as between the town and tax payer, to receive and receipt for the taxes committed to him as such officer.^" § 328. Rulings in Vermont— Cot7 vs Wells ^'' was an action of ejectment, in which the defendant set up as a de- 24(1903), 98 Me. 155, 56 A. 581. 451; Jordan vs Hopkins (1892), 2 5 Also Dresden vs Goud (1883), 85 Me. 159, 27 A. 91; but see the 75 Me. 298; Green vs Lunt (1870), old ease of Hale vs Gushing ( 1823), 58 Me. 518; Oldtown vs Blake 2 Me. 218. (1883), 74 Me. 280; Williamsburg aewhiting vs Ellsworth (1893), vs Lord (1863), 51 Me. 599; Bow- 85 Me. 301, 27 A. 177. See also ler vs Brown (1892), 84 Me. 376, Greene vs Walker (1873), 63 Me. 24 A. 879; Lord vs Parker (1891), 311. 83 Me. 530, 22 A. 392; Orneville vs 27 (1829), 2 Vt. 318. Palmer (1887), 79 Me. 472, 10 A. § 328] ACTS OF DE FACTO TAX OFFICERS. 461 fence a title acquired through a collector's sale for a special road tax. On behalf of the plaintiff, the objection was raised that the collector had not given bond as required by law, and this was held fatal to the tax sale. The Court said: "The bond is to be the security, that the money received by the collector shall be paid to the committee, and go to subserve the objects of the tax; that the land owners may not pay their money and yet fail of the roads, which are intended to operate to their benefit by adding value to their lands. Now the collector, as soon as he receives his rate bill and warrant, proceeds to receive the money for the taxes, and advertises his sale. These are official acts, and he must give bond before he commences these acts, or his acts are void." This principle is apparently sanctioned in Spear vs Dit- ty,^^ where a collector's bond was objected to because, it was claimed, the penalty was insufficient in amount. Referring to tax titles, the Court remarked: "Great nicety has pre- vailed in relation to these titles; and, in cases of doubt, the inverted maxim seems to have obtained, ut res majis pereat quam valeat." But continuing, the court adduces reasons in support of the validity of the bond, which might be urged with equal force to validate the acts of the collector, so far as innocent third persons are concerned, even if he had given no bond at all. However, in the subsequent case of Isaacs vs Wiley,^^ the court lays down in unmistakable terms the doctrine that a bond is essential, and this merely because the law requires one to be given. "We hold the giving of a bond," said the Court, "and such a bond as the statute requires, to be indis- pensable to pass the title, not because we consider that the public, or the land-holders, have any indirect interest even, in the security which it affords, but because a strict compli- 28(1836), 8 Vt. 419. 29(1839), 12 Vt. 674. 462 THE DE FACTO DOCTRINE. [§ 329 ance with all the prerequisites of the statute is considered necessary, in this class of cases, in order to pass the title. In accordance with this rule, it has been twice decided that it is necessary for the collector to give such a bond as is re- quired by statute." ^^ The taking of the official oaths required by law, is also strictly insisted upon in Vermont. Thus, in Ayers vs Moul- ton,^'^ it was held that a statute which provided that listers, before entering upon the duties of their office, shall be sworn to their faithful performance, is mandatory, and must be substantially complied with, to give validity to the lists.^* And more recently, it was held, that if the listers in taking the oath prescribed by an Act of 1882, add immediately before the words "So help me God," the words "to the best of our judgment," that addition is sufficient to render the oath null, and the subsequent grand list invalid.^* § 329. Rulings in New Hampshire. — In Cardigan vs Page ** it was held that where a title to real estate is derived from a collector's sale of taxes, it must appear by record that he took the oath of office prescribed by law ; otherwise the sale is void. However, this case was adversely criticized in Tucker vs Ailcen/^ where the Court remarked that "there seems to be no sound distinction between the acts of a col- lector de facto, in making a distress, or sale of land in order to satisfy a tax, and those of a sheriff in the seizure and sale of property under attachment, or in the way of an execu- tion." But notwithstanding this decision, it was again held 30Coit vs Wells (1829), 2 Vt. 61 Vt. 48. See also Newell V3 318. Whitingham (1885), 58 Vt. 341; 31(1878), 51 Vt. 115. Woodstock vs Bolster (1863), 35 32See also Walker vs Burling- Vt. 632. ton (1883), 56 Vt. 131. 34(1833), 6 N. H. 182. 33Lynde vs Dummerston (1888), 36(1834), 7 N. H. 113. § 329] ACTS OF DE FACTO TAX OFFICERS. 463 in Pike vs Hanson^^ that a tax is not valid which is founded upon an appraisement made by selectmen not sworn accord- ing to law. There, however, the action was for assault and false imprisonment against the officer, and did not merely constitute a collateral attack upon his official acts. But the Court apparently did not rest its opinion on any such dis- tinction, but upon the broad principle, that the provision of the statute requiring the collector to take an oath could not be deemed merely directory, it being designed, they claimed, "for the protection and security of the citizen, whose rights are in some degree in the discretionary power of the as- sessors." However, in Hayes vs Hanson,^'' it was held that the provision of the statute, requiring that the oath of the asses- sors shall be filed and recorded in the office of the town clerk, was only directory, and the assessment of a tax was not in- valid, in case the statutory provision was not complied with. And in Smith vs Messer '* the doctrine expounded in Tucker vs Aiken was strongly approved, the Court holding that where a title is derived from a sale for taxes, it is suf- ficient evidence of official capacity of the collector, if he is shown to have been such de facto. "It sufficiently appears," said Gilchrist, J., "that Hutchinson was de facto collector, exercising the functions of that office under color of an elec- tion ; and it was held in Tucker vs Aiken ^® that the acts of an officer de facto are in general valid, so far as the rights of third parties are concerned, and that the regularity of his appointment is not to be collaterally inquired into in pro- ceedings to which he is not a party. The case of Cardigan vs Page *" is there adverted to, and the doctrine which it seems 86(1838), 9 N. H. 491. 397 N. H. 113. »7(1841), 12 N. H. 284. 4 06 N. H. 182. «8(1845), 17 N. H. 420. 464 THE DE FACTO DOCTRINE. [§ 330 to establish declared to be untenable." *^ But in a later case, under a statute requiring the appointment of the collector to be in writing and recorded, the same judge held that a non- compliance with such requirements rendered the collector's sale void.** On the whole, however, whatever diversity of opinion there may have been among the New Hampshire judges, in the earlier cases, it is clear now that the courts, unless con- trplled by mandatory statutes, are willing to apply the prin- ciples of the de facto doctrine to the acts of tax officers. Re- cent cases do not seem to even doubt that proposition. Thus, in French vs Spalding,*^ where the validity of a tax deed was assailed, it was held that it was sufficient to show that the selectmen who had assessed the taxes, and the collector who had collected them, were officers de facto.** § 330. Rulings in Arkansas. — In Arkansas, under a statute providing that the sheriff shall qualify himself to perform the duties of assessor, by filing an affidavit on or before a certain date, under penalty of forfeiture of office, it was held by the Supreme Court of the United States, that the failure of the sheriff to comply with the Act, invalidated the assessment.*® But in Scott vs Watkins*^ the Supreme Court of Arkansas held, that if the proof was not satisfac- tory that the sheriff had made and filed the affidavit required of him by law, as assessor of taxes, yet, having acted as such, and there being no proceeding to avoid the office, they would 41 See also Bean vs Thompson <4See also Odiorne vs Rand (1848), 19 N. H. 290, 49 Am. Dee. (1880), 59 N. H. 504. 154. 46Parker vs Overman (1855), 18 4 2Ains\vorth vs Dean (1850), 21 How. (U.S.) 137. N. H. 400. See also Pierce vs 46 (1861), 22 Ark. 556. Kichardson (1858), 37 N. H. 306. 43(1881), 61 N. H. 395. § 330] ACTS OF DE FACTO TAX OFFICERS. 465 be loath to hold hi a controversy to which he is not a party, that his acts as an assessor de facto were null and void; but no decided opinion was given on the point. In a later case, however, Twombly vs Kimbrough*'' the same court criticized the decision of the United States Su- preme Court, in a rather harsh language. Omitting that portion, it reads as follows: "We need not undertake to decide whether a sale of lands for taxes, made by a collector de facto, would be valid, like other acts done by judicial and other officers de facto. This Court, in Scott vs Watkins, 22 Ark. 556, indicated its disinclination to agree to the doc- trine of the Supreme Court of the United States, in Parker vs Overman. . . . We should not bow with unhesitating submission to its decision on a question arising under our own statutes. We see no reason why the general principle as to the acts of officers de facto should not apply to those of assessors and collectors." Finally, in Moore vs Turner,*^ it was directly held on certiorari, that the failure of the tax collector to take the oath of office required by law is no ground for quashing the as- sessment, as his official character cannot be questioned in such collateral proceeding. The Court attempted to distin- guish and explain Parker vs Overman. But a few years afterwards came the decision of Martin, vs Barboiir.^" There the Circuit Court, after reviewing the legislation from time to time in force in Arkansas on the subject of assessment of property, and after considering the Act of 1883, which required the assessor to take, in addition to the Ordinary official oath, a Special oath within a pre- scribed time and this under penalty of forfeiture of office, concluded that the last mentioned oath was one of the means 47(1866), 24 Ark. 459. 60 (Ark. 1888), 34 Fed. 701, af- 49(1884), 43 Ark. 243. firmed in 140 U. S. 634. De Facto — 30. 466 THE DE FACTO DOCTRnSTE. [§ 331 provided by the legislature to give effect to the constitutional requirement that property shall be taxed according to its value; that the failure of the assessor to take the oath vacates ipso facto his office; and that where there is such a failure on his part, and the clerk, in violation of law delivers to him the assessment book, no assessment on that book can be made the foundation of a valid tax title. But, again, the Supreme Court of Arkansas refused to fol- low the decision of the Circuit Court, although affirmed by the United States Supreme Court, and held, that an assessor regularly elected and qualified by taking the oath prescribed by the constitution, though neglecting to take the special statutory oath, is a de facto assessor, and a tax deed based on a sale made for the non-payment of taxes for the year dur- ing which such officers held office, is valid.^' The result of the foregoing conflicting decisions seems to be this: that a party, under given circumstances, may win or lose his suit according to whether it is a Federal or a State tribunal that adjudicates upon it. This is the only con- clusion we can arrive at. § 331. Rulings in Mississippi. — In Mississippi it is held that where a board of supervisors appoints an assessor,** or a board of police, or a commissioner to classify lands,** the appointees are de facto officers and their acts valid, though under the circumstances such boards have no authority to make the appointments. But in Vasser vs George ** it was 5iBarton vs Latourette (1891), provement (1898), 65 Ark. 343, 46 55 Ark. 81, 17 S. W. 588. See also S. W. 418; Sawyer vs Wilson Murphy vs Shepherd (1889), 52 (1907), 81 Ark. 319, 99 S. W. 389. Ark. 356, 12 S. W. 707; Equaliza- 6 2 Wolfe vs Murphy (1882), 60 tion Board vs Land Owners (1889), Miss. 1. 51 Ark. 516, 8. c. sub. nom. Stell vs B3Ray vs Murdoek (1859), 36 Watson, 11 S. W. 822; School Dia- Miss. 692. trict of Ft. Smith vs Board of Im- b* (1873), 47 Miss. 713. § 332] ACTS OF DE FACTO TAX OFFICERS. 467 held, under the statutes then in force, that the failure to give bond on the part of the sheriff precluded him from re- ceiving money from the taxpayers, and "if he was not com- petent to receive, clearly he could not take coercive measures for a sale." § 332. Rulings in California. — In California the courts have held, under constitutional requirements, that a tax, to be valid, must rest upon an assessment made by an assessor elected by the qualified voters of the district, county or town in which the property is taxed for State, county or town purposes. Accordingly, an assessment made by an as- sessor elected by the qualified electors of the City and County of Sacramento combined, could not be a sufficient basis for the levy of a tax for city purposes.®^ So, where a law au- thorized sheriffs to act as tax collectors, the same, it was held, did not empower the sheriff to appoint an under tax collector, and a tax deed executed by a sheriff as tax collector by his under-sheriff, was held not to be admissible in evidence, as it vested no title in the grantee.*'® But in Hamilton vs County of San Diego ^'' it was held that since the school district there in question had a de facto existence, the plaintiff could not recover back the taxes paid by him, nor could he have enjoined the collection of such taxes, nor have resisted an action for the same, on the ground of illegality of its organization ; and from the observations of Britt, C, it is to be inferred, that the acts of de facto tax officers are to be considered as valid and binding as those of any other de facto officer, barring, of course, cases where ssPeople vs Hastings (1866), 57(1895), 108 Cal. 273, 41 P. 29 Cal. 449; Eeily vs Lancaster 305. (1870), 39 Cal. 354. ssLathrop vs Brittain (1866), 30 Cal. 680. 4C8 THE DE FACro JJOCTRINE. [§ 333 some constitutional or statutory provisions demand strict compliance with the law. § 333. Rulings in New York. — In ITew York it is de- clared that it would be a monstrous proposition to hold that the action of town assessors or of trustees of villages, who, under the general village Act perform the duties of assessors, was void, because they had neglected to take any official oath.^® Therefore, an assessment roll cannot be questioned on the ground that it was made by officers who had not quali- fied.'* So, where the trustee of a school district makes an appointment of a collector verbally, and issues to him a war- rant to collect the tax assessed for school purposes, such col- lector is an officer de facto, and the trustee is not liable for his acts in enforcing the warrant."" But of course where the pretended tax officers have not sufficient color of right to constitute them officers de facto, any assessment or tax proceeding made or taken by them is absolutely void."^ § 334. Rulings in Michigan. — In this State a tax will not be held illegal in a proceeding for the sale of land there- for, on the ground that the deputy township treasurer, who made the return, was not a resident of the township, if the township treasurer was a resident, and the deputy was in fact appointed, and was an officer de facto."^ So the lawful BSMatter of Kendall (1881), 85 Lans. (N. Y.) 61, reversing 41 N. Y. 302. Also New York vs Van- How. Pr. 132. derveer (1904), 91 N. Y'. App. Div. eiPeople vs Parker (1889), 117 303, 86 N. Y. S. 659; but see Mer- N. Y. 86, 22 N. E. 752, affirming 45 ritt vs Port Chester (1877), 71 N. Hun 432; Canaseraga vs Green Y. 309, 27 Am. R. 47. (1903), 88 N. Y. S. 539. 6 9Dows vs Irvington (1883), 66 6 2 Auditor-Gen. vs Lougycar How. Pr. (N. Y.) 93, 13 Abb. N. C. (1896), 110 Mich. 223, 68 N. W. 162. 130. soHamlin vs Dingraan (1871), 5 § 335] ACTS OF DE FACTO TAX OFFICERS. 46.9 acts of a de facto collector as such are valid whether he was strictly entitled to the tax roll or not; and they cannot be collaterally attacked by contesting in an ejectment suit a tax title based upon them.*^ So, in a suit to restrain the col- lection of a special assessment for paving, the Court will not determine whether certain persons who were appointed by the council, and discharged the duties of such officers, were officers de jure.** But a tax officer cannot constitute another a de facto officer hj delegating his power to him. Accordingly, where a supervisor authorized a neighbor to copy the roll of the previous year, so far as the real estate was concerned, mak- ing only such changes as were necessary by change of owners, and to attach and sign the statutory certificate, the assess- ment was held invalid, since it was not in accord with the law, which requires the exercise of the best judgment of the supervisor in assessing property at its cash value.®® § 335. Rulings in Illinois. — In Illinois the fact that an assessor is not sworn by a proper officer, will afford no ground for refusing judgment for the collection of delinquent taxes.*® So, an assessment will not be invalid, even if made by per- sons ineligible or irregularly appointed to the office of asses- sor,®'^ or by other de facto officials to whose office is incident the power of levying taxes.®^ Hence, upon a bill to foreclose a lien claimed for drainage assessments against lands, the defendant cannot assail the validity of the assessments on 6 3Stockle vs Silsbee (1879), 41 6 7Du Page County vs Jenks Mich. 615. (1872), 65 111. 275; People vs Lieb 64Boehme vs Monroe (1895), 106 (1877), 85 111. 484. Mich. 401, 64 N. W. 204. ssTrumbo vs People (1874), 76 6 5Paldi vs Paldi (1890), 84 111. 561; People vs Knopf (1900), Mich. 346, 47 N. W. 510. 183 III. 410, 56 N. E. 155. 6 6 Sullivan vs State (1872), 66 111. 75. 470 THE DE FACTO DOCTiaXE. [§336 the ground that they were made by drainage commissioners, who were merely such de facto.®® So the official acts of a collector who has not taken the oath prescribed by the statute, cannot be questioned collaterally.'" Again, a court of equity will not enjoin a tax for mere errors, where it is attempted to be levied by an officer de facto, under authority pertaining to his office; '^ but may do so, if the levy is by one without pre- tence of authority, or color of office to which such a right is an incident.''* § 336. Rulings in New Jersey. — In Bosell vs Bd. of Education '* the prosecutors on a certiorari questioned the validity of a tax levied against them by the assessor of the borough of Avon-by-the-Sea, in the year 1901, for interest on school bonds issued by the school district of Neptune City. The first and second reasons assigned for reversal of the tax, turned upon the allegation that the Board of Educa- tion, who authorized a special meeting of the voters of the district at which the issue of the bonds was ordered, had failed to take the prescribed oath of office. Held, that if there was fault in this particular, nevertheless these persons were officers de facto, and their proceedings were valid. So it was held that on a certiorari to review a tax, the Court will not look into the validity of the title to office of those holding membership in the taxing body, under a color- able appointment. Their acts are conclusive, so far as the public or third persons are concerned.'* Nor, ia a like pro- 6 3 Samuels vs Drainage Com'rs. Anderson (1860), 23 111. 463, 76 (1888), 125 111. 536, 17 N. E. 829. Am. Dec. 704. 'oGuyer vs Andrews (1850), 11 72ldem. 111. 494. 73(1902), 68 N. J. L. 498, 53 A. TiMunson vs Minor (1859), 22 398, affirmed in 70 N. J. L. 336, 57 III. 594; Schofield vs Watkins A. 1132. (1859), 22 111. 66; Merritt vs Far- 74State vs Collector (1876), 39 ris (1859), 22 111. 303; Metz vs N. J. L. 75. See also Dugan vs § 337] ACTS OF DE FACTO TAX OFFICERS. 4Tl ceeding, will the Court inquire into the right of a de facto assessor to make the assessment.^^ So, a tax assessed by offi- cers sworn before a person not authorized to administer the oaths, is unassailable.'" § 337. Rulings in Pennsylvania, Nevada, South Caro- lina, Texas, and Ohio. — In Pennsylvania a failure of coun- ty commissioners to be sworn as a board of revision does not invalidate a tax assessment made by them when acting as such board.''' So an assessment made by an acting assessor is good, though he has not taken the oath of office.'* But in an old case,'^ it was held, that to support a title under a sale for taxes, by virtue of the Acts of the 3d of April, 1804, the election returns of the assessors must be produced, or their existence proved and their absence accounted for, and that parol evidence was not admissible to show who acted as assessor. Said the Court: "The evidence showed only that the persons who made the assessment were recognized as officers by the commissioners, and that they acted as such ; but will it be pretended, that such an assessment would be valid, or that a sale under it would confer any right? An assessment by persons neither elected nor sworn, would be an assessment, not by officers de facto, but by intruders who came in without even color of authority." Carrier (1885) , 47 N. J. L. 383, 1 7 7Manor etc. Co. vs Cooner A. 751, affirmed 48 N. J. L. 613, 7 (1904), 209 Pa. St. 531, 58 A. A. 881; State vs Van Winkle 918. (1855), 25 N. J. L. 73; State vs Tsparker vs LuflFborougli(1823) , Donahay (1863), 30 N. J. L. 404. 10 S. & R. (Pa.) 249. See also 75Bailey vs Manasquan (1890), Kingsbury vs Ledyard (1841), 2 53 N. J. L. 162, 20 A. 772; see also W. & S. (Pa.) 37. Bloomfield vs Pierson (1885), 47 7 9Birch vs Fisher (1825), 13 S. ISr. J. L. 247. & R. (Pa.) 208. 7 estate vs Perkins ( 1854) , 24 N. J. L. 409. 472 THE DE FACTO DOCTRINE. [§ 337 In Nevada the right of a de facto meniber of a board of assessors and equalization to exercise the duties of his office, cannot be collaterally questioned.^" In South Carolina a sale of lands under a tax execution directed to a sheriff is not unlawful because made by a person who acts as a deputy, with the approval of the sher- iff, although his appointment as deputy has not been con- firmed by the judge of the circuit court, as required by stat- ute, his acts being valid as those of an officer de facto.* '^ In Texas the acts of de facto deputy assessors in raising the valuation of property listed for taxes, are not rendered invalid because they may have been legally disqualified from acting as deputies by reason of their holding other offices.^^ So the acts of a de facto collector of taxes are valid.** In Ohio the omission of the sheriff to give a bond as col- lector, in 1805, did not operate to defeat a sale made by him for delinquent taxes.** In Alabama, it was held that the official acts of a tax collector, who, failing to give an additional bond as required by law, obtained an injunction restraining the Governor's appointee from claiming the office or exercising any of the duties thereof, and thereafter, continued to discharge the functions of the office, must so far as necessary for the pro- tection of third persons and the public, be treated as the acts of an officer de facto. *^ But the collection of taxes by a col- soSa^vyer vs Dooley (1893), 21 s^Sheldon vs Coates (1840), 10 Nev. 390, 32 P. 437. Ohio, 278. See also State vs Find- siCommercial Bk. vs Sandford ley (1840), 10 Ohio, 51. As to (1900), 103 Fed. 98. assessments, see Scovill vs Cleve- S2Texas & P. Ry. Co. vs Har- land (1853), 1 Ohio St. 126; Smith rison County (1880), 54 Tex. 119. vs Lynch (1876), 29 Ohio St. 261. ssAulanier vs Governor (1846), SBBeebe vs Robinson (1875). 52 1 Tex. 653. See also Nalle vs Aus- Ala. 66, overruling (1874), 50 Ala. tin (1900), 23 Tex. Civ. App. 595, 522. 56 S. W. 954; State vs Cocke (1881) 54 Tex. 482. § 338] ACTS OF DE FACTO TAX OFFICERS. 473 lector, after the office has been judicially declared vacant, is void.®® § 338. Rulings in Massachusetts, Kansas, and Mary- land. — In Massachusetts, in defence to an action by a town for a tax assessed by persons chosen, sworn and acting as the plaintiff's assessors, it is not open to the defendant to impeach the validity of their election on the ground that the same was irregularly made, inasmuch as they must be deemed assessors de facto, and their acts are valid.®^ So, in an ac- tion against a school district to recover back a tax paid to a collector de facto, the plaintiff is precluded from showing that the officer has not been duly elected or sworn.*® In Kansas, Watkins vs Inge *' was an action in the nature of ejectment to recover the possession of certain lands. The defendant's right to possession was based upon the title ac- quired by and through a tax deed, the validity of which was attacked upon the ground, among others, that the tax sale was illegal, because the person who made it had no authority at law to act as county treasurer at the time it was executed. Held, that he was a treasurer de facto, and the sale was legal.»o In Maryland it is said that as taxes are levied for the sup- port of the government, the reasons of public policy on which the principle of the de facto doctrine, is founded, apply with even greater force in regard to the acts of officers whose duty is to levy and collect such taxes.^^ But in an early case ®^ it sePeck vs Holcombe (1836), 3 soSee also Hale vs Bisehoff Port. (Ala.) 329. (1894), 53 Kan. 301, 36 P. 752. 87Sudbury vs Heard (1870), 103 siKoontz vs Hancock (1885). 64 Mass. 543. Md. 134. As to acknowledgments ssWilliams vs School District before de facto clerks or deputy (1838), 21 Pick. (Mass.) 75. See clerks, see sec. 316. also Allen vs Metcalf (1835), 17 szBurgess vs Pue (1844), 2 Gill. Pick. (Mass.) 208. (Md.) 11. 89(1880), 24 Kan. 612. 474 THE DE FACTO DOCTRINE. [§ 339 was held that a collector of taxes not selected hy competent authority, although he gives bond for the discharge of his duties, has no legal warrant to act, and all his proceedings are tortious and invalid. § 339. Rulings in Iowa, Nebraska, Georgia, and Washington. — In Iowa the fact that an assessor was not duly qualified when, acting as an officer de facto, he as- sessed certain property, did not invalidate the assessment, or affect the validity of a sale for taxes.®* In Nebraska it was held that where a precinct for pur- poses of taxation and revenue, as formed, embraced four wards of a city, each of which was by statute made a pre- cinct for taxing purposes, an officer elected for and exercis- ing his ofiice in all four of them without objection, and with the acquiescence of the people, was a de facto assessor in each ward ; and city taxes paid to him under protest were not recoverable on the ground that the assessment was invalid.** In Georgia a tax levied by de facto county commissioEers is a valid and binding tax.*' But where the intendant and commissioners of a town are invested both with the power of appointing and the power of reviewing assessments on appeal, they cannot appoint any of themselves to act as assessors ; and an assessment made, under color of such void appointment, will be invalid. ®® 93Alleii vs Armstrong (1864), (1890), 30 Neb. 843, 47 N. W. 16 Iowa, 508. See also Washing- 280, 27 Am. St. E. 436. ton County vs Miller (1863), 14 ssBrown vs Flake (1897), 102 Iowa, 584; Pierce vs Weare( 1875), Ga. 528, 29 S. E. 267; Argo vs 41 Iowa, 378; Burke vs Cutler Flake (1897), 102 Ga. 531, 29 S. (1889), 78 Iowa, 299, 43 N. W. E. 268: Waller vs Perkins (1874), 204. 52 Ga. 233. s4South Omaha vs O'Rourke ssHawkins vs Jonesboro (1879), (1903) 70 Neb. 479, 97 N. W. 608. 63 Ga. 527. See also Magneau vs Fremont § 340] ACTS OF DE FACTO TAX OFFICERS. 475 In Washington it was held that the failure of ditch com- missioners to qualify by filing a bond in the required amount, did not invalidate an assessment made by them as de facto officers.®^ It was also held that the right of a de facto asses- sor to his office could not be collaterally attacked in an action to enjoin the collection of taxes levied upon property as- sessed by him.** § 340. Rulings in Kentucky, Wisconsin, Tennessee, and other states. — In Kentucky the authorities seem to en- tertain no doubt as to the applicability of the de facto doc- trine to the acts of de facto tax officers.** The same doctrine prevails in Wisconsin. Thus, in an action brought to set aside taxes attempted to be imposed on certain lands, the Court said : "Since there were the requi- site county offices in the county de jure to be filled, can we hold that because such offices were filled by appointment in- stead of an election, that therefore the official acts of such officers in levying and collecting the taxes in question were mere nullities?" The answer was in the negative, and the taxes were upheld. ■^'"' In Yorty vs Paine ^"^ a tax deed was sustained, although based upon proceedings carried on by de facto tax officers. ^"^ s'State vs Skagit County Su- looChicago etc. Ry. Co. vs Lang- perior Court (1906), 42 Wash. 491, lade County (1883), 56 Wis. 614, 85 P. 264. 14 N. W. 844. ssNorth Western Lumber Co. vs loi ( 1885) , 62 Wis. 154, 22 N. W. Chehalis County (1901), 25 Wash. 137. 95, 64 P. 909, 87 Am. St. R. 747, lozSee also Dean vs Gleason 54L.R.A. 212. (1862), 16 Wis. 1; Strange vs 9 9 United States etc. Co. vs Bd. Oconto Land Co. (1908), 136 Wis. of Education (1905), 118 Ky. 355, 516, 117 N. W. 1023. 86 S. W. 1120; Shawhan vs Harri- son Qounty (1903), 116 Ky. 490, 76 S. W. 407. 476 THE DE FACTO DOCTRINE. [§ 340 In Tennessee it was held that tax assessors appointed by County commissioners, acting under an unconstitutional Act, were officers de facto, and their assessments valid. ■'"^ In Florida, however, it was held that one employed by a city to assist its assessor of taxes in the performance of his duties, who does not claim to be, and is not recognized as, an officer of the city, but merely an employee to assist the assessor, is not an officer de facto of said city whose acts, as such, in making an assessment of taxes, in which the rightful assessor does not participate, will be binding. ■"** So in North Dakota, it was held that an assessment made by a pretended deputy assessor was null and void, where there was no such office in existence.*"^ i03McLean vs State (1873), 8 McCormick vs Fitch (1869), 14 Heisk. (Tenn.) 22. As to rulings Minn. 252; Roche vs Jones (1891), in other states, see Black vs Early 87 Va. 484, 12 S. E. 965. (1907), 208 Mo. 281, 106 S. W. loiTampa vs Kaunitz (1898), 39 1014; Akers vs Kolkmeyer (1903), Fla. 683, 23 So. 416. 97 Mo. App. 520, 71 S. W. 536; lOBFarrington vs New England Adams vs Lindell (1878), 5 Mo. Invest. Co. (1890), 1 N. D. 102, App. 197, affirmed in 72 Mo. 198; 45 N. W. 191, CHAPTEE 27. APPOINTMENT OR ELECTION TO OFFICE BY DE FACTO OF- FICERS. g 341. En^ish doctrine. § 346. General rule in America 342. Where de facto officer mere- sustains validity of ap- ly perfected official title, pointments made by de same rule did not apply. facto officers. 343. Canadian rulings. 347. Same subject. 344. Doctrine in New York. 348. Same subject. 345. Judgment of ouster against one appointee, not evi- dence against another, § 341. English doctrine. — At common law the title of the appointee or electee is dependent upon, and subject to any infirmity in, the title of the appointor or elector. Ac- cordingly, a judgment of ouster against an officer de facto concludes his appointees as privies to himself, unless the judgment can be impeached upon the ground of fraud, col- lusion, or the like. In R. vs Yorh,^ Lord Kenyon, C. J., says: "If you derive title to a corporate office through A., and the prosecutor show a judgment of ouster against A., it is conclusive against you, unless you can impeach the judg- ment as obtained per fraudem." Thus, in quo warranto against a bailiff of a corporation, he pleaded a nomination by A. & B., two bailiffs thereof, and upon issue taken on their being bailiffs, it was held that a judgment of ouster was good evidence against the defendant, but that it was not conclusive, because the latter might have 1(1792), 5 Term (D. & E.) 66. 477 478 THE DE FACTO DOCTRINE. [§ 341 proved that the judgment was obtained by collusion, or that the first defendants were restored.^ Likewise, in R. vs Grimes/'^ one of the questions being, whether a special ver- dict found on an information against one John Leigh for usurping the office of Mayor, and the judgment given there- upon against him, were evidence against Grimes for usurping the office of capital burgess, and to what degree it ought to be allowed, the court directed that such judgment was admis- sible, but not conclusive.^ But nothing short of a judgment of ouster can be given in evidence against the appointee, for the courts will not permit the title of the de facto cor- porators to be tried collaterally in quo warranto against him.* The common law doctrine, however, has long ago been altered by statute, and it is now declared that acts done by persons de facto in office are valid in all respects, although they may labor under a defect of qualification.^ Moreover, the strict rule applicable to appointees of de facto corpora- tors, does not seem to have prevailed in case of appointments by other de facto officers. Thus, in R. vs Justices of Here- fordshire,^ it was sought to impeach the title of a county treasurer on the ground that one of the justices, who had voted at the election had not previously taken the qualifica- tion oath prescribed by 18 Geo. II, c- 20, and consequently that his vote was void, so as to annul the election. But it was held that the same could not be invalidated for that reason. Abbott, C. J., observed : ''This office is full de facto, 2R. vs Hebden(1738), Andr. 388, sSee 45 & 46 Vic. c. 50, ss. 42 2 Str. 1109. & 102; and other statutes, 1 Vic. 2a (1770), 5 Burr. 2598. c. 78, s. 1 ; 3 & 4 Vic. u. 108, s. 89; sSee also K. vs Lisle (1738), 32 Geo. Ill, i:. 58, s. 3; also E. vs Andr. 163, 2 Str. 1090; R. vs McCarthy (1859), 10 Jr. C. L. R. Hughes (1825), 4 B. & C. 368. 312. 4Symmers vs Regem (1776), 6 (1819), 1 Chitty, 700. 2 Cowp. 489; R vs Hughes (1825), 4 B. & C. 368. § 342] APPOINTMENTS BY DE FACTO OFFICERS. 479 and we cannot say that the act of the justice, who had not taken the qualification oath, is void." Likewise, Bayley, J., said : "In this case the acts of the justice are valid, though he may be liable to penalties for not having taken the oath prescribed by the statute." § 342. Where de facto officer merely perfected official title, same rule did not apply. — Again, the English rule did not operate to invalidate the title of an officer whose appointment or election was lawful, but whose admittance to office was made by a de facto officer. Upon this principle, it was held that where a person had an inchoate right to be a free burgess of a borough, his title could not be impeached, •because he was sworn in before officers who were so de facto, but not de jure. Abbott, C. J., said: "The applica- tion was made upon this ground only, that the party was admitted to his office of free burgess at a corporate meet- ing holden before bailiffs, who were not good presiding offi- cers. That is prima facie a valid objection ; but the answer made to it is, that the defendant had an inchoate right to be admitted. I take it to be clear, that where a title has been conferred, that is defeated by showing that the party con- ferring it had no right to do so. But the title in question was not conferred by the presiding officers ; their duty was merely to inquire into the fact of the existence of the alleged inchoate right. If any doubt as to the propriety of the ad- mittance had been suggested, the case would be different, for then there would be a question of right to be determined. But where we find a person, having a clear inchoate right, and going to a corporate meeting to claim his admittance as a free burgess, can we say that his admittance was bad on ac- count of a defect in the title of the officers presiding at that meeting? If the objection were good, I should expect to 480 THE DE FACTO DOCTRINE. 403 fiiifl that it has been heretofore raised, but there is no case to support it." '' § 343. Canadian rulings. — The Canadian courts seem to have favored the doctrine that appointments made by de facto officers are valid. In Lacasse vs Roy ^ the application was for quo warranto against the defendant, Roy, for usurping the office of municipal councillor for the parish of St. Lam- bert. He had been nominated by four councillors, but one of them was merely a de facto councillor, and without him there would not have been a regular quorum. It was con- tended, that the defendant's title was dependent upon that of the illegal councillor who had concurred in his appoint- ment, and therefore was invalid. But the Court, relying on the principles of the de facto doctrine as found expounded in American works, held that the position was untenable. In In re McPherson & Beeman ^ the council by resolution appointed one Bartell assessor, who was sworn into office, and made an assessment. This appointment was made by a vote of three against two. The election of one of the three was afterwards set aside, and by a subsequent vote the resolu- tion was rescinded, and a by-law passed appointing another assessor. Both made assessments, and much confusion arose. Under those circumstances the Court granted a quo warranto to determine the validity of the last appointment. While the result of the proceedings is not known, yet it is to be noted that Burns, J., one of the court, expressed himself strongly to the effect, that the appointment made by the council, while one of their number was a councillor de facto, could not be disturbed. 7R. vs Slythe (1827), 6 B. & C. 8(1895), S Que. R. (S. C.) 293. 240, 30 R. R. 312. 9 (1859) , 17 U. C. Q. B. 99. § 344] APPOINTMENTS BY DE FACTO OFFICERS. 481 § 344. Doctrine in New York. — The New York deci- sions apparently follow the English cases, and hold that a da facto officer cannot create a de jure officer. Thus, in New York vs Flagg,^° Sutherland, J., speaking of an officer de facto, says: "Without right himself, he cannot confer any on others. His appointment of deputies or subordinates, as to himself and them, would be as void as any other colorable official act. It might make them severally officers de facto as to third persons, but could give them no better or greater right to institute, as such, any affirmative action or proceed- ing than he himself had or has, as an officer de facto. The right and title of his appointee rests on his own right and title." The same principle is laid down in People vs Anthony, ^^ where the action was in the nature of a quo warranto, to determine whether the relator Steinart or the defendant An- thony was entitled to the office of clerk of one of the district courts of the city of New York. Steinart was appointed clerk by McGuire, who claimed to be, and at the time of the appointment was, acting as justice of the court. Afterward, one Stemmler claimed to have been legally elected to the office of justice, and an action upon his relation in the nature of quo warranto was commenced against McGuire, and in that action it was determined that McGuire was not entitled to the office but that Stemmler was; and after Stemmler ob- tained possession of the office under the judgment in that action, he appointed the defendant, Anthony, clerk, and it was held that the judgment against McGuire was competent evidence against Steinart, who claimed under him. The ■Court proceeded upon the principle that where a person claims an office by virtue of an appointment, he must prove that the 10(1858), 6 Abb. Pr. (N. Y.) ii(1875), 6 Hun (N. Y.) 142. 296. De Faeto — 31. 482 THE DE FACTO DOCTRINE. [§ 345 officer by whom the appointment was made was la-^vfully entitled to his office; the fact that it was made by one who claimed to be, and was then acting as such officer, but who has subsequently been ousted therefrom, is not sufficient. The Court said: "The counsel of the appellants contends that, at the time when McGuire appointed the relator, he was a justice de facto, and that his acts, as respects other per- sons than himself, were just as valid as if he had been an officer de jure ; and that, as the justice of the District Court in question had the right to appoint a clerk and an assistant clerk for the term of the justice, to wit, six years, the appoint- ment of the relator was valid ; and that, therefore, there was no vacancy in the office of clerk to be filled at the time when Stemmler, who had been declared by a judgment of this court to be the justice de jure of said court, appointed the respondent. I cannot accede to this position of the appel- lants' counsel, and I do not think that it is sustained by the numerous cases which he has cited upon his brief. While it is perfectly well settled that the acts of an officer de facto are valid as to third persons, it is equally well settled that where one claims, by action, an office, or its incidents, he can only recover upon proof of title." ^^ § 345. Judgment of ouster against one appointee, not evidence against another.— But while the Xew York deci- sions hold that a judgment of ouster against an officer de facto, is evidence against his appointee, yet this rule will not be extended so as to render admissible in evidence against one appointee, a judgment of ouster obtained against another. This was decided by the New York Court of Appeals in i2See also People vs Murray Daly 347. But see People- vs Stev- (1878), 73 N. Y. 535, reversing 8 ens (1843), 5 Hill (N. Y.) GIG. § 346] APPOINTMENTS BY DE FACTO OFFICERS. 483 People ex rel, Oilchrist vs Murray, "^^ where the facts were as follows: In March, 1873, defendant was duly appointed assistant clerk of one of the district courts of New York city for the full term of six years ; he was removed by the justice of that court, and in January, 1875, the relator, Gil- christ, was appointed by the justice. In January, 1876, the relator was removed and one Mangin appointed. There- upon an action in the nature of quo warranto was brought on the relation of Gilchrist against Mangin. A judgment was rendered therein, deciding that the relator was entitled to the office, and that Mangin be ousted. A few days prior to the entry of judgment, defendant, with the consent of Mangin, resumed possession under his original appointment. It was held, that the justice had no power to remove defend- ant, who was entitled to the office for the full term ; and that the judgment against Mangin was neither conclusive nor any evidence against him. Earl, J., delivering the opinion of the court, said : "It is a general rule that judgments are con- clusive only against the parties thereto or their privies. (Campbell vs Hall, 16 N. Y. 575). This defendant was in no sense a party to that action, and he did not take his office from, or in any way hold it under, Mangin, and under such circumstances there never was a time in the jurispru- dence of this country or of England when an adjudication upon writ of quo warranto against Mangin would bind him. Such an adjudication would bind all who came in under Mangin, and whose title to the office depended upon his;; and to this effect are the cases to which the learned counsel for the plaintiffs has called our attention." § 346. General rule in America sustains validity of appointments made by de facto officers. — The English 13(1878), 73 N. Y. 535, reverg ing 8 Daly, 347. 484 THE DE FACTO DOCTRINE. [§ 346 rule, however, is not approved by the weight of authority in the United States, and it is generally held that the appointees of de facto officers have a good title to their office, even if their appointors are subsequently ousted. The reason for thus holding is fully explained by the Supreme Court of North Carolina in Norfleet vs Staton.^'^ There a person had been appointed clerk of the Superior Court for the county of Edge- combe, by the de facto judge presiding in that judicial dis- trict ; and in an action brought against such clerk to oust him from the office, by the appointee of one who had been de- clared judge de jure, it was held that the appointment by the judge de facto was valid, and the appointee of the judge de jure was not entitled to the office. Reade, J., delivering the judgment of the court, said: "Probably the whole inquiry can be covered by the question: Is the appointee of a de facto officer a rightful officer ? Or is he only an officer de facto like his appointor? The burden of the very full argu- ment for the relator, was to show that while the defendant was an officer, and his acts valid as to the public and third persons, yet, in a direct proceeding against him, as this is, he cannot set up his wrongful appointment in support of his claim to the office. This is unquestionably true, supported by all the authorities, if we admit that the defendant is a de facto officer. But that is the very question in dispute. Why is the defendant a de facto and not a de jure officer ? When the defendant is asked 'by what authority do you hold the office ? ' he answers, by the appointment of the Judge of the Superior Court. And when it is replied, but that Judge was only a Judge de facto; the defendant rejoins, that may be so; but all his necessary official acts were valid as to the public and third persons ; my appointment was a necessary official act, and therefore, valid; and I became not a wrong- 14(1875), 73 N.C. 546. § 347] APPOINTMENTS BY DE FACTO OFFICERS. 485 fill usurper, not merely a de facto, but a rightful officer ; just as rightful as any judgment which he rendered or any act Avhich he did." ^^ § 347. Same subject. — The same doctrine has been up- held in a number of other cases. Thus, in Brinkerhoff vs Jersey City,^^ it was declared, that the principles upon which the acts of de facto officers are held valid require the recogni- tion of appointments to office made by them, when such ap- pointments would be valid, if made by officers de jure. Ac- cordingly, the court held that the appointment of a person as corporation counsel by the votes of four of the five members of a city board of finance, made him a corporation counsel de jure, although one of the members so voting for his ap- pointment was only a member de facto, whose title was attacked by quo warranto. ^'^ So, in Brady vs Howe/^ the validity of the appointment of a clerk by a de facto chancellor was in dispute, and it was held that, inasmuch as it pertains to a chancellor to appoint a clerk, under certain circumstances, when these circumstances exist a de facto chancellor exercise^ the power with the same right that he may render a decree or punish for contempt.^® So it has been held, that a col- lector of taxes, deriving his authority from the appointment of selectmen de facto, is an officer de jure.^" So the appoint- ment of a treasurer by a de facto Mayor, is no more subject to collateral attack than anything he does.^* So county iBAlso Ellis vs Deaf & Dumb Farrier (1885), 47 N. J. L. 383, 1 Asylum (1873), 68 N. C. 423; Jones A. 751. vs Jones (1879), 80 N. C. 127. is (1874), 50 Miss. 607. 16(1900), 64 N. J. L. 225, 46 A. "To same effect, see State vs 170; disapproving Jersey City vs Ailing (1843), 12 Ohio, 16. Envin (1896), 59 N. J. L. 282, 35 20Roberts vs Holmes (1874), 54 A. 948. N. H. 560. 17 See also Bownes vs Meehan 21 State vs Badger (1901), 90 (1883), 45 N. J. L. 189; Dugan vs Mo. App. 183. 48 (J THE DE FACTO DOCTRINE. [§ 348 commissioners de facto can fill a vacancy in the office of county treasurer. ^^ So the acts of school directors, who have not properly qualified, being valid as the acts of de facto officers, the election of a treasurer and a secretary by them vnll constitute the appointees officers de jure.^* § 348. Same subject. — But -where there are two rival boards of education, both de facto, and both exercising as far as possible the duties of the office, and each makes an appoint- ment the same day to the same place, in sTich case the ap- pointee of the de facto Board, which is subsequently adjudged to be the de jure board, clearly has the title. ^* So an ap- pointment made by de facto officers cannot be sustained where the same would be invalid, if made by de jure officers. Thus, where the de facto intendant and commissioners of a town, invested both with the power of appointment and the power of reviewing assessments on appeal, appointed three members of their own body a committee to assess property, such ap- pointment was held so clearly illegal that it could not consti- tute the appointees even de facto officers.^^ 22State V9 Jacobs (1848), 17 2 4Baker vs Hobgood (1900), 126 Ohio, 143. Also Jones vs Jones N. C. 149, 35 S. E. 253. (1879), 80 N. C. 127. zsHawkins vs Jonesboro (1879), 23State vs Powell (1897), 101 63 Ga. 527. Iowa, 382, 70 N. W. 592. CHAPTEE 28. ACTS OF DE FACTO OFFICERS IN RELATION TO THE HOLDING AND CONDUCT OF ELECTIONS. § 349. English Parliamentary doc- trine. 350. Same subject. 351. Same subject — Statutory in- eligibility of returning officer. 352. Same subject — Ineligibility of returning officer by reason of minority. 353. Same subject — Failure of election officers to take oath. 354. Returning officers joined by unauthorized persons. 355. Unauthorized persons act- ing as returning officers. 356. English doctrine adopted in Canada. 357. English judicial doctrine. 358. English judicial doctrine followed in a, Canadian case. § 359. Former doctrine of the American House of Rep- resentatives. 360. Same subject. 361. Later doctrine. 362. Same subject. 303. Same subject — Election offi- cers must be appointed by authorized persons. 364. American judicial doctrine. 365. Same subject — Irregular ap- pointment of election of- ficers. 366. Same subject — Officers inel- igible or disqualified. 367. Same subject — Omission to take oath. 368. Same subject — Election of- ficers acting in insuffi- cient number or joined by improper persons. § 349. English Parliamentary doctrine. — The English Parliament has long ago recognized the validity of elections held or conducted by de facto officers. The settled rule has been, that "wherever it appears that an election of a member of Parliament has been fairly made, there will be every incli- nation in the House of Commons to support such election; and upon this principle, the proceedings of the person in possession of the office of returning officer, will be adopted, 487 488 THE DE FAUTO DOCTRINE. [§ 350 even though his title to the office, to which that duty is at- tached, be questionable." ^ "The Law of Parliament," says Serjt. Heywood, "has departed from the general law of the land, and elections made under usurping pre- siding officers, where there has been the form of an election, have been uniformly supported." ^ Likewise Lord Mansfield observes: "How many instances do we recollect of Mayors acting as returning officers after there has been a judgment of ouster against the Mayor, under whom they derive their title." * Thus, in the Win- chelsea case* the Mayor was reported by the committee of privileges to be an intruder ; but nevertheless the election was holden good by the committee and by the House. He was an intruder, that is to say, in a municipal sense, with respect to the office of Mayor, because his title to that office was defec- tive ; but Capable, notwithstanding, of acting as returning offi- cer for parliamentary purposes, being in actual possession of the office to which that of returning officer was annexed.* § 350. Same subject. — Similarly in the Bodmin case,^ the petitioners claimed that one Hext, to whom the precept for the election had been delivered, was not the lawful Mayor, nor the legal or proper returning officer for the borough, but that he had usurped the said office, and therefore the election held before him was void. The defect in the election of the Mayor was the non-observance of some requisites of the charter with respect to such election. When, however, called upon to argue the case before the committee, counsel for the petitioners declined to do so, stating on behalf of his clients lEoe on Elections, 443. 428th May, 1624, 1 Jour. 798. SHeywood, Boroughs, pp. 62, 63. sWakefield (1842), Bar. & Aus. 3R. vs Davie (1781), 2 Doug. K. El. Cas. p. 298. B. 588. 6(1791), 2 Fras. 236. § 350] ACTS OF DE FACTO ELECTION OFFICERS. 489 that as the alleged Mayor "filled the office of mayor de facto, though not de jure, he now understood it to be the law of Parliament, though he had formerly given an opinion the other way, that Hext might act as returning officer." The petition was accordingly declared by the committee to be friv- olous and vexatious. Again, in the Wakefield case,'' it appeared that one Holds- worth had been appointed and had acted as returning officer for the borough of Wakefield, in every year from 1832 down to 1841, when the election took place. In the last mentioned year, however, he declined to act and caused a notice to be sent to the sheriff advising him of his refusal to accept the office. The sheriff then appointed one Barff to act in his stead, and delivered the precept to him. Holdsworth became a candidate and was elected. It was contended that he was ineligible, as he was the de jure returning officer of the bor- ough at the time of the election. The committee resolved accordingly, and declared that he was the proper officer to whom the precept ought to have been directed, apd was there- fore incapable of being elected to serve in Parliament for that borough. The next question was whether Barff, the, acting returning officer, could be regarded as an officer de facto and his acts held valid, so as to sustain the election in other respects. It was urged that the resolution of the com- mittee was conclusive upon that point, and since it had been decided that Holdsworth was the lawful returning officer, the sheriff was not empowered to deliver the precept to any- one else, and consequently the election held by Barff was a mere nullity. The committee, however, agreed with the law laid down by the counsel for the sitting member, and declined to declare the election and return void on the ground of any deficiency in the title of the returning officer. 7(1842), Bar. & Aus. El. Cas. 270. 490 THE DE FACTO DOCTRINE. [§ 351 § 351. Same subject — Statutory ineligibility of re- turning officer. — The same principle was upheld where the returning officer was ineligible to the office, to which was annexed that of returning officer. Thus, in the WincJielsea case,* the Mayor had not taken the sacrament of the Lord's Supper, according to the rites of the Church of England, with- in a year next before the election; and the committee, upon perusal of the clause in the Act of Parliament for regulat- ing corporations, were of opinion, that the return made by the Mayor of the election of Mr. Austin, the sitting member, was not good ; and that the election was void. But, when the matter came to be debated in the House, the Hoiise disagreed with the committee, and it was resolved that Mr. Austin was duly elected. So in the Portsmouth case,® as in the last, it appeared that the Mayor had not taken the sacrament with- in a year before his election ; notwithstanding which, the pro- ceedings before him were recognized, inasmuch as the House did not avoid the election, but seated the petitioners, Sir James Wishart and Sir "William Gifford, who had the legal majority of votes, instead of Sir Charles Wager and Sir John Jennings, who had been returned; and in this case, that of Winchelsea, 1666, above mentioned, was cited. § 352. Same subject — Ineligibility of returning officer by reason of minority. — Again, in the CUtheroe case,^" the sitting member was declared duly elected although the returning officer was ineligible by reason of minority. But in the Belfast case,^^ where four of the seven deputy return- ing officers were minors, the election was set aside. There 89th and 10th January, 1666, 8 io(1693), 11 Journ. 77. Clerk Jour. 673, 674; Roe, 443. on Elect. 359. 93rd February, 1710, 16 Jour. n (1842), Car. & Aus. El. Cas. 480; Roe, 444. 553. § 354] ACTS OF DE FACTO ELECTION OFFICERS. 491 were, however, other great irregularities, so that the invalid- ity of the election did not depend upon this point alone. In fact, in a note, the reporters say : "We have reason to know that the resolution of the Committee was solely grounded on the allegation respecting the insufficiency of the booths." And Clerk remarks: "If the election had been properly conducted in other respects, it may well be doubted whether a committee would hold an election void on account of the minority of any of the officials engaged in it." ^^ § 353. Same subject — Failure of election officers to take oath. — The failure of election officers to take the oath prescribed by law, has been held not to affect the election. This was decided in the Colchester case,^* under 25 Geo. Ill, c. 84, s. 7, which required that "every person whom the returning officer or officers shall retain to act as a clerk in taking the poll shall, before beginning to take such poll, be sworn by such returning officer or officers." The Mayor refused to swear the poll clerks, and the committee resolved that the failure to take the oath did not invalidate the elec- tion. § 354. Returning officers joined by unauthorized per- sons. — The circumstance of persons not being returning of- ficers joining with the proper officers in holding the election, or making the return, has been considered not to prejudice the election. Thus, in the Taunton case,^* the bailiffs of the borough were the legal returning officers, but they were joined by the constables, who assumed to act with them in that capacity, and made the return jointly with them. The committee held the sitting members duly elected, although lacierk on Elect. 363. 14(1805), 1 Peck 400, 58 Jour. 13(1789), 1 Peck. 503. 382; Roe, 448. 492 THE DE FACTO DOCTRINE. [§355 they at the same time reported, "that the bailiffs of the bor- ough of Taunton, appointed at a court-leet held annually in and for the said borough, are the legal returning officers of the said borough." § 355. Unauthorized persons acting as returning of- ficers. — Again, there havo been cases in which, the return- ing officer declining to fulfil his duty in taking the poll, or being interrupted, the electors have voted before a constable, or even before a private person, and their votes, as well as the election, have been held good. Such were the cases of CricJclade,^^ and of Liverpool}^ But in the case of ^Vells,^'' where the poll was taken by one Keate, who was not the proper returning officer, evidence was offered to show the refusal of the Mayor to go into the borough to receive the precept, whereupon Keate proclaimed the election and took the poll; but the House refused to admit the poll so taken by Keate to be produced. So in the CricMade case,^® where the returning officer, upon an appearance of riot (as to the extent of which there was contradictory evidence), closed the poll, and postively refused to renew it, and votes were there- upon taken before a constable, the committee resolved that the constable's poll should not be given in evidence, and that parol evidence should not be admitted to prove what persons polled before him. It is to be observed, however, that no other person than the returning officer had any authority un- der the statute to administer the bribery oath, which, by the stat. 2 Geo. II, c. 24 might be required to be taken by every voter; and this was much relied upon in the argu- 151st April, 1689, 10 Jour. 72, 73. 19th February, 1766, 30 Jour. 456, 165th, 19th, 21st, and 24th 466, 595; Roe, 449. March, 1729-30, 21 Jour. 476, 506, is (1775), 1 Doug. 293, 299; Roe, 508, 514. 449. i'15th and 20th January, and § 356] ACTS OF DE FACTO ELECTION OFFICERS. 493 ment against the validity of the constable's poll, in the Crick- lade case. Had it not been for that statute, it is possible that the conclusion of the House would have been different. § 356. English doctrine adopted in Canada. — The foregoing English doctrine has been followed and applied in Canada, in the case of Le Boutillier vs Harper. ^^ There Harper, the respondent, on the 13th January, 1874, received a commission from the Clerk of the Crown in Chancery, ap- pointing him returning officer for the then coming election in the county of Gaspe., He at the same time received the writ of election, and si^ed as returning oiBcer the receipt endorsed upon the writ. On the 14th of January, the re- spondent signed the usual proclamations as returning officer, and afterwards caused them to be posted up throughout the county. On the 31st January, he appointed L. Z. Joncas to be his election clerk, and on the same day telegraphed to the Clerk of the Crown in Chancery informing him that he was offering himself as a candidate, and therefore could not act as a returning officer, and stating that he had trans- ferred all papers to his election clerk. On the 2nd February he notified the latter of the above facts. There was some ex- change of correspondence and messages between the respond- ent and the Clerk of the Crown in Chancery, but the resig- nation of the former was never formally accepted. The election was held by the election clerk and Harper was elect- ed. As in the Wakefield case,^" already referred to, two ob- jections were urged against the validity of the election, viz. : First, that the respondent was ineligible; and secondly, that the election clerk was not a good returning officer. The first objection was sustained, but as to the second, the Court 19(1875), 1 Que. Law R. 4. 20 (1842), Bar. & Aus. EL Cas. 270. 494 THE DE FACTO DOCTRINE. [§ 357 held that the election clerk having acted as returning officer after the attempted resignation of the respondent, the election held by him was not invalid. In arriving at this conclusion, the Court followed the English parliamentary decisions, which are copiously quoted in their opinions. One of the Judges (Tessier, J.) remarked that though Harper remained returning officer de jure, the election clerk became officer de facto, he having acted as such, and the election was not in- validated on that account. § 357. English judicial doctrine. — Until the law was altered by statute, the English Courts declined to apply the parliamentary rule to municipal elections, held or presided over by de facto officers. The reason was, that "considered as a corporate officer, the Mayor or other presiding officer, is an integral part of the corporation, and the validity of elec- tions to corporate offices depends upon the legality of the title of the presiding officer : he must not only be in posses- sion of the office de facto, but must also be entitled to hold it de jure. This, observes Mr. Serjt. Ileywood, 'has in many instances been productive of great inconvenience, and if the same rule prevailed with respect to the election of members to serve in Parliament, it would have been the source of end- less confusion.' " ^' Upon this principle, it was held that if a presiding officer at an elective assembly of a borough, depart from it after the meeting has been regularly formed, and the election en- tered upon, but before it is completed, an election made after his departure is void.^- So it was held that where the Mayor, who presides at the election of the new Mayor, is only Mayor ziWakefield Case (1842), Bar. 389; R. vs Williams (1813), 2 M. & Aus. El. Cas. 270, 301. & S. 141. 22R. vs Buller (1807), 8 East, § 358] ACTS OF DE FACTO ELECTION OFFICERS. 495 de facto and not de jure, and is subsequently removed by judgment of ouster, the election of the new Mayor is.void.^^ Likewise where one was elected burgess at a meeting pre- sided over by an illegal Mayor, against whom were pend- ing quo warranto proceedings, and a judgment of ouster was afterwards rendered against him, the election of such burgess was held void.^* But now it is declared by statute, that an election of a person to a corporate office shall not be liable to be ques- tioned by reason of a defect in the title, or want of title, of the person before whom the election was had, if that person was then in, actual possession of, or acting in, the office giv- ing the right to preside at the election.^^ § 358. English judicial doctrine followed in a Can- adian case. — In PerrauU vs Brochu *® the principle laid down by the English courts was adopted and followed. The warden of the County of Arthabaska had appointed one Louis Foisy to preside at the general meeting of electors of the parish of St. Chistophe d' Arthabaska, which was to be held on the first Monday of January, in pursuance of the Munici- pal Act of 1855, for the purpose of electing seven councillors for the municipality of the said parish. Foisy, having en- tered upon his duties as such president, proceeded to pro- pose the names of several candidates, but a division tak- ing place among the electors, as to who should be the sev- enth councillor, some of the parties present demanded a poll; Foisy refused to proceed any further and left the 2SE. vs Bridgewater (1784), 3 2545 & 46 Vict. c. 50, s. 42; 1 Doug. K. B. 379; R. vs Smith Vic. c. 78, s. 1. (1816), 5 M. & S. 271. 26(1860), 10 Low. Can. R. 111. 2 4R. vs Lisle (1738), Andr. 163, 2 Str. 1090. See also R. vs Maiden (1767), 4 Burr. 2135. 496 THE DE FACTO DOCTRINE. [§ 359 meeting. Thereupon, James Goodhue, Esq., the oldest mag- istrate present, was called to preside over the meeting, and immediately after taking the chair, opened a poll. An hour after the closing of the poll, Goodhue proclaimed as duly elected the above named defendant Brochu; Brochu having subsequently taken his seat as councillor for the said Munic- ipality, the validity of his election was tried upon an infor- mation in the nature of a quo warranto brought by Perrault, the petitioner, one of the qualified electors of the Municipal- ity. The Court, relying on some of the English cases quoted in the preceeding section, gave a judgment of ouster against the defendant, declaring all the proceedings had under the presidency of Goodhue null and void, and setting aside the election of the defendant Brochu. In the course of his ob- servations, the presiding Judge remarked that the person named by the warden having been presented at the opening of the meeting, had become and was in fact an integral part of that assembly, and that the election could not be proceed- ed with during his absence, although he had improperly ab- sented himself. § 359. Former doctrine of the American House of Representatives. — In the United States the rules regarding the recognition of elections held or conducted by illegal of- ficers, were precisely the reverse of what they were in Eng- land. Instead of the courts being opposed to the application ■of de facto principles, we find the House of Representatives showing a disinclination to adopt the same, and this lasted until recently. That the House, however, did not always thoroughly grasp the extent of the de facto doctrine, is evi- dent from the following language of its committee: "We venture to assert that in no case has it ever been held that persons were ofiicers de facto who did not possess the quali- § 360] ACTS OF DE FACTO ELECTION OFFICERS. 497 fications requisite for officers de jure. One may be an officer de facto, who has been, irregularly, or improperly, appointed, or selected, and his acts may be binding on third persons; but in a case of personal disqualification of the officer, for reasons which could not be cured by a change in the manner of his selection, the rule is universal that he can have no jurisdiction, and his acts are void from the beginning for want of authority." ^^ Had the committee consulted the numerous authorities on the subject, they would have assur- edly discovered their error, as it has often been held that persons ineligible to an office, such as minors or females, may nevertheless become good officers de facto. § 360. Same subject. — The above is the doctrine which was applied in McKee vs Young,^^ where the election offi- cers were disqualified because of their having participated in the rebellion. The committee said: "It has long been held that, if the officers of elections are not capable of hold' ing the office, the election has no more validity than would have an election where no officers were appointed. It is otherwise where persons capable of holding the office are appointed, although they may not have complied with the forms of the law." A similar case is Delano vs Morgan,'"^ where the vote of a whole precinct was rejected, because one of the three Judges in the precinct was disqualified from holding office, on account of his having forfeited his citizen- ship by desertion from the army. Another is Dodge vs Brooks,^° where one of the grounds for the rejection of the precinct was that the board of registers who had made the registry were incompetent to act, they not being residents 27Eeid vs Julian (1870), 2 Bart. 292 Bart. El. Cas. 168. El. Cas. 822. 3 02 Bart. El. Cas. 78. 282 Bart. El. Cas. 422. De Facto— 32. 498 THE DE FACTO DOCTRINE. [§ 361 of the district. But in another case, "where it appeared that one of the clerks was not a qualified elector, the committee refused to throw out the precinct on that ground.^ ^ Again, in Jackson vs Wayne,^^ where a return was made by three persons, only one of whom was a magistrate, where- as the law required that three magistrates should preside at the election, the return was held defective.^^ So it was held where an election was presided over by two inspectors, and the law required three.^* Likewise where the election of- ficers had failed to take the required oath.^^ § 361. Later doctrine. — The later congressional cases, however, with the exception of Reid vs Julian^^ from which we quoted an excerpt above, hold an opposite view, and lay down the principle that, in the absence of fraud, the de facto doctrine should be applied to sustain the official acts of illegal election officers, whether their defective title be due to irregular election or appointment, or to failure to qualify as required by law.^'' The leading case is Barnes vs Adams j^^ which was followed in Eggleston vs S trader, ^^ and in Gooding vs Wilson.*° In fact, it seems that the only con- flicting case of late is that of Reid vs Julian, where curiously enough the principles of the old cases were re-affii-med. Why aiFinley vs Walls, Smith El. 37Blair vs Barrett, 1 Bart. El. Cas. 367. Gas. 313; Barnes vs Adams, 2 3 201. & H. El. Cas. 47. Bart. El. Cas. 760; Finley vs 33See also, Letcher vs Moore, CI. Walls, Smith El. Cas. 367; Sheafe & H. El. Cas. 756; Donnelly vs vs Tillman, 2 Bart. El. Cas. 907; Washburne, 5 Cong. El. Cas. 466. Millikin vs Fuller, 1 Bart. El. Cas. 3 4Howard vs Cooper, 1 Bart. El. 176; Clark vs Hall, 1 Bart. El. Cas. 275. Cas. 215; Flanders vs Hahn, 1 sBMcFarland vs Culpepper, CI. Bart. El. Cas. 438. & H. El. Cas. 221; Easton vs Scott, 3 82 Bart. El. Cas. 760. 01. & H. El. Cas. 273; Draper vs S92 Bart. El. Cas. 897. Johnson, 01. & H. El. Cas. 702. < 042nd Congress. 3 62 Bart. El. Cas. 822. § 362] ACTS OF DE FACTO ELECTION OFFICERS. 499 this should have been done in view of Barnes vs Adams, is unexplainable. Fortunately, the case was not decided upon the principle of law it laid down, but upon questions of fact, so that it is no direct authority in favor or against any legal doctrine. § 362. Same subject. — The following is a portion of thte report of the committee in Barnes vs Adams (decided in the Forty-first Congress), which was unanimously adopted, and which, we think, may be considered as settling the law of the House: "The question, therefore, regarded in the light of precedent or authority alone, would stand about as follows : The judicial decisions are all to the effect that the acts of officers de facto, so far as they affect third parties or the public, in the absence of fraud, are as valid as those of an officer de jure. The decisions of this House are to some extent conflicting; the point has seldom been presented upon its own merits, separated from questions of fraud; and in the few cases where this seems to have been the case the rulings are not harmonious. In one of the most recent and important cases, Blair vs Barrett,*^ in which there was an exceedingly able report, the doctrine of the courts, as above stated, is recognized and indorsed. The question is therefore a settled question in the courts of the country, and is, so far as this House is concerned, to say the least, an open one. Tour committee feel constrained to adhere to the law as it exists and is administered in all the courts of the country, not only because of the very great authority by which it is supported, but for the further reason, as stated in the outset, that we believe the rule to be most wise and salutary. The officers of election are chosen of necessity from among all classes of the people; they are numbered in every State by 411 Bart. El. Gas. 313. 500 THE DE FACTO DOCTRINE. [§ 363 thousands ; they are often men unaccustomed to the formali- ties of legal proceedings. Omissions and mistakes in the discharge of their ministerial duties are almost inevitable. If this House shall establish the doctrine that an election is void because an oiRcer thereof is not in all respects duly qualified, or because the same is not conducted strictly ac- cording to law, notwithstanding it may have been a fair and free election, the result will be very many contests, and, what is worse, injustice will be done in many cases. It will enable those who are so disposed, to seize upon mere tech- nicality in order to defeat the will of the majority." § 363. Same subject — Election officers must be ap- pointed by authorized persons. — The above doctrine, how- ever, seems to be subject to this limitation, that those ap- pointing election officers must be clothed with the legal power to make such appointments. This was decided in two cases. The first one is Bennett vs Chapman,'^'' where the electors in one precinct chose their own returning officer and tendered their votes to him, the probate Judge whose duty it was to make the appointment having failed to do so under a mis- apprehension. The return was rejected. The other case is Sheaf e vs Tillman*^ where a precinct officer was appointed by the probate Judge contrary to law, which provided that the Governor should appoint commissioners of registration, who in their turn should make the appointment of the pre- cinct officers, and hold the election in the county. It was held that the officer so appointed was not an officer de facto, but a mere usurper, and the election illegal. § 364. American judicial doctrine. — The practically uniform trend of judicial decisions in the United States, 421 Bart. El. Gas. 204. *i2 Bart. El. Cas. 907. § 365] ACTS OF DE FACTO ELECTION OFFICERS. 501 as already intimated, has always sanctioned the doctrine, that elections held or conducted by de facto officers, are valid. Accordingly, statutory provisions regulating and controlling election proceedings, and the appointment and qualification of election officers, are construed as merely directory, unless it clearly appears by the language used that they were in- tended to be mandatory, or that a disregard of them would affect the votes, or the result of the election. "Elections," says one of the Courts, "are the ultimate expression of the sovereign will. "When fairly expressed, that is, free from taint of fraud or charge of improper conduct, it becomes the duty of courts to sustain them where it can be done by a liberal construction of the laws relating to elections, rather than defeat them by requiring a rigid conformity to law." ** It is also pointed out, that it would be impracticable to require each citizen to investigate and judge at his peril who are and who are not in strictness of law officers, or whether they have complied with the directions of the statute regulating their conduct; especially on the day of election, when the time afforded is not a tithe of what is necessary for investiga- tion and redress.*^ Therefore, whenever practical to ascer- tain how many legal votes have been cast, at the proper time and place, there is no rightful power to reject them, although they may have been received by an officer de facto, and not de jure.*" § 365. Same subject — Irregular appointment of elec- tion officers. — In accordance with the foregoing principles, election returns should not be rejected or an election avoided ■t4Ex p. White (1894), 33 Tex. Barb. (N. Y.) 259; affirmed in 8 Cr. R. 594, 28 S. W. 542. Also N. Y. 67, 59 Am. Dee. 451. Peard vs State (1892), 34 Neb. 46Marks va Park (Pa. 1875), 7 372, 51 N. W. 828. Leg. Gaz. 70. 45People V3 Cook (1852), 14 502 THE DE FACTO DOCTRINE. [§ 365 for any irregularity in the appointment of the officers of election, where it does not appear that any injurious re- sults accrued therefrom, either by the reception of illegal votes or the rejection of legal votes, or that either of the candidates lost or gained votes thereby.*^ Thus, where elec- tion inspectors are appointed by a coroner, without the con- currence of three justices of the peace, as required by law, such irregularity will not avoid the election.** So, where an Act provides that election inspectors shall be appointed at or during a certain time, their appointment before or after the specified time will not render the election illegal.*® So the fact that election commissioners, within five days before the election, appointed two Democrats to act as oflacers of the election in lieu of two other Democrats who declined to act, without giving notice to the Republican member of the election board, was held not sufficient to invalidate the election.'*'' So where one of three qualified electors, appoint- ed pursuant to law to conduct an election, was sick and could not attend and the vacancy was filled by the appointment of another qualified elector in his stead by the remaining two appointees, it was held that such appointment, if ir- regular, did not affect the validity of the election, provided the result was not thereby changed.^' So an election held I'Keller va Chapman (1868), 34 approved in Cook vs State (1891), Cal. 635; Hankey vs BowTnan 90 Tenn. 407, 16 S. W. 471. (1901), 82 Minn. 328, 84 N. W. "People vs Board of Police 1002; People vs Cook (1853), 8 N. (1887), 46 Hun (N. Y.) 296; Peo- Y. 67, 59 Am. Dec. 451, affirming pie vs Police Com'rs of New York 14 Barb. 259; Pickett vs Russell (1879), 57 How. Pr. (N. Y.) 445; (1900), 42 Fla. 116, 28 So. 764; Marion vs Territory (1893), 1 Varney vs Justice (1888), 86 Ky. Okla. 210, 32 P. 116. 596, 6 S. W. 457; Conway vs Bd. BOJlotley vs Wilson (1904), 26 of Aldermen (1869), 2. Brewst. Ky. Law R. 1011, 82 S. W. 1023. (Pa.) 134. 61 People vs Lodi High School 4 8MeCraw vs Harralson (1867), Dis. (1899), 124 Cal. 694, 57 P. 4 Coldw. (Tenn.) 34; quoted and 660. § 365] ACTS OF DE FACTO ELECTION OFFICERS. 503 by commissioners appointed by tbe legislature, is valid, though the appointment is unconstitutional.'* So where the law requires election officers to be chosen by the voters, the election will not be annulled because of their appointment by an unauthorized body.®^ So it has been held that where the regularly appointed election officers fail to appear at a precinct, and other per- sons present take their place without having been properly selected, such persons will be considered officers de facto in regard to the receiving and counting of votes.'* But an election will not be upheld, where the officers holding it have no color of authority whatever, either by appointment, ac- quiescence, or otherwise, and are mere usurpers to the knowl- edge of those tendering their votes.'' The only case we have discovered in conflict with the fore- going authorities, is Phillips vs Corbin,^^ where the Court apparently shared the views entertained in the Congressional cases of Bennett vs Chapman,^'' and of Sheaf e vs Tillman,^^ already adverted to," and refused to recognize the validity of an election held by officers appointed by an unauthorized body. A special election had taken place to determine wheth- er the town of Colfax should be dissolved and the territory szpratt vs Breckinridge (1901), seVanAmringe vs Taylor ( 1891 ) , 112 Ky. 1, 65 S. W. 136, 23 Ky. 108 N. C. 196, 12 S. E. 1005, 23 Am. Law E. 1356; Id., 112 Ky. 1, 66 S. St. R. 51, 12 L.R.A. 202; Lower W. 405, 23 Ky. Law R. 1858. Terrebonne R. & M. Co. vs Police 5 3Sprague vs Norway (1866), 31 Jury (1906), 115 La. 1019, 40 So. Cal. 173; Trustees Common School 443. Dis. No. 88 vs Garvey (1882), 80 56(1896), 8 Col. App. 346, 46 P. Ky. 159. 224. 54Choisser vs York (1904), 211 571 Bart. 204. 111. 56, 71 N. E. 940; Thompson vs 6 82 Bart. 907. Ewing (1862), 1 Brewst. (Pa.) 67, esSee sec. 363. 5 Phila. 102, 19 Leg. Int. 348; Tul- los vs Lane (1893), 45 La. Ann. 333, 12 So. 508. 504 THE DE FACTO DOCTRINE. [§ 366 annexed to the City of Denver. In the ordinance providing for the election, the trustees of the town had appointed the officers to preside and conduct the same, whereas the gen- eral statute provided that the judges of election should be appointed by the county commissioners. The Court held that the statutory provision was not merely directory, but imperative, and therefore the election was illegal and void.®* § 366. Same subject — Officers ineligible or disquali- fied. — Moreover, it is no ground for the rejection of votes or the avoidance of an election, that some of the election of- ficers were ineligible or disqualified by law.®^ Thus, a minor may be a good clerk de facto at a poll, and the votes cast before him will not be thrown out."* iN'either will the votes of a precinct be rejected, because some of the managers were not freeholders, as required by law.®' Nor will an elec- tion be avoided because two of the election officers were in- eligible, one being a non-resident of the State, and the other a postmaster.®* Again, an election will not generally be invalidated by rea- son of some of the candidates acting as election officers,®* soSee contra, Fidelity T. & S. 207; Slate .vs Blue Ridge (1901), Va. Co. vs Morganfield (1895), 96 113 Ga. 646, 38 S. E. 977. Ky. 563, 29 S. W. 442, and other 64Svvepston vs Barton (1882), 39 eases above quoted. Ark. 549. See also McCarthy vs siQuinn vs Markoe (1887), 37 Wilson (1905), 146 Cal. 323, 82 P. Minn. 439, 35 N. W. 263. See Lee 243 ; In re Dauphin County Elec- vs State (1873), 49 Ala. 43, where "«" i^'^-' 18^4), 11 Phila. 645, 32 an election inspector acted after he ^^- ■'■"®*' ^^■ had lost his right to act by reason «^People vs Avery (1894), 102 f V • ;, I. ^-i, ■ t Mich. 572, 61 N. W. 4; Taylor vs of his absence at the opening of „ ' -^•'O""' the poll and the appointment of another one. Taylor (1865), 10 Minn. 107; State vs Bernier (Minn. 1888), 38 N. W. 368; (>)llins vs Masden szBell vs Faulkner (1892), 84 (1903), 25 Ky. L. R. 81, 74 S. W. Tex. 187, 19 S. W. 480. 72O; State vs Cosgrove (1892), eaCollins vs Huff (1879), 63 Ga. 34 Neb. 386, 51 N. W. 974. § SeT] ACTS OF DE FACTO ELECTION OFFICERS. 505 though, according to some authorities, this seems to be so only in cases where the rightful officers constitute a lawful quorum, independently of the candidate.®" Others also hold that the election is void as to the candidate himself, though valid as to others.®^ Contrary, however, to the prevailing rulings, it was held im.der a law providing that "no election shall be defeated for noncompliance with the requirements of the law if held at the proper time and place by persons qualified to hold it," that an election held by officers, all of whom were not qualified to act, was invalid.*® § 367. Same subject^Omission to take oath.' — Where no fraud is proven, and the election appears to have been properly and honestly conducted, the failure on the part of election officers to take the official oath will not vitiate the election.®* "The inspectors," says the Supreme Court of ssPeople vs McManus (1861), 34 Barb. (N. Y.) 620; Farrier vs Du- gan (1886), 48 N. J. L. 613, 7 A. 881; Wilcox vs Magruder (1850), 1 Ohio Dec. 350, 7 West. Law J. 505. 67Swepston vs Barton (1882), 39 Ark. 549; In re Boileau (1845), 2 Pars. Eq. Cas. (Pa.) 503. 6 8 Walker vs Sandford (1887), 78 Ga. 165, 1 S. E. 424. 69People vs Cook (1853), 8 N. Y. 67, 59 Am. Dec. 541, affirming 14 Barb. 259; People vs Schermer- horn (1855), 19 Barb. (N. Y.) 540; Taylor vs Taylor (1865), 10 Minn. 107; Quinn vs Markoe (1887), 37 Minn. 439, 35 N. W. 263; Lehlbaeh vs Haynes (1891), 54 N. J. L. 77, 23 A. 422; Smith vs Howell (1897), 60 N. J. L. 384, 38 A. 180; Whipley vs McKune (1859), 12 Cal. 352'; People vs Prewett (1899), 124 Cal. 7, 56 P. 619; Jossey vs Speer (1899), 107 Ga. 828, 33 S. E. 718; Heyfron vs Mahoney (1890), 9 Mont. 497, 24 P. 93, 18 Am. St. R. 757; Wells vs Taylor (1884), 5 Mont. 202, 3 P. 255; Wheelock's Case (1876), 82 Pa. St. 297; In re Boileau (1845), 2 Pars. Eq. Cas. (Pa.) 503; Barnes vs Supervisors (1875), 51 Miss. 305; Stinson vs Sweeney (1883), 17 Nev. 309, 30 P. 997 ; Rounds vs Smart (1880), 71 Me. 380; People vs Hilliard (1862), 29 111. 413; Dishon vs Smith (1859), 10 Iowa, 212; State vs Baker County (1886) , 22 Fla. 29; In re Krickbaum's Contested Election (Pa. 1908), 70 A. 852; Hunnicutt vs State (1889), 75 Tex. 233, 12 S. W. 103 ; Tanner vs Deen (1899), 108 Ga. 95, 33 S. 506 THE DE FACTU DOCTRINE. [§ 367 Florida, "are public agents authorized to conduct the elec- tion and to certify the result. Like other official persons, having acted in a public official capacity, they occupy the position of officers de facto even though they failed to return the oath duly taken." '"' So irregularities in the manner of taking, administering, or evidencing the oath will not af- fect the election. Thus, the title of an inspector or clerk cannot be collaterally challenged in election proceedings, on the ground that he vs^as sworn upon a book other than the Holy Evangelists as on Watts' Psalms and Hymns.^^ So the fact that the officer who administered the oaths to the judges and clerks of election neglected to put his title to the several jurats will not be allowed to operate to disfranchise the voters in the precinct in which such judges and clerks acted.^^ Likewise with other irregularities in regard to the jurat, where such irregularities are the result of innocent mistake, and do not produce any effect on the election.''* The omission to take an oath, however, as pointed out in some Congressional cases, is always regarded with suspicion, unless it is shown to be clearly due to ignorance or inadver- tence. There is no doubt, therefore, that where election officers have failed in that respect, the courts will jealously scrutinize their conduct and proceedings, and if it should appear that the result of the election has been in the least affected or prejudiced by such failure the election will be annulled. E. 832; Sanders vs Lacks (1807), 72Pcople vs Hilliard (1862), 29 142 Mo. 255, 43 S. W. 653; Mont- 111. 413. gomery vs Chelf (1904), 118 Ky. isBehrensmeyer vs Krietz(1891 ), 766, 82 S. W. 388. 135 111. 591, 26 N. E. 704; Acker- 70State vs Bd. of County Can- man vs Haenck (1893), 147 III. vassers (1878), 17 Fla. 9. 514. 35 N. E. 381; State vs Bd. 7 1 Rounds vs Smart (1880), 71 of County Canvassers (1878), 17 Me. 380. Fla. 9. ^ 368] ACTS OF DE FACTO ELECTION OFFICERS. 607 § 368. Same subject — Election officers acting in in- sufficient number or joined by improper persons. — Where the proper number of election officers do not act at an election, or where they are joined and aided in the per- formance of their duties by unauthorized persons, such ir- regularities are not deemed by the courts of any consequence, unless it can be shown that the result of the election has been affected. Thus, where the statute required three inspectors, and only two acted, the election was not thereby avoided, the statutory provision being construed as directory merely.^* So it was held where there were only four judges of election, and the law required six.''^ Likewise, where the statute re- quired the presiding officer of a precinct to select three judges and four clerks, and he selected only three judges and two clerks.'^* So where the commissioners of election appointed two additional ballot clerks contrary to law, through an in- nocent mistake, the election was not avoided.^^ So an elec- tion was held valid although four inspectors acted during part of the time, three only being required,'^* the fourth being unauthorized to act. So the fact that a person acts as a member of the election board without being legally appointed and sworn,''* or that an unauthorized person is allowed to assist in counting the votes, will not vitiate the election.*" I^OT will an election be affected by the fact that a person 74State vs Sturapf (1867), 21 77Dial vs Hollandsworth(1894), Wis. 579. Also Gilleland vs Scliuy- 39 W. Va. 1, 19 S. E. 557. ler (1872), 9 Kan. 569; State vs 78People vs Cook (1852), 14 Townsend (1837), 1 McMul. (S. Barb. (N. Y.) 259. C.) 495. 7 9Lehlbach vs Haynes (1891), 76Sanders vs Lacks (1897), 142 54 N. J. L. 77, 23 A. 422. Mo. 255, 43 S. W. 653. soSprague vs Norway (1866), 31 ■?6Chapman vs State (1897), 37 Cal. 173; Roberts vs Calvert Tex. Grim. R. 167, 39 S. W. 113. (1887), 98 N. C. 580, 4 S. E. 127. Also Fragley vs Phelan (1899), 126 Cal. 383, 58 P. 923. 508 THE DE FACTO DOCTXiENE. [§ 368 acts at tlie poll, during the temporary absence of the lawful clerk, without being sworn.*' In those cases, however, slight proof of fraud, or proof of even opportunity to change the ballots, will suffice to give rise to the presumption that the election has been illegally conducted. "While ordinarily," says the Court in Dial vs Hollandsworth/'' "such misconduct unexplained raises gra->^e suspicions, and would require but a small amount of addi- tional evidence to destroy the presumption of fairness and sustain the charge of corruption, yet in this case the officers of the election have given a reasonable, although not a legal, excuse for their conduct, and the contest-ant has failed to produce any evidence of unfairness tending to sustain the fraudulent practices alleged in the notice of contest. So far as anything in the evidence is contained, it tends to show that there was a free ballot and a fair count as to every vote cast at this precinct." siln re Boileau (184S), 2 Pars. 82(1894), 39 W. Va. 1, 19 S. E. Eq. Cas. (Pa.) 503; Brightly Elec. 557. Cas. 263. CHAPTEK 29. VALIDITY OF OATHS TAKEN BEFORE DE FACTO OFFICERS- PERJURY. 369. Affidavits and depositions taken before de facto of- ficers, valid. 370. Perjury cannot be commit- ted at common law be- fore a de facto tribunal. 371. English doctrine still as at common law. 372. Exception to the English rule. 373. Evidence of official reputa- tion sufficient, unless re- butted. 374. Doctrine in Canada. 375. Observations on case of Drew vs The King. 376. Same subject — Language of the commissioners. 377. Same subject — Language of the Code. § 378. Same subject — Status of the Recorder. 379. Doctrine in New York. 380. Same subject. 381. Doctrine in Alabama. 382. Doctrine in Kentucky. 383. Doctrine in Ohio. 384. Doctrine in Indiana. 385. Doctrine in South Carolina. 386. Doctrine in Iowa. 387. Doctrine in New Hamp- shire. 388. Doctrine in Texas. 389. Doctrine in Illinois. 390. Doctrine in Florida. 391. Doctrine in Maryland. 392. Doctrine in Michigan. 393. Doctrine in Oklahoma. 394. Doctrine in Kansas. § 369. Affidavits and depositions taken before de fac- to officers, valid. — The validity of affidavits and depositions cannot be assailed on the ground of their having been sworn or taken before persons who were merely de facto officers. Thus, where it was claimed that a chattel mortgage had not teen properly renewed, and was therefore void as against execution creditors, because the renewal affidavit had been taken before a deputy city clerk, whose appointment was ap- parently irregular, the Court held that such objection could not prevail, inasmuch as the record showed that at the time 509 510 THE DE FACTO DOCTRINE. [§ 370 the affidavit was made, the deputy clerk was, and for a long time before had been, openly and without objection perform- ing the duties of his office ; he was therefore an officer de fac- to, and his title could not be questioned collaterally.^ So, an affidavit taken before a commissioner of deeds de facto for a city, who is exercising such office under color of an appoint- ment, may be used in a suit between other persons ; and the Court will not inquire collaterally into the legality of the officer's appointment.^ Again, in an action upon a promis- sory note, an affidavit made before a commissioner de facto, as to the amount due thereon, cannot be objected to.^ Like- wise, depositions cannot be suppressed or invalidated on the ground that they were not taken before a competent officer, where it appears that they were taken before a notary public whose appointment was regular and valid, but who had failed to file a bond as required by law.* So in England, although before 7 & 8 Will. Ill, c. 27, s. 21, and 1 Ann, c. 8, s. 5, a commission issuing out of a court of equity for the examina- tion of witnesses, was determined ipso facto by the demise of the King, yet the depositions taken under it without notice of such demise, were valid.® § 370. Perjury cannot be committed at common law before a de facto tribunal. — A singular anomaly exists at common law with reference to proceedings before de factO' tribunals. While on the one hand, the convictions, judg- ments, decrees, and other judicial acts of de facto courts are recognized as valid and binding, yet persons may corruptly iTower vs Welker (1892), 93 ^Keeney vs Leas (1863), 14 Mich. 332, 53 N. W. 527. Iowa, 464. See also Pack vs Unit- 2Parker vs Baker (1840), 8 ed States (1906), 41 Ct. CI. 414. Paige (N. Y.) 428. 6 Crew vs Vernon (1628), Cro. 3Kaufman vs Stone (1869), 25 Car. 97, 79 Eng. R. 686. Ark. 336. § 371] OATHS BEFORE DE FACTO OFFICERS. 511 and intentionally deceive and mislead such courts by giving false testimony before them, -without thereby becoming liable to punishment for perjury. In a prosecution of this kind, the defendant is allowed to challenge the authority of the judge before whom the oath was taken, and if he can show that such judge was merely an officer de facto by reason of ir- regular appointment, or defective qualification, he is en- titled to be discharged. In the language of the law, the false swearing must have been before a "competent tribunal," by which is meant a tribunal not only having jurisdiction of the person and of the subject-matter, but also presided over by an officer legally appointed and duly qualified to act. Such doctrine obviously has its foundation neither in rea- son nor in justice. I^Tay, it is manifestly against public policy, the efficient administration of justice, and the most sacred rights of individuals. Why should legal protection against deceit be denied to tribunals whose judgments are recognized as valid and binding in all cases, even where the life or liberty of the citizen is at stake ? Such rule evidently owes its origin to a misapprehension of the true prin- ciples underlying the de facto doctrine. There is no reason why the term "competent tribunal" should not mean any tribunal recognized by law, whether the same be de jure or de facto only. Nevertheless, though this state of the law has been the subject of much adverse criticism, the same is still permitted to continue in full force in several jurisdictions. § 371. English doctrine still as at common law. — This is the case in England where the principles of the com- mon law are still adhered to. Bacon lays down this doctrine, as follows : "The oath ought to be taken before persons law- fully authorized to administer it; for if it be taken before persons acting merely in a private capacity, or before persons 512 THE DE FACTO DOCTRINE. [§ 371 pretending to a legal authority of administering sucli oath, but having in truth no such authority, it is not punishable as perjury." ^^ Likewise, Hawkins says: "It seemeth clear, that no oath whatsoever taken before those who take upon them to admin- ister justice of an authority seemingly colorable, but in truth unwarranted and merely void, can ever amount to perjury in the eye of the law. . . . And from the same ground it seemeth also clearly to follow, that no false oath in an affi- davit made before persons falsely pretending to be authorized by a court of justice to take affidavits in relation to matters depending before such courts, can properly be called perjury, because no affidavit is any way regarded, unless it be made before persons legally intrusted with a power to take it." ® The leading case upon this subject is apparently R. vs VerelstJ There an indictment was found for perjury com- mitted before one acting as surrogate in the ecclesiastical court, in making oath to an answer in a cause there pending for a divorce. The surrogate having acted in that capacity, it was held that it was prima facie evidence of his appoint- ment, and that he had authority to administer the oath. It appeared, however, from the registrar's book, containing the appointment, that it was irregularly made, for the reason that instead of being authenticated in the usual manner, no no- tary public, nor his deputy, nor the registrar, had been pres- ent at the time for the purpose of authenticating the act, ac- cording to the rule of the ancient common law; and it was claimed that the appointment was a nullity. The counsel for the prosecution contended that the officer appointed having acted as surrogate for twenty years without his authority BaBac. Abr. Perjury (A). sell on Crimes (6th Ed.) p. 297; 61 Hawk. P. C, c. 27, s. 4; see, Eos. Crim. Ev. (12th Ed.) 717. also, Archb. Cr. PI. (23rd Ed.) 7(1813), 3 Camp. 432, 14 E. E. p. 1045; 4 Black. Comm. 137; Rus- 775. § 372] OATHS BEFORE DE FACTO OFFICERS. 513 being questioned in the ecclesiastical court, a judge and jury at Nisi Prius ought not to inquire into the manner of his ap- pointment; that if they did, they might still presume a no- tary was present, although a blank was left for the name in the entry ; that the entry was not the appointment, but only the evidence of it ; that the appointment might be regular al- though the entry was deficient; and that even if no notary was present, it did not follow that the appointment was a nullity, although the judge might be liable to suspension. But Lord Ellenborough held, that he could not shut out evi- dence that Dr. Parsons, who acted as surrogate, was not duly appointed, however long he might have acted in that capacity, and that the presimiption arising from his acting could only stand till the contrary was proven ; and, after reviewing the facts, he decided that the allegation that Dr. Parsons had authority to administer the oath was negatived; and the defendant was acquitted. This case has been quoted with ap- proval and followed in numerous other cases, both in the JEngiish and American courts. In 1878, an Imperial Commission was appointed in Eng- land, to examine the criminal law and report upon changes that should seem to them necessary and desirable. Among other things, the commissioners recommended that a change be made in the law in regard to perjury, so as to render amen- able to justice persons falsely swearing before a de facto Judge or tribunal, but, so far as we are aware, their sugges- tion has not yet received the formal recognition of Parlia- ment. § 372. Exception to the English rule. — The English courts, however, before there was any statutory law on the subject, recognized an exception to the general rule that per- jury could not be founded upon an oath administered by a De Facto— 33. 514 THE DE FACTO DOCTRINE. [§ 373 de facto officer. This was in the case of false oaths taken before persons authorized by commission to take the same, and who acted by virtue of such commission after the demise of the Crown, but before the same was known to them. "It hath been adjudged," says Hawkins, "that a false oath taken before persons, who, having been commissioned to examine witnesses, happen to proceed after the demise of the King who gave them their commission, and before notice thereof, may be punished as perjury ; for it would be of the most ill consequence to make such proceedings void ; and therefore, though all such commissions be in strictness legally deter- mined by the demise of the King who gave them, without any notice ; yet for the necessity of the case, whatever is done under them before such notice, must be held to stand good ; for otherwise the most innocent and most deserving subjects would be unavoidably exposed to numberless prosecutions for doing their duties, without any color of a fault." * Whether the same principles would be deemed to apply, un- der like circumstances, to all officers empowered to administer oaths, has apparently never been decided, but there appears to be no reason to be urged against such application. It is to be noted, however, that since the passing of certain statutes,* commissions under the Crown in regard to various offices, are not determined by its demise, but are continued for six months thereafter. And as to judges, since 1 Geo. Ill, c. 23, their official tenure is not affected by the death of the sovereign.-"' § 373. Evidence of official reputation sufficient, un- less rebutted. — Again, though at common law a defendant SI Hawk. P. C, c. 27, s. 4. lOSee also Rev. Stat. Can. 97 & 8 Wm. in, c. 27, s. 21 ; 1 (1906), c. 101. Ann. c. 8; 6 Ann. c. 7, s. 8; 1 Geo. II, u. 5. § 374] OATHS BEFORE DE FACTO OFFICERS. 515 is allowed to impeach the title of the officer before whom he swore falsely, yet it is evident from the case of B. vs Ver- elst/^ that it is not incumbent on the part of the prosecution to adduce more than evidence of official reputation, where no attempt is made to rebut that evidence. "I think," says Lord EUenborough, in that case, "the fact of Dr. Parsons having acted as surrogate, is sufficient prima facie evidence that he was duly appointed and had competent authority to administer the oath. I cannot for this purpose make any dis- tinction between the ecclesiastical courts and other jurisdic- tions. It is a general presimiption of law that a person acting in a public capacity is duly authorized so to do." The de- fendant therefore, in that case, would have been convicted on such presumption, had it not been rebutted. Following this rule, the Court of Criminal Appeal, in a prosecution for per- jury, held that the fact that one acted as deputy judge of a County Court, was sufficient prima facie evidence of his appointment as sueh.'^ The same principle was upheld where the evidence showed that the commissioner before whom the affidavit was sworn had never seen his commission, but had acted as such commissioner during the last ten years.-'* § 374. Doctrine in Canada. — The English doctrine pre- vailed in Canada until the passing of the Criminal Code, 1892." By art. 145 of that Code, it is now provided, among other things, that every proceeding is judicial "within the meaning of this section" which is held "before any legal tri- bunal by which any legal right or liability can be established, 11(1813), 3 Camp. 432, 14 E. R. & K. 469. Also E. vs Ward 775. (1848), 3 Cox. C. C. 279; R. vs. 12R. vs Roberts (1878), 14 Cox. Howard (1832), 1 M. & Rob. 187. C. C. 101, 38 L. T. 690. "55 & 56 Vict., e. 29. 13R. vs Newton (1844), 1 Car. 516 THE DE FACTO DOCTRINE. [§ 37-i or before any person acting as a court, justice or tribunal, having power to hold such judicial proceeding, whether duly constituted or not, and whether the proceeding was duly in- stituted or not before such court or person so as to authorize it or him to hold the proceeding, and although such proceed- ing was held in a wrong place or was otherwise invalid." A rather singular interpretation, considering its far-reach- ing effect, was given to the above clause in a case which arose in the Province of Quebec, in 1902.^" There the appellant, Drew, charged one Kowe with having committed a trespass by forcible entry on his land situate in the Coimty of Hunt- ingdon, in the District of Beauharnois. The charge was laid under Art. 5551 of the Revised Statutes of Quebec, which restricts the hearing of such cases to a magistrate residing in the county where the offence was committed. The case was tried before the Recorder of Valleyfield, who was ex officio a justice of the peace in and for the whole district of Beau- harnois, but did not reside in the County of Huntingdon, where the offence was charged to have been committed, and was, therefore, without jurisdiction of the subject-matter of the complaint in consequence of the provisions of the Quebec Statutes above referred to. Drew, however, gave false tes- timony before the magistrate, and being convicted therefor in the proper Criminal Court, of pre jury, the question was reserved whether the objection to the competency of the Re- corder to sit in the case of trespass prevented the commission of the legal offence of perjury. The reserved case was first heard by the Court of King's Bench, Appeal Side, at Montreal, and by three of the five judges, the conviction was upheld. Then an appeal was i5Drew TS The King (1902), 11 Sup. Ct. R. 228, 6 Can. Crim. Gas. Que. R. (K. B.) 477, 6 Can. Crim. 424. Cas. 241; affirmed (1903), 33 Can. § 375] OATHS BEFORE DE FACTO OFFICERS. 517 taken to the Supreme Court of Canada, where the decision of the Court of King's Bench was affirmed, but again, only by a majority, this time there being four judges against two. § 375. Observations on case of Drew vs The King. — Although the above case settles the law in Canada, so long at least as the Supreme Court rests satisfied with its own judgment, nevertheless we submit, with much deference, that the soundness of the conclusions arrived at by the majority of the judges in the two Courts admits of legitimate doubt. Art. 145 of the Canadian Criminal Code, part of which is quoted in the preceding section, was copied practically verbatim from the English draft code prepared by the Eoyal Commis- sioners appointed in England, in 1878, to report upon the criminal law. "In framing the above section," say the com- missioners, "we have proceeded on the principle that the guilt and danger of perjury consist in attempting by false- hood to mislead a tribunal de facto exercising judicial func- tions." The majority, both in the King's Bench and in the Su- preme Court, were seemingly misled by the words "tribunal de facto exercising judicial functions," to which they re- ferred to in construing that section of the code. They as- cribed to the words "de facto" a literal and untechnical meaning, obviously disregarding its legal signification which is far less comprehensive. Thus, Hall, J., who delivered the judgment of the court of King's Bench, said : "It seems to a majority of this Court that the intention of that commission as expressed in their report and the natural interpretation of the definition they recommended and our Parliament adopted are these: that any false statement made under oath by a witness in the presence of justice is perjury ; it is a violation of the solemnity surrounding a legal tribimal ; it is an attempt 518 THE DE FACTO DOCTRIXE. [§ 376 to mislead justice . . ." Likewise, Armour, J., deliver- ing the opinion of the Supreme Court, after quoting from the report of the commissioners, concludes that "the Recorder was, in hearing the said charge, a tribunal de facto exercising judicial functions." Our reasons for doubting the soundness of these conclu- sions of the majority, are based upon (1) the language of the commissioners, (2) the language of the Code, and (3) a consideration of the status of the Recorder, under the cir- cumstances. § 376. Same subject — Language of the commis- sioners. — Admitting that the term "de facto," as used by the commissioners, might be misleading to persons unskilled in the law, it is difficult to conceive that such could be its effect upon Judges and jurists, acquainted with the de facto doctrine. "A tribunal de facto exercising judicial functions," is undoubtedly intended to designate a de facto court lawfully entitled to that appellation, and not any pretended court, whether self-constituted or not, and whether invested with jurisdiction or not. Independently of general principles, this, to our mind, is quite obvious from the explanatory re- marks of the commissioners. "It seems to us," said they, "not desirable that the person who has done this, should es- cape from punishment if he can show some defect in the con- stitution of the tribunal which he sought to mislead, or some error in the proceedings themselves." But what could be shown at common law against the constitution of the tribunal 1 Anything that would tend to destroy its apparent legality, and establish that it had merely a de facto character, such as the irregular appointment or defective qualification of the presiding officer, or the like. The judgments of such a tri- bunal, as we have seen, were valid and binding, bat a witness § 377] OATHS BEFORE DE FACTO OFFICERS. 519 testifying before it could not be convicted of perjury. Evi- dently the intention of the commissioners was to remove such anomaly, but not to revolutionize the law by introducing and adopting a diametrically opposite policy, the enforcement of which would practically have the effect of punishing moral perjury. Again, the commissioners observe that the guilt and danger of perjury consists in attempting to mislead a tribunal in the exercise of judicial functions, but there cannot be any such at- tempt, where there is no tribunal recognized by law, either de jure or de facto, capable of being misled. They also point out that "perjury may be made the means of committing what amounts to murder or robbery of the worst kind," but no such evil results can be apprehended where the pretended judicial proceedings are mere nullities. § 377. Same subject — Language of the code. — But re- gardless of the remarks of the commissioners, it seems to us that the interpretation of their draft amendment, which con- stitutes art. 145 of the Canadian Criminal Code, in the light of the most elementary rules of construction,^* must lead to the same conclusion as above expressed. What was the law before the Code was passed? What were the defects in the law intended to be cured or remedied ? To constitute the offence of perjury at common law, it was essential to estab- lish, besides the falsity of the oath, at least three things: 1. That the oath was material ; 2. That it was administered by a de jure tribunal or officer; 3. That it was taken in a judicial proceeding; and as to this last requisite, it was a much debated question whether any irregularity in the pro- ceedings was not fatal to a prosecution of this kind. Now turning to the Code, we find the following words : 1. "whether leHeydon's Case (1584), 2 Coke's Rep. 18. 520 THE DE FACTO DOCTRINE. [§ 378 such evidence is material or not;" 2. "before any person act- ing as a court, justice or tribunal, having power to hold such judicial proceeding, whether duly constituted or not;" 3. "whether the proceeding was duly instituted or not." What could be more obvious ? Three defects in the common law, three remedial amendments in the statutes. It would be hard to imagine an instance, where the legislative intent was more clearly expressed. Again, why should the words "having power to hold such judicial proceeding," have been entirely disregarded in a case where it was shown that the person who acted as a court had no authority whatever in regard to the proceeding before him ? This was pointed out by Blanchet, J., dissentiente, in the Court below: "It seems . . . that the words 'duly con- stituted or not' referring, as they do, to 'any person acting as a court, justice or tribunal' cannot be construed as meaning 'whether the person so acting had jurisdiction or not' be- cause the words immediately preceding expressly require that such person must have 'power to hold such judicial proceed- ing;' which is tantamount to declaring that jurisdiction must exist. It is therefore evident, to my mind, that the only logical interpretation of the words 'duly constituted or not' is that they are intended to cover mere irregularities and techni- calities, or, as stated by the English commissioners, some defect in the constitution of the tribunal. I have no doubt that if it had been the will of Parliament to depart, in this particular respect, from the old principle of the English law which is maintained throughout the code, its intention would have been expressed in clear and unmistakable terms." § 378. Same subject — Status of the recorder. — Hav- ing given our reasons for concluding that neither the English commissioners nor the Canadian Parliament intended to make § 378] OATHS BEFORE DE FACTO OFFICERS. 521 it a criminal ojffence to swear falsely before a tribunal which had not at least a de facto character in the technical sense of the term, we must next examine what was the status of the Eecorder of Valleyfield. Could he be regarded as a de facto judge or tribunal? Had he such a character that his acts could be held valid, independently of defects in his title or qualification? Both courts seemingly confounded the case of a de facto officer performing duties annexed to his office, with that of a legal officer, de facto assuming or usurping powers belonging to another. While there may be a de facto judge or tribunal, whose judgments and convictions are valid and binding, there is no such thing known to the law as a de facto jurisdiction.^^ Were it otherwise, a justice of the peace could convict of murder ; or a magistrate of Montreal could punish for intoxication occurring in the City of Toronto. This would be absurd. The Eecorder of Valleyfield did not have the reputation of being the officer in whose capacity he as- sumed to act, nor did he pretend to have such reputation. In fact, he did not assume to be anything else but what he really and lawfully was, that is, Recorder of Valleyfield. Hence, it was manifestly an instance of a de jure officer usurping the authority of another officer. How then could he be styled a de facto judge or tribunal ? . An analogous case in principle, though involving entirely a different question, came before the Supreme Court of Iowa, in 1874.^® As the law then stood in that State, in ad- I'lt is hardly necessary to cite White (1829), 25 Mass. (8 Pick.) authority for the proposition that 453; Flower vs Swift (1830), 8 perjury cannot be predicated upon Mart. N. S. (La.) 450; United an oath administered by a tribunal States vs Jackson (1895), 20 D. C. without jurisdiction ratione ma- 424; State va Gates (1892), 107 teriae aut personae, but were it N. C. 832, 12 S. E. 319. so, the following cases are in isBailey vs Fisher (1874), 38 point: State vs Jenkins (1887), 26 Iowa, 229. S. C. 121, 1 S. E. 437; Com. vs 522 THE DE FACTO DOCTRINE. [§ 378 dition to township assessors, there was chosen by each incor- porated town at its municipal election, an assessor who listed all property within its limits. The township assessors were elected at the general election for State and county offices. The incorporated town of Anamosa was in Fairview town- ship. At a general election in 1866, one Arnold was elected assessor of Fairview township, and one Dott, at the same election, and not a municipal election, was chosen assessor for Anamosa, It appeared that both of these assessors were voted for by all the electors of the township, including those living in the town. Dott, following a custom, assessed land outside of the town, and it was held that such assessment was a nullity, and a sale for taxes under it, void. Beck, J., delivering the opinion of the Court, said: "While the elec- tion of Dott was irregular, he may be regarded as the assessor de facto of the town of Anamosa, and all his acts as such within the limits of his official powers are valid, so far as they involve the interests of third persons and the public. Dott, as the assessor of Anamosa, listed lands of the town- ship, including the tract in controversy. He did not assess them as the township assessor, and it is not claimed that he acted as such. We then have the simple case of one officer performing an act which the law requires of another, with- out claiming or assuming his functions. The- question does not arise whether Dott was de facto assessor of Fairview township. He did not act as such, nor assume the duties of that office. He simply performed acts in his official capacity as assessor of Anamosa, which the law required another officer to do. The discussion upon the point made by the defendant's counsel, that Dott was the assessor de facto, and his acts are therefore valid, does not apply to the facts of the case. Had Dott made the assessment as the assessor of Fairview township, the ai-gument of counsel § 378] OATHS BEFORE DE FACTO OFFICERS. 523 on this point would be applicable to the case. But the dis- tinction between such a case and the one before us is obvious. It is not claimed that where an officer de jure or de facto assumes duties not imposed upon him by law, and which pertain, under the law, to another officer, that, in such a case, his acts are valid on the ground that he is an officer de facto. We have seen no authority supporting such a rule. Yet this is the precise case before us. In order to support the acts of one on the ground that he is a de facto officer, they must be done under color of the office, the duties of which must have been assumed and discharged by the person claiming to fill the office. This we think is essential to give one the character of an officer de facto, and render his acts valid. These views, we think, are not contested by appel- lant's counsel, and are certainly in accord with all the au- thorities to which we have been referred." So in a Cali- fornia case, it was held that the exercise by a justice of the peace of jurisdiction outside of that conferred by the con- stitution is not the exercise of an office, and the result there- of is to render acts done outside of such jurisdiction void.^^ The Chief Justice of the Supreme Court,^" whose opinion is entitled to great weight, both as a distinguished judge and as the author of a valuable work on criminal law, substan- tially laid down the same principles, in his dissenting judg- ment. "The proceedings before him (the recorder)," said the learned Chief Justice, "were not judicial proceedings, because he was not a judge or magistrate de jure (pro hac vice). Neither could he have been at Valleyfield, not being a resident of the county of Huntingdon, a magistrate de facto, any more than if he had been sitting at Toronto or Vancouver. A de facto officer's jurisdiction cannot be terri- isBuckner V3 Veuve (1883), as 20Sir Elzear Taschereau. reported in 3 P. 862. By the word jurisdiction used in this case, is meant territorial jurisdiction. 524 THE DE FACTO DOCTRINE. [§ 379 torially more extensive than the de jure one whose functions he assumes. Where the statute expressly enacts that only the magistrates residing in the county of Huntingdon have jurisdiction over the case, there cannot have been, outside of that county, whether in the same district or a thousand miles from it, a de facto magistrate having any reasonable pretence to jurisdiction. ... A magistrate de facto cannot have more powers than a magistrate de jure. The proceedings before the Recorder of Valleyfield were not only voidable, but were void of a nullity of non esse. As is said in the civil law, defectus potestatis, nuUitas nullitatum." Lastly, we may note that there is a marked difference, as pointed out in R. vs BoltonJ^^ between cases, where there is a total want of jurisdiction, as in the one imder discussion, and where there is a potential jurisdiction depending upon certain facts upon which the tribunal may found his authori- ty, even through an erroneous conclusion. In the latter case, even at common law, perjury might be committed, but not in the other. We have criticized the above decision at some length owing to its very important bearing upon the criminal law of Canada in relation to perjury, in fact entirely revolutioniz- ing it; and, also, because the criticism may be of interest in other jurisdictions where similar legislation may be enacted. § 379. Doctrine in New York. — The law of Xew York, upon the subject we are considering, seems to be in an unsatisfactory State. In Howard vs Sexton '^^ the action was for slander. The defendant charged the plaintiff with false swearing at a trial before arbitrators, and for these 21(1841), 1 Q. B. 66, 4 P. & D. reversed on other grounds (1850), 679, 5 Jur. 1154. 4 N. Y. 157. 22(1845), 1 Den. (N. Y.) 440, § 380] OATHS BEFORE DE FACTO OFFICERS. 525 words, imputing perjury, as was alleged, the action was brought. The oath had been administered by a justice of the peace, but as it appeared that the arbitrators had not been sworn, it was contended that the justice had no authority to administer an oath to the witnesses,; and consequently that there could be no perjury before such arbitrators. The Court (Per Bronson, C. J.) held that the defendant's con- tention was unfounded, and declared that in its opinion if parties should go to a trial before a judge or a justice of the peace who had not taken the oath of office, a witness who should swear falsely on such trial could not escape the pains of perjury. This ease was cited with approval by the Court of Appeals in People vs Cooh,^^ where in an action in the nature of quo warranto, it was declared that "the person of the voter is as securely guarded under the authority of in- spectors de facto, as of inspectors de jure. A challenged voter swearing falsely before a de facto board of inspectors is as much liable to punishment under the statute as if the oath had been administered by inspectors de jure." But in People vs Alhertson,^* which was a prosecution for perjury, it was held that the defendant might show that the officer before whom the oath was taken was not acting under color of title, and that no such color of title could exist where the magistrate who had administered the oath had been ap- pointed by three justices, having no authority to fill the office at all. § 380. Same subject. — Finally, the question came up di- rectly before the Court of Appeals and was thoroughly dis- cussed in Lambert vs People,^^ where perjury was predi- 23(1853), 8 N. Y. 67, 59 Am. 24(1853), 8 How. Pr. (N. Y.) Dec. 451, affirming (1852), 14 (Green County Court) 363. Barb. 259. 26(1879), 76 N. Y. 220, 32 Am. 526 THE DE FACTO DOCTRINE. [§ 380 cated upon an affidavit purporting to have been sworn to be- fore a notary public. The prosecution proved that the al- leged notary had acted as such for some years, and produced a book from the County Clerk's Office containing a list of notaries, the time of their appointment, etc., among which appeared his name. The defendant offered to prove that the notary, at the time of his alleged appointment, and at the date of his administering the oath, was a resident of the State of New Jersey, and was therefore ineligible, — the statutes of New York providing that no person is capable of holding a civil office, who, at the time of his appointment, is not a citizen of the State. This evidence was rejected by the Supreme Court, but this ruling was reversed by the Court of Appeals, all the Judges concurring in the judgment, but assigning conflicting reasons in support of it. Miller, J., reviewed Howard vs Sexton, and People vs Cooh^^ and after remarking that "there is a wide and marked distinction between the right to act at all and the failure to comply with some statutory requirement, in assuming power conferred by an appointment to discharge the duties of an official position," continued by saying that ''conceding the correctness of the rule upheld in the cases cited, and that such rule is most generally applicable, I am of the opinion that it cannot be invoked where an indictment is found for per- jury and the foundation of the charge rests entirely upon the competency or the jurisdiction of the officer or tribunal before which the oath is taken. This is one of the issues presented by the indictment, in this case; and upon princi- ple, it would seem to be quite obvious that the accused party had a right to show that there was no such officer or tribunal Rep. 293; reversing Lambert vs seSupra. People (1878), 14 Hun (N. Y.) 512. § 380] OATHS BEFORE DE FACTO OFFICERS. 527 in existence as is alleged in the indictment. Such a rule only operates in cases where a charge of perjury is preferred, while the acts of an officer de facto, acting under color of authority, even if he had been illegally appointed, under ordi- nary circumstances would not be affected or impaired. No pernicious consequences or serious inconvenience would re- sult to the public at large by the enforcement of such a prin- ciple, as all acknowledgments made, or other acts of a notary public or of any other officer de facto done, while in the per- formance of his duties, except in cases where false swearing was directly charged, would be valid and lawful. The argu- ment of ah inconvenienti therefore has no application, and should not influence the decision of the question considered, even if it could properly be urged, to affect the disposition of a grave criminal charge, under any circumstances." The learned Judge referred with approval to B. vs Verelst.^'' Earl, J., grounded his opinion on the fact, that the prose- cution had not shown that the notary was either an officer de jure or de facto. Proof that he had acted as a notary for some years was only "prima facie evidence that he was such officer de jure, and the defendant had a right to meet this prima facie case by any evidence tending to show that he was not de jure a notary. Then, if the defendant succeeded in establishing this, the burden of proof shifted again upon the people, and it became their duty to prove that the al- leged notary was at least an officer de facto, which the learned Judge claimed they had not done. Hand, J., said : "I am not prepared to assent to the doc- trine of the opinion that perjury can only be committed be- fore an officer de jure, and that, on the trial of an indict- ment for that crime, the title of such officer can always be 27(1813), 3 Camp. 432, 14 R. R. 775. 528 THE DE FACTO DOCTRINE. [§ 381 attacked. N'or, indeed, am I prepared now to say that if, in the present case, the commission of the notary from the proper appointing power had been shown, that the prisoner could have raised such a question as non-residence. I am in- clined to think that, in such a contingency, the question of residence being often a very nice one, the validity of appoinir ment could not thus be attacked." The other four judges did not deliver any written opinions, but upon the point in question, one concurred with Miller, J., one with Earl, .J., one with Hand, J., and the other expressed no opinion. The result of this decision seems to be this : That per- jury may sometimes be predicated upon an oath taken before an officer de facto, but in such case stricter proof of his color of authority will be required than in other cases, where the oath itself is not the subject or foundation of a prosecution. The Court, at least the majority, apparently inclined to the opinion that if the notary's commission, even if irregularly issued, had been produced, its validity could not have been impeached. And even Miller, J., seemed to think that the failure to take the official oath or to qualify according to law on the part of an officer, could not be pleaded by the de- fence in a case of this nature. It cannot be said, however, that this decision lucidly and satisfactorily settles the law upon the subject involved, as the opinions are at variance with one another, and many of the reasons assigned by the learned Judges in support of their conclusions, are at least questionable. § 381. Doctrine in Alabama. — The strict English rule has been followed in Alabama. In Merlette vs State ^^ the Court incidentally adverted to the point, but left it open, as they did not deem it advisable to undertake the reconcilia- 28(1894), 100 Ala. 42, 14 So. 562. § 383] OATHS BEFORE DE FACTO OFFICERS. 529 tion of the conflicting authorities. But in Walker vs State, ^^ it was held that one acting as deputy clerk of a civil court under claim and color of authority, having been appointed to that position by the clerk, but never having qualified as such deputy by taking the oath required by law, was a de facto, but not a de jure, officer, and perjury could not be predicated upon an oath administered by him as such de facto officer. He was not "duly authorized" to perform an official act. The conviction, however, was upheld on another ground, namely, that the oath having been administered by the deputy in the presence of the clerk, the act of the former was, in legal contemplation, the official act of the latter. § 382. Doctrine in Kentucky. — In Kentucky, it is laid down that "the rule founded upon public policy which re- quires the acts of de facto officers to be treated for many purposes as valid and binding does not apply when an oath administered by such an officer is made the foundation of a prosecution for perjury." ^^ In that case the charge against the defendant was for falsely swearing before a judge of elec- tion that he was of age, in order to procure the right to vote. On the part of the accused, it was proven that the Judge had not taken the oath prescribed by law for judges of election, and that he was acting, at the time defendant was sworn, as a judge of the election without having taken such oath. Upon this evidence, it was held that the Judge was at most an officer de facto, and that perjury could not be assigned upon an oath administered by him.®' § 383. Doctrine in Ohio. — The Supreme Court of Ohio endorsed the principle of the English common law, in Slaight 23(1895), 107 Ala. 5, 18 So. 393. siSee also Com. vs Hillenbrand soBiggerataff vs Commonwealth (1895), 96 Ky. 407, 29 S. W. 287. (1874), 11 Bush. (74 Ky.) 169. De Facto— 34. 630 THE DE FACTO DOCTRINE. [§ 383 vs State.^^ Staight, the appellant, was indicted in the Court of Common Pleas of Logan county for perjury. It was proved that he made application for a marriage license, in Logan county on December 2, 1882, and testified as to the ages of the parties to the contemplated marriage, and resi- dence of the female, and the alleged perjury was in the testi- mony so given. The oath was administered by L. E. Pettit, to whom the application was made. In 1878, P. E. Pettit was elected and duly qualified as probate judge of Logan county. He was re-elected in 1881, and on February 6, 1882, entered on his second term, after being duly qualified, and he continued to be such judge. Evidence was gi^en on the trial tending to show, that on December 8, 1879, K. E. Pettit appointed as deputy clerk of the probate court, L. E. Pettit, who, being duly qualified, entered on the duties of the appointment, and acted as such deputy continuously ever since that time, under the original appointment, and that he was not re-appointed when E. E. Pettit entered upon his second term of ofiice, nor since. Staight asked the Court to charge the jury, that if they should find the facts to be as above stated, he could not be convicted, but the Court re- fused to so charge, and he was found guilty. In error, how- ever, the Supreme Court, following R. vs Verelst,^^ held that the accused had the right to show that L. E. Pettit was not an officer de jure, and so defeat the prosecution. However, after the extensive recognition of the de facto principles in the subsequent case of State vs Gardner,^* which was a prosecution for offering a bribe, it is doubtful whether the rule of the English common law would now be strictly adhered to. In that case, Staight vs State was dis- 32(1883), 39 Ohio St. 496. 34(1896), 54 Ohio St. 24, 42 N. 83(1813), 3 Camp. 432, 14 R. E. 999, 31 L.R.A. 660. R. 775. § 384] OATHS BEFORE DE FACTO OFFICERS. 531 tinguished by one of the judges, Spear, J., -who observed that "the position of deputy clerk is not, in the constitutional sense, an oiEce. At common law the officer and his deputy filled but a single office. By statute the probate Judge is ex officio ilerk of his own court; the deputy is appointed by him, and can be neither appointed nor removed by any one else, and the acts of the deputy are the acts of the prin- cipal.®^ Pettit, the one acting as deputy when the oath was administered to Staight, had received no appointment under the Judge's second term, and had taken no oath. Even had there been an office to fill, he lacked color of office, and in no respect could be regarded an officer de facto." Likewise, the Supreme Court of Kansas, commenting upon Staight vs State, remarked that "as the officer (the deputy clerk) who had administered the oath did not have color of title to the office claimed, and was not an officer de facto, the Ohio case cannot be regarded as an authority for the English § 384. Doctrine in Indiana. — A case similar to Staight vs State, supra, occurred in Indiana. The oath upon which was assigned the perjury had been administered by a deputy clerk, who had not received a written appointment nor been sworn as such, as required by statute. The Court held that the deputy clerk not having been appointed according to the requirements of the law, the authorities were clear, that the defendant to the indictment might show, as a ground for defeating the prosecution, that the officer who administered the oath charged to be false, acted under an invalid appoint- as Warwick vs State, 25 Ohio St. Kan. 739, 60 P. 1050, 60 Kan. 837, 21. 58 P. 476. 36State vs Williams (1900), 61 532 THE DE FACTO DOCTRINE. [§ 385 ment ; and that if he did establish that fact, he must be ac- quitted.^^ § 385. Doctrine in South Carolina. — In South Caro- lina an objection to the competency of the magistrate who had administered the oath, upon which was assigned perjury, based upon the fact that he had taken the oaths of qualifica- tion before one of the associate Judges, who had no power to administer them, was held good ground for a new trial. The Court observed that, although the objection was not raised at the trial, nor in the notice of motion, yet as it was their practice "to allow any objections growing out of the merits of the case," they thought the defendant should have the benefit of it.** § 386. Doctrine in Iowa. — In State vs Phippen ^^ it was held that a person cannot be convicted of perjury for taking a false oath before one not empowered by law to ad- minister oaths ; and as a township assessor is not authorized to enter upon his duties before the third Monday of January after his election, one who, before such assessor, falsely swears to an assessment of his property, prior to that time, does not thereby commit legal perjury. The conviction of the defendant by the District Court was accordingly set aside. The Court remarked : "The want of authority of the assessor to administer the oath at the time alleged in the indictment, takes from the false swearing the quality which renders it punishable by the law. It may, notwithstanding, be a moral perjury, but with that we have nothing to do." 37Muir V3 State (184G), 8 39 (1883), 62 Iowa, 54. Blackf. (Ind.) 154. 3 s State vs Hay ward (1819), 1 Nott. & McC. (S. C.) 546. § 388] OATHS BEFORE DE FACTO OFFICERS. 533 § 387. Doctrine in New Hampshire. — The point never arose directly in this State, whether an oath administered by a de facto officer could be the subject of perjury, but it was decided that it is sufficient, prima facie, on an indictment for perjury, to show that the person by whom the oath was administered was an acting magistrate, and that the evidence of the individual himself might be received for the purpose.** § 388. Doctrine in Texas. — The identical principle was upheld by the Texas Court of Appeals in Woodson vs State.*^ One of the objections against a conviction for per- jury was that the lower court had erred in permitting a State's witness to testify that he was a justice of the peace, and as such had administered to the defendant the oath upon which the false swearing was predicated. The Court, over- ruling the objection, said: "While the general rule is that the best evidence by which a fact can be proved must be produced, or its absence accounted for, before secondary or inferior evidence is admissible, a well established exception to this general rule is that the official character of an alleged public officer need not be proved by the commission or other written evidence of the right of such officer to act as such, except in an issue directly between the officer and the public. Such proof may be made originally by parol evidence, and is sufficient if it shows the person to be a de facto officer." Although this case was decided merely upon a point of evi- dence, yet the Court seemed to be of the opinion that the acts of de facto officers are collaterally unassailable, even in a criminal case for perjury. 40State vs Ilaacall (1833), 6 N. 41(1887), 24 Tex. App. 153, 6 H. 352. S. W. 184. 534 THE DE FACTO DOCTRINE. [§ 389 § 389. Doctrine in Illinois. — The Supreme Court of Il- linois seems to favor the doctrine that perjury can be com- mitted before an officer de facto. Thus, in Greene vs Peo- ple*'' the plaintiff in error was found guilty of the crime of perjury in the criminal Court of Cook county, and after overruling the motion for a new trial and in arrest of judg- ment, the Court sentenced him to the penitentiary. To re- verse that judgment a writ of error was sued out. ISTumerous assignments of error were made upon the record, but the point which interests us here was disposed of by the Court, as fol- lows : "It is next objected that the master in chancery who administered the oath to the defendant at the time it is al- leged he gave the false testimony had no authority to do so. This contention is based upon the fact that he was appointed to succeed himself as such master by all the superior judges of the county sitting together, whereas the appointment should have been made by one, only, and that his bond was approved by a single judge; and it is said that either the appointment or the approval of the bond was fatally defective. We do not think the point is well taken ; but if it be conceded, still it is clear tliat he was acting in the capacity of master in chancery at the time, and therefore his authority to adminis- ter the oath cannot be questioned in this proceeding." ** § 390. Doctrine in Florida. — The doctrine laid do^vn by the Supreme Court of Illinois in Greene vs People,** supra, was approved by the Supreme Court of Florida in Markey vs State*^ where it was held that mere irregularities in the 4 2(1899), 182 111. 278, 55 N. E. 44(1899), 182 111. 278, 55 N. E. 341. 341. 4 3 See also Morrell vs People 46(1904), 47 Fla. 38, 37 So. 53, (1863), 32 111. 499; Hereford vs People (1902), 197 111. 222, 64 N. E. 310. § 392] OATHS BEFORE DE FACTO OFFICERS. 535 appointment of a master in chancery, an examiner, or other person appointed by the Court to take testimony, whether such person be designated in said order by any official title or not, cannot be questioned on the trial for perjury of one who, it is alleged, testified falsely before him. § 391. Doctrine in Maryland. — In Izer vs State*^ the appellant was indicted by the grand jury of Alleghany coun- ty for perjury. Having been convicted and sentenced to penitentiary, he appealed to the Court of Appeals. He ob- jected to the authority of the deputy clerk, who had admin- istered the oath to him, on the ground that it appeared in evidence that the deputy had continued to act after the re- election of his principal, without being re-appointed or re- sworn. The Court, overruling the objection, said: "Of course, if Izer was never legally sworn to give testimony before the grand jury, no false statement made by him before that body could constitute indictable perjury; and if Wil- liamson had no authority to administer to Izer the oath he did administer, Izer was not legally sworn. But William- son was then in the undisputed possession of the office of deputy clerk, and since 1886 had openly and notoriously discharged the duties pertaining thereto. He was at least a de facto officer, filling a de jure office, and whatever defects or irregularities there may have been in the manner of his appointment or qualification, his acts, done under color of title, are, upon grounds of public policy and necessity, valid and binding." § 392. Doctrine in Michigan. — In Michigan, also, the validity of an oath administered by a de facto officer seems to be fully recognized, even where perjury is assigned there- 46(1893), 77 Md. 110, 26 A. 282. 536 THE DE FACTO DOCTRINE. [§ 393 on. Thus it was held, on a trial for perjury, that evidence that the oath was administered in open court by one who was acting as deputy clerk was sufficient proof of his official char- acter, and that in a collateral proceeding it was enough that he was shown to be an officer de facto.*'' § 393. Doctrine in Oklahoma. — The Supreme Court of Oklahoma enunciated the same doctrine in Morford vs Ter- ritory*^ where in error to the District Court for Payne County to review a judgment convicting defendant of per- jury, counsel for appellant insisted that the case should be reversed for the reason, inter alia, that the trial in the libel suit, in which perjury was alleged to have been committed, was presided over by a Probate Judge who was not a lawyer, nor even licensed to practise law, and therefore did not pos- sess the qualifications prescribed by statute. The Court, after citing several authorities and discussing the principles of the de facto doctrine, held the objection untenable, and concluded thus: "Conceding that the Probate Judge who tried Martin for criminal libel and administered the oath to the appellant, when the alleged false testimony was given, and upon which the perjury is assig-ned, was only a de facto officer, his acts while exercising the duties and functions of a Probate Court were valid, and his acts could only be at- tacked in a direct proceeding, and not in a collateral man- ner, as attempted in this case." § 394. Doctrine in Kansas. — It was likewise laid down in Kansas, that a witness who swears falsely about a rele- vant matter before a de facto judge, whose judgment is bind- ing upon the parties to the proceeding, is guilty of perjury, I'Keator vs People (1875), 32 48(1901), 10 Olda. 741, 63 P. Mich. 48-1. 958, 54 L.R.A. 513. § 394] OATHS BEFORE DE FACTO OFFICERS. 537 and liable to the same punisliment as though the oath had been administered by a de jure judge. Where this was said, it was held that it being shown that a police judge, who ad- ministered the oath upon which perjury was predicated, was appointed by officers having authority to appoint, and that he had qualified and entered upon the duties of his office, testimony that he had changed his residence to a place out- side of the city was properly excluded, his title or right to the office not being subject to collateral attack.*® 49State vs Williama (1900), 61 Kan. 739, 60 Pac. 1050, 60 Kan. 837, 58 P. 476. CHAPTEK 30. VALIDITY OF ACTS OF DE FACTO JUDICIAL OFFICERS— DE FACTO COURTS. 395. Scope of this chapter. 396. De facto courts. 397. Same subject — Rulings. 398. De facto courts may exist under a de facto govern- ment. 399. De facto courts under other circumstances. 400. Courts of the Confederate States of America. 401. Same subject — First period. 402. Same subject — Second pe- riod. 403. Same subject — Third period. 404. Limitations to the above doctrine. 405. Who are de facto judicial officers. 406. Title of de facto judicial officers not collaterally assailable. 407. Same Subject — • Illustra- tions. 408. Same subject — Same sub- ject. 409. Same subject — Same sub- ject. 410. Same subject — Same sub- ject. 411. Same subject — English il- lustrations. 412. Same subject — Same sub- ject. 413. Same subject — Canadian authorities. 414. Causing objection to judge to be spread on the rec- ord, of no avail. 415. When foregoing principles are inapplicable. 416. Same subject — Special judges. 416a. Same subject — Same sub- ject. 417. Same subject — Canadian au- thorities. 418. Same subject — Public of- ficers only occasionally discharging judicial du- ties. 419. Same subject — Justices of the peace only occasion- ally acting. 420. Observations on the English and Canadian cases. 421. Same subject. 422. Acts of de facto judicial officers, valid. 423. Acts of de jure judges act- ing outside their juris- diction, under an uncon- stitutional Act. 424. Same subject — American cases. 425. Same subject — Canadian cases. 426. Same subject — Same sub- ject. 427. Same subject — Same sub- ject. 538 § 396 J ACTS OF DE FACTO JUDICIAL OFFICERS. 539 § 395. Scope of this chapter. — Some departure from the general plan adopted and followed in this work, will bo made in this chapter. For instance, we have already treated of de facto offices, and incidentally of de facto courts, but we shall again advert to this subject in order to introduce new matter, or to supplement and further illustrate what has already been said. Likewise, though the question of col- lateral attack on the title of de facto officers will be discussed later on, yet this subject will be extensively dealt with in this chapter, as this has been thought to be the best course to pursue in expounding the doctrine in relation to the validity of acts performed by de facto judicial officers. § 396. De facto courts. — Some writers lay down the principle, that judgments and decrees rendered by a de facto court are as valid and effectual as though pronounced by a de jure tribunal. If the word "court" be used, as it often is, to designate the officer who presides over the same, the above language is unobjectionable ; but if thereby is meant the tribu- nal itself, that is, the judicial office, we submit it is inaccu- rate, save in a very few cases. A learned author says : "But on principles of public policy and for the security of rights, it is held that the regular judgments of a de facto court, whose e::istence has afterwards been pronounced unconstitu- tional and void, are nevertheless valid and conclusive." * That the author alludes to the Court itself is inferable from the fact that in a subsequent paragraph he treats of de facto judges. In support of his statement, he quotes several au- thorities,^ all of which, except one, were decided upon objec- iBlack on Judgments, sec. 173. Cas. 426; State vs Anone (1819), sState vs Carroll (1878), 38 2 Nott. & McC. (S. C.) 27; Gilliam Conn. 449, 9 Am. Rep. 409; Burt vs Reddick (1844), 4 Ired. L. (N. vs Winona (1884), 31 Minn. 472, C.) 368; State vs Porter (1840), 18 N. W. 285, 4 Am. & Eng. Corp. 1 Ala. 688; Mayo vs Stoneum 540 THE DE FACTO DOCTMNE. [§ 39t> tions made to judges not properly qualified, or unlawfully elected or appointed to legally constituted tribunals, and therefore are no authority for the proposition that there can exist a de facto court. The exception is Burt vs Winona etc. J2. Co., which decides, that where a Court is established by a legislative Act apparently valid, and the court has gone into operation under the Act, it is a de facto court, the legality of which cannot be eollatorally attacked. The opinion, however, was not delivered by a unanimous court, and one of the dis- senting judges observed, that "a de facto court is a political solecism." Though this authority has recently received the approval of the tribunal in State vs Bailey,^ yet in a previous case it was rather adversely commented upon,* and the prin- ciple it lays dovsm has generally been regarded as unsound. On the other hand, there is a powerful array of authorities upholding the proposition that where a court has no lawful existence, the acts performed by the judge thereof cannot be sustained as the acts of a de facto officer.' But as this sub- ject has already been treated in connection with de facto offices, the reader is referred to that part of the work, where (1841), 2 Ala. 390; Masterson vs 40 N. E. 175; Daniel vs Hutcheson Matthews (1877), 00 Ala. 200; and (1893), 4 Tex. Civ. App. 239, 22 State vs Ailing (1843), 12 Ohio 10. S. W. 278; Ayers vs Lattimer 3(Minn. 1908), 118 N. W. 076. (1894), 57 Mo. App. 78; In re 4 State vs District Court of Ram- Hinkle (1884), 31 Kan. 712, 3 P. say County (1898), 72 Minn. 220, 531; State vs Lake (1873), 8 Nev. 75 N. W. 224, 71 Am. St. R. 480. 270; Hildreth vs Melntyre (1829), 5Ex p. Snyder (1870), 64 Mo. 1 J. J. Marsh. (Ky.) 200, 19 Am. 58; State vs O'Brian (1878), 68 Dec. 01; Treble vs Frame (1829), Mo. 153; People vs Terry (1880), 1 J. J. Marsh. (Ky.) 205; Mallory 42 Hun (N. Y.) 273, reversed on vs Hiles (1802), 4 Mete. (Ky.) 53; other grounds in 108 N. Y. 1, 14 State vs Boone County Court N. E. 815; In re Norton (1902), (1872), 50 Mo. 317; People vs 64 Kan. 842, 68 P. 639, 91 Am. St. Toal (1890), 85 Cal. 333, 23 P. R. 255; State vs Slmford (1901), 203; Caldwell vs Barrett (1903), 128 N. C. 588, 38 S. E. 808; Matter 71 Ark; 310, 74 S. W. 748. of Quinn (1897), 152 N. Y. 89, § 397] ACTS OF DE FACTO JUDICIAL OFFICERS. 541 all the authorities will be found quoted.^" However, it may not be amiss to give here a few rulings, bearing directly upon the question of de facto courts. § 397. Same subject — Rulings. — In In re Norton,'^ which was a proceeding in habeas corpus, the petitioner was convicted in the Court of Common Pleas of Cherokee and Crawford counties of murder in the second degree, and sen- tenced to imprisonment for a term of twenty years. The peti- tion alleged, that the court had no existence at the time of tli3 conviction and sentence, and therefore that the imprisonment of the petitioner was illegal, and that he ought of right be discharged. An Act of the legislature had been passed creat- ing such court, but its establishment was subject to the fol- lowing proviso: "Provided, however, that the majority of the qualified electors of said counties shall vote in favor there- of as hereinafter provided." An election was held and after- wards the respective boards of county commissioners of the two counties met, canvassed the returns, and caused the result to be certified to the Governor, who thereupon appointed a judge of the court. The person thus appointed qualified and acted as such judge of the court until his successor took pos- session of the office. The successor thereafter held court in the several counties, tried cases, and transacted all other business coming within the jurisdiction of the court, and in June, 1900, tried, convicted and sentenced the petitioner. Put, afterwards, it was discovered that the proposition to establish the court had not received the majority of the votes. To sustain the validity of the conviction, it was argued that the court was recognized by the chief executive, by the sheriffs of both counties and by the people, and therefore it 5aSee sec. 2S et seq. 6(1902), 64 Kan. 842, 68 P. 639, 91 Am. St. R. 255. 542 THE DE FACTO DOCTRINE. [§ 397 was entitled to be regarded as a de facto tribunal. However^ the Supreme Court was unanimous in its refusal to accede to such proposition, and declared the petitioner illegally im- prisoned. "There must be," said the court, "a reality in the existence of the court that undertakes to deprive one of his liberty. In all cases where the acts of de facto officers have been upheld, there existed a de jure office." In State vs Shuford '' the defendant was charged with lar- ceny, and after verdict of guilty he moved in arrest of judg- ment, and excepted to the refusal of his motion. From the judgment, he appealed. The following were the facts : The General Assembly passed an Act increasing the number of judicial districts to sixteen, and stipulated that it should take effect and be in force from June 30th, 1901, except as to the fifteenth district whose creation was to be effective from and after the 25th day of March, 1901. The Act further provided, that the courts in the last mentioned dis- trict should be presided over by the judge of the sixteenth district, who was to be appointed by the Governor on or prior to the 25th April, 1901. The effect of the Act therefore was, that the judge of the sixteenth district was to be appoint- ed and act before the district was legally in existence. N^ev- ertheless, the Governor appointed and commissioned a judge thereof. On appeal, the argument was pressed that the presiding officer was at least a de facto judge, as he held a commission issued by the Executive under the authority of an Act of the Legislature. But the judgment was arrested, the Court holding that "the indispensable basis of being a de facto officer is that there is such an office." * 7(1901), 128 N. C. 588, 38 S. E. 29, but see State vs Bailey (Minn. )8. 1908), 118 N. W. 676. 8 See also cases cited under sec. § 398] ACTS OF DE FACTO JUDICIAL OFFICERS. 543 An analogous English case may also be quoted.^ There, upon a trial of an issue in prohibition, it was attempted to give in evidence a document from the Remembrancer's office of the court of Exchequer, but as it appeared that the court had not been duly constituted, the evidence was overruled. Lord Tenterden, C. J., saying : "It was evidently, therefore, a proceeding before persons not forming any court known to the laws of this country." § 398. De facto courts may exist under a de facto gov- ernment. — There is, however, an exception to the above rule, which has received the sanction of judicial authority, both in England and the United States. It occurs where the law- ful governtnent is overpowered and ousted for the time being by a usurping power, which takes charge of it and maintains itself by force and arms. The de facto judiciary administer- ing justice, under such circumstances, must be recognized to avoid intolerable mischief to the citizens of the State. "If the government itself," says a learned court, "is a usurpation, as long as such government lasts the courts established by it are de facto courts, because the only existing government is de facto; and when the rightful government is restored, the acts of such courts, as a matter of necessity, must be held to be valid." i« Thus, in Bank of North America vs McCall,^^ it was con- tended that certain judicial proceedings from St. Domingo were void, because they were carried on by a court which was said not to derive its authority from the Erench govern- ment. Presumably, although the report is silent on the 9Eogers va Wood (1831), .2 B. dreth vs Mclntyre (1829), 1 J. J. & Ad. 245. Marsh. (Ky.) 206, 19 Am. Dec. 61. loState vs Boone County Court ii(1812), 4 Binn. (Pa.) 371. (1872), 50 Mo. 317. Also Hil- 544 THE DE FACTO DOCTRINE. [§ 398 point, the court in question had acted at a time when the Island was in the throes of a revolution, and its lawful govern- ment had been overthrown by the revolutionists. As a mat- ter of history, it is known that St. Domingo was in a state of political commotion for over thirty years under the French regime, and that, during most of that time, a de facto govern- ment was successfully maintained by force against the mother country. This state of affairs continued until 1825, when its independence was recognized by France. Under those circumstances, the Supreme Court of Pennsylvania over- ruled the above contention, and declared that a court, act- ing under the authority of those in whom the power of the country is for the time being vested, must be deemed to have the jurisdiction of a legitimate court. "There was a court de facto, and that is sufficient," remarked one of the judges. The history of England also affords a memorable instance of the application of the above doctrine. On the death of Charles I, Charles II immediately became King of England de jure ; and the years of the reign of Charles II are to this day counted from the death of Charles I; yet there was an interval of eleven years between the death of Charles I and the restoration of Charles II, during the greater part of which, imder the Protector, a government, maintaining order and able to enforce its authority, existed. Sir Matthew Hale, though he never formally recognized the government of Cromwell, sat as judge of the Common Bench, as the Court of King's Bench was called in Cromwell's time, in the adjud- ication of cases involving title to property as well as those affecting civil liberty. In a word, administering the plenary jurisdiction of the court. At the Restoration he sat in the same court as Lord Chief Justice of the King's Bench. His explanation has often been quoted, to the effect that the pub- § 400] ACTS OF DI£ FACTO JUDICIAL OFFICERS. , 545 lie business must go on, and justice be administered, alike under de facto and de jure governments. § 399. De facto courts under other circumstances. — Upon principles of public policy and necessity, running on parallel lines with those which sustain the acts of de facto courts under de facto governments, it has sometimes been held that certain tribunals, exercising jurisdiction under vari- ous exceptional circumstances, should be recognized as de facto courts. Thus, the Supreme Court of the United States supported, as legal and binding, the judgment of a Spanish Court, rendered in Louisiana, after the cession of that coun- try to the American Union, but before the same was formally surrendered. The court held, that the territory was de facto in the possession of Spain, and subject to Spanish laws, and that the judgments of its courts, so far as they affected the private righis of the parties thereto, must be deemed valid. ^" § 400. Courts of the Confederate States of America. — It may be of interest from an historical standpoint, if from no other, to deal briefly with the courts which administered justice in the Confederate States of America, during the War of Secession. There was for a long time much fluctua- tion of opinion as to what character should be attributed to them. In the United States courts their status underwent three different and distinct stages, during each of which were entertained opinions at variance with, and sometimes directly opposite to, those previously or subsequently held. A passing reference to each period will be made. i2Keene vs McDonough (1834), vino vs Fernandez (1855), 13 Tex. 8 Pet. (y. S.) 308. See also Ryder 630; Cullins vs Overton (1898), 7 vs Cohn (1869), 37 Cal. 69; Tre- Okla. 470, 54 P. 702. De Facto— 35. 546 THE DE FACTO DOCTRINE. [§ 401 § 401. Same subject — First period. — One has only to peruse the judgments pronounced during the first period, to realize that the judges delivering them were not, in many instances, free from the prejudices and feelings which were the inevitable results of the war. Some of those decisions sound more like political orations than the deliberate, impar- tial and considered deliverances of judicial officers, unbiased in their conduct, and uninfluenced by public opinion. The consequence was that, during a certain time after the con- clusion of the war, the American courts generally refused all recognition to the judg-ments of the courts of the Confeder- ate States, on the ground that the alleged government from which they derived their authority, being illegal and rebel- lious to the sovereignty of the United States, they were tainted with the same illegality as the body from which they proceeded. The fact that the United States government ac- corded belligerent rights to the States in rebellion was not considered of any consequence, as the judges claimed that these were granted as a matter of indulgence and not of right. They held that as the legislatures of the several States in rebellion could not be considered as de facto gov- ernments, neither could the courts, which were constituent parts thereof, be looked upon as de facto tribunals, and hence their judgments were mere nullities. "We cannot conceive," it was said in one case, "of any condition of affairs that would authorize us to tolerate the acts of persons, as legal, who, claimed to exercise judicial functions, who, in the exer- cise of these functions, were sworn to disregard the Consti- tution of the United States, or who had solemnly sworn they would not recognize it as the supreme law of the land. . . . Writers, on the law of nations and international law, speak of de facto governments ; but the sense in which the word is used by them has not, and cannot have any application to § 402] ACTS OF DE FACTO JUDICIAL OFFICERS. 547 the State governments known to the Consititution of the United States. The different States of the Union, or rather the people of the different States of the Union, constitute one nation ; they are an entirety ; therefore we say that there can be no such thing as a de facto government of the United States and a de jure government of the United States exist- ing at one and the same time, and such would be the result of any admission that characterizes the organization, known as the 'Confederate States,' as a government de facto." ^^ § 402. Same subject — Second period. — But when the strife and excitement of fratricidal conflict had passed away, and the courts were able to take a dispassionate view of the state of things that existed during the rebellion, they were impressed with the idea, that the citizens of the Confederate States recognized and obeyed some form of government which, though perhaps not entitled to be called de facto in the strict sense of the term, nevertheless had a real existence. Acting upon that idea, they came to the conclusion that the judg- ments of the Confederate courts should be regarded as foreign or quasi-foreign judgments. "We thus see," says Peck, C. J., "the rebel government in this State held and declared the government of the United States, and the governments of the loyal States, to be foreign governments, and the people thereof to be alien enemies ; consequently, applying the rule thus laid down for its own government, no just complaint can be made by treating it, and all the other rebel governments in confederacy with it, as foreign governments, and the judg- ments of their courts as foreign judgments, though we do not i3Penn vs Tollison (1871), 26 (1871), 26 Ark. 586, 7 Am. Rep. Ark. 545. See also Ray vs Thomp- 628; Timms vs Grace (1871), 26 son (1889), 43 Ala. 434, 94 Am. Ark. 598. Dec. 696; Thompson vs Mankin 548 THE DE FACTO DOCTRIXE. [§ 403 hold them in any proper sense to be foreign governments, or their judgments foreign judgments ; accurately speaking, they were not foreign governments, nor vs^ere the judgments of their courts foreign judgments." ^* Upon principle, this second point of view vpas vs^orse than the first, for the first was at least a logical consequence flow- ing from the assumed premises, whereas the latter was simply an anomaly. In order that judgments may be recognized and sued upon as foreign judgments, the State whence they come must be acknowledged as such by the government where they are attempted to be enforced. Hence, the objection to regard them as foreign judgments was such a formidable one, that the courts soon relinquished this anomalous idea. § 403. Same subject — Third period. — Finally, the courts took a directly opposite view to that adopted at first, and were not content with adjudging the governments and courts existing in the Confederate States, during the rebel- lion, de facto governments and de facto courts, but went still further and recognized in them a de jure character. They held that the acts and ordinances of secession were mere nulli- ties, and although the State governments transferred their al- legiance from the United States to the supposed government of the Confederate States, they never ceased to be the rightful governments of those States, and the courts under them were de jure courts. Thus, in White vs Canon,^^ the Supreme Court of the United States observed : "The objection that the judgment of the Supreme Court of Louisiana is to be treated as void, because rendered some days after the passage of the KMartin vs Hewitt (1870), 44 47 Ala. 107; Barclay vs Plant Ala. 418. Also Mosely vs Tuthill (1869), 50 Ala. 509; Bibb vs Avery (1871), 45 Ala. 621, 6 Am. Eep. (1871), 45 Ala. 691; Pepin vs 710; Shaw vs Lindsay (1871), 46 Lachenmeyer (1871), 45 N. Y. 27. Ala. 290; Bush v8 Glover (1872), 16(1867), 6 Wall. (U. S.) 443. § 403] ACTS OF DE. FACTO JUDICIAL OFFICERS. 549 crdinance of secession of that State, is not tenable. That crdinance was an absoliate nullity, and of itself alone, neither affected the jurisdiction of that court, or its relation to the appellate power of this court." And in a subsequent case, the same doctrine is thus empha- sized by the same court : "We admit that the acts of the sev- eral States in their individual capacities and of their differ- ent departments of governments, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary States touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the ISTational govern- ment, and did not impair the rights of citizens under the Con- stitution." " isHorn vs Lockhart (1873), 17 vs Oliver (1870), 1 Woods (U. S.) Wall. (U. S.) 570. Also United 437; French vs Tumlin (1871), 9 States vs Insurance Companies Fed. Cas. (No. 5,104) 798? Hen- (1874), 22 Wall. (U. S.) 09, 103; dry vs Cline (1874), 29 Ark. 414; Ketchum vs Buckley (1878), 99 U. McQueen vs McQueen (1876), 55 S. 188, 190; Johnson vs West India Ala. 433; Hill vs Armlstead Transit Co. (1894), 156 U. S. 618, (1876), 56 Ala. 118. 645, 15 Sup. Ct. R. 520, 530; Cook 550 THE DE FACTO DOCTRINE. [§ 404 § 404. Limitations to the above doctrine. — The juris- diction of the Courts of the Confederate States, however, could be lawfully exercised only over citizens residing within the rebel lines, and could not affect other citizens of the United States. Thus, it was held in Pennywit vs Foote,^'' that, as between parties residing in the State of Arkansas and within the rebel lines, and a citizen of Ohio, resident within the Union lines, between whom the war made intercourse impossible, there could be no jurisdiction in such court, by which the rights of non-residents could be injuriously affect- ed ; neither could such jurisdiction be acquired by the consent or waiver of an attorney practising in said court, who was em- ployed and appeared for the non-resident defendants before the war commenced. His general authority as an attorney, before the war, though not revoked by the clients, did not authorize him to waive any of their rights, nor could such consent or waiver confer on the court jurisdiction over the case, or over the person of defendants.^® A further limitation to the recognition of the courts of the rebellious States, is that the courts created by the Con- federate Congress, for supposed national purposes, can never be considered as ever having had any judicial authority, and their judgments and decrees are null and void. These courts were evidently on a different footing from the others, and the same reasoning could not be applied to them. Accordingly, the Supreme Court of the United States, in an action for malicious imprisonment, in which the defendants attempted to justify as officers of a court known as the "District Court 17(1875), 27 Ohio St. 600, 22 Cuyler vs Ferrill (1867), 6 Fed. Am. Rep. 340. Cas. (No. 3523) 108S. 1 Abb. (U. IS Also Botts vs Crenshaw S.) 169; Cook vs Oliver (1870), (1868), 3 Fed. Cas. (No. 1690) 1 Woods (U. S.) 4.37; Brooke vs 976; Livingston vs Jordan (1869), Filer (1871), 35 Ind. 402. 15 Fed. Ca3. (No. 8415) 675; § 405] ACTS or DE FACTO JUDICIAL OFFICERS. 551 of the Confederate States of America for the l^orthem Dis- trict of Alabama" held, that "the Act of the Confederate Congress creating the tribunal in question -was void. It was as if it were not. The court was a nullity, and could exercise no rightful jurisdiction. The forms of law with which it clothed its proceedings gave no protection to those who, as- suming to be its officers, were the instruments by which it acted." 19 § 405. Who are de facto judicial officers. — The law recognizes no difference between a judge, a justice of the peace, or other judicial officer, and any other public officer in regard to the application of the de facto doctrine; and, therefore, wherever the circumstances are such, that the person acting in a judicial capacity is not a mere usurper, but has color of right or authority in his favor, he will be regarded as a de facto judicial officer, and his acts will be valid. However, the subject of de facto officers having been amply treated of in other parts of this work, it will be suffi- cient to cite here, without comment, the numerous authori- ti'es recognizing de facto judges and other judicial officers.^'* iSHickman vs Jones (1869), 9 (1860), 24 111. (14 Peck.) 184i Wall. (U. S.) 197. Becker vs People (1895), 156 III. 20Manning vs Weeks (1891), 301, 40 N. E. 944; Lewiston vs 139 U. S. 504, 11 Sup. Ct. E. 624, Proctor (1860), 23 111. (13 Peck.) 35 L. ed. 264; affirming In re Man- 533; Lexington & H. Turnpilce ning (1890), 76 Wis. 365, 45 N. Board Co. vs McMurtry (1845). W. 26; In re Ah Lee (1880), 6 45 Ky. (6 B. Mon.) 214; Rodman Sawy. 410, 3 Fed. 899; Walker vs vs Harcourt (1843), 43 Ky. State (1905), 142 Ala. 7, 39 So. (4 B. Mon.) 224; Reinhart vs 242; Stephens vs Davis (Ala., State (1875) , 14 Kan. 318; Wood- 1905), 39 So. 831; Williamson vs side vs Wagg (1880), 71 Me. 207; Woolf (1861), 37 Ala. 298; Butler Brown vs Lunt (1854), 37 Me. vs Phillips (1907), 38 Col. 378, 88 423; Johnson vs McGinly (1884), P. 480; Hinton vs Lindsay (1856), 76 Me. 432; Commonwealth vs 20 Ga. 746; Pool vs Perdue (1871), Kirby (1849), 56 Mass. (2 Cush.) 44 6a. 454; People vs Bangs 577; Thompson vs Couch (1906), 552 THE DE FACTO DOCTRINE. [§ -±06 § 406. Title of de facto judicial officers not collater- ally assailable. — This proposition is universally admitted. "When a court with competent jurisdiction is duly estab- lished, a suitor who resorts to it for the administration of justice and the protection of private rights should not be defeated or embarrassed by questions relating to the title of the judge, who presides in the court, to his office. If the court exists under the Constitution and laws and it had juris- diction of the case, any defect in the election or mode of appointing the judge is not available to litigants. Such ques- tions must be raised by some action or proceeding to which the judge himself is a party and where the issue as to the validity of his election or appointment is directly involved. It would be an unseemly proceeding derogatory to the dignity of the court and subversive of all respect for the orderly ad- ministration of justice to permit private litigants to enter upon an inquiry as to the title of the judge, before whom the action is pending, to his oifice. Of course, if such an inquiry is permissible, the very judge whose official existence is in question, must, in the first instance at least, determine it 144 Mich. 671, 108 X. W. 363; Peo- 456, 15 P. 778, 3 Am. St. R. pie vs Payment (1896), 109 Mich. 176; Campbell vs Commonwealth 553, 67 N. W. 689; Fleming vs (1880) , 96 Pa. 344; Adam vs ilen- Mulliall (1880), 9 Mo. App. 71; gel (Pa. 1887), 8 A. 603; Turney Coyle vs Sherwood (1874), 1 Hun vs Dibrell (1873), 3 Eax. (Tenn.) (X. Y.) 272, 4 Thomp. & C. 34; 235; McCraw vs Williams (18S0), Weelts vs Ellis (1848), 2 Barb. 33 Gratt. (Va.) 510; Maddox vs (N. Y.) 320; Greenloaf vs Low Ewell (1817), 2 Va. Cas. 59; Mc- (1847), 4 Denio (N. Y.) 168; Peo- Gregor vs Baleh (1842), 14 Vt. pie vs Terry (1887), 108 X. Y. 1, 428. 39 Am. Dec. 231; In re Boyle 14 N. E. 815; State vs Lewis (1859), 9 Wis. 264; Laver vs Mc- (1890), 107 N. C. 967, 12 S. E. Glachlin (1871), 28 Wis. ,364; 457; Walcott vs Wells (1890), 21 State, Ex p. (1905), 142 Ala. S7. Nev. 47, 24 P. 367, 37 Am. St. R. s. c. sub nom. State vs Judge, 33 478, 9 L.R.A. 59; Gitsky vs Xew- So. 835; Usher vs Telegraph Co. ton (1898), 17 Ohio Cir. Ct. -184; (1906), 122 Mo. App. 98, 98 S. \' Hamlin vs Kassafer (1887), 15 Or. 84. § 407] ACTS OF DE FACTO JUDICIAL OFFICERS. 553 and thus he is compelled to violate a fundamental principle in all proceedings of a judicial nature, which precludes a person from acting as a judge in his own case or in respect to a question in the result of which he has a personal in- terest." 2^ § 407. Same subject — Illustrations. — Accordingly, whatever may be the defects in a judge's title, and whatever may be the character of his judgments or convictions, an ap- pellate court will not entertain any objection to his jurisdic- tion grounded on such defects, whenever it appears that he had sufficient color of right or authority to constitute him an officer de facto. Thus, in State vs Brown,^"^ the defendant was indicted for murder in the first degree, and tried and found guilty of murder in the second degree. He removed the case to the Supreme Court by writ of error. One of his objections was that the judge had no authority or jurisdic- tion to sit in the case, because his term of office had expired. Held, that such objection could not be entertained, because the judge was at least an officer de facto, and until his right to the office was settled by a direct proceeding for the purpose, it could not be legally questioned in a collateral proceeding. So in People vs Sassovich,^^ the appellant was convicted of murder and sentenced to be hanged. On appeal, it was contended that the Governor had no authority under the constitution to appoint the judge who presided at the trial, and therefore the trial and conviction of appellant were coram non judice. Held, that, as the person who filled the office of judge at the time the case was tried was appointed and com- missioned by the Governor under and in pursuance of an Act of the legislature, he entered the office under color of right ziCurtin vs Barton (1893), 139 22(1867), 12 Minn. 538. N. Y. 505, 34 N. E. 1093. 23(1866), 29 Cal. 480. 554 THE DE FACTO DOCTRINE. [§ 408 and became an officer de facto, and his title to the office could not be questioned in that collateral mode. So in Ex p. Call ^^ a person, being convicted by a justice of the peace as a delinquent road-hand, appealed to the county court, and by it was again convicted, and detained in custody till payment of the fine and costs ; and thereupon he sued out habeas corpus to the Court of Appeals, setting out the pro- ceedings of the county court, and alleging them to be void for want of jurisdiction, and on account of ineligibility of the county judge, because he was a deputy United States marshal at the time of his appointment. Held, that the County Court havirg acquired jurisdiction by the appeal, the objection to the judge's title could not be collaterally inquired into.^'' § 408. Same subject — Same subject. — In Campbell vs C ommonwealth ^^ two associate judges not learned in the law sat with the president judge in Fayette County and par- ticipated in the trial and sentence of certain defendants for arson. It was not denied that these associate judges acted under and by virtue of an election by the people of the county, and that a commission was regularly issued to them by the Governor, but the validity of their title to the office was ques- tioned on the ground that under the Constitution of 1874, and subsequent legislation, the people had no power to elect associate judges in Fayette County. Held, that they were judges de facto, and as against all parties but the Common- wealth they were judges de jure, and having at least a color- able title to these offices, their title thereto could not be questioned in any other form than by quo warranto at the suit of the Commonwealth. 24(1877), 2 Tex. App. (Crim. 25See also Habeas Corpus, sec. Cas.) 497. 435. 26(1880), 96 Pa. 344. § 408] ACTS OF DE FACTO JUDICIAL OFFICERS. 555 So in Culbertson vs Oalena,^'^ the City of Galena sued the appellant before one R. F. Barry, who acted as a justice of the peace of Jo Daviess county, to recover a penalty for an alleged violation of an ordinance of the city. The cause was removed by appeal to the Circuit Court. The appellant appeared in the Circuit Court and moved to dismiss the suit, and reversed the judgment of the justice, upon the ground that he had not filed a bond with security previous to his entering upon the duties of his office. The Court overruled the motion. Upon appeal, it was held that the Court below was right in doing so, inasmuch as in a proceeding of this nature, it is sufficient to show that the justice acted as such, and his right to exercise the duties of the office cannot be collaterally examined. ^^ So in In re Eadl ^* it appeared that one Shaughnessey was appointed a justice of the peace by the common council of Portgage, to fill a vacancy made by the resignation of an- other. Thereupon an action was commenced before such jus- tice, and a summons issued by him in favor of one Charles Chislow and against the petitioner, Charles Radl. Upon the return of the summons served upon him, Eadl applied to the Supreme Court for a writ of prohibition to perpetually restrain such justice from taking any steps or exercising any jurisdiction in the cause, 'on the ground that the common council had no lawful authority, to fill such vacancy by ap- pointment. Held that, assuming such to be the facts, still, as there was such an office de jure in the city as justice of ■the peace to be filled, and as the person who acted was ostensibly appointed to fill that office and qualified, he must 2T(184.5), 7 111. (2 Gill.) 129. 29(1894), 86 Wis. 645, 57 N. W. 28See also State vs Miller 1105. <1S92), 111 Mo. 542, 20 S. W. 243. 556 THE DE FACTO DOCTRINE. [§ 40 J> be regarded as such officer, at least de facto, and hence his jurisdiction could not be questioned upon prohibition.^" § 409. Same subject — Same subject. — So it has been held that the right of a justice of the peace, acting under color of appointment, to fill a vacancy, can not be ques- tioned by a suit to enjoin the collection of a judgment ren- dered by him.^-' So on a certiorari issued to review the con- viction of the relator for assault and battery in a court whose judges were claimed to have been appointed under an uncon- stitutional enactment, it was held that the judges, if not such de jure, were such de facto, with color of title, and their acts must be respected until judgment of ouster was pro- nounced against them.^^ So where a person, acting as justice of the peace, holds a commission for that office from the Governor, under the seal of the State, the Court will not go behind that commission to inquire whether he has been duly appointed to that office by the General Assembly of the State, or not.^^ So if a judge of a district court holds, at the same time, the office of Mayor of a city within the district, the question whether he is disqualified to act as judge by reason of incompatibility in the two offices, cannot be determined upon an appeal taken by a person whom he has tried and soFor further cases on prohibi- 34; People vs Sherwood (1874), 4 tion, see State vs McMartin Thomp. & C. 34. See also Curtin (1889), 42 Minn. 30, 43 N. W. vs Barton (1893), 139 N. Y. 505, 572; Thompson ts Couch (1900), 34 N. e. 1093; Morris vs People 144 Mich. 671, 108 N. W. 3C3. See (1846), 3 Denio (N. Y.) 381; also Prohibition, sec. 440. State vs McJlartin (1889). 42 3iBaker vs Wambaugh (1884), Minn. 30, 43 N. W. 572; State ts 99 Ind. 312; Cooper vs Moore Recorder (1896) , 48 La. Ann. 1375, (1870), 44 Miss. 386. Also Little- 20 So. 908; Byer vs Harris (X. J. ton vs Smith (1889) , 119 Ind. 230, 1909), 72 A. 130. See also Cer- 21 N. E. 886. tiorari, sees. 437, 438. szCoyle vs Sherwood (1874), 1 ssXorwich vs Yarrington Hun (N. Y.) 272, 4 Thomp. & C. (1848), 20 Vt. 473. § 410] ACTS OF DE FACTO JUDICIAL OFFICERS. 557 found guilty upon a complaint originally made returnable before bim.^* Again, a de facto judicial oificer's authority cannot be collaterally questioned on the ground that he was a minor,^^ or an alien,^® or had not residential qualification,^^ at the time of his appointment or election. § 410. Same subject — Same subject. — Finally, a rath- er interesting and peculiarly circumstanced case will be re- ferred to. It is Coolidge vs Brigham,^^ determined in the Supreme Court of Massachusetts. The action in that case was commenced by a writ signed and issued by one William Barnes of Marlborough in the county of Middlesex, as jus- tice of the peace for said county, and made returnable before him. The parties appeared on the return day, and, after a trial, judgment was rendered for the plaintiff, and the de- fendant appealed to the Superior Court. In the latter court the defendant moved that the action be dismissed for the rea- son that Barnes was not a lawful justice of the peace. It appeared at the hearing upon the motion, that another per- son by the name of William Barnes, residing in Marlborough, had been for several years a justice of the peace, and so con- tinued up to the time of his death, in 1856 ; that, in conform- ity to custom, and in ignorance of the fact of his death, a new commission in his name was made out and signed, in anticipation of the expiration of his former commission, and was sent by mail addressed to "William Barnes, Esq., Marl- borough, Mass. ;" that the Governor and council did not know of the existence of such a person as the William Barnes 3 4 Common wealth vs Taber 3 « Fancher va Stearns (1889), 61 (1877), 123 Mass. 253; Dredla vs Vt. 616, 18 A. 455. Baache (1900), 60 Neb. 655, 83. N. STgtate vs Fountain (1896), 14 W. 916. Wash. 236, 44 P. 270. 3 sHooper vs Goodwin (1861), 48 38(1S61), 1 Allen (Mass.) 333. Me. 79. 558 THE DE FACTO DOCTRINE. [§ 410 who signed the writ in the action, and intended simply to renew the commission of the former magistrate ; and that the last named William Barnes received the commission, so addressed, from the postoffice in Marlborough, and went with it before the Governor of the Commonwealth, who was not acquainted with him, and took the oaths of oifice. It also appeared that, since taking the official oaths, he had per- formed the ordinary duties of a justice of the peace for that county. Upon these facts, it was held that the Court had no authority to entertain the motion to dismiss the ac- tion, as the justice, acting imder color of a commission issued under the Great Seal of the State, was an officer de facto, and his right to office could not be questioned collaterally.^* 3 9For further cases on collateral attacks on judicial officers, see Manning vs Weeks (1891), 139 U. S. 504, 11 Sup. Ct. 624, 35 L. ed. 264, affirming In re Planning (1890), 76 Wis. 365, 45 X. W. 26; Ball vs United States (1890), 140 U. S. 118, 11 Sup. Ct. 761, 35 L. ed. 377; In re Boyle (1859). 9 Wis. 264; Baker vs State (1887), 69 Wis. 32, 33 N. W. 52; Read vs Buffalo (1867), 4 Abb. Dec. (N. Y.) 22, 3 Keyes, 447; People vs Dillon (1894), 26 N. Y. S. 778; People vs White (1840), 24 Wend. (N. Y.) 520; Nelson vs People (1860), 5 Parker Cr. R. 39, af- firmed (1861), 23 N, Y. 293; Rog- ers vs Beauchamp (1885), 102 Ind. 33, 1 N. E. 185; Kuhle vs People (1895), 65 111. App. 378; Orme vs Commonwealth (1900), 21 Ky. Law R. 1412, 55 S. W. 195; State vs Gleason (1869), 12 Fla. 190; Peo- ple vs Gobies (1887), 67 Mich. 475, 35 N. W. 91; In re Corrigan (1877), 37 Mich. 66; Facey vs Fuller (1865), 13 Mich. 527; Nor- wich vs Yarrington (1848), 20 Vt. 473; Sheehan's Case (1877), 122 Mass. 445, 23 Am. Rep. 374; State vs Brown (1867), 12 Minn. 538; In re Johnson (1884), 15 Neb. 512, 19 N. W. 594; Anderson vs Morton (1903), 21 App. Cas. (D. C.) 444; State vs Pertsdorf (1881). 33 La. Ann. 1411; State vs Lewis (1870), 22 La. Ann. 33; State vs Williams (1883), 35 La. Ann, 742; Clark vs Commonwealth (1858), 29 Pa. St. (5 Casey) 129; State vs Whitney (1879), 7 Or. 386; Frichnicht vs Hulsaidt (1882), 6 N. J. L. J. 57; Hamilton vs State (1899), 40 Te.x. Cr. R. 464, 51 S. W. 217; Caldwell vs High (Dist. Ct., 1881), 6 Wkly. Law Bui. 201; State vs Bailey (Minn.. 1908). 118 N. W. 676; State vs Bednar (N. D. 1909), 121 N. W. 614. See also Habeas Cor- pus, sec. 435; Certiorari, ss. 437, 438 ; Prohibition, sec. 440. § 411] ACTS OF DE FACTO JUDICIAL OFFICERS. 559 § 411. Same subject — English illustrations. — In Hippsly vs Tucke *" the head-note reads thus : "Judge of an inferior court has not taken the oath and sacrament according to Stat. 25 Car. 2 ; yet his judgment is not void, and cannot be assigned for error." The report verbatim is as follows : "Error of a Judgment in Newberry Court; and it was as- signed, that the Mayor who was judge there had not taken the oath or sacrament according to Stat. 25 Car. 2 for which his office was void before the judgment given, and so the mat- ter coram non judice. To which it was answered, that this is not matter assignable, being contrary to the Record, where- by he is taken and admitted to be judge, 2 Cro. 359, 3 Cro. 320. Also though the statute make the office void, yet that is only quoad himself, to subject him to a fine for meddling in the office ; not quoad strangers, who may not know whether he had taken the oaths or not, to make his judgments void to their prejudice. Further it was said, that he is de facto a judge, which is sufficient; as if a steward de facto admits a copyholder, the admission is good, though he was not a de jure steward. But to this it was replied, that the statute in making the office void makes it void to all purposes touch- ing the jurisdiction, and then this matter is assignable, though contrary to the Eecord. 2 Roll. 761. Of which opinion was the court now, and reversed the judgment. But afterward Hill 30 & 31, Car. 2, inter Denning vs Jennings, which is entered Pasch. 30 Car. 2 B. R. Rot. 391, it was adjudged contra." This last mentioned decision was followed by the court in the subsequent case of Denning vs Norris,*"^ where a portion of the report reads : "Error of a judgment in Norwich court, assigned, that the sheriff by whom the judgment was given 40(1677), 2 Lev. 184, 83 Eng. 4i(1679), 2 Lev. 243. Eep. 510. 560 THE DE FACTO DOCTRIXE. [§ 412 had not taken the oaths, and subscribed the Declaration, according to 13 Car. 2, Cap. 1. The defendant pleaded, that the oaths and declaration were not tendered to the sheriff. The plaintiff demurred. And resolved, that this is not as- signable contrary to the Record and admittance of the par- ties ; for this is in effect to say that he was not sheriff, because the statute says upon default etc., shall be void." In the further case of Andrews vs Linton*^ it was held that, "Tis not assignable for error that the party who sat as judge in the court below was not a legal judge." And Chief Justice Holt, commenting there on Denning vs Norris, supra, said "he was counsel in the said case, and that the court held there, that since the defendant had admitted the judge to be a judge, by a plea to the action, he was estopped to say that he was not a judge afterwards. And he denied the case of Hippisley vs Tucke to be law." § 412. Same subject — Same subject. — So it has been repeatedly held, that judicial acts done in a court baron by a steward not duly appointed, or by an under-steward who kept court as steward without authority of the lord or of the high steward, were valid, as done by color of authority, ■ the lawfulness of which the suitors could not inquire into.** And in Knowles vs Luce,'^^'^ it is even stated by Manwood, J., that where the clerk of the lord of a manor held a man- orial court, without general or special authority from the lord to do so, he was a good officer de facto until disturbed by the lord ; for the tenants were not obliged to examine into his 42(1703), 2 Ray. (Ld.) 884. Whitaker (1833), 5 B. & Ad. 403, 4 3Harris vs Jays (1599), Cro. 417; Vin. Abr. Steward of Courts Eliz. 699, 78 Eng. R. 934; Blagrave (G) ; Com. Dig. Copyhold, C. 5. vs Woods (1591), 1 Leon. 227; 43a(l580), Moore, 109, 72 Eng. Parker vs Kett (1701), 12 Mod. R. 473. 466, 88 Eng. R. 1454; Leach vs § 412] ACTS OF DE FACTO JUDICIAL OFFICERS. 501 authority, nor was lie compellable to give an account of it to them. So in O'Brian vs Kinvan,^* it is laid down that all judicial acts, as admissions, institutions, certificates, etc., done by a bishop de facto only, are valid, though other acts of his may be invalid. Again, in Margate Pier Co. vs Hannam*^ where the objec- tion made to the justice was grounded upon the fact that he had not taken the oaths at the general sessions, nor delivered in the certificate, as required by law, Abbott, C. J., said: "Many persons, acting as justices of the peace in virtue of ofiices in corporations, have been ousted of their ofiices from some defect in their election or appointment; and although all acts, properly corporate and official, done by such persons, are void, yet acts done by them as justices, or in a judicial character, have in no instance been thought invalid. This distinction is well known." *" So in B. vs Justices of Herefordshire,*'^ it was claimed that a certain official act of a justice of the peace was invalid, because he had not taken the qualification oath prescribed by 18 Geo. II, c. 20. The objection was overruled by the court, Bayley, J., saying: "The acts of the Justice are valid, al- though he may be liable to certain penalties. Can it be contended that if a magistrate who has taken the qualification oath, that he is worth £100 per anniim, and from circumstan- ces is afterwards reduced to £80 and he commits a man after his income is so reduced, an action will lie against a gaoler for taking the man into his custody? If that cannot be contended, the argument here fails. The construction to be put upon the 18 Geo. II, c. 20, is, that the magistrate 44(1620), Cro. Jac. 552, 79 Eng. 46See comments on this case in R. 473. R. vs Boyle (1868), 4 Ont. Pr. R. 45(1819), 3 B. & Aid. 266, 22 256. R. R. 378. 47(1819), 1 Chitty, 700. De Facto— 36. 562 THE DE FACTO DOCTRIXE. [§ 413 shall be only so far disqualified from acting that he shall be subject to certain penalties if he does act. In this case the acts of the justice are valid, though he may be liable to pen- alties for not having taken the oath prescribed by the statute." But the whole doctrine applicable to judicial officers, is apparently summed up by Buller, J., in 2Iilward vs Thatch- er/^ where the learned judge says : "The cases cited from Cro. Car., Cro. Eliz., and Sir W. Jones, are cases of writs of error brought in civil actions, and the objection was taken to the competency of the judges below ; but in such cases the ques- tion whether they be properly judges or not, can never be determined ; it is sufiicient if they be judges de facto. Sup- pose a person were even criminally convicted in a court of record, and the recorder of such court were not duly elected, the conviction would still be good in law, he being the judge de facto." § 413. Same subject — Canadian authorities. — In but a few Canadian cases has the de facto doctrine been applied to judicial ofiicers. In Speers vs Speers *^ it was held that a judgment rendered by a junior county court judge in a surrogate court matter, after his authority to act had ceased by reason of the appointment of a senior judge who was ex officio surrogate judge, could not be set aside on appeal, the ground being that the junior judge was an officer de facto at the time he delivered his judg-ment.^" In Croolshank vs McFarlane^^ letters of administration were objected to be- cause the surrogate, it was claimed, had not taken the oath of office, but the court held, that it will be presumed that a person acting as surrogate has taken the official oath, but if 48(1787), 2 Term (D. & E.) 81, soFor full particulars of this 1 R. E. 431. case, see sec. 117. 49(1896), 28 0. R. 188. 6i(l853), 7 N. B. 544. § 414] ACTS OF DE FACTO JUDICIAL OFFICERS. 5G3 he has not, his acts will not be invalid, if he has been ap- pointed to oiEce. In Hogle vs Rockwell °^ prohibition was applied for to have a conviction for selling liquor, without a license, quashed. The warrant of arrest had been signed on July 18, 1898, by Kockwell, one of the defendants, and one Moy- nan; and the conviction was made on the 27th of the same month, by Rockwell, and one Poirier, the other defendant. But it appeared that the commission of the peace as to these justices, had been revoked on July 16, and the new commis- sion dated the same day did not include Moynan. The con- tention was that, as the latter was not a justice of the peace at the time he signed the warrant, the same was void. And as to the other two, their authority was challenged on the ground that they had not taken the oath of office when they made the conviction. The judgment of the Court was as fol- lows: "Considering that the want of quality in the justices should have been urged before the magistrates to avail now; considering that respondents, Rockwell and Poirier, were de facto justices of the peace ; that their acts were not invalid ; and that the want of jurisdiction does not clearly appear; doth dismiss the petition with costs." ®* § 414. Causing objection to judge to be spread on the record, of no avail. — As is evident from the foregoing au- thorities, at least the American ones, the prohibition against collateral attack on the authority of regular judges, though only such de facto, is absolute. It is not dependent upon the conduct of the parties to a suit, upon their consent express 52(1898), 20 Que. E. (S. C.) Ex. p. Mainville (1898), 1 Can. 309. Grim. Cas. 52S. The.se two last 63Also E,. vs Boyle (ISfiS). 4 eases are dealt with hereafter. Out. Pr. R. 256; Ex p. Curry See also R. vs Hodgins (1886), (18GS), 1 Can. Grim. Cas. 532; 12 0. R. 367. 564: THE DE FACTO DOCTRINE. [§ 414 or implied, but upon the broad principle, as already inti- mated, that the administration of justice might be fettered and impeded at every step were persons coming before a judge de facto permitted to question his title. Hence, it is of no avail to a litigant to challenge a judge's jurisdiction at the outset and have his objection spread on the record, since an appellate court will refuse to take notice of it. Thus, in McGregor vs Balch,°^ where objection to a justice of the peace on account of ineligibility, had been made at the trial before him and overruled, the Supreme Court of Vermont, on appeal, remarked: "It is said that these de- fendants have presented the question as soon as their rights were invaded by the acts of this justice. This is true if they have the right which they contend for. But if Mor- rill was a justice, duly appointed, and acted as such, the plaintiff might well bring this suit before him, not knowing of his holding an office incompatible with the office of justice, which he exercised, and there would be no more propriety in saying the suit should fail on that account, because the de- fendant in this suit brought his appointment in question, than in saying the reverse. There was nothing particularly af- fecting the interest of this defendant in being sued before this justice, nor should he be permitted to inquire whether Morrill rightfully held the office, in any suit to which the justice was not a party." °^ Again, in Keith vs State,^'^" the defendant caused certain objections to the judge's jurisdiction to be spread upon the record, but it was held that, from the objections and from the legislation, of which the court would take judicial notice, 54(1842), 14 Vt. 428, 39 Am. E5a(l8S7), 49 Ark. 439, 5 S. W. Dec. 231. 880. 5 6 See also Nelson vs People (1860), 5 Parker Cr. R. (N. Y.) 39, affirmed (1861), 23 N. Y. 293. § 415] ACTS OF DE FACTO JUDICIAL OFFICERS. 565 it was shown that the judge was judge de facto, if not de jure, and his acts were binding on the public, and his right could only be questioned in a direct proceeding to which he was a party. The Court, referring to a previous decision,^* observed: "It was intimated in that case that the ruling might have been different if the party had not voluntarily submitted to the jurisdiction; but, as consent cannot confer jurisdiction . . . and the facts were all apparent to the court, we fail to appreciate the force of the suggestion." § 415. When foregoing principles are inapplicable. — However, the general doctrine heretofore expounded in re- gard to collateral attack, must be restricted in its application to persons who are actively engaged in the discharge of judi- cial duties and have the reputation of being judges, whatever their rank may be. In other words, the rule cannot rea- sonably be invoked unless the ofiScer holds his office under some degree of notoriety, and is in the exercise of continuous, or at least frequent, official acts of the kind that are attempted to be called in question.*'' "There is," says one Court, "a material distinction between an oiRcer de facto, with general duties to perform through a stated term of office, and a spe- cial court organized for a single specified trial." ** The same distinction is to be made where the court itself is not a special one, but the officer presiding it, is. There- fore, while it would be greatly detrimental to the adminis- tration of justice and against public policy, to allow litigants to assail the authority of a regular judge, it would be ridicu- lous to apply like principles to a person, who may act in a 56Rives V3 Pettit (1842), 4 Ark. ssRice vs Commonwealth (1867), 582. 3 Bush. (Ky.) 14. 5 7Vacarri vs Maxwell (1855), 3 Blatch. (U. S.) 368. 5G6 THE DE FACTO DOCTKINE. [§416 judicial capacity possibly once or twice in a lifetime, and whose occupation in the community has nothing in common with the exercise of such functions. If a litigant willingly submits to the jurisdiction of such a person, while he is acting under color of right, this precludes him from after- wards complaining; but it is submitted that objection can be raised to his authority by the parties appearing before him, when they are aware that he is not in all respects qualified to assume judicial duties. § 416. Same subject — Special judges. — Within the class of judicial officers just referred to, must be included special judges, generally called judges pro tern., who are ap- pointed to perform judicial duties during the absence, sick- ness or other disability of the regular judge. Their right to act being merely temporary and conditional upon the exist- ence of certain facts or events, it is quite reasonable to allow litigants to refuse to submit to their jurisdiction, unless all the conditions to afford them judicial authority for the time being be shown to exist, and all the prerequisites as to ap- pointment and qualification appear to have been duly ful- filled. "The practice," says one judge, "was long ago estab- lished in this court that the limited power of a special judge commissioned by the Governor to try causes when the regu- lar judge was disqualified, might be inquired into by a liti- gant and considered on appeal by causing his authority to be spread upon the record." ^^ But an objection to a special judge must be made promptly E9Per Cockrill, C. J.— Keitli V3 542, 20 S. W. 243; Kennedy vs State (1887), 49 Ark. 439, 5 S. W. State (1870), 53 Ind. 542; Grecn- 880. Also Crusin vs Whitley wood vs State (1SS9), IIC Ind. (1857), 19 Ark. 99; White vs 485, 19 N. E. 333; Cargar vs Fee Reagan (1869) , 25 Ark. 622; Lacy (1889), 119 Ind. 536. 21 N. E. vs Barrett (1882), 75 Mo. 469; 1080; Vanderver vs Vandorver State vs Miller (1892), 111 Mo. (1860), 3 Met. (Kv.) 137;Highbv § 416] ACTS OF DE FACTO JUDICIAL OFFICERS. 567 and should the same be overruled, it should be spread upon the record by a proper method, so as to entitle it to be con- sidered on appeal. Otherwise, it will be presumed in the appellate court, that the judge who tried the case was regu- larly appointed and duly qualified, and that the parties willingly submitted to his jurisdiction. In which case, his judicial acts will be held as valid and binding as those of an ordinary de facto judge, and will be protected accordingly from collateral attack.^** Thus, failure on the part of a special judge to take the oath of office is no ground for revers- ing a judgment rendered by him, where his qualification has not been challenged at the trial.® ^ So parties raising no ob- jection to the jurisdiction of a deputy or special judge ap- pointed to act during the absence, illness, or other disability of the regular judge, cannot afterwards dispute the same, though he acted while the regular judge was present, and was competent to hear and determine their case.®^ vs Ayers (1875), 14 Kan. 331; Anone (1819) , 2 Nott. & McC. (S. Sehultze vs McLeary (1889), 73 C.) 27; Landon vs Comet (18S6), Tex. 92, 11 S. W. 924. 62 Mich. 690, 28 N. W. 788 ; Briggs soBartley vs Phillips (1888), vs Voss (1006), 73 Kan. 418, 85 114 Ind. 189, 16 N. E. 508; Lit- P. 571; Louisville & N. E. vs tleton vs Smith (1889), 119 Ind. Herndon's Admr. (19Q7), 31 Ky. 230, 21 N. E. 886; Crawford vs Law E. 1059, 104 S. W. 732; State Lawrence (1900), 154 Ind. 288, 56 vs Low (1883), 21 W. Va. 783, 45 N. E. 673 ; Feaster vs Woodfill Am. R. 570 ; State vs Holmes (1864), 23 Ind. 493; State vs Mil- (1895), 12 Wash. 169, 40 P. 735, ler (1892), 111 Mo. 542, 20 S. W. 41 P. 887. 243; Grant vs Holmes (1881), 75 eiln re Hewes (1900), 62 Kan. Mo. 109; People vs Mellon (1871), 288, 62 P. 673; Salter vs Salter 40 Cal. 648; In re Hathaway (1809), 6 Bush. (Ky.) 624; Carter (1877), 71 N. Y. 238, affirming 9 vs Prior (1883), 78 Mo. 222; Ford Hun 79; Hall vs Jankofsky vs Cameron First Nat. Bk. (1896), (1895), 9 Tex. Civ. App. 504, 29 34 S. W. 084; Tower vs Whip S. W. 515; Roberts vs State (1903), 53 W. Va. 158, 44 S. E. 179. (1900), 126 Ala. 74, 28 So. 741; 6 2Highby vs Ayers (1875), 14 Caldwell vs Bell (1845), 6 Ark. Kan. 331; Smith vs Sullivan 227; Kimball vs Penney (1897), (1903), 33 Wash. 30, 73 P. 793; 117 jMa. 245, 22 So. 899; State vs Dredla vs Baache (1900), 60 Neb. 568 THE DE FACTO DOCTRINE. [§ 416a § 416a. Same subject — Same subject. — But, inasmuch as consent cannot confer jurisdiction,^^ where the circum- stances are such that the court considers them insufficient to bestow color of authority on a supposed judge pro tern., the consent of the parties will be of no avail, and, notwithstand- ing the same, his authority may always be collaterally as- sailed.^* Thus, where a county court judge, without any au- thority whatever, appointed a judge pro hac vice to hear and determine a case for him, on account of disqualification on his part, it was held that the appointee was not an officer de facto, and his acts were null and void."^ The court observed that the facts, circumstances, and conditions which would reasonably lead persons having business with an officer to presume the incumbent to be the lawful officer and to recog- nize him as such, cannot arise in the case of an individual confessedly selected to try only one case. So, where a spe- cial judge was chosen to fill a vacancy and acted after the newly appointed judge had assumed the duties of the bench, it was held that a judgment rendered by him while so hold- ing over was void.®" But in a Mississippi case, it was held that if a special judge of the Sapreme Court be regularly appointed, enter upon the discharge of his duty, hear argument in a cause and duly consult thereon with his associates, before the expiration of the term of the regTilar judge in whose place he was ap- 655, 83 N. W. 916; Schultze vs Ann. 689: Herbster vs State McLeary (1889), 73 Tex. 92, 11 S. (1881), 80 Ind. 484; Cargar vs Fee- W. 924. See also R. vs Fee (1889), 119 Ind. 536, 21 N. E. (1883), 3 0. R. 107. 1080. 63Rodding vs Kane (1887), 14 esBedingfield vs First Nat. Daly (N. Y.) 535, 2 N. Y. S. 55. Bank (Ga. 1908), 61 S. E. 30. See 6 4 Van Slykes vs Trempealeau also Oates vs State (Tex. Crim. County Farmers' Fire Ins. Co. App. 1909), 121 S. W. 370. (1870), 39 Wis. .390, 20 Am. Rep. eeHyllis vs State (1885), 4.5. 50; State vs Fritz (1875), 27 La. Ark. 478. § 417] ACTS or DE FACTO JUDICIAL OFFICERS. 569 pointed, a judgment rendered by him, without objection from the litigants, is valid, although the term of office of the regu- lar judge had expired before its rendition, and his successor had assumed the exercise of the office."^ Again, the general rule is that a special judge sitting at the same time as the regular judge, cannot perform valid judicial acts, even by consent, for "whatever provision exists for judges pro tern., is not for the purpose of duplicating or increasing the judicial force, but to preserve a continuous- though single force." "'^ But it has been held in Kentucky, that it is no objection to the judgment of a special judge, that the same was rendered while the regular judge was engaged in holding the regular term of the court."* Likewise in a Kansas case, it was held that the parties, not having seasonably objected, were estopped from denying the juris- diction of the judge pro tern., though he acted at the same time as the regular judge."* § 417. Same subject — Canadian authorities. — There are two cases apparently in point in Canada. One is Ex p. Mainville,^^ which was a petition for discharge upon habeas corpus, on the ground that the person who acted as Deputy Recorder of the City of Montreal and convicted the petitioner, had not taken the oath required by law. The conviction was quashed by Wurtele, J., who said: "But it was suggested that he had assumed the office and was exercising its func- tions openly and with the acquiescence of the public, and S'Adams vs Mississippi State Baisley (1887), 15 Or. 183, 13 P. Bank (1897), 75 Miss. 701, 23 So. 888. 395. ssPaducah Land etc. Co. vs ssBrewer, J.— In re Millingtoxi Cochran (1896), 18 Ky. L. R. 465, (1880), 24 Kan. 214. Also Cox vs 37 S. W. 67. State (1879), 64 Ga. 374, 37 Am. 'oList vs Jockheck (1898), 59 Rep. 76; Williams vs Struss(1896), Kan. 143, 52 P. 420. 4 Okla. 160, 44 P. 273; Baisley vs 71(1898), 1 Can. Crim. Cas. 528. 570 THE DE FACTO DOCTRINE. [§ 417 consequently that he was a judge de facto and that his judg- ments were valid and binding. It was, however, admitted, at the argument, that the point that the Deputy Recorder had not taken the' oaths was raised at the trial of the peti- tioner, and that his qualification and his right to sit and act in the case had been challenged, that the petitioner had not acquiesced in his assuming the office, and had not admitted any right or power on his part to act, but had in fact con- tested his qualification and his jurisdiction and power. In so far therefore as she is concerned he was a mere intruder in the office, and he cannot claim to have occupied the posi- tion of a judge de facto." The other case is Ex p. Curry^^ which was also an appli- ■cation for a writ of habeas corpus, before the same judge and based upon the same grounds as in the previous case. The conviction, however, was sustained, and the learned judge thus distinguished the two cases : "In the previous case, it appeared that the Deputy Recorder's qualification, and right and power to act were challenged at the hearing by the de- fendant, and that the point was raised that he was not quali- fied to act, in consequence of having failed to take the oath of allegiance and the oath of office or judicial oath, after his appointment. Such being the case, he ceased to occupy the position of a judge de facto as regarded the defendant, and became a mere intruder in the of&ce. His judgTnent there- fore, was not valid and binding as that of a judge de facto, and having been rendered by a mere intruder in the office, was illegal and null. Under these circumstances, after it having been ascertained that the oaths had really not been taken, I maintained the writ of habeas corpus, and ordered the discharge of the petitioner. But in the present case, ithe Deputy Recorder's qualification was not denied, and his 72(1898), 1 Can. Crim. Cas. 532. § 418] ACTS OF DE FACTO JUDICIAL OFFICERS. 571 power to act was not challenged by the defendant. While sitting in the case, he was really a judge de facto, and the sentence or judgment which he rendered is therefore valid and binding. This being the case, I cannot grant a writ of habeas corpus, and I therefore reject the petitioner's appli- cation." § 418. Same subject — Public officers only occasional- ly discharging judicial duties. — Certain municipal and public officers whose ordinary duties are ministerial, but who are sometimes authorized by virtue of their office, to occasion- ally perform acts judicial in their character, should also be placed in the category of special judicial officers. As a con- dition precedent to their assuming this extraordinary power, these officers are generally enjoined by law to qualify by taking an oath or making a declaration. They are not recognized in the community as judicial officers, and very seldom act as such. It is submitted, therefore, that their status could rightly be assimilated to that of special judges, so that if they fail to qualify according to law, and prompt objection is made to their jurisdiction, the same could be entertained by an appellate court. Thus, in a Canadian case, where an alderman was required to take an oath before acting as an ex officio justice of the peace, and he, without thus qualifying, signed a warrant jointly with another justice of the peace, it was held upon habeas corpus that the warrant was invalid, and the person arrested thereon was discharged.'^' In that case there was prompt action on the part of the pris- oner, as he availed himself of the first opportunity afforded him to object to the jurisdiction of the alderman.^* 73R. vs Boyle(1868), 4 Ont. Pr. c. 19, S. 475, provides that no R. 256. warden, mayor, reeve or alderman, 7 4But now statute 3 Edw. ^11, after taking the oaths, or making 572 OF COLLATERAL ATTACKS. [§ 419 So in another analagous Canadian case, where a special superintendent was appointed by a municipality to lay out a road, and he took the required oath before an unauthorized person, it was held that his award was invalid^® Though this ofBcer did not act as a judge, his duties were evidently of a judicial character; and as he was not an ordinary municipal officer, he might perhaps be better compared to a special judge than to a municipal officer occasionally performing judicial functions. In an American case, it was even held that where munic- ipal officers attempt to constitute themselves into an extraor- dinary tribunal under statutory authority, for a given pur- pose, that their acts will be void, if they fail to qualify, not- withstanding that no objection may have been raised to their jurisdiction at the time they acted. This was the decision giv- en where a board of aldermen, who could only become a court to try charges preferred against a city officer Tipon taking a prescribed oath, administered by an officer duly authorized, were sworn by an officer not authorized to administer the oath; their judgment was declared a mere nullity .''^^ § 419. Same subject — Justices of the peace only oc- casionally acting. — Again, it is submitted that certain jus- tices of the peace might possibly be looked upon as special judges in regard to the question under consideration, at least in Canada. Some of them, though named in the com- mission of the peace for a specified county, are not qualified the declarations as such, shall be 'STompcrt vs Lithgow (1866), required to take any further oath 1 Bush. (Ky.) 176. See also Rice to enable him to act as a justice vs Commonwealth (1867), 3 Bush. of the peace. (Kv-) 14. 7 5Pinsonnault vs Corp. de La- prarie (1901), 20 Que. R. (S. C.) 525. § 419] ACTS OF DE FACTO JUDICIAL OFFICERS. 573 and never even attempted to qualify as required by law, and are not generally known to be justices of the peace. Their ordinary avocation may be that of merchant or farmer, and they are merely known as such, and not otherwise. Upon principle, therefore, we think that upon their failure to qualify before acting, they could be objected to as if they were only temporary judicial officers. It seems that this covirse would not be opposed to public policy, nor to the reasons underlying the doctrine we have expounded. Evi- dently it would be otherwise, if any such justice was continu- ally or frequently in the habit of acting as such, and was generally reputed to be a judicial officer. However, it is difficult to lay down any hard and fast rule upon this subject, as the de facto doctrine is so very elastic that its application depends upon the peculiar facts and circumstances of each case.''^ But some Canadian cases ^® seem to take it for granted, that the qualification of a magistrate or justice of the peace can al- ways be inquired into by a Superior Court when reviewing his judgment, at any rate where objection to him has been prompt- ly raised.^®* In such cases, it is most important not to con- found the principles applicable to the jurisdiction of inferior tribunals in regard to subject-matter and person, with those applicable to the official title of the officers presiding over them. While there cannot be a de facto jurisdiction, there may be a de facto judicial officer exercising a lawful juris- diction.'^'* Moreover, disqualification due to defective title or failure to qualify must not be placed on a level with dis- 77See Vaccarri vs Maxwell 'SaHogle vs Rockwell (1898), 20 (1855), 3 Blatch. (U. S.) 368. Que. R. (S. C.) 1, 309. 78R. vs Hodgins (1886), 12 0. 7 9See Smith vs Sullivan (1903), R. 367; R. vs White (1871), 21 33 Wash. 30, 73 P. 793. U. C. C. P. 354; R. V3 Boyle (1868), 4 Ont. Pr. R. 256. 574 THE DE FACTO DOCTRINE. [§ 420 ability arising by reason of interest, which was the case in some English authorities often quoted.*" § 420. Observations on the English and Canadian cases. — Having concluded the exposition of the general doc- trine relating to collateral attack on judges' title, it may not be amiss to make a few obsers^ations on the English and Cana- dian cases which have been quoted. Influenced by a desire of preserving their identity in the midst of a mass of Ameri- can decisions, it has been thought proper to group them as much as possible together, even if, logically, a better place might have been assigned to some of them. The facts dis- closed in certain cases have also sometimes been relied on, in preference to the reasons given for the decisions. Thus, we have inserted two cases, ^"^ under the head of special judges,^ not on account of any distinction made therein between a reg- ular and a special judge, but merely because, in our opinion, that was the only way the judgments could be sustained upon principle. In fact, the learned judge who decided those cases, far from making such a distinction, advanced, in sup- port of his conclusions, reasons which are certainly not main- tainable in view of the authorities. He seemed to have been of the opinion that a disqualified regular judge, of whatever rank, was practically at the mercy of the criminals and suitors that appeared before him, so far as his judicial authority was concerned. Referring to the judges of the King's Bench and the Superior Courts, he observed: "No one would seriously pretend that they can lawfully act before having taken the oath of allegiance and the oath of office ; and the same rule 80R. vs Justices of Richmond siEx p. llainville (1898), 1 Can. (1860), 8 Cox. C. C. 314, s. c. sub Crim. Cas. 528. and Ex p. Curry nom. R. va Huntingtower, 8 W. R. (1898), 1 Can. Crim. Cas. 532. 562; R. vs Justices of Kent (1880), 44 J. P. 298. § 420] ACTS OF DE FACTO JUDICIAL OFFICERS. 575 must necefssarily apply to the Deputy Recorder who is a judge of an inferior rank." If by such language he meant that the first mentioned judges could not perform valid judicial acts before taking the oath of allegiance, whenever their authority was objected to, he laid down a proposition which is untenable. In Ipsley vs Turk,^^ Wylde, J., says: "Upon a writ of error in Parlia- ment it cannot be assigned for error, that the Chief Justice of the Kings' Bench had not taken this oath (25 Car., II, c. 2 ) ; the same might be also of a writ of error in the exchequer chamber." Indeed, that it be in the power of litigants to change the status of a disqualified regular judge at their pleasure, by submitting to him and constituting him a good oificer, or by objecting to him and making him an intruder, is against public policy and the most vital interests of the community. Certainly no suitor could effectively challenge the authority of the superior court judges he named. For, if it should happen that any such judge was so remiss in his duty, as to act without taking the proper oaths of office and allegiance, this would be a matter for the interference of the State au- thorities, not of private individuals. For instance, in Stod- dard vs Prentice/^ an objection was raised to the appointment of Mr. Justice Martin of British Columbia, because, it was al- leged, he had not been of ten years' standing at the bar pre- vious to his appointment, as required by the provincial stat- ute; but the Supreme Court refused to entertain the objec- tion, saying that it had no power to decide the validity of the appointment of one of its own members. This was quite sound, because a Canadian Superior Court Judge can only be amoved by the Governor-General on address of the Senate and 82(1677), 2 Mod. 193. S3(1898), 6 B. C. 308. 576 THE DE FACTO DOCTRINE. [§ 421 House of Commons, or under the provisions of the statute 22 Geo III, c. 75.«3a But reverting to the Deputy Kecorder, if he, to use the words of the learned judge, "liad assumed the office and vyas exercising its functions openly and with the acquiescence of the public," he was manifestly an officer de facto, and, unless he could be classed among special judges, no one could have collaterally assailed his authority. § 421. Same subject. — On the whole, however, it is ob- vious that the English and Canadian courts are willing to uphold the validity of acts performed by a judge de facto, at any rate where his authority has not been challenged at the trial ; for, as we have seen, the principle that the acts of de facto judicial officers are valid, has been recognized in England for centuries. The only doubtful point is, as to what extent and under what circumstances a litigant will be permitted to raise an objection to an acting judge. Accord- ing to some English cases, one might be led into the belief that this can never be done by the suitor. On the other hand, some Canadian judges practically lay down the prin- ciple that a judge, who has failed to qualify according to law, may be objected to by any litigant who desires to do so. ISTeither of such opposite views, if such they are, commends itself to reason. The practical solution of the question, we submit, is that afforded by the American authorities, which, ssaThe Canadian County and Court Judges are only removable District Court Judges, like the Su- by the Crown on address of both perior Court judges, hold their offi- Houses ; but the County Court ces during good behavior, but are Judges are appointed and may be removable for cause by the Gov- dismissed by the Lord Chancellor, ernor in Council. R. S. C. (1906), They are also subject to proceed- ■c. 138, s. 28. They may also be ings by quo warranto. R. vs Par- amoved under the statute 22 Geo. ham (1849), 13 Q. B. 85S, 18 L. J. Ill, c. 75. In England the superior Q. B. 281, 13 Jur. 981. § 422] ACTS OF DE FACTO JUDICIAL OFFICERS. 577 as already explained, is: That where a person acts as a regular judge, of whatever rank, under color of right, and with the acquiescence of the public and the State authori- ties, his title can never be impeached collaterally, whatev- er defects there may be in his appointment or qualification; but where he merely acts as a temporary or special judge, or in any such like capacity, his authority may be challenged by parties appearing before him, and if their objection is overruled, the same may be entertained and finally decided by an appellate court. § 422. Acts of de facto judicial officers, valid. — The inevitable conclusion resulting from what has been said and the numerous cases quoted in this chapter, is that, as to the public and third persons, the official acts of de facto judicial officers, within the scope of their jurisdiction, are as valid and binding as if they were the acts of de jure officers. This rule applies to the judgments, decrees, and other official acts of all judicial officers, whatever may be their rank, high or low, and whatever may be the nature of the matters coming before them for adjudication, civil or criminal. To repeat the words of BuUer, J., "Suppose a person were even crim- inally convicted in a court of record, and the Recorder of such court were not duly elected, the conviction would still be good in law, he being the judge de facto." ** If the rule was otherwise, as pointed out in a l^ew York case, no man would be safe in taking a title until he had ex- amined the commission of the judge, who had done any act upon which the validity of the title depended, and had then gone from the commission up to the source from which the officer derived his authority.®^ In fact, the United States 84Milward vs Thatcher (1787), Wend. (N. Y.) 520; reversing 22 2 Term (D. & E.) 81, 1 R. R. 431. Wend. 167. 85People vs White (1840), 24 De Facto— 37. 578 THE DE FACTO DOCTRINE. [§ 422 Supreme Court positively declared that, under the Federal Constitution, there was no difference between a judge de facto and a judge de jure, so far as the acts of either af- fected third persons. This was the decision pronounced up- on appeal thereto in a case of manslaughter. It held that a person is not denied the equal protection of the laws, nor deprived of liberty, without due process of law, in violation of the Fourteenth Amendment of the American Constitu- tion, by being tried and sentenced to imprisonment by a judge who, although appointed by the Governor without authority, is a judge de facto of a court de jure by the law of the State as declared by its highest court.*® But of course, as repeatedly said with reference to other officers, the above doctrine will not validate the acts of a de facto judge when they are performed for his own benefit, since he will not be permitted to take advantage of his own wrong;*'' nor will it validate the acts of a pretended judge who was a mere usurper at the time he acted.** The present subject has been treated and illustrated in the foregoing pages, in a somewhat indirect way, by laying down the principles governing collateral attacks on the title of de facto judicial officers. This manner of proceeding has been adopted in this chapter, because, as we already intimated, it was thought the balance of convenience favored such a course. The result, however, is the same; for, whenever the authorities hold that the title of a judge cannot be col- laterally drawn into question, it follows that his acts are ssManning vs Weeks (1891), ssUnited States vs Alexander 139 U. S. 504, 11 Sup. Ct. 624, (1891), 46 Fed. 728; Cromer ts 35 L. ed. 264, affirming In re Man- Boinest (1887), 27 S. C. 436, 3 S. ning (1890), 76 Wis. 365, 45 N. E. 849; State vs Perkins (1897), W. 26. 139 Mo. 106, 40 S. W. 650; Dabney 87Venable vs Curd (1859), 2 vs Hudson (1890), 68 Miss. 292, Head. (Tenn.) 582. 8 So. 545, 24 Am. St. E. 276. § 423] ACTS OF DE FACTO JUDICIAL OFFICERS. 579 valid, and vice versa. It would, therefore, be useless to fur- ther dwell upon a doctrine which has already received suffi- cient consideration. For purpose of reference, however, a number of authorities are quoted.** § 423. Acts of de jure judges acting outside their ju- risdiction, under an unconstitutional Act. — This subject calls for special treatment. The question involved is. ssKnowles vs Luce (1580), Moore, 109; Hippsly vs Tucke (1677), 2 Lev. 184, 83 Eng. R. 510, also Denning vs Norris (1679), 2 Lev. 243; Andrews vs Linton (1703), 2 Ray. (Ld.) 884, also briefly reported in Salk. 265, and in Holt's R. 273; Harris vs Jaya (1599), Cro. Eliz. 699, 78 Eng. R. 934; Parker vs Kett (1701), 12 Mod. 466, 88 Eng. R. 1454; s. c. 1 Ray. (Ld.) 658, 91 Eng. R. 1338; Margate Pier Co. vs Hannam (1819), 3 B. & Aid. 266, 22 R. R. 378; Ex p. Curry (1898), 1 Can. Crim. Cas. 532; Speers vs Speers (1896), 28 O. R. 188; R. vs Boyle (1868), 4 Ont. Pr. R. 256; Crook- shank vs McFarlane(1853), 7 N. B. 544; Sellers vs Smith (1905), 143 Ala. 566, 39 So. 356; Alabama Nat. Bank vs Williams (1905), 144 Ala. 406, 38 So. 240; Stephens vs Davis (Ala. 1905), 39 So. 831; Butler vs Phillips (1907), 38 Col. 378, 88 P. 480; Rude vs Sisack (Col. 1908), 96 P. 976; People vs Eosborough (1859), 14 CaL 180; Griffin's Case (1869), 11 Fed. Cas. (No. 5,815) 7; State vs Carroll (1871), 38 Conn. 449, 9 Am. Rep. 409; State vs Sadler (1899), 51 La. Ann. 1397, 26 So. 390; In re Sheehan's Case (1877), 122 Mass. 445, 23 Am. Rep. 374; Woodside vs Wagg (1880), 71 Me. 207; Bell vs State (Miss. 1905), 38 So. 795; Adams vs Mis- sissippi State Bank (1897), 75 Miss. 701, 23 So. 395; State vs Brown (1867), 12 Minn. 538; Os- trander vs People (1883), 29 Hun .(N. Y.) 513; Walcott vs Wells (1890), 21 Nev. 47, 24 P. 367, 37 Am. St. R. 478, 9 L.R.A. 59 ; State vs Lewis (1890), 107 N. C. 967, 12 S. E. 457, 13 S. E. 247, 11 L.R.A. 100; Beard vs Cameron (1819), 3 Murp. (N. C.) 181; Angell vs Steere (1888), 16 R. I. 200, 14 A. 81 ; Blackburn vs State (1859), 3 Head (Tenn.) 690; Gold vs Fite (1872), 2 Bax. (Tenn.) 237; Turney vs Dibrell (1873), 3 Bax. (Tenn.) 235; Nashville vs Thompson (1883), 12 Lea (Tenn.) 344; Moore vs State (1858), 5 Sneed (Tenn.) 510; McCraw vs Williams (1880), 33 Gratt. (Va.) 510; Quinn vs Commonwealth (1870), 20 Gratt. (Va.) 138; State vs Carter (1901), 49 W. Va. 709, 39 S. E. 611; In re Burke (1890), 76 Wis. 357, 45 N. W. 24; Baker vs State (1891), 80 Wis. 416, 50 N. W. 518; State vs Bloom (1863), 17 Wis. 521; State vs Hill (1843), 2 Speers L. (S. C.) 150. 580 THE DE FACTO DOCTRINE. [§ 424 whether a judge de jure acting without his territorial juris- diction, under the supposed authority of an unconstitutional statute, can be regarded, while so acting, as an officer de facto, and thus be capable of performing valid judicial acts. The case we wish to deal with is where the legislature passing the void law, is not authorized to fill the judicial office. In Canada, for instance, the provinces are intrusted, under the British North America Act, with the "constitution, mainte- nance, and organization of Provincial Courts," but the power of appointment thereto, so far as the Superior, District and County Courts are concerned, is vested in the Federal Gov- ernment. In the several States of America an analogous situation is found. The jiidicial office is either created by the constitution or the legislature, but the people are in general constitutionally entitled to fill the same by popular election. While theoretically such powers, creative, appoint- ive, or elective, should not clash with one another, as they are usually well defined, it is a matter of experience that they sometimes do, as a result of their illegitimate exercise. For example, a judge may be appointed or elected to a court ter- ritorially limited in jurisdiction, and, after his appointment or election, an Act may be passed by the legislature extending his authority, by providing that he may perform judicial functions in districts other than his. Then arises immedi- ately the contention, that the legislative body has indirectly assumed the power of appointing judges. § 424. Same subject — American cases. — In the United States this question has never created serious difficulty, since the authorities, without a single dissenting voice, have always held that an unconstitutional Act affords sufficient color of title to an officer to constitute him an officer de facto and to render his acts valid, until tlie statute is declared void in a § 424] ACTS OF DE FACTO JUDICIAL OFFICERS. 581 proper proceeding. This was the decision in the great lead- ing case of State vs Carroll ^° and in many others.^"* Thus, in Rives vs Petit^^ the question involved the jurisdiction of a circuit judge who had presided over a court under an Act of the legislature permitting an exchange of circuits between judges, which turned out to be unconstitutional. Upon an appeal from a judgment rendered by the court thus organized, it was held that the proceedings were binding upon the parties and could not be set aside. So in Clark vs Commonwealth ®^ the case presented a sim- ilar point. The legislature had enacted that the county of Montana should be transferred from one judicial district to another, during the term of office of Judge Jordan; and it was contended that as to that county, the judge of the dis- trict to which it was transferred could have no jurisdiction, as the Act of the legislature was equivalent to an appointment of a judge for the county without an election, and was, there- fore, void under the constitution of Pennsylvania. But in reply to such argument, the Court said: "A very important question upon the constitutional power of the legislature so to alter judicial districts as to transfer a judge to the courts of certain counties who was never voted for in those counties, was intended to be raised by this plea; but, unfortunately for the prisoner, it cannot be raised in this form. His plea admits that Judge Jordan is a judge de facto ; and if it did not admit this, we would take judicial notice of the legisla- tion which placed him in the courts of Montour County, so 90(1871), 38 Conn. 449, 9 Am. (1860), 24 111. 184; Butler vs Phil- Rep. 409, 21 Am. Law R. 165. lips (1907), 38 Col. 378, 88 P. 480. soaTaylor vs Skrine (1815), 2 See also officers de facto holding Tread. Const. (S. C.) 696; Master- under unconstitutional law, see. son vs Matthews (1877), 60 Ala. 192, et seq. 260; Ex p. Strang (18tl), 21 Ohio 91(1842), 4 Ark. 582. St. 610; In re Parks (1880), 3 92(1858), 29 Pa. St. 129. Mont. 426; People vs Bangs 582 THE DE FACTO DOCTRINE. [§ 425 far as to hold him to be a judge de facto. That legislation is at least a colorable title to his office. Can the rights and powers of a judge de facto, with color of title, be questioned in any other form than by quo warranto, at the suit of the Commonwealth? Assuredly not." Therefore, the convic- tion appealed against, which was for murder, was upheld.** § 425. Same subject — Canadian cases. — In Canada there are some cases in point, or at least presenting similar questions, but they were decided without even a reference to the de facto doctrine. Thus, in Gibson vs McDonald,^* it was held that the county judge of the County of Lanark had no power to preside at the general sessions of the peace in the County of Renfrew, the provincial statute authorizing him to do so being declared unconstitutional.®^ The right of the judge so to preside was collaterally inquired into upon an application for a writ of prohibition. A person having been convicted before two magistrates, entered an appeal against the conviction, which was tried by the gen- eral sessions of the peace of the County of Renfrew, pre- sided over by the judge in question. Prohibition was grant- ed, and the main ground upon which the writ was allowed to issue, was that an appeal did not lie to that court. But two out of the three judges (the other expressing no positive opin- ion on the point) held also that the presiding judge was not authorized to hear the appeal, because the Act under which he acted was ultra vires. One of them ®^ observed : "It may 93See also Keith vs State ssThis decision has since been (1887), 49 Ark. 439, 5 S. W. 880; indirectly overruled by the Su- State vs Douglass (1872), 50 Mo. preme Court of Canada: In re 593. County Courts of British Colum- 9M1885), 7 0. R. 401. See also bia (1892), 21 Can. Sup. Ct. 446. R. vs Bennett (1882), 1 0. R. 445; 960'Connor, J. In re Wilson vs McGuire (18S3), 2 0. R. 118. § 426] ACTS OF DE FACTO JUDICIAL OFFICERS. 583 easily be imagined, therefore, that important interests of both a public and private nature must be disturbed and af- fected, in most cases injuriously, if the statute be found des- titute of authority and consequently void. It is impossible to calculate the evil results which may be expected to result from the confusion created by so disturbing a cause. But, on the other hand, allowing matters to continue and proceed under such a statute can lead only to a greater accumulation of evil results and more disastrous consequences; for sooner or later the statute is sure to be brought to the crucial test, he the consequences what they may." § 426. Same subject — Same subject. — This language strongly suggests that the learned judge was of the opinion that all the acts of the county court judges who had presided over courts, under the authority of the alleged unconstitu- tional Act, would be null and void if the statute was declared ultra vires. In view of the English and American authori- ties, it is difficult to conceive that a judge could entertain such an opinion. In the case under his consideration, could it have been reasonably contended that an Act solemnly passed by the legislature and not vetoed by the federal power, was ineffectual to impart to the county court judge, sufficient color of title to constitute him an officer de facto? Surely no court in Ontario would think for a moment of question- ing the validity of the past acts of such an officer. As we have already pointed out, questions affecting the title of a judicial officer, must not be confounded with questions af- fecting his jurisdiction. Prohibition, according to Bacon, issues out of the Superior Courts of Common Law, to re- strain the inferior courts on a suggestion that the jurisdic- tion of the matter belongs not to such courts.'^ But it is not 8 7Bac. Abr Title, Prohibition. 584 THE DE FACTO DOCTRINE. [§ 427 a writ intended to try the title of the judge, where the matter is lawfully within the jurisdiction of the court presided over by him. § 427. Same subject — Same subject. — It goes without saying, that private individuals in Canada should have no more right than elsewhere to intermeddle, either by pro- hibition or otherwise, with questions concerning the appoint- ment of judges. If they find a de jure court held by a judge, acting under color of right, their duty should be to submit to it. What material difference can it make to them whether the officer was appointed by the Federal Government or a Provincial Legislature ? This is a matter for the considera- tion and interference of the State authorities, not of litigants. As we have already seen, the stability and dignity of the Bench as well as the interest of the community at large, forbid that the acts of a judicial officer be dependent upon the valid- ity of his appointment. His right to act should be settled once for all by a sort of judgment in rem, in a case where no private interests are involved. Judicial appointments, in Canada, being vested in the federal power, that power alone has a right to complaint, if its authority is encroached upon. If it expresses no dissatisfaction with the invasion of its rights, it is absurd to allow private individuals to come to the rescue, and defend it against provincial usurpation. "It would, indeed," says the Supreme Court of North Dakota, "be a strange rule of law that would permit every party to a lawsuit to volunteer to become a champion of the public rights by challenging the official right of the judge to act."®^" Whenever the Federal Government is of opinion that a pro- vincial Act indirectly attempts to appoint judges and is there- 9 7aFisk, J., delivering opinion of court in State vs Bednar (N. D 1909), 121 N. W. 614. § 427] ACTS OF DE FACTO JUDICIAL OFFICERS. 585 fore unconstitutional, it can easily disallow it, or have the same tested by submitting a case to the Supreme Court of Canada, as it did with reference to the British Columbia statute.®* If the statute is found ultra vires, all authority to act thereunder ipso facto ceases, and a judicial officer that would attempt to continue thereafter to act in pursuance thereof, would be considered a mere intruder. But until this is done, and so long as the judge is allowed to perform judicial functions under the authority of the legislative enact- ment, without objection from the federal power, there is no sound reason why he should not be regarded as a good officer, as to all persons who resort to him for the dispensa- tion of justice. Especially is this evident, when it is borne in mind that a litigant's right to impeach the validity of a stat- ute is confined to cases where his private interests are affected by the Act. 9 8 In re County Courts of British Columbia (1892) 21 Can. Sup. Ct. 446. BOOK YI. OF THE KEMOVAL OE DE EACTO OFFICERS. BOOK VI. OF THE REMOVAL OF DE FACTO OFFIOEES. CHAPTEE 31. INTRODUCTORY. § 428. Scope of this book. § 428. Scope of this book. — This book will be devoted to an exposition of the principles governing the removal of de facto officers. In pursuing this investigation, it has been thought advisable to divide the subject into two parts, which will form so many chapters. In the first part, which will deal with the negative aspect of the subject, will be enumer- ated the proceedings in or by which official title cannot gener- ally be tried, because such question is not directly at issue but only collaterally involved therein. The second part will deal with its affirmative aspect, that is, with quo warranto or the statutory substitutes therefor, the same being, generally speaking, the only appropriate remedies to determine ques- tions of title to office. The two chapters will be entitled as follows : — 1. Of collateral attacks on the title of de facto officers — Habeas Corpus — Certiorari — Prohibition — Mandamus — In- j unction — Etc. 2. Of quo warranto. 6S9 CHAPTER 32. OF COLLATERAL ATTACKS ON THE TITLE OF DE FACTO OFFI- CERS — HABEAS CORPUS — CERTIORARI — PROHIBITION — MANDAMUS— INJUNCTION— ETC. 429. De facto oflficer's title can- not be collaterally as- sailed. 430. Limitations to the above rule. 431. Title to oilice cannot be tried in proceedings to recover official records. 432. In United States title can- not be tried in action for recovery of salary. 433. Different rule in England. 434. De facto officer's title can- not be inquired into by ministerial officers. 435. Title to office cannot be de- termined on habeas cor- pus. 436. Title to office not generally determinable on certiora- ri — English and Cana- dian authorities. 437. Same subject — Same sub- ject. 438. Same subject — American authorities. 439. Same subject — Same sub- ject. 439a. Same subject — Same sub- ject. 440. Title to office not triable by prohibition. 441. Title to office cannot be tried by mandamus — En- glish authorities. 442. Same subject — American authorities. 443. Mandamus lies to compel admission of person hav- ing prima facie title to office, though there be an- other in possession. 444. Mandamus proper remedy to restore officer unlaw- fully removed. 445. Mandamus proper remedy to determine de facto title of officer. 446. Title to office cannot be tried by injunction — American authorities. 447. Same subject — English au- thorities. 4471 Injunction under the En- glish Judicature Act. 448. Interference of equity on ac- count of breaches of trust — English and American authorities. 449. Title to office not triable by writ of assize. 590 § 429] OF COLLATERAL ATTACKS. 591 § 429. De facto officer's title cannot be collaterally assailed. — It is a very ancient and salutary principle of the common law, that where a person claims to hold an office, his title shall not come in question in an action or proceeding to which he is not a party; but while he holds the office de facto, his acts and doings therein will be deemed good.-^ This principle is supported alike on grounds of public policy and of justice. On grounds of public policy, because it would be against the interest of the community to allow the acts of de facto officers to be collaterally impeached, by drawing into question the official title of such officers. On grounds of justice, because to judge a man unheard, and without an op- portunity to defend himself, would be contrary to natural equity. For these reasons, the above proposition has received the universal support of a great mass of authorities, only a few of which can conveniently be quoted in this place. ^ iSimrall, J., Cooper vs Moore 4; for further Canadian cases, see (1870), 44 Miss. 386, quoting 7 see. 11;— Gibb vs Washington Bac. Abr. 283. (1858), 1 McAll. (U. S.) 430; Ex 2Penney vs Slade (1839), 5 p. Strobach (1873), 49 Ala. 443; Bing. (N. C.) 319, 7 Scott, 484; Kaufman vs Stone (1869), 25 Ark. R. vs St. Clement's (1840), 12 Ad. 336; Jeffords vs Hine (1886), 2 & El. 177, 181, 3 P. & D. 481, 4 Ariz. 162, 11 P. 351; Susanville Jur. 1059; Symmers vs Regem vs Long (1904), 144 Cal. 362, 77 (1776), 2 Cowp. 489, 507; R. vs P- 987; Pueblo County vs Gould Justices of Cheshire (1840), 4 Jur. (1895), 6 Col. App. 44, 39 P. 895; 484; R. vs Gel! (1867), 6 S. 0. R. Kissimmee City vs Cannon (1890), (N. S. W.) 239; Frost vs Mayor 26 Fla. 3, 7 So. 523; Hinton vs of Chester (1855), 5 El. & Bl. 531, Lindsay (1856), 20 Ga. 746; Gum- s. c. sub nom. R. vs Mayor of berts vs Adams Exp. Co. (1867), Chester (1855), 25 L. J. Q. B. 61, 28 Ind. 181; Law vs People 2 Jur. (N. S.) 114, 4 W. R. 14; (1877), 87 111. 385; Cochran vs R. vsGodvpin (1780), 1 Doug. 397; McCleary (1867), 22 Iowa, 75; for further English cases, see sees. Gorman vs Boise County Comm'rs 6, 411, 412;— Paris vs Couture (1877), 1 Idaho, 655; Osborne vs (1883), 10 Que. Law R. 1; Speers State (1890), 128 Ind. 129, 27 N. vs Speers (1896), 28 0. R. 188; E. 345; In re Corum (1900), 62 R. vs Gibson ( 1896 ) , 29 Nov. Scot. Kan. 271, 62 P. 661, 84 Am. St. 592 THE DE FACTO DOCTRINE. [§ 430 Again, the title of a de facto officer cannot be determined in any action or proceeding to which he is a party merely in an official capacity, for the benefit of the public or third per- sons.* ISTor is his title triable by means of any process or remedy which, though directly addressed to him, yet involves his right to office only in a collateral way, that is, merely because it is necessary to show want of title, in order to lay a foundation for the relief sought. Of such processes or remedies are prohibition, mandamus, injunction, and the like, which are further on dealt with. § 430. Limitations to the above rule. — The foregoing rule, however, will not be enforced to the extent of shielding from collateral attack the pretended official title of a mere E. 382; Chambers vs Adair (1901), 110 Ky. 942, 62 S. W. 1128, 23 Ky. Law R. 373; State vs Brooks (1887), 39 La. Ann. 817, 2 So. 498; State vs O'Grady (1879), 31 La. Ann. 378; Fowler vs Bebee (1812), 9 Mass. 231, 6 Am. Dec. 62; Carleton vs People (1862), 10 Mich. 250; Garland vs Custer (1885), 5 Mont. 579, 6 P. 24; Northumberland vs Cobleigh (1879), 59 N. H. 250; Baker vs Shephard (1851), 24 N. H. 208; State vs Butman (1861), 42 N. H. 490; Mitchell vs Tolan (1868), 33 N. J. L. 195; Sawyer vs Dooley (1893), 21 Nev. 390, 32 P. 437; People vs Bartlett ( 1831 ) , 6 Wend. (N. Y.) 422; Buffalo vs Mackay (1878), 15 Hun (N. Y.) 204; New York vs Tucker (1863), 1 Daly (N. Y.) 107; Culver vs Eggers (1869), 63 N. C. 630; Cleveland vs M'Canna (1898), 7 N. D. 455, 75 N. W. 908, 66 Am. St. R. 670, 41 L.R.A. 852; Morford vs Terri- tory (1901), 10 Okla. 741, 63 P. 958, 54 L.R.A. 513; McKim vs Somers (1830), 1 Pen. & W. (Pa.) 297; State vs Coleman (1899), 54 S. C. 282, 32 S. E. 406; State vs Hart (1901), 106 Tenn. 269, 61 S. W. 780; Aulanier vs The Governor (1846), 1 Tex. 653; Vanderberg vs Connoly (1898), 18 Utah, 112, 54 P. 1097; McGregor vs Balch (1842), 14 Vt. 428, 39 Am. Dec. 231; State vs Fountain (1896), 14 Wash. 236, 44 P. 270; Old Domin- ion Building & Loan Assoc'n vs Sohu (1903), 54 W. Va. 101, 46 S. E. 222; Deuster vs Zillmer (1903), 119 Wis. 402, 97 N. W. 31. As to collateral attacks on judges' title, see ss. 406, 407, 408, 409, and 410. sCreighton vs Piper (1860), 14 Ind. 182; People vs Schiellein (1884), 95 N. Y. 124; Taylor vs Nichols (1856), 29 Vt. 104; State vs Fahey (Md., 1908), 70 A. 218. § 430] OF COLLATERAL ATTACKS. 593 usurper. Therefore, in every case, incidentally involving of- ficial title, the courts will pursue their investigation far enough to discover v?hether the supposed officer has any color of right or not,* "because every person assuming to exercise the authority of an officer, does not thereby necessarily make himself an officer de facto." ^ Where there is a plain usurpa- tion of office without any show of title, the acts of the intrud- er will undoubtedly be void, both in relation to individuals and the public, and their invalidity may be established by showing that they were performed by a person having no official character entitled to legal recognition.® It is upon this principle that courts will inquire into the' existence of the office, for, as we have seen, there cannot be an officer de facto without a legal office.'' It should also be remembered, as fully explained elsewhere,* that where an officer de facto claims personal benefits and sues in his own right to secure the same, or attempts to justi- fy as a public officer, he puts his title directly at issue and the same may be collaterally inquired into.® ^United States vs Alexander sPhelon vs Granville (1886), (1891), 46 Fed. R. 728. 140 Mass. 386, 5 N. E. 269; People 5ln re Boyle (1859), 9 Wis. 264. vs Weber (1877), 86 111. 283; Rid- ePeople vs White (1840), 24 die vs Bedford County (1821), 7 Wend. (N. Y.) 520; Ex p. Strahl S. & R. (Pa.) 386; Meehan vs (1864), 16 Iowa, 369; Ex p. Lewis Chosen Freeholders (1844), 46 N. (1903), 45 Tex. Crim. R. 1, 73 J. L. 276, 50 Am. Rep. 421; Shep- S. W. 811, 107 Am. St. R. 970. herd vs Staten (1871), 5 Heisk. TState vs Shuford (1901), 128 (Tenn.) 79; Stubbs vs Lee (1874), N. C. 588, 38 S. E. 808; In re 64 Me. 195, 18 Am. R. 251; Rod- Norton (1902), 64 Kan. 842, 68 man vs Harcourt (1843), 43 Ky. P. 639, 91 Am. St. R. 255; Miner (4 B. Mon.) 224. But see Rey- vs Justices Court (1898), 121 Cal. nolds vs McWilliams (1873), 49 264, 53 P. 795. See cases cited Ala. 552. under sec. 29. 8 See sec. 203 et seq., and sec. 266 et seq. De Facto — 38. 594 THE DE FACTO DOCTRINE. [§ 431 § 431. Title to office cannot be tried in proceedings to recover official records. — In accordance with the fore- going principles, the title to a public office cannot be tried in actions or proceedings, instituted to obtain the possession of books and papers appertaining to the office, the question of title being there only collaterally involved. Therefore, no recovery can be had vphere there is a reasonable doubt as to who is entitled to the office, inasmuch as such doubt must first be settled by recourse to quo warranto or other proper proceeding. Thus, the right of a claimant cannot be ad- judicated upon in an action of replevin to recover from the de facto incumbent the records of the office.^" iN^or can a claimant's title be determined in summary proceedings pro- vided by statute to compel delivery of official records, '^'^ nor by mandamus brought for the same purpose. ^^ But the Court can look beyond the actual possession of the office, and investigate the claimant's title to the extent of ascertaining whether he has a clear prima facie ease, and if it finds this affirmatively, he will be entitled to succeed ; as, for example, where the claimant holds the certificate of election or a com- mission, or otherwise produces satisfactory evidence of title. -"^ lODesmond vs McCarthy (1864), 25 Minn. 340; R. vs Dubord 17 Iowa, 525; Hallgren vs Camp- (1885), 3 Man. 15. bell (1890), 82 Mieh. 255, 46 N". isin re Lacroix (1836), 4 U. C. W. 381, 21 Am. St. R. 557, 9 L.R.A. Q. B. (0. S.) 339; In re Asphodel 408. Tp. (1859), 17 U. C. Q. B. 593; iiln re Baker (1855), 11 How. In re Bradley (1894), 141 X. Y. Pr. (N. Y.) 418; People vs Stevens 527, 36 N. E. 598, 57 St. Rep. 816; (1843), 5 Hill (N. Y.) 616; In re Matter of Brearton (1904), 44 Bradley (1894), 141 N. Y. 527, 36 Misc. (N. Y.) 247, 89 N. Y. S. N. E. 598, 57 Am. St. R. 816; Ex 893; In re Whiting (1848). 2 Barb, p. Scott (1872), 47 Ala. 609. (N. Y.) 513, 1 Edm. 498; Cham- 1 2 Ashwell vs Bullock (1900). 122 bers vs Stringer (1878), 62 Ala. Mich. 620, 81 N. W. 577; People 596; People vs Seannell (1857), 7 vs Head (1861) , 25 111. 325; Ewing Cal. 432; People vs Kilduff ( 1854) , vs Turner (1894), 2 Okla. 94, 35 15 111. 492, 60 Am. Dee. 769; State P. 951; State vs Williams (1879), vs Johnson (1895), 35 Fla. 2, 16 § 432] OP COLLATERAL ATTACKS. 595' Again, it has been held, that where two persons claim an office, as to which quo warranto does not lie, the title to it may be tried by mandamus to give papers relating to it.^* So it has been held that, though a person may be ineligible to an office, yet if he is appointed or elected thereto, duly quali- fies, and takes charge thereof, he may, by mandamus, recover the official books and papers from one, who admittedly has not even color of title to such office. '^ § 432. In United States title cannot be tried in actions for recovery of salary. — The preponderance of authority in the United States maintains the principle that the title to an office cannot be determined in an action to recover the salary, fees or emoluments attached thereto. Thus, the right to an office occupied by one claiming title to it, under a cer- tificate of election, cannot be determined in a suit instituted by an adverse claimant for the salary of the position.'^ So the title of a claimant of a municipal office cannot be adjudi- cated in an action to recover salary for a period during which he is not in possession ; that question can only be considered in a direct proceeding, in which the people and the incum- bent of the office are parties.^®* So. 786, 17 So. 650, 31 L.R.A. 357; "E. vs Hopkins (1841), 1 Q. B. Burr vs Norton (1856), 25 Conn. 161, 4 P. & D. 550, 10 L. J. Q. B. 103; O'Donnel vs Dusman (1877), 63. .39 N. J. L. 677; Kimball vs Lam- 15R. vs Smith (1848), 4 U. C. prey (1848), 19 N. H. 215: Stone Q. B. 322; McGee vs State (1885), vs Small (1882), 54 Vt. 498; Cro- 103 Ind. 444, 3 N. E. 139. See well vs Lambert (1865), 10 Minn. right of officers de facto to rec- 369; State vs Jaynes (1886), 19 ords of office, sec. 208. Neb. 161; Mannix vs State (1888), leState vs Moores (1904), 71 115 Ind. 245, 17 N. E. 565; Huff- Neb. 522, 99 N. W. 504. man vs Mills (1888), 39 Kan. 577, leaLee vs Wilmington (1895), 1 18 P. 516; State vs Oates (1893), Marv. (Del.) 65, 40 A. 663. Also 86 Wis. 634, 57 N. W. 296, 39 Am. Van Sant vs Atlantic City (1902), St. R. 912. 68 N. J. L. 449, 53 A. 701; Selby 596 THE DE FACTO DOCTRINE. [§ 433 There are, however, a few conflicting cases. Thus, it has been held that where the claimant of an office has been wrongfully ousted therefrom, after having been in the pos- session of it, he may bring an action for the recovery of fees against the actual incumbent, though this may involve deter- mination of title. ^^ And other cases still go further, and hold that title can be tried in such action, even where the claimant has never been in possession. -^^ § 433. Different rule in England. — In England, it is a well settled rule, that "any person may dispute the right to the office by refusing to pay the fees, or by bringing an action against the officer if he takes them." ^^ "So long back as the time of Charles the Second," says Heath, J., "it was held that the title to an office, under an adverse possession, might be tried in an action for the fees of the office had and re- ceived." ^° Undoubtedly the learned Judge had in mind the case of Howard vs Wood,"^ which appears to be the oldest reported case upon this subject. There the Queen having granted to the plaintiff a stewardship wherein were comprised several Courts-Lord and Courts-Baron, the defendant at the end of the first term, by a subsequent grant from the Crown, vs Portland (1886), 14 Ore. 243, iTAllen vs McKean (1833), 1 12 P. 377, 58 Am. Rep. 307; Dick- Fed. Gas. (No. 229) 489, 1 Sumn. erson vs Butler (1887), 27 Mo. 276 ; Glascock vs Lyons (1863), 20 App. 9; Hunter vs Chandler Ind 1, 83 Am. Dee. 299. (1870), 45 Mo. 452; Meredith vs isWenner vs Smith (1886), 4 Sacramento County (1875), 50 Utah, 238, 9 P. 293; Taylor vs Cal. 433; Gorley vs Louisville Commonwealth (1830), 26 Ky. (3 (1900), 108 Ky. 789, 55 S. W. 880; J. J. Jlarsh.) 401. Hagan vs Brooklyn (1891), 120 N. loPer Lord Denman, C. J.— E. Y. 643, 27 N. E. 265, affirming vs Stoke Damerel (1836), 5 A. & (1889), 5 N. Y. S. 425; People vs E. 584. Lane (1873), 55 N. Y. 217; Wal- 20Lightly vs Clouston (1808), den vs Headland (Ala. 1908), 47 1 Taunt. 112. So. 79. 21(1679), 2 Lev. 21o. § 434] OF COLLATERAL ATTACKS. 597 held court and received money, for which the plaintiff brought assumpsit to recover the fees. Objection was made to the form of the action, but the same was overruled, and the Court pronounced upon the rights of the parties to the office. The same principle has been recognized in several subsequent § 434. De facto officer's title cannot be inquired into by ministerial officers. — A ministerial officer has no right or jurisdiction to determine whether a person holding an office under color of right, is or is not a legal officer. Thus, where a minor, who had been appointed commissioner of deeds, presented himself before the clerk of the common pleas of iNew York to take the oath of office and the clerk refused to administer the same, it was held that though a minor is incapable of holding a public office, yet it is not the province of the clerk to decide that point, and a manda- mus was allowed to compel the administering to him of the official oath.^^ So where a town clerk had refused to record the survey of a road on the ground of lack of qualifications of the commissioners who had made such survey, Chancellor Kent pertinently observed, that "it certainly did not lie with the defendant, as a mere ministerial officer, to adjudge the acts of the commissioners null." ^* Again, it was held that the question of a person's right to the office of clerk of a circuit court, and to the compensa- tion belonging thereto, could not be inquired into by the comp- 22Per Lord Ellenborough, C. J., Dodsworth (1796), 6 Term. (D. & in R. vs Bingham (1802), 2 East, E.) 681; In re Hammond & McLay 308; Arris vs Stukely (1678), 2 (1864), 24 U. C. Q. B. 56. Mod. 260; Green vs Hewett 23People vs Dean (1830), 3 (1793), 1 Peake's Cas. 182; Bowell Wend. (N. Y.) 438. vs Millbank (1772), 1 Term. (D. 24People vs Collins (1811), 7 & E.) 399, note; Sadler vs Evans Johns. (N. Y.) 549. (1766), 4 Burr. 1984; Boyter vs 598 THE DE FACTO DOCTRINE. [§ 435 troUer of the treasury when the clerk's accounts came before him for audit.^^ The Court said: "It would be strange, indeed, if his right could be determined, as upon a quo warranto, on the auditing of his account in the treasury de- partment." ^® Likewise, where payment of a draft by a school trustee on the supervisor of a town, was refused by the latter by reason of a doubt as to the competency of the former to make it, but it appeared that the drawer was at least such trustee de facto, it was held that the supervisor had no authority to question the drawer's title as trustee, and was not entitled, in an action on the draft, to the certificate that he had acted in good faith required by Code Civil Proc. ]^. Y. sec. 3244, to relieve him from costs of the action.^'' § 435. Title to office cannot be determined on habeas corpus. — The title of a de facto incumbent cannot be in- quired into on habeas corpus, in order to invalidate his acts, whether judicial or otherwise. "It may sometimes," says a jSTew York judge, "with propriety be used as a writ of error, but I am yet to learn that it can ever properly be con- verted into a quo warranto." ^^ Accordingly, upon such a proceeding, it will not be investigated whether the Judge who presided in the Court below, was duly appointed or elected, or had properly qualified.^'' "To permit," to quote 25Umted States vs Harsha 11 Sup. Ct. R. S74. 35 L. ed. 578. (1893), 56 Fed. R. 953. See also Pritchard vs Mayor of 26Also Reynolds vs McWilliams Bangor (1888), 13 App. Cas. 241, (1873), 49 Ala. 552: State vs 57 L. J. Q. B. 313. 58 L. T. 502, Draper (1871), 48 Mo. 213. 37 W. R. 103, 52 J. P. 564; R. 27Barrett vs Sayer (1890), 34 vs Rice (1697), 5 Mod. 325. N. Y. St. R. 325, 12 N. Y. S. 170, zsEdmonds, J.— In re Wakker affirmed 58 Hun 608. Also Miahle (1848), 3 Barb. (N. Y.) 162. vs Fournet (1858), 13 La. Ann. 29Ex. p. Ward (1898), 173 U. S. (i07; Delgado vs Chavez or In re 45-2. 19 Sup. Ct. 459. 43 L. ed. 765; Delgado (1891), 140 U. S. ,580, Griffin's Case (1869), 11 Fed. § 435] OF COLLATERAL ATTACKS. 599 the language of one of the Courts, "one convicted of an offence to question on habeas corpus the right of the judge be- fore whom he was tried to hold his office would result in intolerable confusion, and, in some instances, no doubt in the defeat of justice." *" Likewise, the title of the officer who issues the process upon which a prisoner is arrested, cannot be inquired into.^^ So, upon habeas corpus proceedings resulting from the im- prisonment of a person for default in delivering up the books and papers of an office, pursuant to an order made under statutory authority, the Court will not investigate the title further than to ascertain whether the prisoner was a bona fide holder of the office or a mere intruder, as against the applicant at whose instance the order was made. If it finds that the prisoner had no excuse for not complying -with the order because there was no bona fide question of title at issue. Gas. (No. 5,815) 7; Daniels vs 37; Clark vs Commonwealth Towers (1887), 79 Ga. 785, 7 S. E. (1858), 29 Pa. St. (5 Casey) 129; 120; People vs White (1840), 24 Ex p. Johnson (1884) , 15 Neb. 512, Wend. (N. Y.) 520, reversing 22 19 N. W. 594; Ex p. Strang (1871), Wend. 167; Patterson vs State 21 Ohio St. 610; Ex p. Curry (1887), 49 N. J. L. 326, 8 A. 305; (1898), 1 Can. Crim. Cas. 532; State vs Bloom (1863), 17 Wis. State vs Bailey (Minn. 1908), 118 521; Ex p. Boyle (1859), 9 Wis. N. W. 676. But see Ex p. Main- 264; In re Corrigan (1877), 37 ville (1898), 1 Can. Crim. Cas. Mich. 66; In re Burke (1890), 76 528. Wis. 357, 45 N. W. 24; Sheehan's soSmith vs Sullivan (1903), 33 Case (1877), 122 Mass. 445, 23 Wash. 30, 73 P. 793. See further Am. Rep. 374; Ex p. Call (1877), as to collateral attack on judges' 2 Tex. App. (Crim. Cas.) 497; title, sees. 406, et seq. Ex p. Tracey (Tex. 1905), 93 siEx p. Strahl (1864), 16 Iowa, S. W. 538; Crawford vs Law- 369; State vs Pertsdorf (1881), 33 rence (1900), 154Ind. 288, 56 N. E. La. Ann. 1411; In re Wakker 673; Ex p. Fedderwitz (1900), (1848), 3 Barb. (N. Y.) 162; Mar- 130 Cal. XVIII, 62 P. 935; Smith gate Pier Co. vs Hannam (1819), vs Sullivan (1903), 33 Wash. 30, 3 B. & Aid. 266, 22 R. R. 378; but 73 P. 793; Com. vs Leeky (1832), compare R. vs Boyle (1868), 4 Ont. 1 Watts (Pa.) 66, 26 Am. Dec. Pr. R. 256. 600 THE DE FACTO DOCTRINE. [§ 436 it will not interfere ;^^ but if it concludes otherwise, the prisoner will be discharged, as in such case the order should not have been made before the determination of the title by quo warranto.^* Again, it has been held that the validity of the appointment of the de facto members of a board of medical examiners, cannot be drawn into question upon ha- beas corpus, by one who is in custody charged with practising medicine without the certificate provided for by statute.^* But where a pretended officer is acting by virtue of a com- mission absolutely void, it is not necessary to resort to quo warranto to have his title tested, but the same may be im- peached collaterally on habeas corpus.^^ § 436. Title to office not generally determinable on certiorari — English and Canadian authorities. — The writ of certiorari originally was intended to bring into a Su- perior Court the record of an inferior Court of record; but its application has been extended to matters which might not come within the strict terms of such a definition, and it has been used to superintend the proceedings of persons en- trusted with the exercise of a judicial power or discretion^ though not in a regularly constituted court of record.^" But the writ will not issue where the acts complained of are not in some sense judicial in character.^'' Therefore, in every case where an attempt is made to have a question of title to office tested by removal of the proceedings of purely min- isterial officers, certiorari will be refused. Thus, where it was sought to have the legality of the appointment of a clerk 32ln re Baker (1855), 11 How. 3BEx p. Lewis (1903), 45 Tex. Pr. (N. Y.) 418. Crim. R. 1, 73 S. W. 811, 107 Am. asDevlin's Case (1857), 5 Abb. St. R. 970. Pr. (N. Y.) 281. 3 6Ex p. Jocelyn (1853), 2 Allen 3 4Ex p. Gerino (1904), 143 Cal. (N. B.) 637. 412, 77 P. 166. S7R. vs Lloyd (1783), Cald. 309. § 436] OF COLLATERAL ATTACKS. 601 by justices tested by certiorari, Lord Alverstone, C. J., said : "I am of opinion tbat an order of justices as to the appoint- ment of clerk to a petty sessional division is not the subject of a certiorari. It is not a judicial act. It is true, of course, that they exercise a discretion in such matters, but there is no decision which goes to the length of saying that all dis- cretionary acts are therefore judicial acts and can be re- moved into this Court by writ of certiorari in order to be quashed." ^® So in a Nova Scotia case, the Commissioners of Schools for Pictou County, on an application made to them for the purpose, appointed school trustees jSTo. 16, South District, on the ground that the original trustees had failed to act. The trustees last appointed having issued a warrant for the col- lection of rates, the original trustees, caused a writ of cer- tiorari to be issued, bringing the matter into the Supreme Court of Nova Scotia. Thereupon the new trustees took out a rule to set the certiorari aside and quash the assessment. The rule was made absolute, the Court saying: "It is a fatal objection that it is not addressed to parties having any judicial functions to perform. It is addressed to certain indi- viduals by name in their private capacity, and, so far from recognizing them as a corporation, or indeed as school trustees at all, it is distinctly stated that they are not such. It would seem that the object of the proceeding was to try the question between the contending bodies of trustees as to their respec- tive rights. This is not the mode of having that question settled. If the parties who are attempting to enforce this rate are not trustees their proceedings are wholly void, and they must fail in their attempt, or their right to act may be called in question by a writ of quo warranto." ^® So in an- 3 8R. vs Drummond(1903) , 67 J. 3 9In re Assessment of Cameron P. 300, 88 L. T. 833, 1 L. G, E. 567. (1881), 14 Nov. Scot. (2 R. & G.> 177. 602 THE DE FACTO DOCTRINE. [§ 437 other case, it was held that the acts of the Senate of the University of New Brunswick in dismissing one of the pro- fessors, not being judicial acts, the same could not be re- viewed on certiorari by the Supreme Court.*" § 437. Same subject — Same subject.— Another genera] rule is that certiorari will not lie to settle a disputed ques- tion of title to oiBce where there is another adequate mode of redress, such as a right of appeal, a remedy by quo warranto, or the like. Thus, in R. vs Somersetshire^ J. /./■'■ it was held that a certiorari will not be granted to remove the order for the appointment of overseers for the purpose of having it quashed, on the suggestion that the justices made the appointment from corrupt and improper motives. The Court said: "The mere impropriety of the appointment is not a ground for removing it into this Court by certiorari, in order that it may be quashed. In point of regularity the Ses- sions is the tribunal for setting the matter right, and quash- ing the appointment, if it is improperly made." Upon the same ground, the Court refused a certiorari where the objec- tion to the appointment of an overseer was that he was in- eligible, not being a house-holder.*^ But in a Xew Bruns- wick case, where it was alleged that a person had been ille- gally removed from a municipal office and another one ap- pointed in his stead, a certiorari was granted to bring up the proceedings for the purpose of quashing them, as well as a quo warranto to try the right of the appointment.*^ On the other hand, certiorari is generally available when there is no other remedy, or the inferior tribunal or body 4 0Ex p. Jacob (1861), 10 N. B. ■I21n re Pudding Norton, Nor- 153. See also In re Constables of folk Overseers (1864), 33 L. J. M. Hipperholme (1847), 5 D. & L. 79, C. 136, 10 L. T. 386, 12 W. R. 762. 2 B. C. Rep. 98, 11 Jur. 713. 43Ex p. Gallagher (1886), 26 N. 41(1822), 1 D. & R. 443. B. 73. § 437] OF COLLATERAL ATTACKS. 603 acted without jurisdiction in the particular case. Thus, in an old report we find the following language: "It is true where a man is chosen into an office or place, by virtue where- of he has a temporal right, and is deprived thereof by an inferior jurisdiction who proceed in a summary way, in such case he is entitled to a certiorari ex debito justitiae, because he has no other remedy, being bound by the judgment of the inferior judicature." ** Accordingly, where a certiorari was applied for to remove the appointment of two paid constables by justices at a spe- cial sessions, together with the resolution of vestry on which it had been founded, or the copy thereof transmitted to the justices, under 5 and 6 Vict., c. 109, ss. 18 and 19, on the ground that the proceedings in vestry were not regularly con- ducted, it was held that, though such an instrument as the resolution of vestry was not properly removable, not being the proceeding of a body acting judicially, yet the appoint- ment itself of the justices might be brought up by certiorari, and that upon such removal it would be competent to the parties to show upon affidavit, that the irregularity in the proceedings of the vestry was of such a nature as to take away the jurisdiction of the justices.*^ Likewise, where an order of removal is apparently defective on the face of it, as not showing jurisdiction on the part of the justices making it, the parish on whom the order is made need not appeal to the Quarter Sessions, but may in the first instance apply to the Court for a certiorari.*^ 44Art,hur vs Com'rs of Sewers holme (1847), 5 D. & L. 79, 2 B. (1724), 8 Mod. 331; above Ian- C. Rep. 98, 11 Jur. 713. guage quoted in E. vs Surrey J. J. isR. vs Gloucestershire (1846), (1870), L. R. 5 Q. B. 466, 39 L. J. 10 Jur. 96, 15 L. J. M. C. 48, 3 D. M. C. 145. See also Vin. Abr. Cer- & L. 542. See also R. vs Standard tiorari (D. 29). Hill (1815), 4 M. & S. 378, 16 R. 4 6Tn re Constables of Hipper- R. 490; R. vs Great Marlow( 1802), 60i THE DE FACTO DOCTRINE. [§ 438 It may be noted, however, that in none of the English or Canadian cases did the question come before the Court, whether on certiorari the acts of a de facto officer could be impugned by showing his title to be defective. JSTevertheless, it is s.ubmitted that this could hardly be permitted,*^ though in a Canadian case the Court seemingly would have been willing to give effect to an objection to the qualification of one, who was at least a de facto justice of the peace, with a view to quashing a conviction made by him, had the evidence been sufficient to sustain the objection.** § 438. Same subject — American authorities. — Al- though the common law writ of certiorari has been greatly modified in most of the American jurisdictions, yet wherever this form of remedy has been substantially retained, the gen- eral rule is, as in England, that it will not be granted to test the legality of an appointment or a removal from office, which does not partake of a judicial character.*® Likewise, it will generally be denied where there is an- other adequate remedy. It is upon this principle that it is laid down, in unmistakable terms, that the title of a de facto incumbent is not triable on certiorari, but only by quo war- ranto. "It is settled by repeated decisions," says one Court, "that certiorari is not the proper remedy for contesting the legality of an incumbent's title to a public office, and that, where the appointee has entered upon the office, the only 2 East 244, 6 E. E. 420; Ex p. Mo. 12, 41 S. W. 971, 43 S. W. Thompson (1876), 2 Que. Law E. 867; Lorbeer vs Hutchinson (1896) , 115. Ill Cal. 272, 43 P. 896; People vs 47See remarks of Tindal, C. J., Brady (1901), 166 N. Y. 44, 59 N. in Penny vs Slade (1839), 5 Bing. E. 701, reversing 53 N. Y. App. N. C. 319, 7 Scott, 484. Div. 279, 65 N. Y. S. 844; Atty. 4 8E. vs White (1871), 21 U. C. General vs Mayor (1887), 143 C. P. 354. Mass. 589, 10 N. E. 450; Donahue "State vs Harrison (1898), 141 vs Will County (1881), 100 111. 94. § 438] OF COLLATERAL ATTACKS. 605 method by •which, to test his right to continue to occupy it is by an information against him in the nature of a quo war- ranto." ^^ This language was used in a case where certiorari was sued out for the purpose of reviewing the action of a common council in electing a treasurer. It is declared in another case, that the review by certiorari of the proceedings of an election or appointment to a public office, can deter- mine nothing which would be of any efficacy as a bar, or have any other effect, in a subsequent information in the nature of a quo warranto, nor could the question arising upon such review, although judicially determined, be regard- ed as res judicata in the subsequent information.^^ And it has also been held in New Jersey, that certiorari is not an appropriate remedy, even though the appointee is not de facto in office so as to be liable to quo warranto proceed- ings.®^ Again, the Courts will refuse on certiorari to entertain any question affecting the title of the Judge below, where it ap- pears that he had sufficient color of title to constitute him at least an officer de facto.®^ Thus, it was held that the writ of BOMiller vs Washington (1901), sub nom. Donough vs Hollister, 46 67 N. J. L. 167, 50 A. 341. N. W. 782; State vs Ansel (1907), eiRoberson vs Bayonne (1896), 76 S. 0. 395, 57 S. E. 185; State vs 58 N. J. L. 326, 33 A. 734. Also Van Brocklin (1894), 8 Wash. 557, Haines v. Freeholders of Cam- 36 P. 495; United States vs Mills den (1885), 47 N. J. L. 454; (1898), 11 App. Cas. (D. 0.) 500; Loper vs Millville (1891), 53 N. State vs SIcagit County Superior J. L. 362, 21 A. 568; Roberts vs Court (1906), 42 Wash. 491, 85 P. Shafer (1899), 63 N". J. L. 182, 42 264; Daniels vs Newbold (1904), A. 770; Bilderback vs Freeholders 125 Iowa, 193, 100 N. W. 1119; of Salem (1899), 63 N. J. L. 55, Beaumont vs Samson (1907), 5 42 A. 843; Van Reypen vs Jersey Cal. App. 491, 90 P. 839; Hull vs City (1886), 48 N. J. L. 428; Bum- Superior Ct. (1883), 63 Cal. 174. sted vs Blair (1906), 73 N. J. L. 62Simon vs Hoboken (1890), 52 378, 64 A. 691 ; Britton vs Steber N. J. L. 367, 19 A. 259. (1876), 62 Mo. 370; Donough vs esCoyle vs Sherwood (1874), 1 Dewey (1890), 82 Mich. 309, s. c. Hun (N. Y.) 272, 4 Thomp. & C. 606 THE DE FACTO DOCTRINE. [§ 439 certiorari could not be used in a controversy between liti- gants before a de facto justice of tbe peace, to try the ques- tion of the validity of his appointment, — justice and fair dealing requiring that to be done, if at all, in a proceeding instituted directly for the purpose, wherein the justice might have an opportunity to defend himself and his claim of right.^* So the contention that the Judge of the lower Court does not possess the qualification of citizenship, cannot be considered on an application for a certiorari to review the sentence or judgment of such Judge.^^ § 439. Same subject — Same subject. — But it is held that collateral questions involving title to office, may be in- quired into and reviewed upon a certiorari presented by a person in possession of, and presumably entitled to, an office, where the object of the proceeding is to test the validity of ordinances or resolutions affecting adversely his right to the office, and which might be used to disturb him in the pos- session and enjoyment thereof. Thus, where a person elect- ed chief engineer of a fire department, presumably for three years, gave bond and entered upon the duties of his office, but one year afterwards the city council, claiming the right to then elect his successor, elected another person to the same position, it was held that certiorari was the appropriate remedy to review the council's action. The Court observed, that the object of prosecuting a quo warranto is to have one in possession declared guilty of usurpation, whereas in the case under its consideration the relator sued for no such end, 234; People vs Sherwood (1874), s^Anderson vs Morton (1903), 4 Thomp. & C. (N. Y.) 34; Mcln- 21 App. Cas. (D. C.) 444. stryvs Tanner (1812) , 9 John. (N. esstate vs Recorder (1896), 48 Y.) 135; People vs Gobies (1887), La. Ann. 1375, 20 So. 908. See also 67 Mich. 47.5, 35 N. W. 91; Byer collateral attack on title of de vs Harris (N. J. 1909) 72 A. 136. facto judges, sec. 406, et seq. § 439a] OF COLLATERAL ATTACKS. 607 his only purpose being to remove from his way a proceeding which he apprehended might be used unlawfully to eject him.^^ A like decision, and upon the same grounds, was given where a board of aldermen unlawfully passed a resolu- tion removing one of their members from office; their pro- ceedings were held reviewable on certiorari.^^ But where the application to have the resolutions of a cor- poration or a body of persons reviewed upon certiorari is only a device to have the legality of an election or appoint- ment to office tested by the Court, and not merely to prevent the unlawful disturbance of a person de facto in office, the writ will be refused. Thus, where the board of chosen free- holders of a county elected a county physician, and a writ of certiorari was sued out by a prosecutor apparently claim- ing no interest in the office, for the purpose of having the proceedings of the board reviewed, the writ was dismissed upon the ground, that the purpose of the proceeding was ob- viously to obtain a determination of the title of the incum- bent, which could be done only by quo warranto.^* § 439a. Same subject — Same subject. — However, where a judicial or quasi-judicial body acts without, or in excess of its, jurisdiction in making an appointment, or re- moving a person from office, its action may generally be re- viewed by certiorari, because, as already intimated, it is the office of the writ to keep inferior tribunals within the bounds of their jurisdiction. And even where there are no juris- dictional questions, in most of the States certiorari will lie ssHaines vs Freeholders of Cam- Fitzgerald vs New Brunswick den (1885), 47 N. J. L. 454. (1885), 47 N. J. L. 479; Loper va 5 7Board of Aldermen vs Darrow Millville (1891), 53 N. J. L. 362, (1889), 13 Col. 460, 22 P. 784. Also 21 A. 568. Markley vs Cape May Point esStites vs Cumberland (1896), (1892), 55 N. J. L. 104, 25 A. 259; 58 N. J. L. 340, 33 A. 737. 608 THE DE FACTO DOCTRINE. [§ 439a to correct illegalities or irregularities in proceedings of the inferior tribunal, where no appeal is allowed or other meth- od is provided by law for reviewing the same, or the remedy provided is inadequate in the circumstances; especially is this so where the tribunal is of statutory creation and au- thorized to proceed summarily, or in a course not according to the common law. Again, in others the statutory certiorari operates as an appeal from the judgment of the iaferior tri- bunal, and upon such writ a new trial may be had in the Superior Court. Examples of the application of these prin- ciples are found in a number of cases, where the Courts have, by certiorari, reviewed proceedings affecting title to office, though sometimes it is difficult to grasp exactly on which of the above grounds the Court proceeded. Eollowing some such principles, it has been held that the proceedings of civil service commissioners removing a police patrolman from office are properly quashed on certiorari, where the record iiled as a return to the writ fails to show that the patrolman was notified, or waived notice of the time and place of hearing by the police board, since without such no- tice or waiver the police board is without jurisdiction to act and the commission powerless to approve its action.'* So where the removal of an officer by a board, vested with power to remove him upon written charges preferred, is in excess of jurisdiction because made without notice to him, his remedy, where no appeal or writ of error is provided, is by certiorari.®" Again, it was held that the proceedings of a board of metro- politan police, in removing a policeman, were reviewable bji 59Powell vs Bullis (1906), 221 soState vs Knott (1907), 207 111. 379, 77 N. E. 575. Also Chica- Mo. 167, 105 S. W. 1040. go Ts Bullis (1905), 124 111. App. § 439a] OF COLLATERAL ATTACKS, 609 certiorari, the Court declaring that in such proceeding it had power to go beyond the inquiry, whether the inferior tribunal had jurisdiction, and examine the case upon the whole evi- dence, to ascertain whether any error had been committed in the proceedings before the inferior tribunal.®^ So, an order of removal from office of a stenographer by the Judge of the Court, under the provisions of a statute aifthorizing such removal "for incompetency or any miscon- duct in office," may apparently be reviewed by certiorari on the ground that the Judge is empowered to proceed sum- marily, and not in the course of the common law, and there is no appeal provided by statute.®^ Likewise, where judicial powers are conferred upon a city council to hear and deter- mine contested elections of city officers, under rules to be adopted by it, and no provision is made for an appeal from its judgment, a candidate who has unsuccessfully contested an election before the council, is entitled to a trial de novo in a Court of competent jurisdiction upon suing out therein a writ of certiorari.^^ Again it has been held, that where a remedy by appeal siPeople vs Board of Police ssgtaples vs Brown (1905;, 113 (1872), 43 How. Pr. (N. Y.) 385. Tenn. 639, 85 S. W. 254. In Ten- See also People vs Board of Police nessee, however, the writ of eertio- (1858), 26 Barb. (N. Y.) 481; Peo- rari is in the nature of an appeal, pie vs Mayor (1879), 19 Hun (N. As to further cases upon the use Y.) 441; People vs Cooper (1880), of certiorari to review contested 21 Hun (N. Y.) 517; People vs election cases, see Dodd vs Weaver HoflFman ( 1901 ) , 166 N. Y. 462, 60 (1855), 2 Sneed. (Tenn.) 670; N. E. 187, 54 L.R.A. 597; Macon vs Dryden vs Swinbourne (1882), 20 Shaw (1854), 16 Ga. 172. And W. Va. 89; Fowler vs Thompson see further State vs Common (1883), 22 W. Va. 106; Cushwa vs Council (1893), 53 Minn. 238, 55 Lamar (1898), 45 W. Va. 326, 32 N. W. 118. S. E. 10; Chase vs Miller (1862), 62State vs Slover (1892), 113 41 Pa. St. 403; In re Krickbaum's Mo. 202, 20 S. W. 788. See also Contested Election (Pa., 1908), 70 Browne vs Gear (1899), 21 Wash. A. 852. 147, 57 P. 359. De Facto— 39. 610 THE DE FACTO DOCTRINE. [§ 440 would be of no avail to one ousted from office by a judgment of the Superior Court, by reason of the fact that his right to the office would terminate before a hearing would be had on appeal, the Supreme Court has jurisdiction by writ of review to examine and correct the action of the lower Court.^* § 440. Title to office not triable by prohibition. — Prohibition will not lie to prevent the usurpation of an of- fice, or to test the title of a de facto officer to an office. "We have," says a learned Judge, "met with no case, ancient or modern, where the Court of King's Bench has issued the writ, pending a dispute between competitors for a public office, to prohibit those, who were de facto in possession of the office, from exercising the functions thereof." ®^ Thus, where two sets of men attempted to act as a board of educa- tion, each claiming to be the lawful board, it was held that prohibition would not lie at the instance of one set of claim- ants to oust the others who were de facto in office, the ground taken being that the writ of prohibition is never proper to try title to office and oust de facto officers, and replace them by others claiming to be de jure officers.®'^ So where a per- son complained of being ousted of the office of police Judge by one who, he alleged, wrongfully assumed to discharge the duties of the office, his application for a writ ©f prohibition was refused."'' So it was held that a writ of prohibition will not lie to prevent a person who claims to have been elected to an office from taking the same and assuming and exercising its power and duties, on the ground of in- eligibility or invalid election.''* 6 4 state vs Tallman (1901), 24 (1903), 54 W. Va. 167, 46 S. E. Wash. 426, 64 P. 759. 134. CBGaston, J., State vs Allen 67Buckner vs Veuve (1883), 6a (1841), 2 Ired. L. (N. C.) 183. Cal. 304, 3 P. 862. 66Board of Education vs Holt esMoore vs Holt (1904), 55 W § 440] OF COLLATERAL ATTACKS, 611 Likewise, prohibition will not issue to restrain the acts of de facto Judges or other judicial officers, on the ground of defects in their title. Thus, where a city charter provided for three justices of the peace, and an amendatory Act pro- vided for only one justice, it was held that a justice elected under the latter statute, even though it were unconstitutional, was a de facto officer whose right to the office could not be collaterally attacked by a writ of prohibition.®' So, the writ was denied where the constitutionality of a statute authoriz- ing the appointment of additional district Judges by the Governor, and the authority of a person officiating as judge de facto by virtue of his appointment thereunder, were ques- tioned.'^* A similar decision was given where the contention was, that a justice of the peace had been appointed in a way not authorized by the Constitution.^' But the above rule is applicable only in case the person whose title is assailed is an officer holding under color of title, and not a mere intruder. Hence, the writ may issue against a person or body of persons assuming to exercise the func- tions of a pretended Court, which has no lawful existence; for, under such circumstances, the same reasons might exist for arresting his or their action as in the case of a Court exceeding its jurisdiction.^^ Va. 507, 47 S. E. 251. See also 70Walcott ts Wells (1890), 2] Baca vs Parker (1906), 13 N. Mex. Nev. 47, 24 P. 367, 37 Am. St. R. 466, 87 P. 465; Kemp vs Ventulett 478, 9 L.R.A. 59. (1877), 58 Ga. 419; Goodwin vs 7iState vs McMartin (1889), 42 State (1906), 145 Ala. 536, 40 So. Minn. 30, 43 N. W. 572. Also In 122; Davenport vs Elrod (1906), re Radl (1894), 86 Wis. 645, 57 N. 20 S. Dak. 567, 107 N. W. 833; W. 1105; Hogle vs Rockwell Hull vs Superior Court (1883), 63 (1898), 20 Que. R. (S. C.) 309. Cal. 174; Bucknervs Veuve (1883), 72State vs Young (1881), 29 63 Cal. 304, 3 P. 862; State vs Minn. 474, 523; Ex p. Roundtree LaugWin (1879), 7 Mo. App. 529. (1874), 51 Ala. 42; State vs Mc- 6 9Thompson vs Couch (1906), Martin (1889), 42 Minn. 30, 43 N. 144 Mich. 671, 108 N. W. 363. But W. 572; Chambers vs Jennings as to Canada, see ante, ss. 425, 426. ( 1702) , 2 Salk. 553. 612 THE DE FACTO DOCTEINE. [§ 441 § 441. Title to office cannot be tried by mandamus — English authorities. — Although the English authorities lack precision in their exposition of the law on this subject, the rule seems now to be well established, that mandamus will not be granted to determine the title to office of a de facto officer, though it may lie to determine the title of a person not in possession. One of the leading cases in point appears to be B. vs Mayor of Colchester.''^ There one Koss moved for a mandamus to be directed to the defendant, commanding him to admit one Grimwood to the office of Recorder of Col- chester. The mover acknowledged that the application was made for the purpose of trying the merits of an election, the complaint being that the Mayor had refused several legal votes given to Grimwood, and improperly admitted others given to his opponent, who was afterwards admitted and sworn into office. Upon these facts, the Court refused the applica- tion on the ground that there was a recorder de facto in pos- session, and the proper remedy to try his title was quo war- ranto. This authority has been followed in numerous other cases. And in a comparatively recent one,'^* Lord Campbell, C. J., observed that "where a man is bona fide in office, his title is not to be tried by mandamus, but by quo warranto." ''" 73(1788), 2 Term. (D. & E.) 525, 6 L. J. K. B. 213, 1 Jur 738; 259, 1 R. R. 480. R. vs Derby (1837), 7 Ad. & El. 7 4 Frost vs Mayor of Chester 419; R. v. Hertford College (1878) , (1855), 5 El. & Bl. 531, s. c. sub. L. R. 3 Q. B. D. 693. In re Brennan nom. R. V3 Mayor of Chester, 25 L. (1842), 6 U. C. Q. B. (0. S.) 330, J. Q. B. 61, 2 Jur. (N. S.) 114, 4 Election Board of Police vs Brock- W. R. 14. ville (1833), 3 U. C. Q. B. (0. S. 7SSee also R. vs Mayor of Ox- 173; R. vs Bank of Upper Canada ford (1837), 6 Ad. & El. 349, 1 N. (1849), 5 U. C. Q. B. 338; R. vs & P. 474, 6 L. J. K. B. 103; R. vs Mayor of Cornwall (1866), 25 U. Mayor of Winchester (1837), 7 A. & C. Q. B. 293; R. vs Burke (1896), E. 215, 2 N. & P. 274, W. W. & D. 29 N. S. 227. § 441] OF COLLATERAL ATTACKS. 613 This rule is based upon the principle, that mandamus will not lie where there is another adequate remedyj® But the Court will not refuse a mandamus as against a mere intruder or against one whose title is merely colorable and void, and not only illegal. This is clearly pointed out in R. vs Bankes^'' where the application was for a man- damus to proceed to an election of Mayor, although there was at the time a Mayor in office. Lord Mansfield observed: "If the election were doubtful and fit to be tried upon an in- formation in the nature of a quo warranto, the Court ought not to grant a mandamus, but if it were a mere colorable election, and clearly void, they ought." '^^ And the distinc- tion between "colorable" and "illegal" is aptly drawn by Coleridge, J., in Frost vs Mayor of Chester,^® where the learned Judge says : "What is colorable ? I always thought that where an authority existed, and there was a bona fide intention to execute it, the proceeding was not colorable though there might be a mistake in law." It is evident, therefore, that where the Court grants a mandamus, on the ground that the person in office holds under a merely colorable election, it proceeds upon the prin- ciple that such election is altogether void and of no effect, and hence the object of the remedy is not, strictly speaking, to restore to office the party illegally ousted, but simply to permit him to exercise his office.''*^ Again, the writ will not be refused where there is no 76R. vs Bishop of Chester 79aE. vs Mayor of Oxford (1837), (1786), 1 Term. D. & E.) 396, 1 6 Ad. & EI. 349, 1 N. & P. 474, 6 R. E. 237; Elzevir S. Trustees vs L. J. K. B. 103. See also Pelletier Elzevir Corp. (1862), 12 XJ. C. C. vs Village of de Lorimier (1898), p. 548. 17 Que. R. (S. C.) 509; Gosselin 77(1764), 3 Burr. 1452. vs Corp. of St. Jean (1898), 16 7 8Also R. vs Mayor of Cam- Que. R. (S. C.) 449. bridge (1767), 4 Burr. 2008. 7 9 See note 74. 614 THE DE FACTO DOCTRINE. [§ 442 other mode of determining title to office f^ or, it would ap- pear, where the other remedy is not equally convenient, ben- eficial and effectual.*^ On the other hand, the existence of another remedy, whatever may be its nature, is, as a rule, a sufficient ground to prevent the Courts trying questions of title by mandamus. Thus, it was held that mandamus did not lie to restore to office a chorister, who claimed to have been illegally removed, as the remedy for the wrongful amo- tion complained of was by application to the visitor, who had sufficient and exclusive jurisdiction.®^ However, notwithstanding the availability of another rem- edy, the Courts will sometimes grant mandamus to compel recognition, for the time being, of the prima facie title or de facto character of an officer, in order to secure the due per- formance of official duties and safeguard public interests.*^ § 442. Same subject — American authorities. — The American rule is generally the same as the English rule upon this branch of the law, and is likewise subject to the same qualifications. As expressed by the Xew York Court of Appeals: "No principle is better settled in the law than that a mandamus will only lie when there is no other remedy, and that where the applicant has a clear legal right to the remedy sought. The books are full of cases which support this doctrine, and it is unnecessary to cite authorities to up- 8 OR. vs Thatcher (1822), 1 D. & (1878), L. R. 3 Q. B. D. 693, 47 L. R. 426; R. vs Corp. of Bedford J. Q. B. 649, 39 L. T. 18, 27 W. R. Level (1805), 6 East, 350, 2 Smith 347. K. B. 535; same principle recog- S2R. vs Chester (1850), 15 Q. B. nized in R. vs Stol ' 119 Anne, c. 25, or c. 20 (Buff.). S. 449, 4 Sup. Ct. 437; State vs i^g^^^g ^^ ^-^^^^ (jgg^,^ 1^ ^ Gleason (1869), 12 Fla. 190; State i. 391^ 22 A. 1018. vs Ashley (1839), 1 Ark. 279; Peo- isTerritory vs Virginia Road pie vs Utica Ins. Co. (1818), 15 Co. (1874), 2 Mont. 96. § 455] OF QUO WARRANTO. 639 the States special statutes have been passed creating or reg- ulating proceedings in the nature of quo warranto. § 455. Statutory substitutes. — In New York, Minneso- ta, North Carolina, South Carolina, Oregon, and several other States, the writ of quo warranto and the proceeding by information in the nature thereof are expressly abolished, and the remedies that were obtainable at common law in those forms may now be had by a civil action in the nature of quo warranto.^* In other States the abolition of the com- mon law remedies may not be so expressly declared or may effect only certain tribunals, but a similar action is also au- thorized by statute. ^^ Again, in others, special statutory proceedings are provided to obtain the same result as at com- mon law; and in Tennessee, the method adopted is by bill in equity, said to be a bill in the nature of quo warranto.^® In Ontario there is a statute which, after excepting certain cases where a summary statutory remedy may be resorted to, provides that all proceedings against any person who un- lawfully claims, or usurps, or is alleged unlawfully to claim, or to usurp, any oj95ce, franchise, or liberty, or who has for- feited, or is alleged to have forfeited any franchise, by rea- son of non-user, or mis-user, thereof, which have heretofore been instituted or taken by writ of quo warranto, or by in- formation in the nature of a writ of quo warranto, hereafter shall be instituted and taken, where the proceeding is by "People vs Hall (1880), 80 N. i5State vs Baker (1875), 38 Y. 117; State vs Minnesota Thresh- Wis. 71; People vs Havird (1889), er Mnfg. Co. (1889), 40 Minn. 213, 2 Idaho, 531, 25 P. 294; State vs 41 N. W. 1020; Saunders vs Gat- Price (1874), 50 Ala. 568; State ling (1879), 81 N. C. 298; Alexan- vs Haskell (1879), 14 Nev. 209; der vs McKenzie (1870), 2 (Rich.) People vs Clayton (1886), 4 Utah, S. C. 81 ; State vs Douglas Road 421, 11 P. 206. Co. (1881), 10 Or. 198; Territory i6Atty-General vs Leaf (1849), vs HauxhuTst (1882), 3 Dak. 205. 9 Hump. (Tenn.) 753. ^40 THE DE FACTO DOCTRINE. [§ 456 the Attorney-General ex officio without a relator, by notice of motion; and, where the proceeding is taken at the in- stance of some person as relator, by order nisi, calling on the person against whom the proceeding is taken to show cause why he unlawfully exercises, or usurps, such office, franchise, or liberty. ^^ But however varied these statutory substitutes may be, they only operate a change in the form and not in the sub- stance and effect of the remedy, and therefore they continue to be regulated by common law principles, ^^ unless it is pro- vided otherwise by legislation. This is the reason they are commenced and prosecuted in the name of the sovereign power. In a few States, however, the claimant of an office is allowed to bring an action in his own name to try the title thereto.-^* § 456. Statutory proceedings to try validity of elec- tions — Their effect upon quo warranto. — But, in addition to the above substitutes, which partake so much of the char- acter of the common law processes that they are generally designated by the name of "quo warranto," there are other statutory proceedings which are entirely dissimilar there- from both in form and in substance. These often infringe upon, and variously affect, the remedy by quo warranto or the statutory substitutes therefor, and create other means of determining, in particular instances, disputed questions of title to office. The proceedings, we refer to, are those which 17E. S. 0.(1897), c. 324, s. 31. vs Elliott (1898), 117 Ala. 172, 23 As to a writ of summons in the So. 43; People vs Dashaway Ass'n. nature of a quo warranto to con- (1890), 84 Cal. 114, 24 P. 277; trovert municipal elections, see R. Bradford vs Territory (1893), 1 vs Street (1905), 6 Ter. Law R. Okla. 366, 34 P. 66. 137. isBrown vs Jeffries (1889), 42 isPeople vs ffall (1880), 80 N. Kan. 605, 22 P. 578; Tillman vs Y. 117; State vs Meelc (1895), Otter (1893), 93 Ky. 600, 20 S. W. 129 Mo. 431, 31 S. W. 913; State 1036. § 456] OF QUO WARRANTO. 641 are provided for the purpose of testing the validity of pop- ular elections and determining the rights of the rival claim- ants. The remedy they ajfford can generally be had before the ordinary courts of the country by following certain pre- scribed modes of procedure; but at times not only the pro- ceedings but the tribunal itself is of statutory creation; as, for instance, where election courts are established or munici- pal bodies are made the judges of the election and qualifica- tion of their own members, — the latter jurisdiction being of- ten conferred by special Acts known as charters, instead of general statutes. In all these cases it often becomes necessary to determine whether the proceedings so authorized by statutory legisla- tion were intended to be exclusive of, or merely cumulative with, the remedy by quo warranto. In some instances no difficulty arises inasmuch as the statute expressly prohibits recourse to quo warranto, either absolutely, or as to all mat- ters which may be investigated by the statutory proceeding. This is the case in England, under the Municipal Corpora- tions Act, 1882, Sec. 87, after specifying several grounds up- on which a municipal election may be contested or contro- verted by election petition, concludes by declaring "that a municipal election shall not be questioned on any of those grounds except by an election petition." So it is in ITova Sco- tia where the statute, after providing a certain remedy to controvert municipal elections, declares that "no election or return of a municipal, or town councillor, or warden, or mayor of any incorporated town shall be questioned, except in accordance with the provisions of this chapter." ^° In view of these express provisions, it is manifest that, in gen- eral,^^ recourse to quo warranto may be had only where the 20E. v9 Kirk (1892), 24 Nov. 2iR. vs Morton (1892), 1 Q. B. Scot. 168. 39. De Facto— 41. 642 THE DB FACTO DOCTRINE. [§456 ground relied on is not within the purview of the statutes,^^ or the disqualification is not merely for election, but also for "holding" the office, ^^ that is, is a continuing one.^* The Quebec Municipal Code also provides a procedure to contest municipal elections, "on the ground of violence, cor- ruption, fraud or incapacity, or on the ground of the non- observance of certain of the necessary formalities," to be instituted before certain courts, to the exclusion of all oth- ers.^^ This statutory remedy has generally been held ex- clusive of quo warranto, where the election is attacked on any of the grounds mentioned in the Code ; ^^ though a few au- thorities hold that it does not exclude quo warranto, where the disability or disqualification is of a permanent nature. ^'^ Similar statutes are found in some of the Ajnerican States.^® Sometimes, however, the courts or certain courts in a State derive their jurisdiction in quo warranto directly from the Constitution, and then, as to such courts, it is evident that the legislature is incompetent to take away or impair the power so vested in them,^* unless authority to do so is con f erred by the Constitution itself.^" 22R. V3 Cooban (1886), 18 Q. B. C.) 310; Sigouin vs Viau (1899), D. 269. . 16 Que. R. (S. C.) 143. 23R. vs Beer (1903), 2K. B. 693. ssparks vs State (1893), 100 24R. ys Mack (1906), 41 Nov. ^^^- ^^^' ^^ ^°- ^^"^ Anderson vs gggj. J28 Gossett (1882), 9 Lea. (Tenn.) 644. 2 5 Arts. 346-348. As to Ontario, ,.„ „ , ,,„,„, . t.t , „_, „„ ,„ „,, 29Kane vs People (1876). 4 Neb. see 3 Edw. VII, c. 19, ». 244a. „„ „. , -c -j. vi i. a . 509; State vs Equitable &c Ass n 26Paris vs Couture (1883), 10 (1897), 142 Mo. 325, 41 S. W. 916; Que. Law R. 1; Lajeunesse vs Na- People vs Bingham (1889), 82 Cal. deau (1896), 10 Que. R. (S. C.) 238, 22 P. 1039; People vs Reid 61; Delage vs Germain (1886), 12 (1887), 11 Col. 138, 17 P. 302; Que. Law R. 149; Marois vs La- gtate vs Allen (1869), 5 Kan. 213; fontaine (1905), 27 Que. R. (S. people vs Londoner (1889), 13 '^■) l'^4. Col 303^ 22 P. 764, 6 L.R.A. 444; 27Bedard vs Verret (1904), 25 Convery vs Conger (1891), 53 N. Que. R. (S. C.) 537; Allard vs J. L. 658, 22 A. 549. Charlebois (1898), 14 Que. R. (S. aostate vs Marlow (1864), 15 § 457] OF QUO WARRANTO. 643 § 457. Same subject. — But whenever the legislative in- tent is not expressed in positive terms, nor the scope of the statute made obvious by a simple reference to the organic law, the point whether or not the statutory remedy excludes quo warranto must be determined by the courts, as best they can, in the light of general principles. The solution of the question naturally depends largely upon the language of the statutory provision, but apart from that, there is lack of harmony among the authorities as to the fundamental rule of construction which should prevail. The better opinion appears to be, that the remedy by quo warranto is not excluded, unless the legislature has declared so in express terms, or made it manifest by necessary impli- cation. At first blush, this principle of construction may seem to conflict with the rule that quo warranto will not lie where there is another adequate remedy. But this apparent conflict disappears when the distinctive features of the two remedies are closely examined. The statutory proceeding confers on the elector, in his individual capacity, a right to contest the election, or enable a municipal body to pass upon the election and qualification of its members, but in such a proceeding the paramount interest of the State in public offices is lost sight of. Quo warranto on the other hand, as already explained, whether it be prosecuted by a State officer, ex officio, or on the relation of a private citizen, has for primary object the vindication of the prerogatives or rights of the Crown or the people, whose sovereignty is encroached upon whenever public offices are usurped or unlawfully in- truded into. Hence, the latter remedy belongs to the Crown or to the people in the right of sovereignty, and the juris- diction of the courts to issue the same should remain, unless Ohio St. 114; People vs Londoner (1889), 13 Col. 303, 22 P. 764, 6 L.R.A. 444. 644 THE DE FACTO DOCTRINE. [§ 458 it appears with unequivocal certainty that the legislature intended to take it away.^^ The above view receives additional support from the canon of interpretation, that vphere a remedy already exists at com- mon lavsr, and a subsequent one is created by statute, the lat- ter is to be deemed merely concurrent or cumulative with the former, unless a contrary intention, expressed or im- plied, is to be found in the statute.^ ^ § 458. Same subject. — In accordance with the foregoing principles, it has generally been held that a provision in a city charter that the city council shall "be the judges of the election and qualification of their own members," or words of a like import, without anything else to indicate an inten- tion to exclude quo warranto proceedings, constitutes merely a cumulative remedy.®^ The same has been held with ref- erence to statutes providing various modes of contesting elec- tions.^* siPeople vs Hall (1880), 80 N. 32Coke, 2 Inst. 200; Great Y. 117; Ex p. Heath (1842), 3 Northern S. Fishing Co. vs Edge- Hill (N. Y.) 42; People vs Lon- hill (1883), 11 Q. B. D. 225; ilav- doner (1889), 13 Col. 303, 22 P. or of Lichfield vs Simpson (1845), 764, 6 L.R.A. 444; People vs Bing- 8 Q. B. 65. ham (1889), 82 Cal. 238, 22 P. sspeople vs Hall (1880), 80 N. 1039; Snowball vs People (1893), Y. 117; State vs Gates (1886), 35 147 111. 260, 35 N. E. 538; State Minn. 385, 28 N. W. 927; State vs vs Fitzgerald (1869), 44 Mo. 425; Morris (1896), 14 Wash. 262, 44 P. State vs Fransham (1897), 19 266: State vs Fitzgerald (1869), Mont. 273, 48 P. I; State vs Fraz- 44 Mo. 425; People vs Bird (1886), ier (1890), 28 Neb. 438, 44 N. W. 20 111. App. 568; State vs Mc- 471; State vs Anderson (1890), 26 Kinnon (1880), 8 Or. 494; State Fla. 240, 8 So. 1; State vs Gates vs Kempf (1887), 69 Wis. 470, 34 (18S6), 35 Minn. 385, 28 N. W. N. W. 226. 927; State vs Passaic County 3 4 People vs Holden (1865), 28 (1856), 25 N. J. L. 354; State vs Cal. 123; People vs Londoner Shay (1884), 101 Ind. 36; State vs (1889), 13 Col. 303, 22 P. 764, 6 Elliott (1898), 117 Ala. 172, 23 So. L.R.A. 444: State vs Adams (1879), 43. 65 Ind. 397; Tarbo.-i; vs Sughrue § 458] OF QUO WARRANTO. 645 But, as the judicial power cannot trench upon the inde- pendence of parliamentary or legislative bodies, the proceed- ings established by them or by constitutional provisions to investigate the title and qualification of their own members, whether the investigation be by a committee of their own or by designated courts or judges, are exclusive of all other remedies.*^ Another qualification of the general rule of interpretation is, that where a new office is created, and the statute creating it provides a method of determining questions of title to it, no other remedy may be resorted to,^® at any rate where the State is not directly interested.^'' This is only an exten- sion or a modification of the well known principle, that where a new right or the means of acquiring it, is conferred by statute and an adequate remedy for its infringement is giv- en by the same authority which created the right, parties injured are confined to the statutory redress.*® But this principle has sometimes been invoked in cases where, accord- ing to the weight of authority, it had no application.*® Furthermore, there are cases where a distinction is taken between proceedings on behalf of the State and those on be- half of individuals; and it is declared that the fact that an (1887), 36 Kan. 225, 12 P. 935; Kan. 692; State vs Peers (1885), Kane vs People (1876), 4 Neb. 33 Minn. 81, 21 N. W. 860. 509; Lemire vs Neault (1898), 15 ssBaxter vs Brooks (1874), 29 Que. R. (S. C.) 33; Roy vs Mar- Ark. 173. tineau (1902), 22 Que. R. (S. C.) "Snowball vs People (1893), 1. See also R. vs Calloway 147 111. 260, 35 N. E. 538. (1886), 3 Man. 297; In re Kelly '^Smith vs Wood (1852), 13 vs Macarow (1864), 14 U. C. C. P. ^^^^- eople vs (1889), 16 0. R. 728; R. vs Hert- Snedeker (1856), 3 Abb. Pr. (X. ford (1699), 1 Salk. 374; State vs Y.) 233; People vs Denton (1877), Norman (1880), 82 N. C. 687; 35 Mich. 305; Gano vs State Com. vs MeWilliams (1849), 11 (1859), 10 Ohio St.' 237; State vs Pa. St. 61; State vs Trinkle Brown (1857), 5 R. I. 1 ; Place (1904), 70 Kan. 396, 78 P. 854; vs Banvard (1865), 27 Cal. 470. Bland & Giles Co. Judge Case 65Fulgham vs Johnson (1869), (1880), 33 Gratt. (Va.) 443. 40 Ga. 164; People vs Stephenson 52State vs McLain (1898), 58 (1893), 98 Mich. 218, 57 N. W. Ohio St. 313; State vs Gardner 115; R. vs Serle (1724), 8 Mod. (1869), 43 Ala. 234. 332; R. vs Hull (1724), 11 Mod. 6 3R. vs Owen (1850), 15 Q. B. 390. But see what is said under 476; Royall vs Thomas (1877), 28 sec. 94. Gratt. (Va.) 130, 26 Am. R. 335; § 474] OF QUO WARRANTO. 671 and no writ or other process is required to enforce or give effect to it^® Whenever the sole question at issue is, as at common law, whether the defendant is legally entitled to hold the office or not, the judgment can only deal with or affect the title of the incumbent.^'' But where, under American Statutes, the proceeding is brought both to oust the defendant from the office and to induct the relator therein, judgment may be rendered upon the right of the defendant, and also upon the right of the claimant, or only upon the right of the former, as justice may require.^* However, under some statutes, as we have already seen, it is held that if the claimant fails to prove his title, no judgment of ouster can be pronounced against the defendant.'® Moreover, it has also been held, that where the proceedings are authorized to be brought in the name of the claimant, they are in the nature of a private controversy in relation to the incumbency of the office, and if the claimant can show no good title, judgment should be for the defendant irrespective of his title.®" Whenever a judgment of ouster is pronounced against the defendant, the American courts are generally authorized 6 6E. vs Mayor of London pie vs Londoner (1889), 13 Ool. (1692), 1 Show. 274; Wilson vs 303, 22 P. 764, 6 L.R.A. 444; State North Carolina (1898), 169 U. S. vs Lane (1889), 16 R. L 620, 18 586, 18 Sup. Ct. R. 435; People vs A. 1035. C'onover (1858), 6 Abb. Pr. (N. 5 8 People vs Ryder (1855), 12 N. Y.) 220; Jayne vs Drorbaugh Y. 433, 16 Barb. (N. Y.) 370; Gano (1883), 63 Iowa, 711, 17 N. W. vs State (1859), 10 Ohio St. 237; 433; Caldwell vs Wilson (1897), People vs Connor (1865) , 13 Mich. 121 N. C. 480, 28 S. E. 554, 61 238; Benson vs People (1897), 10 Am. St. R. 672. Col. App. 175, 50 P. 212; State vs 57R. vs Bedford Level (1805), Price (1874), 50 Ala. 568. 6 East, 356; People vs Knox 69Stanford vs Ellington (1895), (1885), 38 Hun (N. Y.) 236; 117 N. C. 158, 23 S. E. 250, 53 State vs Fowler (1895), 66 Conn. Am. St. R. 580. 294, 32 A. 162; Harwood vs eoManahan va Watts (1900), 64 Marshall (1856), 9 Md. 83; Peo- N. J. L. 465, 45 A. 813 672 THE DE FACTO DOCTRINE. [§ 474 to impose upon him a fine as a punishment for his usurpa- tion.^ °* But in the absence of bad faith or some affirmative wrong, such penalty should, if imposed at all, only be nom- inal.^"'' In many States, also, the relator is entitled, in the quo warranto proceeding itself, to recover as damages the salary or emoluments received by the intruder while he un- lawfully held the office.«""= Finally, it may be observed that, though a judgment upon quo warranto operates eo instanti to divest the incumbent of all official authority, yet he may refuse to comply with it and retain the actual possession of the office, and of its insignia, books and records. In such case it may be neces- sary for the lawful officer to have recourse to mandamus or some other adequate remedy, to compel the unlawful incum- bent to give up possession. ^""^ But in some States the courts are authorized to provide in the quo warranto judgment it- self for the delivery of the office to the claimant.®-^ eoaDavig vs Davis (1894), 57 N. Tait (1888), 38 Kan. 765, IS P. J. L. 203, 31 A. 218. No fine now 160. imposed in England. See 47 & 48 sodAs to Ontario, see ante, sec. Vie., c. 61, s. 15. 447a. 60bAtty.-Gen. vs James (1889), eiPeople vs Banvard (1865), 27 74 Mich. 733, 42 N. W. 167. Cal. 470; State vs Owens (18S5), socpeople vs Nolan (1886), 101 63 Tex. 261. N. Y. 535, 5 N. E. 446; Rule va INDEX OF SUBJECTS. [BEFERBNCES ABE TO SECTIONS] ABBACY— Deed by one having usurped the office of, void, 74. ABBOT— Acting though having obtained only a minority of votes, a de facto officer, 5, 171. ABOLISHED OFFICE— Holder of, not a de facto officer, 30. Justice of the peace acting after his office is abolished, 30. Judge ordering sale of land after abolition of his office, 30. Officer acting after ordinance creating office, repealed, 30. Conflicting doctrine in Missouri, 31. City council acting after adoption of new charter, 31. Criticism of such doctrine, 32, 33. Where constitution of office merely altered, general rule different, 201. ABSENCE— Judge pro tem. acting during absence or disability of regular judge, de facto officer, though appointed under unconstitutional law, 195. Judge pro tem. may be de facto officer, though regular judge pre- sent and competent to act, 416a. ACKNOWLEDGMENT— Made before de facto notary public, deputy clerk, or justice of the peace, valid, 316. ACQUIESCENCE — See Reputation and Acquiescence. Definition of, 105. Implies reputation in a qualified sense, 105. Sufficient to constitute de facto officer, 110. Acquiescence by the state, 110. Acquiescence by public body, 110. Acquiescence by outgoing officer, 110. Acquiescence by de jure officer, 110. Acquiescence by outgoing officer alone not sufficient to consti- tute one an officer de facto, 115. Effect of long user of municipal franchise with public and state acquiescence, 69, 70. ACCEPTANCE— Person may be de facto officer, though he has omitted to file ac- ceptance of office, 139. Of second office, how far it affects first office, 162. See Incompatible Office. Of incompatible office, subject of inquiry in quo warranto, 473. De Facto— 43. 673 674 INDEX. [KEFEEBNCES ABE TO SECTIONS] ACTION— De facto officer may maintain, for benefit of public, 205. De facto president of school board may sue upon a note payable to him as such officer, 210. Churchwarden de facto may maintain, against former churchwarden for money received by him, 210. Village officers unconstitutionally elected, cannot plead their invalid title in action against the corporation, 314. Surrender of principal by surety on bail bond to de facto deputy sheriff, good defence to action on bond, 318. Action by town for tax assessed cannot be defended on ground that the assessment was made by de facto assessors, 338. Does not lie against a school district to recover back a tax paid to de facto collector, 338. Does not lie to recover taxes paid under a protest to de facto col- lector, on ground of invalidity of assessment. 339. Does not lie to set aside taxes imposed on land by de facto officer, 340. Title to office not triable in U. S. in action to recover salary, 432. Difl'erent rule in England and in some American states, 235, 432, 433, 451. Title of de facto officer not triable in action to which he is not a party, 429. ACTIONS IN THE NATURE OF QUO WARRANTO— Are generally substituted in United States for information, 455. In Tennessee the remedy is by bill in the nature of quo warranto, 455. Only form of remedy changed thereby, not substance, 455, ACTS — See various Titles. Of de facto officers, valid, 3, 301. Doctrine recognized in England, 5-7. Doctrine recognized in United States, 3-8. Doctrine recognized in Canada, 10, 11. Authorities supporting rule, 301. Not valid when official character notoriously bad, 302. As where deputy acts after death of principal is known. 302. Not valid as to persons aware of the officer's want of title, 303, 304. Conflicting doctrine in New York, 309. Knowledge of defective title not generally imputable to appointors, 305. Unless appointors knowingly commit patent illegality, 305. Criticism of Canadian case of Turtle vs. Township of Euphe- mia, 306. Appointors not responsible for acts of appointees, 306. Unless guilty of fraud, 306. English and American authorities, 306, 307. Conflicting cases, 307. Where ignorance of defective title due to gross negligence, de facto rule cannot be invoked, 308. Same where de facto rule would work injury, 310. Or where official character is challenged at outset, 302. Not valid when performed by de facto officer for his own benefit. 23, 203. Performance of a single official act not sufficient to constitute de facto officer, 92, 108. Laws approved by governor de facto, valid, 311. Laws passed by de facto legislative members, valid, 311. . INDEX. 67S [KEFEEENCES AKB TO SECTIONS] ACTS— Continued. Pardon granted by de facto king, or de facto governor, valid, 5, 311. Municipal ordinances, by-laws, etc. passed by de facto municipal bodies, valid, 312. Bonds, debentures, or warrants authorized, signed, or issued by de facto municipal officers, valid, 313. Otherwise where municipal organization has no lawful existence, 34, 313. Contracts made by de facto officers, binding on corporation, 313a, See Contract. Acts of de facto prosecuting attorneys valid, 319. See Attorney — Conviction. Acts of de facto officers in relation to the selection and swearing ol jurymen, valid, 320. See Jury. Whether acts of de facto tax officers, valid, 322-340. See Taxes. Appointment or election to office by de facto officers, 341-348. See Appointment. Acts of de facto officers in relation to the holding and conduct of elections, 349-368. See Elections. Whether oath taken before de facto officer may be the subject of prosecution for perjury, 369-394. See Perjury. Acts of de facto judicial officers, valid, 407-414, 422. See Judicial Officers. Payment by or to de facto officer, valid, 315, 434. See Payment. Marriage performed by de facto officer, valid, 315a. Instruments acknowledged before, or registered by, de facto officers, valid, 316. See Acknowledgment — Registration. Acts of de facto clerks, deputy clerks, valid, 317. See Clerk — Court Clerk — Deputy Court Clerk — Municipal Clerk. Acts of de facto sheriffs and constables, and de facto deputies, valid, 318. See these officers. Levy, seizure, or sale made by de facto officer, valid, 318. See Writ, Warrant, Citation, Process, Notice, Levy, Seizure, Sales, Bail-Bond. Bonds or recognizances taken or approved by de facto officer, valid, 321. ADMITTANCE— See Bishop De Facto. AFFIDAVIT— Taken before de facto officer, valid, 369. AGE- See Minor. Judge appointed under required age, de facto officer, 154. ALDERJIAN — See Councillor — Municipal Officers. May be de facto officer though an alien, 156. Made ex officio judge by void law, de facto judge, 196. Elected under void law providing for a system of minority represen- tation, de facto officer, 202. 676 INDEX. [EEFEKENCES AEE TO SECTIONS] ALDERMAN — Continued. Acting as Justice of the Peace without taking oath, how far acts valid, 418. Held in New York that alderman elected to Congress was not there- after de facto alderman, 170. Quo warranto refused in one case against alderman, though elected on wrong day, 177. ALIEN— May be de facto officer, 156. May de de facto judicial oflBcer, 409. See Disability. But cannot become more than de facto officer, though he becomes naturalized after his election, 156. APPEAL— Conviction quashed on, when court had no lawful existence, 397. Where judge holds unconstitutionally created ofSce, his title may generally be determined on appeal, 35. But judgment not questionable on, though rendered by judge acting outside his jurisdiction under unconstitutional law, 124. Title of judge de facto not generally assailable on, 407, 408, 409, 410. Authority of de facto justice of the peace not inquired into on, though objection to him raised at the trial, 414. But objection to judge pro tem. may be entertained on, when ob- jection was promptly made, 416, 416a. See Judge Pro Tem. Jurisdiction of court cannot be impugned because clerk was only de facto officer, 317. Where no appeal or same inadequate, certiorari allowed in United States to determine questions of title to office, 439a. See Certiorari. APPOINTMENT— See Irregular Appointments. Improperly recorded, or not recorded at all, sufficient to constitute appointee, de facto officer, 139. Same where made by less than regular quorum, 185, 189. Made by quorum including a manifestly illegal officer, invalid, 302. Invalid, does not render appointor responsible for acts of appointee, unless appointment fraudulently made, 305-307. Conflicting cases, 307. Regularity of, not collaterally inquired into, 314. Appointment or election to office by de facto officers, 341. At common law title of appointee or electee dependent upon title of appointor or elector, 341. Judgment of ouster against appointor, evidence against ap- pointee, 341. But title of de facto corporators not assailable in quo warranto against appointee, 341. Common law rule applicable only to municipal corporations, 341. Title of county treasurer not assailable on ground that one of appointing justices was not qualified, 342. Where de facto officer merely perfected official title, common law rule did not apply, 342. Title of free burgess not assailable because he was sworn before do facto officers, 342. Common law altered by statute, 341. INDEX. 677 [KEFBBBNCES ABB TO SBCTIONS] APPOINTMENT— Continued. Canadian rulings, 343. Appointment of councillor by four councillors, one of whom a de facto ofScer, valid, 343. Appointment of assessor with concurrence of de facto council- lor, valid, 343. Doctrine in New York, 344. De facto officer cannot create a de jure officer, 344. Appointment of deputy by de facto officer, invalid, 344. Appointment of court clerk by de facto justice of peace, in- valid, 344. Judgment against appointor evidence against appointee, 344. But judgment of ouster against one appointee not evidence against another, 345. General rule in United States sustains appointments made by de facto officers, 346. De facto judge may create a de jure judge, 346. Corporation council appointed by city board of finance with con- currence of de facto member, not assailable by quo warranto, 347. Appointment by de facto chancellor, valid, 347. Tax collector appointed by selectmen de facto, a de jure officer, 347. Treasurer appointed by de facto mayor, a de jure officer, 347. Treasurer appointed by de facto county commissioners, a de jure officer, 314, 347. Treasurer appointed by school directors de facto, a, de jure of- ficer, 347. Where two boards of education each claimed to be the lawful board, and each made appointment to same office, the appointee of the board adjudged the de jure board, held the lawful officer, 348. Appointment by de facto officer not valid, where same would be invalid if made by de jure officer, 348. APPOINTIVE OFFICE— See Irregular Appointment. Filling of, by election, constitutes electee de facto officer and vice versa, 188. APPOINTORS— See Acts. APPRAISER— Holder of office of Appraiser-General created by merely voting salary, a de facto officer, 44. APPRAISEMENT— By de facto board of Commissioners, valid, 314. ARRAIGNMENT— Of prisoner, by de facto deputy clerk, valid, 317 n. ARRAY — See Jury. ARREST— De facto officer liable for making, when sued in trespass, 267. ASSESSMENT— Made by municipal council acting under non-existing municipal organization, invalid, 29. Cases conflicting as to whether assessment made by de facto tax officers, is valid, 322. See Taxes. 678 INDEX. [REFEKENCES ARE TO SECTIONS] ASSESSOR— See Taxes. Failing to take oath, de facto officer, 136. May be de facto officer, though ineligible, 153. May be de facto officer, though elected without use of check list in the ballot, 174. Appointed without authority by board of commissioners, de facto officer, 186. Board of Assessors unconstitutionally created, not de facto of- ficers, 36. Not entitled to the books and papers, 36. Delivery of papers to an assessor de facto, a valid delivery, 208. De facto assessor liable in trespass for acts done by his order, 271. Acts of de facto assessors in relation to taxes. — See Taxes. ASSESSORS, BOARD OF— See Assessor. ASSAULT— On de facto constable, punishable, 213. ASSISTANCE- Person assisting de facto officer, protected, 217, 275. Not liable in damages, if sued in trespass, 275. ASSISTANT-ATTORNEY— See Attorney. ATTACHMENT— Valid, though made by special deputy sherifiF whose commission and taking of oath were informal, 128. attempt- To organize, necessary to constitute de facto municipal corpora- tion, 49, 58. Where no bona fide attempt to comply with the law, no de facto municipal corporation, 61. ATTORNEY— See Attorney-General. Assistant Attorney whose office was unconstitutionally created, held to be an officer de facto, 39. Attorney whose office created by merely voting his salary, a de facto officer, 45. Cannot sue under a special contract for greater fees, on ground of irregular creation of office, 45. Corporation attorney appointed by board of finance is de facto officer, though law authorizing same may be void, 194. Person may be attorney de facto, though ineligible, 319. Person may be deputy county attorney, though appointment not properly recorded, 139. Or though no formal consent to his appointment by the commis- sioners' court, 175. Corporation attorney abandoning his office, but resuming it at request of mayor, and performing only few official acts, not de facto officer, 108. Conviction not quashable, because obtained by prosecuting attorney de facto, 319. Conviction not quashable, because complaint prepared and filed by assistant attorney-general de facto, 319. INDEX. 679 [REFERENCES ABE OK) SECTIONS] ATTORNEY-GENERAL— Entitled to prosecute quo warranto ex officio, without a relator or leave of court, 460. Has primary right to prosecute, 461. When he has exclusive right, 462. Discretion of, not interfered with in England, 461. Generally likewise in United States, though not always, 461. Authority of, sometimes shared by other officers in United States, 461. AUCTION— Person obtaining office by bidding same at auction, de facto officer, 174. AUDITOR— May be compelled to audit accounts of de facto officer, 237. May be compelled to pay official salary, though title of officer in dispute, 237. AWARD— Made by special road superintendent taking no oath, held invalid, 418. Made by de facto township engineer, valid, 11. Held invalid in one case as to municipal council that had appointed the engineer, 304, 305. BAIL-BOND— Surrender of his principal by surety on bail-bond to de facto deputy sheriff, good defence to an action, 318. Taken or approved by de facto officer, valid, 321. BALLOT— Persons elected by viva voce votes instead of by ballot, de facto officers, 174. Person elected by separate, instead of joint ballot, of two branches of municipal body, de facto officer, 174. BISHOP DE FACTO— There may be a, while there is a de jure one, 74. Whether collation by, is good, where there is a rightful bishop in being, 74. Judicial acts performed by, valid, 74, 412. Admittance by, to a benefice, good, 74. BOARD OF CHOSEN FREEHOLDERS— Acting after judgment of ouster, not de facto officers, 94. Acquiescing In presidency of an officer whose office is abolished, constitutes self-constituted president an officer de facto, 110. BOARD OF CITY AFFAIRS— Substituted by unconstitutional law to board of public improve- ments, de facto board, 201. BOARD OF COMMISSIONERS— See Commissioners. BOARD OF EDUCATION— Township board of education discharging duties of local directors, may become de facto officers as to latter office, 112. 680 INDEX. [EEFEEENCES AEE TO SECTIONS] BOARD OF HEALTH— See Health Officers. BOARD OP SCHOOL TRUSTEES— See School Trustees. BOARD OP SUPERVISORS— See Supervisors of Roads. Chairman of, appointed by the appointing board thereof while the office is legally full, may be de facto officer, 178. Where void enactment takes from the supervisors of several towns the affairs of a county, and vests them in a board of supervisors of five members instead of fifteen, the board so constituted is a de facto board, 201. BONA FIDE— Good faith of an officer holding over strengthens his claim to be regarded as a de facto officer, 122. Person entering into an office bona fide, not punishable for usur- pation, 265. Good faith of de facto officer of no avail in actions by or against him, for recovery of salary, 274. BONDS— See Official Bond— Replevin Bond. Bond executed by abbot de facto, valid, 5. Bond sealed by mayor de facto, valid, 153. Administration bond approved by justice de facto, valid, 321. Authorized, signed, or issued by de facto municipal officers, valid, 313. Issued by school district irregularly organized, valid, 59. Issued by board of supervisors of county organized under unconsti tutional law, held valid, 54. Issued by officers holding unconstitutionally created offices, held invalid, 34, 313. Legislature by authorizing de facto municipal corporation to issue bonds, imparts a, de jure character thereto, 72. Not invalid because authorized at a meeting called by de facto officers, 336. BOOKS AND PAPERS— See Official Records. BRIBERY— De facto officer responsible for accepting bribe, 260. BURDEN OF PROOF— On defendant at common law in quo warranto, 451, 472. Except where forfeiture of office alleged, 144, 145. 472. Generally same rule in United States when state directelv inter- ested, 472. Otherwise where mere private interests at stake, 472, 474. Held in Quebec that proof of disqualification of councillor is on relator, 472 n. BY-LAWS— Passed by de facto municipal bodies, valid, 312. BY VIRTUE OF AN OFFICE, OR VIRTUTE OFFICII— Meaning of, 89. CANADA— De facto doctrine not generally known in, 10. INDEX. 681 [EEFEKENCES AEK TO SECTIONS] CANADIAN CRIMINAL CODE— Perjury under, 374-378. 8ee Perjury. CENSUS ENUMERATOR— Failing to take oath, de facto officer, 136. CERTIFICATE OF ELECTION— Affords color of title, 180. Holder of, entitled to oflBcial records, 431. Holder of, entitled to be admitted to office by mandamus, 443. Otherwise held in New York, 443. Person holding over not de facto officer as against one holding such certificate, 124. Not conclusive in quo warranto, 473. CERTIORARI— Nature of remedy, 436. Will not issue where acts not of a judicial character, 436, 438. Or where another adequate remedy exists, 437, 438. Granted in one case together with quo warranto where municipal officer was alleged to have been illegally removed, 437. Available where no other remedy, 437, 439a. Available where inferior tribunal acts without jurisdiction, 437, 439a. Not generally granted to try title to office, as remedy by quo war- ranto exists, 438. Held in New Jersey that certiorari not available, even if appointee is not subject to quo warranto, 438. Title of judge below not inquired into on, 409, 438. But quere as to Canada, 419, 437. Certiorari may be sued out by officer de facto to test validity of resolutions which may be used to disturb him in his office, 439. Where application to quash resolutions is indirectly a means to have title tried, certiorari refused, 439. Generally granted in United States to correct irregularities in pro- ceedings of inferior tribunal, where no appeal or other remedy, or remedy inadequate, especially where tribunal of statutory creation, 439a. As where city council is authorized to determine contested election of a city officer, and there is no appeal, 439a. Or where remedy by appeal would be of no avail, 439a. Validity of tax cannot be questioned on certiorari, on ground that tax is due to the action of de facto officers, 336. Title to office of those holding membership in taxing body, not assailable on certiorari to review tax, 336. CHALLENGE— See Jury. CHARTER— Must be organization under valid charter or general law, to consti- tute de facto corporation, 49. Amendment of city charter by legislature makes the city a de jure corporation, 72. Legislature annexing territory to a town, makes it a de jure corpo- ration, though no charter can be. found, 72. CHATTEL MORTGAGE— Affidavit of renewal of, taken before de facto officer, valid. 369. 682 INDEX. [BEFBHENCES ABE TO SECTIONS] CHURCHWARDEN— Officer de facto, though irregularly elected, 172. Church-rate made by de facto, valid, 172, 325. See Taxes. De facto churchwarden may convene a vestry for laying a church- rate, 205. May lay complaint for non-payment of a rate, 205. May maintain an action against former churchwarden for money received by him, 210. A churchwarden de jure and a churchwarden de facto, cannot exist in the same parish, 75. CIRCUIT COURT CLERK— See Court Clerk. CITATION— Service of by de facto officer, valid, 318. CITY— Has jurisdiction over territory added thereto by unconstitutional law, 45. CITY ATTORNEY— See Attorney. CITY ENGINEER— Failing to give bond, de facto officer, 138. CITY TREASURER— See Treasurer. CLAIMANT— Having prima facie title to office, entitled to official records, 431. Of an office, good relator in quo warranto proceedings, 464. Must show valid title in himself, 464. CLERGYMAN— Marriage performed by de facto, valid, 152, 315a. CLERK— See Court Clerk— Municipal Clerk. Person may become de facto clerk of a school district by acqui- escense of directors, 110. COLLATERAL ATTACK— On de facto corporation not allowed, 64. But corporation must really have a de facto character, 64. Rule no argument to sustain an unconstitutionally created corpo- ration, 65. Title of de facto judge not collaterally assailable, 406, et seq. Same with other officers de facto, 429. Title of de facto officer not triatjle by mandamus, 429, 441, 442. See Mandamus. Not triable by prohibition, 408, 409, 413, 429, 440. See Prohibition. Not triable by injunction, 334, 339, 409, 429, 446. See Injunction, Not triable in proceeding's to recover official records, 431. See Proceedings to recover Official Records. Not triable by ministerial nflficers, 434. See Ministerial Officers. INDEX. 683 [EEFEBENCES ABE TO SECTIONS] COLLATERAL ATTACK— Contimied. Title of person attempting to justify as an officer will be collateral ly inquired into, 430. See Justification — Trespasser. Usurper not protected from collateral attack, 430. Courts will collaterally inquire into existence of Office, 430. COLOR OF AUTHORITY— See Color of Title, Definition of, 84. Not synonymous with color of title, 84. COLOR OF OFFICE OR COLORE OFFICII— Meaning of, 89. COLOR OF RIGHT— See Color of Title. Definition of, 85. COLOR OF TITLE— Definition of, 83. Assimilated to color of title to land, 83. Necessity of, to constitute de facto officer, 26. Ground of distinction between de facto officers and usurpers, 82, 171. None exists where official title known to be bad, 93, 302, 304. Conflicting doctrine in New York, 309. Generally no color when title judicially declared invalid, 94. Color may exist though title known to be disputed, 93. Whether officer holding over or acting before his term begins, derives color from his election, 113, 114. Certificate of election affords color of title, 180. So does an irregular commission, 409. But not an expired commission, 119. Color, from what derived, 90. Examples of circumstances giving, 91. Examples of circumstances, not giving, 91. COLORABLE— Meaning of, 87, 88, 441. COLORABLE ELECTION— Meaning of, 87, 88. COLORABLE TITLE— Meaning of, 87, 88. COMMISSION— Expired, confers no color of title, 119. But person may be de facto officer, though same has expired, 316, 413. Person holding, is de facto officer, though same be informal, 128, 175. Or same was not recorded, 139. Court will not go behind commission of justice of the peace issued by governor, to inquire whether he was duly appointed by General Assembly, 409. Person acting under commission received by him but intended for another, may be de facto officer, 410, Holder of, entitled to official records, 431. Title of one holding void, may be inquired into on habeas corpus. 435. 684 INDEX. [EEFERENCES ABE TO SECTIONS] COMMISSIONERS — See County Commissioners — Koad Commissioners. Holding unconstitutionally created office, not de facto officers, 45. Appointed by governor under unconstitutional charter provision, held not to be de facto officers, 197. One acting as commissioner of excise when his office is in posses- sion of another, is not de facto officer and cannot issue a valid license, 76. Street commissioner, appointed to an office not vacant, is not de facto officer, 73. Where two persons claim the office of street commissioner, but each has onlj' a partial possession, neither is an officer de facto, 79. Court commissioner authorized by void law to act in two counties, held not a de facto officer, 197. Commissioner to classify lands appointed by board of police, de facto officer, though no authority in such board to fill vacancies, 191. But held in New York that commissioner of taxes and assessments appointed without authority by comptroller of city of New York, was not a de facto officer, 187. Road commissioner whose office has not been legally voted for, may be de facto officer, 45. License commissioner acting under claim of right, a de facto officer, 76. Commissioners for examining witnesses, acting after demise of Crown, may be de facto officers, 116. Navigation commissioners may be de facto officers, though prema- turely appointed by governor, 177. Person may be water commissioner de facto, though only verbally appointed, 176. Board of commissioners de facto officers, though never sworn, 314. Appraisement by de facto board of, valid, 314. Jury drawn by de facto, valid, 320. Assessment made by de facto ditch commissioners, valid, though they have failed to file bond, 339. See Taxes. COMMISSIONERS OF CORPORATION— Failing to take oath, de facto officers, 136. COMMISSIONER OF DEEDS— Entitled to be sworn though a minor, 434. COMMISSIONERS OF HIGHWAYS— See Road Commissioner. COMMISSIONERS OF SEWERS— Person elected as, but not taking oath within prescribed time, held in one case not to be de facto officer, 130. His concurrence with others in making assessment, held to invalidate it, 326. COMMON COUNCIL— See Municipal Council. COMPTROLLER OF TREASURY— No right to inquire into court clerk's title upon audit of his ac- counts, 434. CONCURRENCE— See Quorum. Appointment without concurrence of all having authority, con- stitutes appointee de facto, officer, 189. INDEX. 685 [eefeeences aee to sections] CONFEDERATE STATES OF AMERICA— See Court. CONGRESS— Recognition by, of de facto doctrine, 9, 359-363. See Elections. CONSENT— When it can confer jurisdiction and when it cannot, 416, 416a. CONSTABLE— Holding a non-existing office, not an officer de facto, 29. Pretending to hold an abolished office, not de facto officer, 30. Execution sale by such pretended officer, invalid, 29. When deemed an officer de facto :^ Acting during several years without re-appointment or re- election, 119. Failing to take oath, 136. Bond of, made to the treasurer instead of to city, 137. Bond of, insufficient in amount, 137. Acting after having changed his residence, 166. Acting after having accepted office of justice of the peace, 170. Acting though ineligible by reason of taint in his blood, 155. De facto protected by criminal law, 213. Resisting de facto, punishable, 214. When justifying, must prove a valid title, 267, 268. Held otherwise, 270. May justify under execution issued by de facto justice of the peace, 274. Conviction for unlawfully selling liquor, not assailable on ground that warrant of seizure executed by de facto constable, 318. CONSTRUCTION OF STATUTES— See Forfeiture of Office. CONTESTED ELECTION— See Statutory Proceedings to try Elections. When proceedings of council in determining, reviewable on cer- tiorari, 439a. See Certiorari. CONTRACT— Inconsistent with duties and responsibilities of officer de facto, void, 252. De facto officer cannot set up a contract for a larger remuneration than the one allowed by law, 252. Of sureties on official bond strictissime juris, 287. Cannot extend beyond time contemplated, 287-289. Entered into by clergyman with de facto vestry, valid, 304. Invalid if clergyman knows that vestry not lawful one, 304. With de facto board of school directors, valid, 313a. By teacher with holding over board of trustees, valid, 313a. Of teacher with board after being notified that it was an unlawful board, invalid, 304. Of teacher with sub-director known by her to be unlawful officer, invalid, 304. Conflicting doctrine in New York, 309. With a mayor de facto, valid, 313a. By medical man with overseer de facto, valid, 313a. See Acts. 686 INDEX. [EEFEKENCES AEE TO SECTIONS] CONVICTION— Made by de facto judicial officers, valid, 407, 408, 409, 412, 413, 417. By de facto judge, -palid, though made outside his jurisdiction under authority of unconstitutional law, 424. Quere as to Canada, 425. By judge entering before commencement of his term, valid, 115. By justice of the peace appointed judge pro tern, under a void enactment, valid, 195. Made by aldermen unconstitutionally made judges, valid, 196. Where objection raised at trial to de facto deputy recorder, held conviction may be set aside, 417. Held otherwise, where no objection made, 417. Cannot be impugned because court clerk was de facto officer, 317. Not quashable because obtained by de facto prosecuting attorney, 319. Not quashable because complaint prepared and filed by de facto assistant attorney-general, 319. Not assailable on ground that warrant was executed by de facto constable, 318. Quashed where jury list had been prepared by commissioners act- ing after qualification of successors, 320. CORONER— Failing to give bond, de facto officer, 138. Same when failing to renew his bonds, 137. CORPORATION— See De Facto Corporation. Steward retained by parol may be a de facto officer, 176. CORPORATION ACT— (English.) Provisions of, generally held directory, 144. CORPORATION ATTORNEY— See Attorney. COUNCIL— See Municipal Council. COUNCILMAN— See Councillor. COUNCILLOR— See Alderman— Municipal Officers. Person appointed by two councillors is de facto officer, though they do not form a quorum, 185. Appointed by four councillors one of whom was merely de facto councillor, held a de facto officer, 343. Appointed with the concurrence of a councillor whose appointment is a patent illegality, not de facto officer, 302. De facto officer, though changing his residence, 166. Member of council becoming insolvent, de facto officer, though statute declares his seat vacant, 145, 168. Person appointed councilman while office is full, not de facto of- ficer, 77. COUNTY An:ORNEY— See Attorney. COUNTY COMMISSIONERS— See Commissioners. Failing to take oath, de facto officers, 136. De facto officers, though continuing to reside in a territory di'- tached from theirs, 167. INDEX. 687 [liEFEEENCES ABE TO SECTIONS] COUNTY COMMISSIONERS— Coreitmued. Person elected county commissioner though without the required concurrence of probate judge, de facto officer, 189. Unconstitutional act ousting, and appointing others in their stead, constitutes appointees de facto officers, 198. COUNTY JUDGE— See Judge. COUNTY OFFICERS— See Municipal Officers. COUNTY TREASURER- See Treasurer. Person wrongfully taking possession of office of, and carrying off tax duplicate, not de facto officer, 80. When deemed de facto officer: — Failing to take oath, 136. Failing to give bond, 138. Bond of, not approved at all or within proper time, 137. Bond of, not executed within proper time, 137. Acting during a second term without renewing bond, 137. Not giving bond in time, where statute declares that such failure makes office vacant, 150. Filling an office improperly declared vacant, 178. COUNTIES— Are quasi-municipal corporations, 46. County attached to another by unconstitutional law, held not to become a township thereof, 52. County organized under an unconstitutional law, held to be a de facto municipal corporation, 59. Judge acting in an adjoining county during a judicial vacancy there, without color, is a mere intruder, 92. Persons elected judge and clerk of a municipal county, may be de facto officers, though elected before the law establishing same is in force, 177. COURT— De facto, not generally recognized, 396, 397. Legally abolished, not recognized by law, 30. Unconstitutionally created, not recognized, 35. Conflicting doctrine, 37. Conviction quashed if made by de facto court, 397. Document from de facto court cannot be given in evidence, 397. Prohibition lies to try title of judge holding a pretended court, 440. De facto court may exist under a de facto government, 398. Example of San Domingo, 398. Example of Sir Matthew Hale under Cromwell, 398. Spanish court acting after cession of territory to American Union, held to be de facto court, 399. Status of the courts of Confederate States of America, 400. Judgments of, first not recognized, 401. Then recognized as foreign judgments, 402. Finally, recognized as judgments of de jure courts, 403. Jurisdiction of Confederate courts exercisable only over citizens within the rebel lines, 404. Created by Confederate Congress for national purposes, not recog- nized, 404. Held an officer could not justify under a judgment of such court, 404. «8S INDEX. [EEFEKENCES ABE TO SECTIONS] COURT — Continued. Person declared elected by a competent court, a de facto officer, 91. After adverse judgment of competent court, incumbent generally not a de facto officer, 94. Void election by fiscal court, may constitute appointee a de facto officer, 91. COURT CLERK— Holding unconstitutionally created office, not de facto officer, 35. Person acting as, under McEnry government, not de facto officer, 92. Person may be de facto court clerk, though — Failing to take oath, 136. Having taken oath to support the Confederate States, 128. Failing to give bond, 138. Holding office for more than eight years, against constitutional provisions, 169. A minor, 154. Acting after his term has expired, 119. Acting after having resigned, but before qualification of his successor, 122. Holding over after general election, but before his successor has qualified, 122. Appointed for longer period than warranted by law, 179. Acting after having become a receiver, or intendant of a town, 170. May be Master in Chancery de facto, though order appointing him defective in not assigning any special reason, 175. Acknowledgment taken before de facto, valid, 316. Recording of deed by de facto, valid, 316. Attachment, summons, scire facias, issued by de facto, valid, 317. Process issued by de facto, sufficient to interrupt prescription, 317. Court is not without jurisdiction, though clerk thereof only de facto officer, 317. When title of, not triable on certiorari, 436. Title of, cannot be inquired into by comptroller of treasury upon audit of his accounts, 434. COURT COMMISSIONER— See Commissioner. CRIMINAL RESPONSIBILITY— De facto officer criminally responsible for his acts, 253. Not generally liable for non-feasance in office, 254. Officer illegally elected or appointed, not bound to serve, 254. On indictment against a constable for not serving, proof of his appointment or election must be given, 254. De facto overseer of highways not liable to penalty for non-repair of roads, where he has disavowed his authority, 254. When de facto officer liable for non-feasance, 255. Person professing to be road overseer may be indicted for non- repair, 255. Where de facto officer undertakes to perform official acts, he may sometimes be bound to complete them, 256. De facto officer liable for malfeasance in office, 257, 258. De facto officer liable for embezzlement, 257. De facto officer liable for extortion, 259. Where office has no legal existence, pretended incumbent cannot be guilty of extortion, 259. De facto officer liable for accepting a bribe, 260. INDEX. 689 [KBFERENCES ABE TO SECTIONS] CRIMINAL RESPONSIBILITY— Coratinwerf. De facto officer liable for permitting escapes, 261. Regarded as a usurper, a de facto officer is criminally liable for usurpation, 263, 264. Usurpation generally punishable in United States by fine and im- prisonment, 264. Ineligible person accepting office may be prosecuted, 264. Merely to assume to be an officer, without acting as such, is not an offense, 264. Sometimes a fine imposed by judgment of ouster, 264, 474. In England and Canada, acting without qualification is also some- times punishable by statute, 264. Usurper not punishable when acting in good faith, 265, 474. Held otherwise in Kentucky, 265. CROMWELL— Government of, was de facto government, 42. CUMULATIVE— When proceedings to try elections held cumulative of quo warranto, 457, 458. When exclusive, 459. Where declared by statute exclusive as to certain matters, 456. CUSTOM HOUSE— Person openly acting in, as deputy, a good officer as to third per- sons, 109, 183. DAMAGES- DC facto officer liable to damages for acting without authority, 266-272. What amount recoverable, 272. Only nominal, when act performed was lawful, 272. See Trespasser. Amount recoverable as, in suit for salary, by de jure officer against de facto officer, 231. Sometimes salary by way of damages recoverable in quo warranto proceedings, 474. DEBTS— Municipal body organized under an unconstitutional law cannot create, 52. DEBENTURES— Authorized, signed, or issued by de facto municipal officers, valid, 313. Otherwise where municipal organization has no lawful existence, .34, 313. Signed by de facto mayor, valid, 313. DEED— By abbot wrongfully put in possession, valid, 74. Recording of a deed by a clerk de facto, valid, 179. Made by one who was preferred by a pretended patron, valid, 182. Registration of, by deputy after death of principal is known, in- valid, 302. Acknowledgments thereto, taken before de facto notary public, valid. 316. De Facto — 44. 690 INDEX. [EEFEKENCBS ARE TO SECTIONS] DEED — Continued. Same where taken before de facto clerks, or deputy clerks, 316. Same where taken before de facto justice of the peace, 316. Recorded by de facto clerk, valid, 316. DE FACTO— Meaning of, 22. DE FACTO COEPORATION— See De Facto Municipal Corporation. Definition of, 47. Requisites to constitute, 49. Charter or general law, 49. Bona fide attempt to organize, 49, 58. User of corporate franchise, 49, 62. DE FACTO COURT— See Court. DE FACTO DOCTRINE, THE— Definition of, 1. Origin of, 5. Necessity of, 3. Universality of, 4. Grounds on which it is founded, 3, 9. Diflerent from legal presumption, 12. To what officers applicable, 13. Historical sketch of, in England, 5. Historical sketch of, in United States, 8. Historical sketch of, in Canada, 10. Greatly developed in United States, 8. Not so in Canada, 10, 425, 426. When running on parallel lines with legal presumption as to title, 109. DE FACTO MUNICIPAL CORPORATION— Principles of de facto governments sometimes applied to, 42n. Incidents of, 48. Has same power to transact business as a legal corporation, 48. Oflicers under, are recognized, 48. Requisites to constitute, 49. Charter or general law, 49. Bona fide attempt to organize, 49, 58. User of corporate franchise, 49. Where no law authorizing municipal corporation, no such corpo- ration can exist de facto, 50. Views of the authorities as to whether an unconstitutional law can create a de facto municipal corporation, 51. Doctrine that it cannot, 52. Village, levee district, township, territory, organized there- under, not de facto municipal corporations, 52. Doctrine that it can, as causing merely an irregular organization, 53. Organization of county recognized on that gi'ound. 54. Territory annexed to a city by vinconstitutional law, held to be subject to authority of city, 54. County unconstitutionally organized, a de facto municipal corporation, 55. Authorities unconditionally holding tliat unconstitutional law can create a corporation 57. INDEX. 691 [KBFEHENCES ARE TO SECTIONS] DBFACTO MUNICIPAL CORPORATION— Co«ti«Me(i. Municipal corporation irregularly organized is de facto corpora- tion, 58-60. Town irregularly organized under invalid ordinance, 58. County organized without having the required number of votes therein, 59. Improvement district organized without a petition signed by the proper persons, 59. School district irregularly organized because no written de- scription of the boundaries having been filed, 59. Drainage district irregularly organized because including lands in more than one town, UO. Conflicting doctrine as to organization of certain school sec- tions in Canada, 60. Where no bona fide attempt to comply with the law, no de facto municipal corporation, 61. Collateral grounds, tending to sustain, 63. Existence of, cannot be collaterally assailed, 64. Quo warranto at instance of state, necessary, 64, 462. Rule as to collateral attack inapplicable where corporation has not at least a de facto character, 64. Rule cannot be invoked to sustain a corporation created by an un- constitutional law, 65. Estoppel to deny corporate existence, 66. Persons recognizing or dealing with a corporation de facto, estopped to deny its existence, 66. Extent of the rule of estoppel, 67, 68. See Estoppel. Effect of long user of municipal franchise with public and state acquiescence, 69, 70. Effect of legislative recognition of municipal corporation, 71, 72. DE FACTO OFFICER— Definition of, 22. General characteristics of, 23. New York distinction between officer de facto and officer holding by defeasible title, 24. Not a good officer as to himself, 23. Good officer as to public, 23. Requisites to constitute, 26. De jure office necessary, 28. See Office. Possession of office necessary, 26, 73. See Possession. Color of title or authority necessary, 26, 82. See Color of Title. Functionaries of de facto governments, officers de facto, 41, 42.. Person holding office irregularly created, de facto officer, 43-45. See Irregularly Created Offices. • Functionaries of de facto municipal corporations, de facto of- ficers, 48. Person not in possessiflji of office, not a de facto officer, 73. See Possession. Outgoing officer acting after his successor has taken possession, not a de facto officer, 77. Conflicting case, 77. 692 INDEX. [EEFEEBNCES ARE TO SECTIONS] DE FACTO OTFICER— Continued. Person acting after judgment of ouster or adverse decision against him, not a de facto officer, 94, 302. See Color of title — Judgment of Ouster. Classification of officers de facto, 95. By reputation or acquiescence, 95, 96-112. See Reputation and Acquiescence. Officers entering before commencement of term are de facto officers, 95, 113, 215. See Entry before Commencement of Term. Officers holding over under color may be de facto officers, 95, 116-126. See Officers Holding Over. Persons duly elected or appointed but failing to qualify, are de facto officers, 127-150. See failure to Qualify and various other Titles. Person may be de facto officer, though ineligible, 95, 151-163. See Ineligibility. Officer becoming disabled to hold the office during currency of term, generally held de facto officer, 95, 165-170. See Disability. Person holding under color of an irregular election or appointment, de facto officer, 95, 171-181. See Irregular Election or Appointment. Person may be de facto officer, though elected or appointed by im- authorized official person or body, 95, 182-191. See Lack of Authority to Appoint or Elect. Person elected or appointed by or pursuant to an unconstitutional law, a de facto officer, 192-202. See Officers Holding Under Unconstitutional Law. Enjoys no personal privileges or rights, 23, 203, 204. See Privileges — Rights. Acts performed for his own beneflt void, 23, 203. Has right to e.xereise office pending litigation of his title, 205. Enjoys rights for benefit of public, 205, 211. See Rights — Injunction. Not entitled to obtain office or official records, as against one hav- ing a superior title, 209. Eight of, to protection of crimminal law in execution of his duties, 213-218. Pee Protection. Not generally entitled to official salary, 236. See Salary. Generally liable to same duties and liabilities as de jure officer, 241- 251. See Duties — Liabilities. Criminal responsibility of, 253-263. See Criminal Responsibility. Cannot derive benefits from his defective title so as to be in better ppsition than if he was a de jure officer, 252. Liable to damages when sued as a trespasser for acting without authority, 263, 266-272. See Trespasser. Sureties on official bond of, liable, 276, et seq. See Sureties. Acts of, valid, 3-11, 301, ct seq. See Acts. Person may be, as to certain persons and not as to others, 303. INDEX. 693 [KEFEEENCES ABE TO SECTIONS] DE FACTO OFFICER— Contimied. Appointors not responsible for acts of, unless appointment fraudu- lently made, 305-307. Conflicting cases, 307. See Acts. Mandamus grantable to compel recognition of, 441. Mandamus proper remedy to determine de facto character of an officer, 445. See Mandamus. Title of, not collaterally assailable, 429. See Collateral Attack, Action to Recover Salary, Ministerial Officers, Habeas Corpus, Certiorari, Prohibition, Mandamus, Injunction, Replevin. Must show a valid title, when attempting to justify as an officer, 430. See Justification. After judgment in quo warranto, acts of, generally void, 94, 474. DE FACTO GOVERNMENT— Definition of, 42. Recognized on grounds of necessity, 41, 42. Citizen must obey it, 42. Citizen must obey its functionaries, 42. Acts of, valid, 42. Government of Cromwell, example of, 42. Principles of, sometimes applied to de facto corporations, 42n. De facto court may exist under, 398. Case of San Domingo, 398. Case of Sir Matthew Hale under Cromwell, 398. DEFAULTER— May become de facto officer, 158. DEFEATED CANDIDATE— Not a good relator in quo warranto proceedings, unless entitled to office, 464. May have sufficient interest as a taxpayer, 464. DEFEASIBLE TITLE— Officer holding by, distinguished in New York from officer de facto, 24. DE JURE— Meaning of, 21. DE JURE OFFICER— Definition of, 21. Generally entitled to salary of office, 219. See Salary. DELIVERY — See Official Records. Of public records to de facto officer, valid, 208. DEMISE OF THE CROWN— Officer bona fide acting after, de facto officer, 116. Commission to examine witnesses bona fide executed after, well executed, 116. 694 INDEX. [BErEKENCES ABE TO SECTIONS] DEPOSITIONS. Taken after demise of the Crown, but before same is known, valid, 116. Taken before de facto officer, valid, 369. DEPUTY— Person unlawfully but openly acting as, in custom house, a de facto officer, 109. Person unlawfully acting as deputy district clerk, but in full charge of the olfice, .officer de facto, 109. Acting during his principal's second term without re-appointment, de facto officer, 120. Appointed without authority by another deputy may be de facto officer, 183, 184. Deputy chamberlain appointed without authority by the chamber- lain, de facto officer, 186. Deputy city clerk failing to file oath within time, de facto officer, 132. De facto officer liable for acts of deputy, 250. Acting after death of principal is known, not de facto officer, 302. Arraignment of prisoner by de facto, valid, 317. DEPUTY AUDITOR— Acting during his principal's second term without re-appointment, de facto officer, 120. Person may be deputy county auditor de facto, though only verbally appointed, 176. DEPUTY CHAMBEELAIX— See Deputy. DEPUTY CITY CLERK— See Deputy. DEPUTY COURT CLERK— Person acting as, under no appointment from the Clerk and while separated from his assumed principal during the civil war, not a de facto officer, 92. Person having acted as, at a distant period and not remembering thereof, regarded as de facto officer as to his signature, 109. Failing to take oath, de facto officer, 136. Failing to give bond, de facto officer, 138. Person may be de facto, though only verbally appointed by the clerk, 176. May be de facto officer though appointment not confirmed by super- visors, 175. Acknowledgments taken before de facto, valid, 316. Attachment issued by de facto, valid, 317. Writ signed by de facto female deputy, valid, 317. Swearing of juror by de facto, valid, 320. DEPUTY CONSTABLE— Failing to take oath, de facto officer, 136. Failing to renew his oath, de facto officer, 134. De facto, may kill person resisting him, 216. DEPUTY COUNTY ATTORNEY— See County Attorney. DEPUTY MARSHAI^- Failing to take oath, de facto officer, 136. Taking oath before unauthorized person, de facto officer, 131. INDEX. ,695 [KEFEKENCBS ABB TO SECTIONS] DEPUTY NOTARY PUBLIC— bailing to take oath, de facto officer, 136. DEPUTY RECORDER— See Recorder. DEPUTY REGISTRAR— Acting after death of his principal is Itnown, not de facto officer, 110. Acting after removal of his principal, may be de facto officer, 120. DEPUTY SHERIFF— Acting during principal's second term without re-appointment, de facto officer, 120. Likewise with deputies of former sheriff acting as deputies of under- sherifl', without re-appointment, 120. Failing to take oath, de facto officer, 128, 136. Held otherwise in one case owing to circumstances, 136. De facto officer, though appointment not recorded, 139. De facto officer, though having accepted office of justice of the peace, 170. May be de facto officer, though under age, 154. Person may be de facto, though appointed by informal commission, or though appointment not under seal, 175. May be de facto officer, though no record evidence of approval of his appointment, 175. Resisting one acting as deputy sheriff, without color, not an offence, 214. When justifying as an officer must show a valid title, 268. Evidence of reputation has sometimes been admitted in such case, 270. Surrender of prisoner on bail-bond to de facto, valid, 318. Replevin bond taken by de facto, valid, 321. DIRECTOR— Acting as president of board of chosen freeholders after abolition of his office, but with their acquiescence, constitutes him de facto officer, 110. DIRECTORY— See Forfeiture of Office. Statute declaring forfeiture of office generally held directory, 140, 145. Sometimes held mandatory, 140, 150n. See Forfeiture of Office. Statute providing for appointment in writing held directory, 176. DISABILITY— See Ineligibility. Officer becoming disabled to hold office during currency of term, generally held de facto officer thereafter, 95, 165-170, 366. Justice of the peace changing his residence, 166. Town clerk moving into another town, 166. Constable, municipal councillor, school trustee, under like cir- cumstances, 166. Change of residence effected by law, 167. Members of a township board remaining in territory annexed by law to a city, 167. County commissioners continuing to reside in a newly erected county, 167. 696 INDEX. [EEFEEENCES ABE TO SECTIONS] DISABILITY— Coniinaed. County judges sitting in territory detached from their county, 167. Municipal councillor becoming insolvent, 145, 168. Disqualification by reason of exhaustion of constitutional period, 169. Circuit court clerk holding more than eight year, though it be violative of the constitution, 169. Acceptance of incompatible office, 170, 317. Notary public accepting the office of judge or deputy county re- corder, 170. Judge or justice of the peace becoming a member of Congress or of legislature, 170. But held in New York that alderman was not a de facto officer, after being elected to Congress, 170. Judge accepting office of code commissioner, 170. Street commissioner accepting office of colonel, 170. Justice of the peace becoming a constable, or a court clerk, or a coroner, 170. District court clerk accepting office of receiver, 170. Constable accepting office of justice of the peace, 170. Deputy sheriff accepting like office, 170, 321. Township trustee becoming postmaster, 170. Supervisor of roads appointed township trustee, 170. Clerk of court becoming intendant of a town, 170. School trustee accepting office of commissioner of incorporated district, 170. Person acting in the place of absent or disabled judge is de facto officer, though appointment made under a void enactment, 195. DISCRETION OF COURT IN QUO WARRANTO— Must be soundly exercised, 465. Whether by granting leave, court exhaust its discretion, 465. Cases where leave has been refused, not necessarily authorities against granting of quo warranto, 465. Circumstances affecting, 466. Where no, or no adequate, remedy, 466. Where new or doubtful point of law, 466. Where application is frivolous, teclmical or useless, 466. Where official term has expired, 466. Where irregularities have not effected result of election, 467. Where public inconvenience would result, 467. Where corporation would be dissolved, 467. Where election held on wrong day, 177, 467. Where office is unimportant or for short term, 467. Motives, conduct and standing of relator considered, 468. Relator acting in bad faith, 468. Relator acting in spirit of revenge. 468. Where relator actuated by party spirit, 468. Where de facto officer is drawn insiduously into a confession, 468. Where relator has agreed not to enforce a by-law upon which is grounded the application, 468. Where relator is legal advisor of defendant, 468. Where relator is guilty of laches, 468. Where relator has concurred in illegality, 468. Where relator his been instrumental in calling election on wrong day, 468. INDEX. 697 [SEFEBENCES ARE TO SECTIONS] DISCRETION OF COURT IN QUO WARRANTO— Continued. VVJiere relator has voted with knowledge of irregularity, 468. Where relator has administered oath to illegal officer, know- ing his disqualitication, 46S. Where relator's title is equally defective with that of defendant, 4(j8. Where relator is a mere stranger, 468. Where relator is in indigent circumstances, 468. Where relator seeks admission to office, though unable to read or write, 468. DISQUALIFICATION— See Disability— Ineligibility. DISTRESS- For taxes not invalid, because collector has failed to subscribe the declaration of office, 135. DISTRICT COURT CLERK— See Court Clerk. DISTRICT TREASURER— See Treasurer. DITCH COMMISSIONERS— See Commissioners. DRAIN— Located by de facto commissioners, lawfully located, 314n. DRAINAGE DISTRICT— Irregularly organized by including land in more than one town, is de facto organization, 60. This principle not formerly recognized in Canada with respect to organizations of school sections, 60. DRAINAGE COMMISSIONERS— Appointed without authority by county judge, de facto officers, 186. Drain located by, lawfully located, 314n. DRAINAGE OFFICERS— See Drainage Commissioners. DUTIES— Of de facto officer generally the same as those of officer de jure, 241. See Liabilities. ELECTIONS— See Irregular Elections. Election of officers, by de facto officers, 341-348. See Appointment. To British Parliament held or conducted by de facto officers, valid, 7, 349, 350. Ineligibility of returning officer, 351. Ineligibility of returning officer by reason of minority, 352. Failure of election officer to take oath, 353. Returning officer joined by unauthorized persons, 354. Private or unauthorized persons acting as returning officers, 355. English Parliamentary doctrine adopted in Canada, 356. Election held by election clerk, 356. English judicial doctrine different from Parliamentary doctrine, 357. Presiding officer considered an integral part of corporation, 357. Election invalid if presided by de facto mayor, 357. English judicial doctrine altered by statute, 357. 698 INDEX. [KEFEKENCES AKE TO SECTIONS] ELECTIONS— Continiied. Euglish judicial doctrine followed in Canada in one case, 358. Where presiding officer at municipal election left before election completed, 358. American Congress formerly opposed to application of de facto doc- trine, 9, 359, 360. Distinction formerly made thereby, between election officers ineligi- ble and those failing to qualify, 360. De facto doctrine now recognized by Congress, 9, 361, 362. Congress still requires election officers to be appointed by authorized persons, 363. American courts recognize application of de facto principles to elec- tions, 364. irregular appointment of election officers, 174, 189, 365. Appointment by unauthorized person or body, 186, 194, 365. Conflicting case, 365. Officers ineligible or disqualified, 366. Omission to take oath, 367. Election officers acting in insufficient number or joined by im- proper persons, 368. Whether candidate can be a good election officer, 366. ELECTION COMMISSIONERS— Appointed by legislature without authority, de facto officers, 186, 194, 365. ELECTION OFFICERS— See Elections. Person declared elected by, a de facto officer, 91, 180. Misconduct of, does not vitiate election, unless result is affected. 181. ELECTIVE OFFICE— Distinction between elective and patent office in regard to posses- sion, 24 n. Appointment to, constitutes the appointee de facto officer, 188. ELECTORS— Person elected by unqualified, may be de facto officer, 174. EMBEZZLEMENT— De facto officer criminally responsible for, 257. Letter-carriers de facto, embezzling letters, 257. EMOLUMENTS— See Salary. EMPLOYMENT— Distinguished from an office, 16. Difference between office and employment in regard to recovery of salary, 222 n. ENGINEER DE FACTO— Validity of award made by, 11. ENTRY BEFORE COMMENCEMENT OF TERM— Person entering before commencement of his term, may become de facto officer, 113. Question whether he derives color from his election or appointment, 113, 114. INDEX. 699 IBEFEKENCES ARE TO SECTIONS] ENTRY BEFORE COMMENCEMENT OF TERM— Ooniinued. Judge entering before beginning of his term, may be de facto officer, 115. Where person attempts to act before his predecessor's term is ended and before the latter has vacated his oifice, he is not a de facto officer, 115. Where officer prematurely entering not recognized by public, not a de facto officer, 115. ENTRY-TAKER— County surveyor acting with public acquiescence as entry-taker, de facto officer, 112. ESCAPES— Escaping from de facto officer, punishable, 218. De facto officer liable in damages for permitting, 249a. De facto officer criminally responsible for permitting, 201. ESTOPPEI^ To deny existence of de facto corporation, 66. Persons acknowledging its existence, 06. Persons participating in forming it, 66. Persons becoming a. member or an officer thereof, 66. Township assessing taxes against it, 66. Persons suing it as a corporation, 66. Persons contracting with it, 66. Giving a note, bond or mortgage, to it, 66. Corporation issuing bonds payable to it, 66. Contract evidenced by ordinance with it, 66. Rule of estoppel can also be invoked against the corporation, 66. Whether rule works an absolute prohibition, 66, 67, 68. Probable scope of rule, 68. EXCISE COMMISSIONER— See Commissioners. Filing no bond is de facto officer, though statute declares his office forfeited, 141. Appointed by an unconstitutional method and attempting to act. not de facto officer where a de jure board is in possession, 199. Person acting as, when office full de jure, not de facto officer, 76. EXCLUSIVE— When proceedings to try elections held exclusive of quo warranto, 459. When held cumulative, 457, 458. When declared exclusive by statute as to certain matters, 456. EXECUTION— Constable seizing goods under, must show in trespass against him that he was a de jure officer, 268. Payment to de facto sheriff will discharge the debt named in, 315. EXPIRATION OF TERM— See Holding over Officers. EXTORTION— One holding an unconstitutionally created office, cannot be guilty of, 36, 259. De facto officer criminally liable for, 259. 700 INDEX. [BEFEKENCES ARE TO SECTIONS] FALSE IMPRISONMENT— De facto officer liable in damages for, when sued as a trespasser, 267, 268. FEES— See Salary. FEMALE OFFICERS. Female made eligible to an office by a void enactment, is a de facto officer, 39, 194. Female claiming to be school superintendent, while there is a de jure superintendent in possession, not de facto officer, 77. Female may be de facto notary public, though ineligible, 316. FINE— Usurpation generally punishable in United States by fine and im- prisonment, 264. A fine sometimes imposed on usurper by judgment in quo warranto in United States, 264, 474. Not so in England now, 264. FORFEITURE OF OFFICE— Municipal corporation not liable for money declared forfeited by prior supposed corporation, which had not even a de facto exist- ence, 61. Statutes declaring forfeiture of office, generally held directory, 140. Generally held that forfeiture must be declared by quo warranto, 144, 145, 472. Until forfeiture duly declared, incumbent generally an officer de facto, 140. Sheriff's bond not given in time, statute declaring that in such case "he shall forfeit his office," 141. Sheriff failing to renew his bond, statute declaring, "in default of giving such security, his office shall be deemed vacant," 141. Sheriff's bond not executed in time, statute declaring he thereby "vacates his office," 141. Justice of the peace failing to take oath, statute declaring "he shall forfeit the office to which he may have been elected or appointed, and shall be deemed guilty of a misdemeanor pun- ishable by fine or imprisonment," 141. Overseer of the poor taking improper oath, statute declaring that this shall be deemed a refusal to serve, 142. Commissioner of highways not executing bond, statute declar- ing, "he shall forfeit the office to which he may have been elected or appointed," 142, 314. Sheriff not renewing his bond, statute declaring his office vacant and all his acts absolutely void, 143. Master in Equity failing to qualify, statute declaring his office "shall be deemed absolutely vacant," 141. Town clerk moving into another town, statute declaring the of- fice vacant, 166. English cases, 144. Under the Test Act, 144. Effect of words "shall be ipso facto adjudged incapable and disabled in law" to hold the office, and the same "shall be void, and is hereby adjudged void," 144. Town clerk not making declaration of office, statute declaring his election void, 144. INDEX. 701 [EErBRBNCES ABB TO SECTIONS] FORFEITURE OF OFFICE— Continued. Canadian cases, 145. Councillor becoming insolvent, statute declaring his seat shall thereby become vacant, 145. School trustees interested in contracts with school board, stat- ute declaring "shall ipso facto vacate his seat," 145. Mandatory construction apparently not inconsistent with holding that defaulting officer is a de facto officer, 146-150. Cases holding otherwise, 150n., 170. Grounds of, subject of inquiry in quo warranto, 473. When forfeiture based on conviction, same must be proved, 473. GAOLER — See Escapes. GOVERNMENT— See De Facto Government. governor- Two persons disputing the office of, one having a de jure title, 79. Acting under claim of re-election after the taking of the oath of office by his successor, 124. Not regularly installed, 139. Person acting as, after adverse decision of General Assembly, not de facto officer, 94. When right to office of, may be determined collaterally, 79. Pardon granted by de facto, 79, 311n. HABEAS CORPUS— Proper remedy to discharge prisoner arrested under process issued or served by officer holding a non-existing office, 30. Or office unconstitutionally created, 36. Conviction quashed on, when made by court having no lawful exist- ence, 397. Conviction of de facto deputy recorder held quashable on, when ob- jection to him raised at trial, 417. Otherwise held where no objection raised, 417. Prisoner discharged in one case on, where arrested on warrant signed by alderman acting as justice of the peace without having taken oath, 418. Title of judge of court below not generally inquired into on, 435. Nor title of officer who issued process, 435. Title of de facto officer not generally triable on, 435. Title of de facto board of medical examiners not triable on, 435. Title of one holding by void commission, determinable on, 435. Prisoner refusing to deliver up official records will be discharged on, if question of title really at issue, 435. HEALTH COMMISSIONERS— See Health Officers. HEALTH OFFICERS— Board of health holding irregularly created office, de facto board, 44. Held that health commissioner appointed by mayor without consent of common council, was not de facto officer, 190. Not appointed conjointly by mayor and alderman, but by mayor and aldermen separately, held not de facto officers, 190. Regulations passed by de facto, valid, 312. IMPERATIVE— See Mandatory. 702 INDEX. [EBFEEENCES AKE TO SECTIONS] IMPROVEMENT DISTRICT— Irregularly organized, a de facto municipal corporation, 59. INCOMPATIBLE OFFICE— At common law the acceptance of, by an officer, operates a forfeiture of the first office, 162. Same rule in United States, 162. If officer continues to discharge duties of first office, he may be an officer de facto as to it, 163, 170. Common law rule applicable only where first office can be resigned at pleasure, 162. Difference between England and United States as to right to re- sign, 162. Where officer no right to resign, his appointment to a second office generally constitutes him a de facto officer as to new office, 162, 163. See Disability. Acceptance of, subject of inquiry in quo warranto, 473. INDICTMENT— For extortion is invalid, if against officer holding unconstitutionally created office, 36. Found in a territory attached to a county by an unconstitutional law, held void, 52. Found in a county unconstitutionally organized, held valid, 55. Not quashable because obtained by de facto prosecuting attorney, 319. Not set aside because jury selected by de facto officers, 320. Not quashable because sheriff de facto participated in drawing of jury, 320. INELIGIBLE CANDIDATE— See Ineligibility. Votes cast for, not generally void, 164. Is entitled to receive certificate of election, and becomes de facto officer, 164. Rule different where ineligibility notorious, 164. INELIGIBILITY— A person may be de facto officer, though ineligible, 95, 151-163, 351, 352, 356, 365. General rule stated, 151. Illustrations : — A doctor, not a spiritual person, inducted to a benefice, 152. Ineligible person elected mayor, 152. Tithe valuer appointed, though interested in the tithes, 153. Persons appointed without residential qualification, 409. Collectors and assessors thus disqualified, 153. Minor elected to office, 409. Minor appointed by justice of the peace to exectue a process, 154. Deputy circuit clerk or deputy sheriff appointed under age, 154. Lawyer under prescribed age appointed judge, 154. Constable ineligible by reason oif blood, 155. Justice of the oeace. school trustee, notary public, alderman, not naturalized citizens, 156. But alien appointed to office always remains a de facto of- ficer, though he subsequently becomes naturalized, 156. Female elected notary public or school inspector, 157, 316. INDEX. 703 [EEFEBENCES ABE TO SECTIONS] INELIGIBILITY— Coji