FROM MATTHEW BENDER, lAwaooK PUBLISHEfl. ALANY, - N. Y. ■ Cornell University Law Library The Moak Collection f PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OP THE fiCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS KF 5316.T53™" """""">' "■'""'y llllllimfmiiif'* '^"' ™'a"n9 to public M.^ Cornell University WS Library The original of tiiis book 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/cu31924019959406 A TREATISE ON THE LAW ;^ •' / RELATING TO PUBLIC OFFICERS SURETIES IN OFEICIAL BOIDS BY MONTGOMERY H. THROOP New Yobk: The J. Y. Johnston Compantt LiAW Book Publishers 1892 Entered according trf-Aot of Congress, in the year 1892, by MONTGOMERY H. THROOP, in the office of the Librarian of Congress, at Washington. PREFACE In this country, the appointment or election of public oflBcers, their tenure of office, powers, duties, and liabili- ties, and their official oaths and bonds, are minutely regulated by statute. This book does not consider such statutory provisions, nor is it intended for use in any par- ticular locality. And it does not undertake to treat of particular officers, the powers, duties, etc., of many of whom, such as sheriffs, justices of the peace, etc., form the subject of numerous and voluminous special treatises. It aims to collect, arrange in a logical and convenient form, apply, and comment upon, the general rules of law, relating to all public officers, from the highest to the lowest, and sureties in their official bonds, as found in the adjudications of the courts in England and in this country. Those adjudications, although exceedingly numerous, as the list of cases, prefixed to the text, will show, are scattered under various heads in the digests and text books, and for want of such an arrangement and elu- lucidation as I have attempted to make, are found with difficulty, and, when found, are often contradictory. I have bestowed much time and great labor in collecting the cases, and in examining them and discussing them; and I hope and believe that no relevant case, which had been published when these pages went to press, has es- caped my vigilance. I commend the result of my labors to a generous profession, in confidence that the work which I have attempted was greatly needed, and in the hope that I have been able to accomplish it so as to supply the need MONTGOMERY H. THROOP. 303 State Street, Albany, N. Y., January, 1893. AIALYSIS OF TEE COITEITS. BOOK I. PUBLIC OFFICERS GENERALLY. Chapter I. Sec. Who is a public officer 1-15 Chaptee II. Nature and general incidents of a public office .-rr 16-31 Chapter HI. Classification of public officers....^-. 23-29 Chapter IV. Two or more offices held by one person 30-40 Chapter V. Assignment of an office, or of the emoluments thereof 41-48 Chapter VI. Trafficking in offices; and other contracts respecting offices, officers, or official conduct 49-66 BOOK II. FILLING AN OFFICE. Chapter VII. Who may or may not hold a public qfflce 67-83 Chapter VIII. Appointment by one or more officers or boards '. . 84-121 I. General rules relating to appointments; when an appointment is or is not complete. 84-94 r ANALYSIS Sec. II. Validity and effect of statutes, requiring appoint- ments to be made after examination by, and upon the recommendation of, a civil service commission; or giving preferences respecting appointments to dis- charged soldiers or sailors 95-98 III. Appointment niade upon nomination by one officer, and confirmation by, or consent of other officers 99-103 rV. Appointment made by one or more boards of public officers, or by the concurrent action of three or more separate public officers 104-131 Chapter IX. Election by the people 122-163 I. Nature of and right to the elective franchise; and how it is conferred and regulated '. 123-137 II. Who is, and who is not, entitled to vote at an election 138-131 III. Validity and effect of registration laws 133-138 IV. General principles respecting elections and voting thereat ; ballots ; defective ballots 139-145 V. Rules of construction of statutes regulating the time, place, and manner of holding elections, and the notice thereof 146-153 VI. Greneral powers and duties of inspectors or judges of election, and of canvassers 153-159 VII. Rule where the successful candidate cannot law- fully hold the office 160-163 Chapter X. Acceptance or refusal ; penalty for refusal 164-169 Chapter XI. Official oath ; official bond 170-301 I. General principles ; and rulings applicable equally to official oaths and official bonds 170-176 II. Rulings relating to the sufficiency and effect of an official oath 177-181 III. Rulings relating to the sufficiency and effect of an official bond ". 182-301 Chapter XII. Rights and liabilities of the sureties in an official bond 202-296 vi ANALYSIS Sec. I. Preliminary observations 20S-303 II. Questions relating to the time, when an act or omission of the principal must have occurred, in order to render the sureties liable therefor 204-213 III. Respective liabilities of sureties in two or more bonds, given by the same officer, for successive terms, or for successive periods of the same term 214-219 rv. Respective liabilities of sureties in a general bond, and sureties in a special bond, given by the same officer pursuant to a statute 220 V. Liability of sureties of an officer, for public money received by him, and lost by theft, robbery, the act of God, or the public enemy ; the failure of a depositary ; or otherwise without his negHgence or other fault 221-229 VI. Liabilities of sureties, depending upon the official or unofficial character of act or omission, by reason whereof a claim is made against them 230-237 VII. Liabilities of sureties for acts of malfeasance, or wrongs committed colore officii 238-241 VIII. Various other rulings as to the liabilities of sureties in particular cases 242-258 IX. Liability of sureties, where the bond was executed, upon a condition which had not been fulfilled 259-266 X. Liability of a surety, where a co-surety's signature was forged, or otherwise affixed without his authority 267 XI. Liability of sureties, as affected by a subsequent alteration of the officer's duties, or the tenure of his office 268-279 XII. Effect, upon the liability of the sureties, of acts or omissions of other officers, including transaction's between them and the principal 280-287 XIII. Defences of sureties, founded upon defects in the acquisition of his office by the principal, or in pro- ceedings to charge him 288-291 XrV. Miscellaneous questions, relating to the amount recoverable against sureties ; the formal proceedings necessary to found an action against them ; and the like 293-396 Chapter XIII. Evidence of title to a public office 297-303 vii ANALYSIS BOOK III. TENURE OF OFFICE ; VACANCY. Chapter XIV. Sec. Term of office ■ 303-332 Ohaptbk XV. Holding over ; powers after expiration of term 833^339 Chapter XVI. Removal ; suspension 340-406 I. Eflfect of express constitutional provisions upon the power to remove an officer , 341-344 II. Power of the legislature, in the absence of constitu- tional limitations 345-346 III. What is or is not a removal, especially within con- stitutional or statutory provisions regulating removals 347-353 IV. Eules determining the officer or board, vested with power to remove 354-356 V. Who is Uable to be removed ; who is entitled to the benefit of the constitutional or statutory restrictions upon the power of removal 357-360 I. Cases where an officer may be removed without cause assigned, and where only for cause 361-363 VII. Cases where a removal can be madis, only upon notice to the officer, and hearing him in his defence 364^-365 VIII. Causes which are or are not sufficient for the removal of an officer 366-378 IX. Legal sufficiency of the proceedings to remove an officer, upon charges, and after a hearing i 379-390 (1.) General rules 379-380 (3.) Sufficiency of the notice and of the statement of charges 381-384 (3.) Taking the testimony, and other proceedings upon the trial or hearing 385-387 (4.) Waiver of his righis by accused, and effect thereof 388 (5.) Decision, and effect thereof 389-390 X. Review by the courts of proceedings to remove an officer 391-398 viii ANALYSIS Sec. XI. Removal by impeachment 399-400 XII. Suspension of an officer 401-406 Chapter XVII. Resignation ; forfeiture 407-430 I. Modes of resignation 407 II. Express resignation 408-416 IIL Resignation by implication ; forfeiture 417^30 (1.) By accepting an incompatible office 417 (3.) By nonuser, including absence from the.place of performance 418-433 (3.) By ceasing to be a resident of the district ; or, in case of a state officer, of the state 434-436 (4.) By refusal to accept the office , 437-438 (5.) Miscellaneous constitutional or statutory causes of forfeiture 439-430 Chapter XVIII. General rules respecting vacancies, and declaring and ffiling the same 431-440 BOOK IV. COMPENSATION. Chapter XIX. General principles; fixing, increasing, and diminishing compensation 441-476 I. Definitions and general rules 441-444 II. Whether an officer is entitled to compensation, unless given him by the constitution or a statute 445-448 III. Construction and effect of statutory provisions, grant- ing compensation to officers 449-453 IV. Cpiistruction and effect of constitutional and statutory provisions, fixing, or allowing a board or officer to fix, the compensation of public officers; or making, or allowing a board or officers to make, an increase or diminution of such compensation 454^464 v. Construction and effect of constitutional and statutory provisions, forbidding an increase or diminution of compensation 465-471 ix ANALYSIS Sec. VI. Times of the beginning and the ending of an officer's compensation 473-476 Chapter XX. When an officer may or may not have compensation, in excess of that fixed by law 477-498 • I. General rules respecting additional compensation to a public officer 477-484 II. Cases, where an officer is, or is not, entitled to a reward offered for a special service, or to an informer's share in confiscated property , 485-489 III. Other cases, where it has been held, that an officer was entitled to compensation, for exceeding his official duty 490-495 rv. Whether an officer, discharging the duties of his own and another office, can have any additional compensa- tion, beyond the emoluments attached to the former 486-498 Chapter XXI. Eights and remedies of an officer, respecting his compen- sation 499-533 I. Right of an officer to receive his fixed compensation, without deductions 499-508 II. Officer's remedies against the pubho authorities for liis compensation 509-530 III. Officer's remedies against an intruder for his com- pensation 521-533 Chapter XXII. Extortion 534-530 BOOK V. POWERS AND DUTIES; AND THE EXERCISE THEREOF. Chapter XXIII. Nature and extent of officers' powers and duties ; when they are coincident; general rules respecting the exercise thereof ; 531-568 ANALYSIS Sec. I. Preliminary observations ; political powers and duties 531 II. Legislative powers and duties 533 III. Judicial, quasi judicial, and ministerial powers and duties 583-541 IV. Officers' implied and incidental powers. 543-545 V. When an officer's power and duty are or are not coin- cident 546-350 VI. Effect of an exercise of power by an officer 551-555 VII. Power given by statute must be strictly pursued ; presumptions in support of regularity of exercise thereof '. 556-563 Vni. Miscellaneous rulings respecting officers' powers and duties 568-568 Chapter XXIV. Delegation of powers ; deputies 569-601 I. What official powers may or may not be delegated 569-576 II. Appointment of a deputy; validity and effect of agreements upon such an appointment; tenure of deputy's office 577-583 HL Powers of a deputy 583-587 IV. Liability of the principal for his deputy's acts and omissions 588—593 V. Deputy's bond of indemnity to his principal, and liabilities of sureties therein 594-601 Chapter XXV. Exercise of power, granted to two or more officers, where one or more vacancies exist 603-606 Chapter XXVI. Exercise of power, by an officer interested 607-631 I. General rule • ■ 607 II. Particular cases, wherein an interested officer im.j not act 608-613 III. Particular cases, wherein an officer, although interested, may act 614-617 IV. Effect of unlawful action by an officer interested 618-621 Chapter XXVII. Exercise of power by an officer de/aeto ." 633-668 I. Who is an officer de jure, and who is an officer de facto; and general rules governing the exercise of power by an officer de facto • • 638-638 xi ANALYSIS Sec. II. Rulings in particular cases, as to whether one is or is not an officer defaeto, upon the facts presented 639-648 (1.) Where the officer has failed to give an official oath or bond, or has given one that is insuf- ficient 639-630 i(3.) Where the officer has forfeited his office, or .his term has expired 631-633 :(^i) Where the appointment or election, under vehich the officer holds, was irregular or invalid 638-635 (4.) Where the officer was disqualified from holding the office 636 (5.) Where the statute, under which the officer acted, was unconstitutional 637-638 (6.) Where the office had been abolished. 639-640 (7.) What acts constitute or do not constitute sufficient possession of an office, to render a person an officer de facto 641-648 III. Rulings respecting the validity and effect of acts of officers de facto, in particular cases 649-658 IV. Where the officer seeks to maintain his own rights or interests, he. must show that he is an officer dejitre, as well as defaeto 659|-663 V. Miscellaneous rulings, as to the rightsand liabiUties of an officer defaeto, and an officer dejure 664-668 Chapter XXVIII. Security taken by an officer upon an exercise of power 669-703 I. General rules, relating to securities taken by an officer for ease and favor, or otherwise colore officii 669-680 II. Contracts to indemnify officers 681-696 III. Contracts of receiptors ' 697-706 BOOK VI. JUDICIAL PROCEEDINGS RELATING TO PUBLIC OFFICES AND OFFICERS. Ghaptee XXIX. Action at law by or against an officer 707-775 xii ANALYSIS Sec. I. General rules, respecting an oflScer's liability to, or immunity from, a private action sounding in tort 707-731 II. Special rulings, respecting the liability of particular officers to private actions 730-755 (1.) Justice of the peace 733-735 (2.) Highway officer 736-737 (3.) Assessor of taxes 738-741 (4.) Eecording officer 742-744 (5.) Clerk of a court 745 (6.) Election officer 746-750 (7.) Postmaster 751-752 (8.) Sheriflf, marshal, coroner, constable, etc 753-755 in. Protection of a ministerial officer by his process 756-770 rv. Other actions at law by or against public officers 771-775 Chapter XXX. Judicial proceedings to oust a usurper from an office, and to put the rightful officer in possession thereof, and of the appurtenances thereto 776-792 I. Information in the nature of a quo warranto ; and other statutory proceedings to oust a usurper, and put the rightful officer in possession 776-786 II. Proceedings by an officer, to recover possession of the books, papers, and other appurtenances of his office 787-793 Chapteb XXXI. Judicial proceedings to review, compel, or restrain official action 793-853 I. Whether any officers are exempt from the judicial supervision, considered in this chapter 793-799 II, Certiorari 800-811 in. Mandamus 813-834 IV. Prohibition ] 835-840 V. Injunction 841-853 Chapter XXXII. Criminal proceedings against a public officer , 854r-865 Xlll CONTENTS. BOOK I. PUBLIC OFFICERS GENERALLY. Chapter I— Who is a public officer. . Sec. How this question arises 1 English general definitions of " ofBce " and " ofllcer " 2 American definitions o£ those words 3 The same subject 4 The same subject ; whether an attendant upon a court is a public oiHcer 5 The same subject ; landscape architect in department of public works 6 The same subject ; assistant clerk of board of aldermen ; messenger of president of board ; officer of school district 7 How the question is affected by extent of territorial limits of juris- diction ; or emoluments ; or official oath ; or permanent or transient character of duties 8 Clergyman administering marriage a public officer pro hac vice ; person empowered to certify facts upon which payment of public money to be made not a public officer ; firemen of city hot public officers 9 Miscellaneous rulings that certain persons having public functions are public officers 10 Ruling by U. S. Courts under joint resolution giving increased com- pensation to civil officers of the U. S 11 Miscellaneous rulings that certain persons having public functions are not public officers 12 Whether attorneys, solicitors, and counsellors are public officers 13 The same subject 14 The same subject 15 xiv CONTENTS Chapter II — Nature and general incidents of a public office. Sec. What offices in England are inheritable and assignable, and regarded as incorporeal hereditaments 16 In the United States no office is a hereditament ; general principles relating to this subject 17 Examination of some American cases where an office is said to be property 18 Settled doctrine in the United States that an office is not held under a grant or contract, and where the constitution does not other- wise provide, the legislature may change the duties, term, compensation, etc., or abolish it; but if these incidents fixed by constitution, legislature cannot change them. So an office does not create a contract by the officer to serve. Same rule applies to a municipal officer and the municipal legislature 19 But legislature caimot remove an officer, directly or indirectly ; and some cases hold that term cannot be abbreviated, etc. Various rulings respecting the constitutionality of statutes tending indi- rectly to affect officers regulated by the constitution 20 An office is a public agency ; and so the act of public officers bind the state, etc., but not when power exceeded; government not chargeable for officer's default 21 Chapter III— Classification of public officers. General classification by Bacon ; by Judge Clifford 22 General classification by Judge Cooley 33 Criticism upon those classifications ; town tax collector ; state auditor ; county solicitor 84 These classification are of minor importance ; question generally is as to the nature of the power exercised in each case ; that ques- tion considered in ch.- 33 25 Classifica-tion into general and local officers, with reference to con- stitutional and statutory provisions affecting generally such officers ; rulings thereupon 36 Whether a justice of the peace in New York is a town officer or a county officer 37 Constitutionality of statutes creating districts, consisting of several cities, towns, etc., with reference to same question 38 Miscellaneous rulings as to whether particular officers are general or local officers 29 XV CONTENTS Chapter IV— Two or more offices held by one person. Sec. Common law fixes no limit to offices held by one person, if compat- ible ; but if not compatible the first is relinquished, although the superior ; what exceptions to the rule are admitted 30 Where not otherwise provided by constitution or statute, the same general rule obtains in this country ; rule as to the exceptions. The acceptance of, not the election or appointment to the sec- ond office, determines the first ; various illustrations 31 Exceptions where a penalty is incurred by failure to accept the sec- ond office ; and where the appointment to the second office is void 33 Greneral rules to determine whether two offices are or are not com- patible 33 The same subject ; case where one held offices of member of legisla- ture and deputy clerk of a court 34 Various English rulings as to the compatibiliiy or incompatibility of particular offices 35 Various American rulings that particular offices are incompatible. . 36 Various American rulings that particular offices are not incom- patible 37 Rulings upon constitutional or statutory prohibitions against hold- ing two or more offices, etc 38 Rulings upon constitutional or statutory prohibitions against simul- taneously holding an office under the state and one under the United States 39 The same subject 40 Chapter V — Assignment of an office, or of the emolu- ments thereof. English rule that certain offices are assignable ; such rule does not exist here 41 English cases, holding that an assignment of future emoluments of an office is void ; reason for the rule 43 American cases to the same effect 43 Certain cases holding the other way ; and apparent exceptions to the rule ■ 44 Salary or fees already earned may be lawfully assigned ; so if paya- ble on a contingency 45 English ruling as to the validity of the assignment of a pension 46 American rulings on the same subject 47 xvi CONTENTS. CHAP. V — CONTINUED Sbc, Rulings that unearned emoluments cannot be reached by attach- ment, garnishee process, etc 48 Chapter VI— trafficking in offices ; and other contracts respecting offices, officers, or official conduct. English statutes against trafficking in offices ; the offence is punish- able at common law 49 All contracts for procuring an office throiigh the promisee's influence with a third person, or otherwise influencing an appointment, are void imder the statutes and at common law ; and equity will also annul them 50 The same rule applied to offices of the East India Company, as a branch of the government 51 Corruption or guilty intent not essential ; case where the borough of Liverpool appointed an officer under a contract, which was avoided in equity ; other English cases ; rule as to sale of mili- tary commissions 52 English statutes have been re-enacted in this country, and our courts follow the English rulings thereupon ; instances and authorities. 53 Contract void where one of two applicants for appointment with- ■ draws on a contract to divide fees; so where candidate for election agrees to pay for efforts to elect him ; and other similar cases .• 54 So where members of appointing board contract inier sese as to their votes; so as to contracts relating to resigning or exchanging offices ; American cases on the general doctrine 55 All "lobby contracts,'' so called, are void; what contracts for ser- vices before congress or a state legislature are within this rule, and what contracts are valid ,. 56 The same subject 57 Certain cases, where contracts relating to private legislation only were sustained 58 Contracts to procure particular official action, from an executive or administrative officer, such as a pardon, a pubUc improvement, etc.; when valid and when void 59 The same subject ; contracts to furnish supplies, etc., for pubUc use. 60 The same subject ; contract for supplies, etc 61 The same ; also contract for discharge of men drafted for the army ; contract for sale to government 63 Contracts between persons bidding or intending to bid upon pro- posals to furnish articles, etc. , for public use ; when void 63 xvii CONTENTS. CHAP. VI — CONTINUED Seo. The same subject ; cases where such agreements are valid 64 Contracts to induce an oificer to violate his duty, unlawful 65 Contracts where a reward to the officer is stipulated jequivalent to corruption ; otherwise, semble, where reward enures to public benefit 66 BOOK II. FILLING AN OFFICE. Chapter VII— Who may or may not hold a public office. What offices an infant may hold, in absence of any express prohibi- tion 67 What offices, in the absence of such a prohibition, a woman may hold ; EngUsh authorities 68 The same subject ; American authorities 69 The same subject, continued TO To what extent unfitness to discharge the duties of an office disquah- fles one from holding it 71 QuaUflcations and disquaUfications under the United States consti- tution ; general principles as to disqualification, established by the " common political law " 72 Qualifications and disqualifications under state constitutions ; power of the legislature to add other reasonable and consistent quali- fications ; whether a statute requiring the members of a public board to belong to difi'erent political parties is constitutional. . . 73 Legislature has power to exclude f rdm office those convicted of crime, and require a period of citizenship, ability to read and write, and payment of taxes 74 Various ruUngs upon the question whether bribery disqualifies, and upon particular provision as applicable to bribery 75' Cases where candidates have procured votes by public promises to accept less than the official salary, etc 76 Buling upon provisions disquahf ying for crime 77 Rulings upon the 14th amendment of the IT. S. constitution, disquali- fying certain persons who participated in the civil war, and similar provisions in the constitutions of some of the states 78 Validity and effect of statutes requiring proof that public money has been accounted for 79 Provisions relating to citizenship, residence, and the like ; construc- tion thereof 80 xviii CONTENTS. CHAP. VII — CONTINUED Seo. Provisions forbidding one to hold two or more offices ; validity and construction thereof 81 Mode of determining questions relating to qualifications for office. . . 83 Effect of provisions forbidding a member of the legislature from holding an office created, etc., during his term 83 Chapter VIII — Appointment by one or more officers or boards. /. General rules relating to appointments ; when an appointment is or is not complete. Distinction between "election" and " appointment" 84 Power of appointment may be granted by legislature to unofficial persons 85 Appointment valid only when in writing 86 The same subject ; w:hen appointment is complete 87 The same subject; rescission of a complete appointment; when a commission confers the office, although not transmitted to per- son appointed 88 When body having appointing power may or may not reconsider its action 89 When appointment made, a subsequent appointment before expira- tion of term is void, unless there is a power of removal ; aliter, if appointment was illegal ; validity of appointment of municipal officer in a special case 90 Validity of prospective or conditional appointments 91 But outgoing officers cannot forestal their successors, by making ap- pointment to take e£Eect after expiration of their official terms. . 93 Validity of appointment made "at" expiration of incumbent's term, or after the time specified by statute 93 Appointment, where made clandestinely and mala fide by part of appointing officers, invalid ; so where made by vote of one whose term had expired 94 11. Validity and effect of statutes, requiring appointments to be made after examination by, and upon the recommendation of, a civil service commission ; or giving preference respecting ap- pointments to discharged soldiers or sailors. Such statutes not obnoxious to a constitutional prohibition of tests, or a constitutional provision for appointment by local officers ; but are imconstitutional where constitution grants an officer ab- solute power to appoint his subordinates : 95 xix CONTENTS. CHAP. VIII— CONTINUED Sec. Where not unconstitutional, will be enforced by mandamus ; or by- refusing salary to officer appointed in violation thereof ; or by action for compensation 96 Preference to veterans not absolute, but only over others equally qualified ; when they must comply with civil service rules ; when statutes prevent retirement of veteran under former statute 97 Preferential statute confined to original appouitments, and not appli- cable to promotions ; or where office is abolished for economical reasons; miscellaneous rulings as to construction, etc., of such statutes 98 III. Appointment made upon nom,ination by one officer, and comflrma- tion by, or consent of other officers. Most common instance is where governor appoints, and senate con- firms 99 If consent of senate required only when in session, appointment by governor during long recess is absolute ; if consent of senate ab- solutely required, governor cannot revoke appointment made during recess, and person appointed holds tiU rejected by senate . 100 Where mayor is empowered to fill vacancy for full term, or appoint temporarily, subject to confirmation by common council, appoint- ment, etc., temporarily during vacancy, is not for full term ; but appointment for less than the statutory term is for a full term. . 101 In case of appointments subject to confirmation, persons nominated must have a majority of confirming body 102 Rule where there are several districts, and appointment does not specify the district 103 IV. Appointment made by one or more boards of public officers, or by the concurrent action of three or more separate public officers. Questions relating generally, to the exercise of powers by such bodies, will be considered in this division 104 English rule that where power pertaining to public affairs is granted to several, the act of the majority will conclude the minority, only when all are regularly assembled 105 American cases following this ruling ; if there are any vacancies, board cannot act, although a majority is in office 106 When all convened, minority caimot prevent action of majority, by withdrawing ; action by part without the rest, not validated by the latter's subsequent assent ; but validated by subsequent rati- fication in full meeting 107 Presumption in favor of validity ; but if statute requires validity XX CONTENTS. CHAP. VIII— CONTINUED Sec. to appear on face of proceedings, they must show that all met, etc 108 Rule in some cases extended to private transactions, etc.; such cases disapproved 109 Various rulings as to whether particular statutes affect the rule, or otherwise 110 Obvious inconveniences of a rule which requires all to meet ; modi- fled by English authca:ities, in case of municipal and other cor- porations, so as to allow notice to be a substitute for presence. . . Ill American authorities applying this modified rule to all cases of public concern, by holding that if any member of the board fails to attend upon notice, the others may act as if he was present. . 113 Rulings as to the sufficiency of the notice ; when participation pre- cludes objection 113 Rule fixing time of stated meeting, or statute fixing time of action, dispenses with notice ; powers of stated meeting ; rule as to. ad- journments 114 Doctrine as to notice, etc., extended to jury to appraise damages. . . . 115 Rulings as to mode and validity of appointment, where power is conferred upon two or more separate bodies 116 The same subject ; rules where they are met to compare nomina- tions, and vote if the nominations do not agree 117 Rule where majority refuse to obey statute ; and where a constituent officer so refuses. 118 Construction of votes of concurrence or non-concurrence where two separate bodies act 119 Whether power to appoint is or is not judicial; when body so empowered cannot appoint one of its members 180 Rulings as to the validity of official action, when majority had pre- viously settled upon its action by means of a " caucus." 131 Chapter IX— Election by the people. Popular elections regulated by special provisions in each state; general rules only to be considered here 133 /. Nature of and right to the elective franchise ; and how it is con- ferred and regulated. Right to vote is a franchise, and is granted or denied as state deems expedient ; the people, as a political body, are those entitled to vote 123 Congress has power to declare who is a citizen • otherwise states xxi CONTENTS. CHAP. IX — CONTINUED Sec. have exclusive power to regulate franchise ; effect of the 14th and 15th amendments to the U. S. constitution 124 State exercises its power through its constitution, and a statute making a different provision is unconstitutional ; instances 135 But a statute superadding requirements, not inconsistent with con- stitutional requirements, is vaUd; instances... 136 Legislature has power to regulate political caucuses and conventions, and to ratify unlawful elections 137 II. Who is, and who is not, entitled to vote at an election. Generally, only citizens can vote. Each state determines who are citizens thereof, subject to the 14th amendment of U. S. constitu- tion ; children of citizens sojourning abroad are citizens ; pre- sumptive evidence of alien's naturalization 128 Women not entitled to vote, unless so expressly prescribed; this question not affected by 14th amendment to U. S. constitution ; effect of provision giving suffrage to males 139 Voter must.have attained majority ; when a man is deemed of age ; provision excluding lunatics, etc., does not apply to one en- feebled through age, etc. , or subject to hallucinations, etc 130 Residence, provisions as to ; domicil deemed residence ; when resi- dence not lost or gained by absence, attendance at college, etc., and vice versa ; rule as to an inmate of an almshouse, asylum, etc. 131 III. Validity and effect of registration laws. Power of legislature to enact registration law, where constitution of state is silent upon that subject; regulations must be reason- able, etc 133 Various rulings, as to whether particular regulations in registration acts are constitutional 183 The same subject 134 Legislature has power to exclude from voting, those who fail to be registered ; when those who applied in season are entitled to be registered after expiration of time 135 Whether powers of board are judicial, and whether members are liable to private actions 136 i Effect upon the election of the unconstitutionality of the registration law ; or the misconduct of the registration officers 137 Jioceedings of registration boards not invalidated by formal errors, v-etc, ; .instances 138 xxii CONTENTS. CHAP. IX — CONTINUED TV. General principles respecting elections and voting thereat ; ballots ; defective ballots. Sec. Where majority of all the votes not expressly required, a plurality will elect ; absentees deemed to assent to result ; rule where two or m.ore officers of the same designation are to be chosen 139 Whether a statute, prescribing the mode of voting to secure "minority representation,'' or for " cumulative voting," is con- stitutional 140 Voting by proxy not allowed ; when voting not deemed to. be thus made ; voting in instalments at different times not allowed, although the first voting was unlawful 141 "Australian" or other "reformed" "system of voting ;" rules re- specting its constitutionality; also provisions confining the voting to formerly nominated candidates 142 Voting by ballot ; printed ballot equivalent to written ; constitution- ality and construction of statutes, forbidding distinguishing marks, etc., and providing for numbering ballots, so as to corres- pond to the poll lists 143 Various rulings as to whether statutes prohibiting distinguishing marks, etc., apply to particular cases -144 Ballot having too many names for one office void ; but only as to that office ; rules where a name is defectively given ; or an era- sure, etc., or the substitution of another name is imperfectly made 145 V. Rules of construction of statutes regulating the time, place, and manner of holding elections, and the notice thereof. General rule that election is not vahd, unless held- as prescribed by statute; but statutory regulations deeined directory as to matters of form and detail, etc 146 The same subject; instances where directory provisions disre- garded 147 Generally, statutory directions as to time of holding election are deemed mandatory ; but slight variations, which do not affect the result, will be disregarded 148 So statutory directions as to place of holding election, are generally mandatory ; but under special cirumstances election may be held at another place ; instances 149 Notice required by statute is essential, where time and place are not fixed by statute ; where so fixed not essential ; reason for rule 150 xxiii CONTENTS. CHAP. IX — CONTINUED Sec Instances where elections invalid for want of notice. : 151 Instances where elections valid or invalid when notices are not given 152 VI. General powers and duties of inspectors or Judges of election, and of canvassers. The duties of inspectors or judges of election are merely ministerial, although they are bound to decide as to voters' qualification 153 Instances where inspectors have or have not power to decide as to quaUfications 154 After board has counted votes and made statement, it is functus officio, and members cannot reassemble and make new count, or subsequent statements, which will be valid 155 So canvassers' duties are ministerial, and they must act upon inspec- tors' returns ; but they must decide whether returns are regular on their face. Mandamus to compel action 156 Further rulings as to mandamus ; canvassers must accept returns of majority of inspectors ; cannot reassemble and act anew, after having once completed the canvas and made certificate 157 When canvassers may, and when they cannot, allow a candidate defective ballots, or ballots wherein his name is imperfectly given 158 Where ballots are rejected by canvassers as defective, remedy is by a judicial proceeding to test the title to the office. In such pro- • ceedings, the canvassers' certificate is prima facie evidence only 159 VII. Rule where the successful candidate cannot lawfully hold the office. English rale that validity of a vote depends upon voter's knowledge of disqualification ; that votes thus cast are rejected ; and if majority is overcome thereby, next highest candidate is chosen ... 160 American cases following this rule 161 The same 163 But the weight of the American authorities establishes the rule, that in such a case the election fails, and anew election must be held, unless votes expressly declared to be void. So if successful candidate had died before election 163 Chapter X — Acceptance or refusal ; penalty for refusal. Acceptance necceaary to vest title to office; what suffices as an acceptance 164 Refusal to accept an office is punishable by indictment at common xxiv CONTENTS. CHAP. X — CONTINUED Seo. law ; municipal corporation may also impose penalty for such refusal ; 165 Mandamus also lies against person so refusing, although he has paid the penalty ; person disqualified not liable to penalty ; quere, whethei: penalty recoverable where no compensation is pro- vided 166 Statute imposing penalty is constitutional ; but ineligibility or holding an incompatible olfice is a defence ; quere, whether, where there is a penalty, person may hold incompatible offices 167 Officer who resigns, incurs thereby a penalty attached to refusal to serve ; where he has paid one penalty, he is not liable to another, for refusing to serve upon reappointment 168 What suffices as a refusal ; it may be treated by appointing power as a forfeiture 169 Chapter XI — Official oath ; official bond. I. General principles ; and rulings applicable equally to official oaths and official bond. Oath and bond evidence of acceptance of office ; officer liable to common law action, although bond given ; officers empowered to administer oaths or accept bond, have no power to decide upon the title of person offering them 170 Whether officer succeeding ex officio to a new office must give new oath and bond ; holding office under color of title is evidence that bond and oath have been furnished 171 Statute fixing time to qualify not appUcable to one kept out of office ; or where two receive an equal number of votes ; or where officer had no notice of his appointment tUl expiration of time 173 Such statutes are deemed directory, although they make the failure ground of forfeiture, unless they declare that the failure ipso facto forfeits the office ; but in some cases a contrary ruhng has been made 173 Various ruhngs in cases where oath or bond was not furnished with- in the prescribed statutory time ; whether failure to give a bond for one office vacates another, where former is held ex officio 174 Refusal of approving officer to act is excuse for not seasonably giving bond ; but mistake no excuse ; officer failing to give oath or bond cannot justify, or have his salary 175 Where bond seasonably executed, but not filed, whereupon office declared vacant, and same person reappointed, sureties in bond first prepared not liable 176 XXV CONTENTS. CHAP. XI — CONTINUED II. Rulings relating to the sufficiency and effect of an official oath. Sbc. When a state may not require a test oath ; what is evidence of legislative mtent to dispense witti oath; ofiSce not vacated because test oath is false I''"'' Rulings respecting the officers by whom an official oath may be administered; effect of taking it before one not thus authorized.. : 178 Rulings respecting the sufficiency of the oath, and evidence that it has been duly taken 179 Rulings upon various formal defects in official oaths ; and whether such defects vitiate the officer's title to the office 180 The same subject 181 III. Rulings relating to the sufficiency and effect of an official bond. Validity of bond, as respects parties' liability, not affected by omis- sion of, or defects in acknowledgement, or approval, or justifi- cation, as required by statute 183 Various rulings as to sufficiency, date, and effect of the approval. . . 183 What is or what is not sufficient evidence of an approval 184 Defects in approval ; courts liberal in disregarding them ; fuliags thereupon, and upon acknowledgements 185 When an official bond takes effect 186 Courts liberal in disregarding irregularities and defects in official bonds, where not vital, even in proceedings to oust the officer. Numerous cases establishing the general rule 187 When bond, which so departs from the statute, that it cannot be sustained as a statutory bond, wiU be sustained as a common law bond ; rulings on either side 188 Where bond is sustained as a common law bond, it must be enforced by common law rules ; instances 189 Rulings in cases where the bond departed from the statute as respects the obligee 190 The same subject 191 Rulings in cases where the bond departed from the statute as respects the condition thereof 192 The same subject 193 Rulings where the instrument, given as an official bond, was not sealed 194 Rulings where principal not a party ; where names of sureties or principal do not Sippear in body of bond 195 Rulings where boiid was executed with blanks left, which were after- wards filled up, without parties' assent 196 xxvi CONTENTS. CHAP. XI — CONTINUED Sec. Rulings where alterations made in. bond or in some of parties, after execution, and without other parties' assent 197 Rulings where bond varies from statute as to the penalty 198 Rulings where it is joint, instead of joint and several ; where each surety is bound for part only of the penalty ; where the bond is executed by less than the number required by the statute 199 Rulings where a surety is disquaUfied ; where the officer was not appointed at the prescribed term of the court 300 This subject to be further considered in the next succeeding chapter 201 Chapter XII— Rights and liabilities of the sureties in an official bond. I. Preliminary observations. Rights of sureties, as against promisee or obligee, under general law of principal and surety, defined ; this general law appUes to bond given by deputy to principal ; reasons why its application is restricted, where bond is given by an officer elected, or appointed by public authorities 302 Rights of sureties inter sese or against principal, are the same under an official bond, as under private bond ; rights of subrogation also the same ; extent and apphcation of such right under an official bond, and consequences of impairing it 20$ II. Questions relating to the time when an act or omission of the principal must have occurred, in order to render the sureties liable therefor. General rule i§, unless bond otherwise provides, that sureties liable for future transactions only, and not hable for previous transac- tions, occurring either during the same term, or a former term, or where a new bond is given as a substitute for an old bond, which is thereupon cancelled 304 General rule also is, unless bond or statute otherwise provides, that sureties are liable only for defaults which occurred before the end of the term for which bond was given 305 Exceptions to rule that sureties are not liable for previous defaults are baaed upon peculiar lang^uage of statute or of bond, or upon peculiar circumstances attending the giving of the bond ; cases where they were so held Uable 306 Rule that sureties' liability does not extend to defaults beyond the term, not varied by general language of the condition 307 xxvii CONTENTS. CHAP. XII — CONTINUED Sec. Sureties not precluded from showing that defalcation occurred before bond was given, although the principal is estopped from so showing ; various rulings as to UabUity in such cases 308 Ruhngs as to the liabilities of the sureties, where the ofiBcer, holding for two terms, has acted partly during one term, and partly during another 309 The same subject continued ; cases where the officer had begun to execute process during the expired term 310 Liability for money recieved at the date of the bond ; Uability where the officer's term is shortened by resignation 311 Liability of sureties, where the officer wrongfully holds over, with- out giving a new bond ". . . . 313 LiabiUty where he rightfully holds over; rule that it continues only for a reasonable time 313 III. Respective liabilities of the sureties in two or more bonds, given by the same officer for successive terms, w for successive periods of the same term. This subject partly examined under the last preceding head ; gen- eral rule, where there were successive terms, is that each set of sureties is hable for defaults during the term for which his bond was given .• 314 But if successive bonds are given during one term, new bond is cumulative, and sureties in both liable pro rata for future defaults ; various cases upon this subject... 315 Additional cases thereupon ; exceptions to the rule 316 Presumptions as between the sureties in successive bonds 217 Where money is completely misappropriated during first term, only the sureties for that term are liable, although balance carried over to second term ; so as to successive annual bonds during same term ; cases where balances were thus declared and applied 318 The same subject continued 319 IF. Respective liabilities of sureties in a general bond, and sureties in a special bond, given by the same officer, pursuant to a statute. Where, in addition to his general official bond, an officer is required to give a bond for particular duties, sureties in that bond are liable only for those duties, and sureties in general bond not liable therefor. The rule illustrated by several cases 320 xxviii CONTENTS. CHAP. XII — CONTINUED Sec. V. Liability of sureties of an officer, for public money received by him, and lost by theft, robbery, the act of God, or of the public enemy ; the failure of a depositary ; or otherwise unthout his negligence or other fault. Great diversity of opinion on this question ; cases turning upon the peculiar language of the statute, or of the bond, whereby oiHcer made a debtor for the money 221 Where no such peculiar feature, the U. S. courts hold that ofidcer is liable as a debtor, and sureties not excused where money stolen, etc 322 Additional cases to the same effect, in the U. S. (^'urts ; exception allowed, where money was seized by the public enemy 223 These ruUngs followed in several cases, decided in the state courts ; accidental fire not within statute, exempting oflacer, from loss by " irresistible superhuman cause " 224 EuUngs that officer and his sureties are liable for money lost through failure of a bank, etc 225 Rulings to the contrary, and upholding the doctrine, that the officer and his sureties are not liable for money lost without his fault. . . 226 The same subject continued 227 The same subject continued 228 Where money, process, etc., delivered lawfully by one officer to another, the latter's sureties are, and the former's are not, liable for loss, etc. , thereof 229 VI. Liability of sureties depending upon the official or unofficial character of the act or omission, by reason whereof a claim is made against them. General rule is that officer's sureties are not liable, except where the law requires him to act ; various illustrations 230 Other illustrations of the rule, and cases where they are liable, because the law required the act to be done 231 The same subject • ■ ■ 382 Various rulings upon the UabUity of the sureties of the clerk of a court, for money received by him 233 The same, as to the liability of the sureties of a notary pubUc 234 The same, as to the sureties of a justice of the peace, or constable, with respect to the collection of demand 285 Sureties not liable for money received by officer, although in an official capacity, where the bond did not cover that official capacity ; various illustrations of the rule ; but where two offices xxix CONTENTS. CHAP. XII — CONTINUED Sec. are united, and one bond given, sureties are liable for defaults in either office 236 Bonds of justices of the peace cover only ministerial acts ; rulings as to the liabilities of sureties therefor 337 VII. Liability of sureties for acts of malfeasance, or lorongs com- mitted colore officii . Contradictory rulings on general proposition as to sureties' UabUity for acts done colore officii S38 Rulings in miscellaneous cases upon the same subject 339 Weight of authority is, that sureties of sheriff, etc., are liable for seizure, etc., of goods of one person under color of process against another ; instances 340 Authority on both sides of the question 241 VIII. Various other rulings as to the liabilities of sureties in particular eases. Liable for negligence, etc.; instances 342 Condition for faithful performance ; when not broken by honest mistake or want of skill 243 It is broken by failure to keep correct accounts, and make correct reports, as required by law ; so as to disbursements 344 Question whether such accounts, etc, ; are conclusive against sureties OT only prima facie evidence 245 Mere omission of county treasurer to foreclose mortgage, not a breach of his bond, unless neghgence shown 246 Questions as to habiUty for acts or omissions out of the officer's district 347 Miscellaneous cases, as to liabiUty of sureties of officer having charge of records of deeds, etc 248 The same as to the sureties of a clerk of a court 249 The same as to sureties of officer issuing marriage license 350 Sureties not liable, where deficiency in accounts is only apparent ; other cases of same general character ; failure to keep separate accounts of separate funds, etc 251 Miscellaneous cases, as to liability of sureties of sheriff, constable, etc . 253 Not liable for depreciation of current bank notes ; tax collector's sureties liable for failure to collect taxes ; grain inspector's sureties liable for failure to pay over fees 353 Town commissioner's sureties Uable for improperly issuing bonds of town 354 XXX CONTENTS. CHAP. XII— CONTINUED Sec. Whether sureties are liable for profits, made by officer from funds in his hands. 255 Sureties of officer de facto not liable to officer dejure for emoluments of office, after ouster 256 Sureties of officer not Uable to printers for advertising ; sureties of maU contractor not liable to individual for failure to transport mail 257 Sureties not Uable for a statutory penalty 258 IX. Liability of sureties, where the bond was executed, upon a condi- tion which has not been fulfilled. . General rule, in case of private contracts, that sureties are not liable, where promisee or obligee had express or implied notice of the condition ; othervsdse they are liable 259 Rulings of U. S. courts, as to the rule in case of official bonds 360 Rulings of the courts in New York on same question 261 Rulings of the courts in Indiana, Michigan, and Iowa, on the same question 362 Other cases elsewhere ; the cases appear to hold that approving officer is chargeable with notice, as a promisee or obligee in a private contract 363 The author's criticisms upon that doctrine ; reasons why an official bond should not be invalidated by any notice 364 Additional seal not notice per se that another was to execute the bond ; where surety acquiesces, he waives condition ; if some of sureties thus discharged, all are ; but the mere addition of another surety does not affect those who have signed 265 Where the principal is named in the body of the bond, but does not execute it, and it is thus accepted, the sureties are not holden, without proof that they assented 366 X Liability of a surety, where a cosurety's signature was forged, or otherwise affixed without his authority. On this point, some conflict of authorities ; but the recent cases hold that surety is Uable 367 XL lAability of sureties, aS affected by a subsequent alteration of the offi.cer's duties, or the tenure of his office. Leading EngUsh case that surety is discharged ; Pybus v. Qibb 268 Other EngUsh cases to the same effect 369 EuUngs of the United States courts, following finglish rulings. . 270 American cases, holding that sureties are not discharged by alteration of duties, if new duties appropriate to office 271 xxxi eONTENTS. CHAP. XII — CONTINUED Sue, Weight of American authorities sustains this rule ; cases, and qualifi- cations 372 Whether sureties discharged by extension of principal's term ; or of time for him to account ; authorities on either side of this ques- tion 273 So where new districts added, or county re-districted 274 Sureties' liability not aflfected by change of compensation ; nor, in case of a postmaster, by change in postage rates ; nor by a revision of ordinances, or change of mode of payment of customs charges 375 Sureties of water works superintendent not liable, where he was required to collect water rents ; or of clerk, where he was required to collect license fees 276 The author's comments on this rule, and suggestions that it should be made broader to hold the sureties 377 Where new duties are imposed, bond not invalidated, but sureties remain liable, for orignal duties 378 Sureties hable, where the new duties were imposed before the bond was given, or where bond provides for duties ' ' now or hereafter " imposed 279 XII. Effect, upon the liability of the sureties, of the acts or omission of other officers, including transactions between them and the principal. Peculiar character of obhgee renders inapplicable some of the rules, governing private contracts of suretyship 380 General rule that government is not liable for acts or omissions of officers 381 Effect, upon UabUity of sureties, of settlements, etc., between princi- pal and auditing officers 283 The same subjedt ; sureties not discharged by omission to proceed against principal, as required by law ; or by any other laches or omissions of other officers 283 Where bond improperly given to town treasurer, instead of town, deahngs between treasurer and principal may discharge sureties ; cases for and against the doctrine that they are discharged by similar dealings with nominal obligee 284 Illegal cancellation of bond ; settlement under a statute, or by authority of city council ; quere, if sureties discharged ; they are discharged by payment with money furnished by the prin- cipal 285 No defence to sureties in disbursing officer's bond, that he was a xxxii CONTENTS. CHAP. XII — CONTINUED Seo. defaulter when appointed ; or that appointing officers falsely represented that his accounts were settled ; or failed to remove him for defalcation, as required by law, etc 286 Where collector's bond in terms covers all the county taxes, but in fact part were collected by another, who was collector de facto, sureties not Uable 287 XIII. Defences of sureties, founded upon defects in the acquisition of his office by the principal, or in proceedings to charge him. AH the obligors in an official bond are estopped from denying prin- cipal's title to office, or otherwise questioning his power to act ' therein 388 Tax collector, receiving defective warrant, etc., may refuse to act, but his sureties are liable for taxes collected by him ; so where statute was unconstitutional, etc 289 So where rate of taxes exceeds the lawful rate ; rule where collector unlawfully receives county warrants, and is credited therefor. . . 290 Where sheriff collects money under execution, no defence that there was no judgment ; so where tax collector collects more than was due ; so where clerk receives money irregularly paid into court, etc.; but semble, that where county illegally borrows money, sureties for collector not liable for that money 291 XIV. Miscellaneous questions, relating to the amount recoverable against sureties ; the formal proceedings necessary to found an action, against them ; and the like. Some of these questions already considered ; general rule that liability of principal and that of surety are co-extensive ; excep- tions to the rule ; sureties not liable to particeps criminis 292 Sureties generally Uable for actual damages ; cases where liable only for nominal damages 293 Sureties not liable beyond penalty of bond, except for interest, etc. . 294 Sureties liable without a special demand, where it is principal's duty to pay at a specified time ; otherwise where no time fixed ; rule the same as to charging them with interest 295 Sureties of U. S. officer liable for expense of procuring performance of neglected duties ; but not for money, deUvered by the govern- ment to an official agent, for transmission to principal, without proof that it came to his hands ; when state may sue bond before expiration of officer's term 296 XXXIU CONTENTS Chapter XIII — Evidence of title to a public office. Sec. Commission or certificate is best evidence of olfioer's title: many questions relating to evidence of title considered in other chapters 297 Officer's commission not an appointment, but evidence thereof; cases where the commission is void for want of authority; other rulings relating to the effect of, and other matters relating to a commission '..... 298 Special case in Louisiana, where each of two claimants to an office held a commission 299 Proof that act is official may be made, by showing that party exer- cised the office; other instances where proof that he was officer de facto suffices 300 Upon indictment for assaulting an officer in discharge of his duty, proof that he was officer de facto suffices 301 Proof of exercise of a foreign office suffices, as in case of a domestic office 302 BOOK III. TENURE OF OFEICE. VACANCY. Chapter XIV— Term of office. Meaning of " term;" when officer has no term 303 If no term fixed by law, officer holds at pleasure of appointing power; effect of change in, or aboUtion of, appointing power; or repeal of act creating office 304 Legislature has ho power to alter term fixed by constitution; but where not so fixed, may alter it at pleasure; effect of fixing a maximum term; incidental alterations by changing time of election 305 Effect, upon an office held at pleasure, of general statute fixing all officers' terms 306 Statute allowing city council to regulate, etc., authorizes it to fix term; when mayor, elected under amendment of city charter, begins to hold 307 General rule, that statute to be constructed so as to avoid vacancies; but construction favored, which limits a term to shortest time; various instances of construction of statutes fixing official terms 308 xxxiv CONTENTS. CHAP. XIV— CONTINUED Sbo. Construction of constitutional provision forbidding judicial officers to hold after 70 years of age 309 Whether particular statutes create permanent or temporary offices. . 310 Where constitution requires officers to be elected, legislature cannot change incumbents' terms; a statute may be unconstitutional as to limitation of term, but valid as to election 311 Where officer reelected dies before commencement of new term, person appointed to fill vacancy holds tUl another elected, etc., and new appointment at commencement of new term void; where officer is commissioned for less than his lawful term, he holds for fuU term 313 Commission or certificate of election not required tp state length of term, and it is not conclusive if length is stated 813 When term begins, if time not fixed by statute; various ruUngs 314 Where statute limiting term is extended, term is extended; where statute creating office is repealed, etc., office abolished 315 Where elected officers hold for term expiring before election, term is extended till election; where officer elected under mihtary authority, his term ends when civil authority is restored 316 Officer commissioned for four years "from" March 3, 1845, is in office on March 2, 1849 317 Officer appointed by governor, during recess of senate, and after- wards confirmed by senate, holds from the original appointment; the beginning of the first officer's term fixes that of his successor's. 318 Whether, in absence of special provision, an officer appointed to fill a vacancy holds for a fuU term, or for unexpired portion of orig- inal term 319 The same subject; cases holding that he holds for a fuU term, and cases holding otherwise 330 Where governor appoints, during recess of senate, he cannot make a new appointment, until senate has acted upon the first 331 Where term is six years, and no appointment made dm:ing first two years, person appointed holds for four years; secretary of state, acting as governor during a vacancy, holds till vacancy filled, although his own term expires earlier 333 Chapter XV— Holding over ; powers after expiration of term. Rulings that at common law an officer does not hold over; but the weight of authority is the other way, except as to judicial and legislative officers 333 English cases upon this question 334 XXXV CONTENTS. CHAP. XV — CONTINUED Sec. American decisions that officer holds over, until the choice and qual- ification of his successor; but statute providing that appointed officer holds over, does not apply to elected officer; and vice versa ; 335 Whether legislature can provide for holding over, where constitu- tion fixes term; no holding over where successor cannot be chosen 326 Officer does not hold over after forfeiture; conflict of oases as to hold- ing over, after resignation, until acceptance 327 Holding over continues until successor qualifies fuUy and lawfully. . 328 No right to hold over, where successor elected quahfies and dies before term begins; aliter, if he dies before qualifying; rules as to persons appointed to fill vacancies in such cases; officer does not hold over, where he has already held for the maximum time allowed; if no restriction as to time, he may hold over indefinitely. 829 Rule where legislature fails to elect an offlcer, or vacancy occurs in a body authorized to fill it 330 Rule where officer chosen for fragment of a term, or to fill vacancy; or where statute creates vacancy 331 Cases where the incumbent was reappointed or reelected; or where he was a candidate for reelection and failed; or his election ia contested 333 The same subject 333 General statute, giving one officer the same term as another, does not confer upon the former the right to hold over 334 Officer holding over entitled to official emoluments 335 General powers of officer, after expiration of term and surrender of office; general rule as to sheriff, etc., commencing to execute process 836 Collector of assessments may give deed, after expiration of term, for land sold during term 337 Miscellaneous rulings as to the powers of particular officers, after their terms have expired 338 Liability of officer's sureties where he holds over 339 Chapter XVI — Removal; suspension. All modes of depriving a person of an office considered in this chapter 340 I. Effect of express constitutional provision upon the power to remove an officer. Where constitution fixes mode of and causes for removal, legisla- xxxvi CONTENTS. CHAP. XVI— CONTINUED Sec. tare cannot vary the same or add thereto ; illustrations of the rule 341 When constitutional provision is self -operating ; when it leaves no discretion 343 Statutes authorizing trial, etc., for removal, or removal without notice, constitational if constitation does not otherwise provide. 343 Constational provisions, authorizing governor to remove officers appointed by him, includes those appointed by consent, etc., of senate ; power of removal confined to causes specified ; but order need not specify the charges 344 II. Power of the legislature, in the absence of constitutional limitations. Office not being property, and officer having no vested rights therein, power of legislatare is practically unlimited 345 Legislatare may change statate allowing removal only for cause ; whether power to remove is ministerial or judicial in its natare ; legislature has no constitational power to remove an officer by statute, but has power to exclude persons failing to qualify 346 HI. What is or is not a removal, especially within constitutional or statutory provisions regulating removal. Such provisions do not apply to a dismissal, for some reason other than officer's act or default, nor to the abrogation of the office, nor the transfer from one class of subordinates to another; instances, and cases where such transfer, etc., held illegal, as evasions of the statate 347 Nor to revocation of appointment of an ineligible person ; nor where a discharge is reversed by the courts, and officers who had beon promoted, were consequently restored to former places 348 Where appointment is complete, a revocation of it is within the statate 849 Whether appointment of a successor, is ipso facto a removal 350 Intent to remove must clearly appear, to render removal efifectaal ; but it may be inferred, when clear, from circumstances ; instances 351 Abolition of office and transfer of duties, etc., to another, constitate a removal ; repeal of ordinance creating office is removal . . 352 Where sheriff is also tax collector, removal of a person as sheriff, without appointing a collector, leaves him in that office 353 IV. Rules determining the officer or board vested with power to remove. Where no definite term of office fixed by law. the appointing officer xxxvii CONTENTS. CHAP. XVI — CONTINUED Sec. or board may remove at pleasure ; exceptions ; power does not exist if term fixed, or where power of appointment not con- tinuous 354 Mayor has no power to remove state officer, acting in the city : where power to remove city officer vested in mayor and council, council alone cannot remove ; where a township board has the power, it cannot be exercised at a joint meeting of two boards. . 355 Constitutional provision for removal applies, although officer liable to impeachment ; statute, authorizing mayor to remove police justice, not affected by constitutional provision for removal of inferior judges by supreme court 356 V. Who is liable to be removed ; who is entitled to the benefit of the constituted or statutory restrictions upon the' power of removal. Eemoval of lunatic valid 357 Person appointed to fill a vacancy till next election liable to removal. 358 Policeman, entitled to be retired after 20 years service, is removable. 359 Constitutional and statutory provisions apply only to a quaUfled and inducted officer 860 IV. Cases where an officer may he removed withdut cause assigned, and where only for cause. General rule, that where removable at pleasure, no cause required; cases thereupon 361 Common law rule is, that no officer can be removed without cause; where particular officers are specified in statute, as removable at pleasure, other officers removable only for cause; where particu- lar causes are specified for removal, power to remove limited to those causes 363 Statute requiring removal for cause only cannot be evaded 863 VII. Cases where a removal can be made, only upon notice to the officer, and hearing him in his defence. Where officer holds during good behavior, notice is necessary; so where he holds for a fixed term, and is removable only for cause; where statute enumerates causes, notice and hearing required, otherwise removal is void; contrary ruUng in Massa- chusetts 364 Usually, where statute requires notice, this implies testimony upon a hearing; but where officer is to be allowed opportunity for "explanation,'' there is no such implication; rule where statute requires a conviction by a jury 865 xxxviii CONTENTS. CHAP. XVI — CONTINUED VIII. Causes which are or are not sufficient for the removal of an officer. Sec. General principles as to the effect of general statutory requirement of " cause;" where causes enumerated, presumption is that removal was for one of such causes 366 Where statute specifies misconduct, ete., in office, officer removable only for act or omission relating to his ofttce, not for matter affecting his private character; but where such a cause occurs, no defence that act, ete., was not done corruptly or maliciously; where honest mistake insufficient 367 Miscellaneous instances of "misconduct in office," as sufficient cause for removal 368 Miscellaneous instances of " disorderly behavior," "malpractice in office," " neglect of duty;'' cases where a removal may be made for such acts, although not done while acting officially 369 Miscellaneous rulings concerning intoxication as a sufficient cause for removal 370 Whether a crime, for which the officer has not been convicted, is a sufficient cause for removal 371 Miscellaneous ruUngs as to other causes for removal of a policeman. 373 Railroad commissioner for town, improperly issuing town bonds; county treasurer failing to report 373 Whether an officer may be removed for his inefficiency or incapacity, or that of his subordinates 374 Cases as to grounds of removal of a sheriff 375 The same as to the clerk of a court 376 Chief clerk of inspector of buildings, allowing violation of fire regu- lations 377 Reappointment of an officer, when a condonation of previous miscon- duct; when election or reelection bars removal for a cause pre- viously existing; so as to a former investigation 378 IX. Legal sufficiency of the proceedings to remove an officer, upon charges, and after a hearing. (1.) General rules. Must be a notice, charges, testimony, etc.; accused entitled to counsel; interested person cannot act as member of removing board 379 But the same strictness, technical rules, etc. , as on a common law trial are not required; although all the essential parts of the charge must be established by the evidence. 380 xxxix CONTENTS. CHAP. xVI — CONTINUED (2.) Sufficiency of the notice and of the statement of charges. Sec. Notice must be actually served; precision required respecting the charges; formality not essential 381 " Reasonable notice" is 34 hours; cause must be specified; what is a sufficient specification 388 OlHcer cannot be removed for cause not specified 383 Effect of rule of department requiring verification of charges 384 (3.) Taking the testimony, and other proceedings upon the trial or hearing. Testimony may be taken before a member, and submitted to the board; rules as to his absence, etc., when hearing takes place; changes in composition of the board, etc 385 Quorum of board only required; adjournments allowed; when two boards must act; when removal erroneous for failure to hear testimony 386 When removal invaUd, by reason of action during officer's absence. 387 (4.) Waiver of his rights by accused, and effect thereof. "When presence without objection amounts to a waiver of defects; when a waiver may be withdrawn; effect of failure to object, or deny charge, and of resignation 388 (5.) Decision, and effect thereof. Subject incidentally considered under other divisions; when board decides before testimony is written out and submitted, and reaffirms decision afterwards; when board has no discretion; when sentence partly valid and partly void; officer must have notice of his removal; majority vote suffices 389 EuUng upon the question whether removal is valid, where the charge relates to a member of the board, who takes part in the decision. 890 X. Review by the courts of proceedings to remove an officer. General observations 391 Enumeration of the different modes of reviewing 393 General rule as to power to review, as laid down by court of queen's bench 393 Courts will not interfere, where removing officer or board is vested with discretion; instances 394 Sufficiency of ' ' explanation " is matter of discretion 395 General power to remove for "cause'' vests discretion as to suffic- iency thereof 396 xl CONTENTS. CHAP. XVI — CONTINUED Ssa Provision that a body shall be judge of qualifications, etc., of its members, does not oust the courts of power to decide thereupon. 397 Proceedings to remove upon charges are judicial, and may be reviewed by certiorari ; errors of law only to be considered ; where courts will or wiU not interfere upon questions of fact ; certiorari is discretionary, and wiU be refused in case of delay . . 398 XI. Removal by impeachment. Outlines of provisions of the United States constitution, relating to impeachment ; all the state constitutions have similar pro- visions ; outlines of those of the constitution of New York 899 Constitutional provisions for impeachment do not prevent removal, for a cause which would sustain impeachment 400 XII. Suspension of an officer. In England, power to suspend is the prerogative of the crown ; whether suspended officer entitled to his salary, etc 401 No such prerogative in the U. S. ; legislature may provide for suspen- sion, if constitution is silent ; otherwise if constitution fixes term and mode of removal 402 Conflict of opinion in American courts upon the question, whether power to remove includes power to suspend ; cases in the afiirma- tive '.403 Weight of authority sustains the negative ; cases thereupon 404 Where mayor has power to suspend, subject to decision of common council ; change of power of appointment takes it away ; rules as to power of common council, and effect of disapproval ; effect of constitutional provision for suspension of officer impeached . . 405 Powers of locum tenens, appointed in place of suspended officer ; where power to suspend discretionary ; in this country officer • suspended not entitled to salary 406 Chapter XVII — Resignation; forfeiture, I. Modes of resignation. Resignation may be express or implied ; a resignation by implication is equivalent to a forfeiture ; where it occurs 407 II. Express resignation. Unless otherwise provided, resignation and acceptance may be by parol, and resignation must be made to appointing power 408 Held, in England, that officer cannot resign without consent of appointing power 409 American cases, holding that he may resign at pleasure 410 xli CONTENTS. CHAP. XVII— CONTINUED Sec. Other American cases, following the English rule 411 The same subject ; rulings of the U. S. supreme court 413 Officer who has not entered upon duties, or who is inehgible, cannot resign 413 Held, in England, that a resignation cannot be withdrawn ; so held also in the U. S. where the resignation is complete 414 But prospective resignation may be withdrawn, unless successor appointed ; and even then, if deUvered vsdthout the officer's consent 415 Resignation of a lunatic 416 III. Resignation by implication ; forfeiture. (1.) By accepting an incompatible office. This subject considered in chapter 4 417 (3.) By nonuser, including absence from the place of perform- ance. English rule as to forfeiture by nonattendance, etc 418 American adjudications on this question 419 The same subject 430 Where a person is acting in office, forfeiture can be declared only upon a judicial determination 431 Abandonment or nonuser must be total ; instances 433 Rule, where lieutenant governor is authorized to act, in the absence of the governor. . «. . : 423 (3.) By ceasing to be a resident of the district; or, in case of a state officer, of the state. Grenerally statute, etc. , provides for such forfeiture 434 In such case, no adjudication necessary ; but temporary absence creates no forfeiture 435 Rule where county, etc., is redistricted, or county boundaries changed, so as to affect officer's residence ; where the number of a judge's circuit is changed 436 (4.) By refusal to accept the office. Where the legislature transferred a person from one office to another he cannot claim the new office, after long refusal to accept it. . . 437 Express refusal to qualify vacates office ; where new bond to ordi- naiy required, or office forfeited, it has no excuse that ordinary's office was vacant 438 (5.) Miscellaneous constitutional or statutory causes of for- feiture. Statutory forfeiture for failure to keep office open during certain xlii CONTENTS. CHAP. XVII — CONTINUED Cec. hours, enforceable only by judgment ; statutory forfeiture not prevented, because act made a misdemeanor 429 Statutory forfeiture for conviction for felony, not avoided by a pai-don 430 Chapter XVIII — General rules respecting vacancies, and declaring and filling the same. Eeference to other chapters ; meaning of "vacant" and "vacancy," applicable only where officer has been chosen, not to failure to elect, or where a person is ia the office acting, although tempo- rarily, as by holding over ; cases where provisions for filling vacancies not applicable for that reason 431 Vacancy occurs, where officer elect dies before votes counted ; or declines to accept 432 Statute for fiUing vacancies by appointment, when not in conflict with constitutional provision, requiring officer to be elected 433 Provision creating vacancy for failure to quahfy, within a certain time after receipt of commission, applies only to an actual receipt 434 Election to fill anticipated vacancy not lawful, unless expressly provided for ; otherwise as to appointment 485 Power to appoint includes power to fill vacancy ; power to appoint " forthwith " not confined to same day 436 Power to fill a vacancy does not confer power to make or declare a vacancy ; illustrations and limitations of thi?rule 437 Resolution that office is vacant not a removal ; but appointing power may act upon assumption of a vacancy, leaving appointee to test the question 438 Contested election, or judgment for relator on quo warranto, does not create vacancy 439 When governor cannot appoint, after adjournment of the senate, to fill a vacancy occurring during the session 440 BOOK IV. COMPENSATION. Chapter XIX — General principles; fixing, increasing and diminishing compensation. /. Definitions and general rules. " Salary " and "emoluments " defined 441 xliii CONTENTS. CHAP. XIX— CONTINUED Sec. " Compensation " may include a sum allowed to cover expenses 442 Officer's right to compensation is an incident of his office, not rest- ing in contract, and not property; legislature may change amount of future compensation at pleasure 443 Rule the same in case of officer of a municipal corporation, exception in case of professional, etc., employment 444 II. Whether an officer is entitled to compensation, unless given him by the constitution or a statute. In England, fees may be allowed by immemorial usage; not so here. 445 Here the general rule is, that an officer is not entitled to compensa- tion, unless given by constitution or statute 446 Rule applies, whether it is claimed as salary, fees or otherwise 447 Exceptions recognized in certain cases. .' 448 HI. Construction and effect of statutory provisions, granting compen- sation to officers. Where officer allowed a reasonable compensation, this does not embrace services to state, or county, or city; a statute, empower- ing city to allow " fees," permits an allowance of commission. .. 449 Where statute provides for compensation, to be collected in a particu- lar manner, officer confined to that, unless there is a want of diligence, etc., in collecting 450 Statute allowing poUcemen salaries, not exceeding a specified sum, does not allow dividing them into grades, with difEerent com- pensations 451 Cases where officer, allowed fees by statute, is required by the appointing power to agree to accept a gross sum in lieu thereof. 452 The same subject; eflfect of acceptance by him 453 IV. Construction and effect of constitutional and statutory provisions, fixing, or allowing a board or officer to fix, the compensation of public officers : or making, or allowing a board or officers to m,ake, an increase or diminution of such compensation. Whether a power to fix is or is not continuous 454 Compensation, fixed by constitution, payable without appropriation; " stated salaries" in constitution forbids fees; provision for pay- ment by county forbids payment by state, and vice versa; con- struction of N. Y. constitutional provision for pensioning judges . 455 Appointing power cannot require officer to accept less than the compensation fixed by law 456 When district attorney may reduce his subordinates' compensation, although statute confers power on supervisors , 457 xliv CONTENTS. CHAP. XIX— CONTINUED Sec. Power given to change compensation, does not autliorize its aboli- tion, or reduction to a nominal sum 458 Statute, requiring officer's salary" to be fixed by city, and paid by county, is constitutional, and county authorities cannot change it ; power to fix salaries of city officers does not include state officer serving in the city 459 Salary, payable out of fees, is not limited to fees ; when paid, suc- cessor may collect fees 460 Whether an insufficient appropriation is or is not a reduction of a^ fixed salary ; appropriation to pay one, who holds three offices, not available to his successor in two 461 Rules, where statute provides that one officer's compensation shall be the sazne as another's ; foreign iminister entitled to his salary, in equivalent of U. S. money 463 Requirement that salary be fixed before appointment, does not call for a new fixing whenever officer changed 463 Resolution that salary be "fixed" at a certain sum, is sufficient reduction of a larger salary ; reduction may be made by implica- tion ; if board authorized to fix, subject to approbation of another board, latter board cannot change, but only approve or disapprove ; if fees to be fixed by order, no fees allowed tiU order made ; statute, fixing a monthly rate, entitles officer to monthly payments , 464 V. Construction and effect of constitutional and statutory provisions, forbidding an increase or diminution of compensation. They are usually confined to the term held at the time ; cannot be evaded by a resignation and reappointment ; they apply if term has begun, though but for an hour, and to appointment to fiU vacancy, though increase made before the vacancy ; officer's right not affected by his receiving compensation, as unlawfully reduced 465 Constitutional prohibition, relating to salaries, does not prevent statute to pay officer in U. S. legal tender notes ; nor does it apply, where the compensation is a percentage, a commission, or fees. 466 It applies only to compensation definitely fixed ; illustrations ; it does not invalidate an ordinance passed before, but taking effect after, commencement of term 467 It does not apply, where additional distinct duties are imposed ; but it applies, where duties belonging to office are thus compensated . 468 xlv CONTENTS. CHAP. XIX — CONTINUED Seo It forbids deduction of compensation for absence ; but not where officer's consent required ' 469 Constitutional proliibition of sucli a " law" not applicable to a city ordinance, or proceedings of county olHcers ; applies to officer holding during good behavior 470 It applies where a chartered city is reorganized under a general law. 471 VI. Times of the beginning and the ending of an officer's compensation. Officer not entitled until he qualifies ; but then he may have com- pensation from beginning 473 Entitled only while he is actual incumbent of office 473 Compensation ends when term ends ; no right to a full quarter's salary 474 When office abolished, compensation ends, although appropriation made therefor 475 Exception, where officer who had done a year's work, was allowed a year's salary, although his office was abolished before the end of the year 476 Chapter XX — When an officer may or may not have compensation, in excess of that fixed by law. I. General rules respecting additional compensation to a public officer. Common law rule, that promise to pay money to officer for official services is void 477 Compensation given by law is in full of officer's official services, and he cannot receive anything more, or any fee for which the law does not allow a fee 478 Additional duties, imposed by law, do not entitle officer to additional compensation, nor do extraordinary risks 479 Clerk of department of interior, sent as U. S. agent to London exhi- bition ; secretary of territory, acting as governor ; no extra com- pensation : 480 Extraordinary services do not vary the rule ; constable making arrest under promise of special compensation 481 Sheriff not entitled to anything for personal attention to prisoner ; or for conveying prisoners to jail in another county, etc. ; nor can he delegate such compensation to another 483 Auditor of public park, negotiating a loan, without promise of extra compensation. 483 Contract to reward officer for doing his duty void ; officer of navy agreeing to convoy ship ; pUot agreeing for extra compensation, for aiding vessel in distress 484 xlvi CONTENTS. CHAP. XX — CONTINUED II, Cases, where an officer is or is not entitled to a reward, offered for a special service, or to an informer's share in confiscated property. Sec. Officers having police duties cannot haye rewards offered for capture, etc., of offenders, within their jurisdiction ; the rule illustrated.. 485 The same ; but they and other officers may have such rewards, where they act without their jurisdiction : instances 486 So for procuring evidence to lead to conviction of offenders 487 Firemen entitled to reward, offered for entering a burning building, and bringing out a body 488 Rule where officer claims informer's share of confiscated property. .. 489 III. Other cases, where it has been held that an officer was entitled to compensation for exceeding his official duty. Rule under the United States statute, forbidding extra compensa- tion 490 The same subject 491 City comptroller applying county bonds : town agent acting as attor- ney ; judge of probate acting for unqualified judge, etc. ; member ; of legislature prosecuting his town's claim against the state ; and other instances, where compensation was allowed.. . . 492 Sheriff for compensation of keeper, by ageement ; jaUor for attend- ing sick prisoner, by agreement 493 Extra compensation allowed, where such appears to be the intent of the statute fixing compensation 494 ■Cases where officers are entitled to be reimbursed for extraordinary expenses, etc 495 TV. Whether an officer, discharging the duties of his own and another office, can have any additional compensation, beyond the emolu- ments attached to the former. Where two distinct offices are properly held by the same person, he may have the emoluments of each, and statute forbidding extra compensation does not apply ; but semble, that he cannot have two per diem compensations 496 But if second office is only incidental to first, he can have compen- sation for one only; so where he was appointed to second without compensation 497 Secretary of state, acting as governor under state constitution during vacancy, holds, and is entitled to salary, till vacancy filled, although his term as secretary expires before 498 xlvii CONTENTS Chapter XXI— Rights and remedies of an officer, respecting his compensation. I. Bight of an officer to receive his fixed compensation, without deductions. Sec. References to cases cited elsewhere 499 General rule ; oflacer's right derived from statute, and not affected by absence, neglect of duty, etc 500 The same subject ; power to deduct for absence, etc., derived from statute, and does not arise by implication 501 Provision for acting by and payment of lieutenant governor, in governor's absence, not applicable to temporary absence 502 Statute, authorizing disciplinary rules, etc., for police, does not confer power to deduct from salary, when ofBcer absent from sickness, etc.; but if rule requires a physician's certificate, he must produce it 503 Police ofiacer, arrested for crime, and afterwards acquitted, entitled to salary for time of confinement 504 Large discretion in such cases to superior ofiicers ; but if abused, courts will review ; as where removal was dated back to cover absence from sickness. So where officer had good reasons to suppose he had leave of absence 505 Members and officers of legislature entitled to pay per diem, may have pay during short recesses, but not during a month's adjournment ; and resolution of one house cannot give officers their pay 506 In this country, an officer cannot have compensation . while sus- pended 507 The same subject : instance of constructive suspension ; the rule is dififerent where he was enjoined 508 II. Officer's remedies against thepvblic authorities for his compensation. Remedies against the government and its officers 509 What are the requisites, to enable an officer to maintain an action for compensation, against the municipahty, ete., liable 510 The same subject ; rule as to possession during the time in question. 511 Question whether he csm in any event recover fees or commissions. . . 512 Rule estabUshed in New York, that he may recover ; but not where the municipality has paid an officer de facto, while plaintiff was not in possession 513 The same subject ; also he cannot recover damages for wrongful removal by board, ete 614 xlviil CONTENTS. CHAP. XXI — CONTINUED Seo. But where no person specifically appointed or paid in his place, he may recover ; no deduction allowed for what he might have earned 515 Cases elsewhere, recognizing these rules ; also cases holding that rightful ofiicer may recover, even if municipality, etc. , has paid the ofiicer de facto 516 Although municipality, etc., is protected by payment to ofiicer de facto, it may defend an action by him, on the ground that he has no right 517 Or that he was ineligible, or obtained office by force or fraud, etc. . . . 518 City, having treasurer entitled by law to commissions on disbure- ments, cannot defeat his right by empowering mayor to dis- burse 519 "Where appropriation in gross for specified services, successor cannot recover against predeccessor, proportion for work left undone by him 520 III. Officer's remedies against an intruder for his compensation. Where title is.contested, incumbent is entitled to fees pending contest, but not where he voluntarily surrended office 521 After judgment of ouster and restoration, officer de jure may recover against intruder, salary received by him without deduc- tions ; so in case of removal ; or he may recover upon supersedeas bond 523 So he may recover fees received by intruder, less expense of earning them ; one case contra 533 Chapter XXII — Extortion. Extortion defined 534 Punishable criminally by statute, here and in England ; but it is a common law offence. Not, however, where money paid volun- tarily or according to usage 535 Attorney guilty where he receives unlawful fees ; justice of the peace may take fees for warrant in advance ; officer receiving money in good faith to settle with complainant not guilty ; revenue officer guilty for receiving money to procure discharge 536 Corrupt motive essential to offence, or to liability for statutory penalty : aliter in Nebraska ; officer liable to penalty, whether he takes excessive fee, or a fee where none is provided ; but not where he is not entitled to any fees 537 Officer liable, through excessive fee taxed and collected by party ; cannot defend because he omitted to charge other lawful fees, xlix CONTENTS. CHAP. XXII — CONTINUED Sec. or tendered restitution 538 Rulings as to liability of clerk to county for excessive charges 529 Independently of statute, unlawful charge may be recovered back, although paid vcithout protest, etc 530 BOOK V. POWERS AiSTD DUTIES ; AND THE EXERCISE THEREOF. Chapter XXIII— Nature and extent of officers' powers and duties ; when they are coincident ; general rules respecting the exercise thereof. I. Preliminary observations ; political powers and duties. Classification in ch. 3 based upon general nature of official functions; now the particular functions to be classified. Reference to political powers and duties 531 II. Legislative powers and duties. Defined and distinguished 532 III. Judicial, quasi judicial, and ministerial powers and duties. Origin of words " judicial" and " ministerial;" general scope thereof; what is ment by quasi judicial powers 533 General rule as to liability of oflElcer for ministerial or judicial acts; definitions relating thereto 534 Other definitions of judicial and ministerial acts, and cases illustrat- ing the same 535 The same subject 536 The same subject 537 An act may be ministerial, although its performance requires a decision, or the exercise of judgment; instances 538 Where a judicial officer performs a ministerial act, the power is ministerial; instances 539 Instances of judicial acts by ministerial officers; clerk of court, sup- ervisors, etc 540 When assessors' acts are judicial; their liability if their jurisdiction is exceeded 541 IV. Officers' implied and incidental powers. General rule, that officer has all implied powers necessary for per- formance of his duty; instances of implied powers granted or withheld , 542 1 CONTENTS. CHAP. XXIII — CONTINUED Sec. Power to contract debts, when not implied; implied power to issue county orders; to loan money in hand 543 Extent, etc., of implied power.to bring suits, and to settle controver- sies 544 , Public officer cannot be deprived of his powers by implication 545 V. When an officer's power and duty are or are not coincident. Generally, this question belongs to the subject of statutory con- struction 546 Where officer has power, by statute, to do an act required by public interest, exercise of power is imperative, although permissive words are used; otherwise permissive words give discretionary power 547 Person, interested in the exercise of a power, has a right to demand its exercise, although permissive words are used 548 But a mere incidental benefit, without a legal right, does not entitle an individual to such exercise 549 Other instances of the application of this rule 550 VI. Effect of an exercise of power by an officer. A contract by officer empowered, binds the state or a municipality, which is liable like an individual thereupon. Otherwise, where power exceeded. Municipality, etc., liable for officer's acts, in discharging a duty imposed upon it; but not where duty is specifically imposed upon the officer. Rules as to estoppel and ratification 551 Generally, judicial and quasi judicial acts are conclusive; such as allowances of accounts by supervisors, etc 553 Exercise of discretionary power governed by the same rule; acts of supervisors, etc 553 Excess of power vitiates; cases where allowances of accounts by supervisors, etc., are ministerial acts 554 Exercise of discretionary power reviewable by courts, in cases of illegality, abuse, injustice, etc. 555 VJI. Power given by statute must be strictly pursued; presumptions in support of regularity of exercise thereof. Statutory power must be strictly pursued, especially where forfeit- ure results; person claiming under it must prove such pursu- ance 556 Supervisors, etc., acting at special session, where call thereof does not specify the business 557 li CONTENTS. CHAP. XXIII— CONTINUED Presumption is in favor of correct performance, and every reason- able intendment made accordingly; as that powers were not exceeded; that naught omitted, etc 558 But presumption will not sustain a vital jurisdictional fact; this must be proved; as where common council's act requires a two- thirds vote 559 Presumption does not apply to agents, appointed by legislature to sell debtor's land; nor to titles made under tax laws; nor to pro- ceedings or commissioners of highways to lay out roads 560 Nor to actions against sheriffs, etc., for not paying over money. Officer's certificate, if evidence, must show compliance with the law; no presumption admitted in favor of one officer's acts against another's 561 Party, invoking jurisdiction of equity, must show affirmatively invalidity of act 562 VIII. Miscellaneous rulings respecting officers' powers and duties. Whether power conferred is continuous, or exhausted by one act. . 563 Rule as to exercise of quasi judicial powers 564 Policeman presumed to have common law powers of peace officer; so with respect to United States officers ; 565 Justice of U. S. supreme court not required to perform patrol duty, under state law 566 Officer's good faith presumed; and his lawful acts not aflfected by his motives, or motives of party, or collusion between parties. . . 567 Officer's lawful acts not affected by intent to act under a void stat- ute; or not to bind the town, etc 568 Chapter XXIV — Delegation of powers ; deputies. J. What official powers may or may not be delegated. Common law rules 569 American cases ; ministerial powers may, and judicial powers may not, be executed by deputy. So where officer's powers are partly judicial and partly ministerial 570 Strictly judicial powers not transferable ; person cannot be made a judge by consent ; rule extends to justice of the peace. Instance of judge telegraphing clerk to discharge jury 571 Rule extends to quasi judicial powers ; mayor of city cannot dele- gate power to approve, etc. , ordinances ; effect of ratification ; but commissioners may be appointed to procure lands, etc 573 Common council of city cannot delegate to an officer power cast on lii CONTENTS. CHAP. XXIV — CONTINUED Sec. it ; nor to its committee ; so, as to township board of health, and other officers 573 So, prosecuting attorney cannot transfer his authority to another. . 574 Deputy cannot appoint deputy, though authorized by principal officer, but the latter may ratify ; deputy may empower clerk to sign name ; undersherifE may appoint a special bailiff 575 Employee of officer, not authorized to appoint a deputy, is a mere servant ; superintendent may empower a person to close gates of state dam 576 II. Appointment of a deputy ; validity and effect of agreements upon such an appointment ; tenure of deputy's office. Deputy may be appointed by parol 577 English rule, that agreement by deputy to pay principal less than fixed salary, or portion of uncertain profits, is good ; but to pay absolutely a certain sum is void 578 American cases establish the same rule ; but if deputy entitled by law to certain perquisites, an agreement to pay part of them to principal is void ; so agreement for a salary, where statute fixes a portion of the profits as the deputy's, is void ;, so to pay princi- pal more than his statutory proportion 579 Application of rule does not depend upon a corrupt intent, etc.; agreement to appoint a deputy, made in advance, is against public policy, and so void 580 Bond of indemnity against deputy's acts void, where appointment is made upon unlawful contract ; qu. if good when made after- wards 581 Deputy's term ends with principal's ; if sheriff's office devolves upon undersheriff , deputy of former sheriff must be reappointed ; sheriff may remove deputy at any time, notwithstanding a con- tract not to remove him 583 III. Powers of a deputy. Deputy has all the powers of principal, and they cannot be restricted by agreement 583 Deputy may perform all ministerial acts of principal ; so where sheriff is also tax collector, etc 584 When deputy must act in principal's name ; when in his own name. 585 Where statute authorizes him to act, during vacancy or absence, he is fuil officer during vacancy, but only deputy during absence. . 586 Cases where sheriff or deputy sheriff may not serve, etc., process, where the other is a party 587 liii CONTENTS. CHAP. XXIV— CONTINUED IV. lAahility of the principal for his deputy's acts and omissions. Sec. Principal liable civilly, but not criminally ; not liable where party has made deputy his agent 588 Not liable to civil action for deputy's criminal act 589 Party injured by official act has remedy against principal only 590 Principal not liable for deputy's unofficial act ; instances. Cases where principal ratifies unlawful act 591 Public officers not responsible for defaults of their subordinates .... 592 Liability of municipal corporations for officers' acts, etc 593 V. Deputy's bond of indemnity to his principal, and liabilities of sure- ties therein. Greneral subject of liabiUties of sureties considered in chapter 13 594 Where statute prescribes form, etc., of bond, no other may be taken ; otherwise parties may agree upon security, etc 595 Cases holding that any bond thus given is lawful 596 Whether bond covers past, or only future defaults 597 Liability of deputy and sureties generally coextensive with princi- pal's ; but principal may recover expenses of successful suit. . . . 598 If principal's own misconduct contributed to injury, he cannot recover ; so if he consents to deputy's misconduct 599 Principal's failure to remove deputy on request, or to notify sureties of default, no defence ; sheriff paying execution may recover from sureties, amount subsequently collected by deputy 600 Sheriff, who is also tax collector, may recover for taxes on deputy's general bond 601 Chapter XXV — Exercise of power, granted to two or more officers, where one or more vacancies exist. General subject of exercise of power, granted to two or more, con- sidered at length in chapter 8; principal propositions there established 602 English rule, that if an office is granted to two, and one dies, the office is determined 603 American rule, stated generally, that the power survives, in ease of death, disqualification, etc., of some of those empowered 604 The same; but where the context of the statute shows that it was to be exercised by aU, it does not survive 605 \Where the power is conferred upon two, or two only survive, it jnust be executed by both 606 liv CONTENTS Chapter XXVI — Exercise of power by an officer interested. I. General rule. Sec. An interested officer is disqualified, where his action is judicial or quasi judicial, but not where it is ministerial 607 II. Particular cases, wherein an interested officer may not act. Rule that a judge cannot act in his own cause 608 Exception, where his interest is small, and he is the only judge authorized to act 609 Quasi judicial power ; where several exercise it, some cases hold, that interest of one always invalidates 610 Other cases hold, that such interest invalidates, only where the vote of the interested officer is necessary to complete the transaction ; ruling where officer became interested afterwards 611 Variovis instances, where exercise of quasi judicial functions by an interested oflcer was held unlawful 612 Rule applies, although officer interested with another, or acts in the name of another, or completes the transaction after expiration , of his term 613 III. Particular cases, wherein an officer, although interested, may act. Officer interested not disqualified, if duty purely ministerial ; thus clerk may issue an attachment, or enter judgment, in his own favor 614 Judge of a court may buy property sold under execution ; but not property sold under his order, where he is to confirm the sale ; when judge may perform formal duties, although he has been councel, etc 615 Where lands to be sold for the state, by an officer, at a fixed sum, he may purchase 616 Rule that officer, acting in matter of public interest, is not dis- qualified by private interest where he alone can act ; as where officer taking land for public use, assessing taxes, etc.. owns land affected 617 IV. Effect of unlawful action by an officer interested. General principles 618 Statute allowing contract with member of city council to be declared void, at the instance of the city, does not restrict the city to equitable relief ; but tax payer cannot have such relief 619 Iv CONTENTS. CHAP. XXVI — CONTINUED Sec. Mayor; taking lease of city park, lease cannot be ratified by council of which he is a member ; but he may be allowed improve- ments ; when act is absolutely void, and incapable of ratification ; mayor approving of ofiicer's bond, in which he is surety, notice to him of invalidity does not charge the city 630 Purchase by officer at tax sale voidable only, and bona fide pur- chaser protected ; if sale set aside on application of land owner, lien of tax not discharged, and money forfeited 631 Chapter XXVII— Exercise of power by an officer de facto. I. Who is an officer dejure, and who is an officer de facto; and the gen- eral rules governing the exercise of power by an officer de facto. General definition of officer de facto, and officer de jure; general rule that power exercised by the former is valid, as to the public and "third persons." 633 Officer de facto must have color of authority, to distinguish him from usurper, whose acts are void; distinction between color of authority and color of title; held, in some cases, that he must have at least a colorable title; origin and fallacy of that propo- sition , 623 Two rules stated, which are irreconcilable with the doctrine, that color of title is necessary, viz.: (1) title cannot be questioned collaterally; (3) evidence of possession of office suffices to show that one was an officer, where question arises collaterally. Cases establishing these rules 634 Lord EUenborough's definition of an officer de facto; following which, modern authorities require only color of authority; pos- » session, acquiesced in by the public, suffices for that purpose. . . . 635 The same subject 636 The same subject 637 The four heads, under which exercise of power by officer de facto is sustained, as stated by Butler, Ch. J., in 38 Conn. 449 638 II. Rulings in particular cases, as to whether one is or is not an officer de facto, upon the facts presented. (1.) Where the officer has failed to give an official oath or bond, or has given one that is insufficient. References to chapter 11, where kindred subjects are treated 639 Such an officer is a good officer de facto, and his acts are valid, as to the public and " third persons;" instances, and authorities on the general proposition 630 Ivi CONTENTS. CHAP. XXVII— CONTINUED (2.) Where the officer has forfeited his office, or his term has expired. Seo. Such an oflBcer is still an officer de facto, within the rule; thus, where a justice of the peace has removed from the county; or has accepted an incompatible office, or the like; his acts are still vaUd; otherwise, semble, where he was thus disqualified when appointed 631 So a judgment, rendered by a justice of the peace, or other official act of any officer, after the expiration of his official term is valid, without regard to the question whether he lawfully holds over. 632 (3.) Where the appointment or election, under which the officer holds, was irregular or invalid. The same rule holds in such a case; thus, where a person was appointed, when there was ho vacancy, by one whose power extended only to cases of vacancy, his acts are valid; other instances 633 So, where municipal officers were appointed without authority; or town officers were elected at an irregular town meeting; or county commissioners were, or a magistrate was, irregularly elected 634 A state de facto is unknown; but the acts of officers of a state gov- ernment de facto in rebellion are vaUd; and so are those appointed by the military authorities during war 635 (4.) Where the officer was disqualified from holding the office. This fact cannot be shown, for the purpose of impeaching the vali- dity of the acts of an officer de facto; instances; exceptions 636 (5.) Where the statute, under which the officer acted was unconstitutional. Where the .office is de jure, the fact that the Incumbent thereof was chosen under an unconstitutional statute, does not prevent him from being an officer de facto 637 But where the statute creating the office itself was unconstitutional, the person assuming to fill it is not an officer de facto 633 (6.) Where the office had been abolished. An officer de facto, presupposes an office dejure, and if it has been abolished, there can be no officer dejure; if "third person" has notice he is not protected; if township is abolished, there can be no township officer de facto 639 Ivii CONTENTS. CHAP. XXVII — CONTINUED Seo. But where an officer was entitled to preside at the chosen freeholders' meeting, and his office is abolished, but he continues to preside, that does not vitiate the proceedings of the meeting 640 (7.) What acts constitute or do not constitute sufficient pos- session of an office, to render a person an officer de facto. Possession constitutes officer de /aeio; there cannot be two in possess- ion, one dejure and one de facto, or two in possession de facto, where there is but one office 641 Where officer dejure in possession, another claimant cannot consti- tute himself officer de facto, by any official act; instances 642 Where two persons claim the office of governor, and each is partly in possession, neither is de facto, and court must decide who is de jure; governor de facto may validate bill by approval, although afterwards ousted 643 An intrusion into an office by a claimant, during temporary absence of the one in possession, does not render him the officer de facto. 644 Officer de facto must act under claim of title 645 Perjury cannot be assigned upon an affidavit, before a notary public, where he was disqualified when appointed; conflicting reasons given in N. Y. court of appeals 646 Act of exercise of powei- must be such, as officer could lawfully per- form, if rightful holder of office 647 Where a judicial decision is made, that a person is not entitled, he is no longer officer de facto; and, pending an appeal from such a decision, the successful party wiU be put into possession 648 III. Rulings, respecting the validity and effect of acts of officers de facto in particular cases. The general rule, as to validity, of exercise of power by an officer de facto, restated, with numerous authorities establishing it 649 Disbursing officer protects himself and his principal by payment to officer de facto 650 A person, convicted of a crime, cannot, even in a capital case, ques- tion the authority of a judge de facto, before whom he was tried. 651 General proposition as to exercise of judicial power; judge appointed by military governor; judge assuming office before his term begins; or holding over after it ends 652 Perjury will lie upon an oath, taken before an officer de facto, unless, perhaps, where he was ineligible 653 Resistance to officer de facto punished criminally; so officer de facto, indicted for killing person resisting him, deemed officer dejure. 654 Iviii CONTENTS. CHAP. XXVII — CONTINUED r Sec, Question whether an officer de facto can confer a better title than he has, upon one appointed to office by him. English cases. . . . 655 American cases, 656 The sa,me subject 657 Question whether the persons, making an unlawful appointment, are liable for acts of the person appointed 658 IV. Where the officer seeks to maintain his own rights or interests, he must show that he is an officer dejure, as well as de facto. The general proposition; illustrations and exceptions 659 Officer de facto, and not dejure, is a trespasser, and cannot justify, when sued for seizure, etc. ; but he may show that he was de facto, to make out ^rima/acie case; and those acting in his aid may justify 660 One, who sues for salary or fees, cannot recover, unless he is de jure 661 Officer cannot recover statutory penalty, unless he is de jure; but town, etc., may recover penalty imposed by officers de facto.. .. 662 Whether title can be tried, in a suit by officer dejure against officer de facto, for emoluments ; possession of court officer may be deter- mined on motion 663 V. Miscellaneous rulings, as to the rights and liabilities of an officer de facto and an officer de jure. Officer de facto liable in civil action for malfeasance, misfeasance, or nonfeasance, as if he was officer dejure 664 So sureties in official bond of officer de facto liable, as if he was dejure 665 Officer de facto cannot be restrained by injunction; but may be compelled to perform by mandamus, as if he was de jure. But he may withdraw entirely from the office, and then he is not liable to an individual, or for a statutory penalty for nonfeas- ance 666 Where mandamus is brought against officer de facto, and officer dejure is substituted, proceedings not defeated 667" Officer de facto is liable criminally for misfeasance or malfeasance, as if he was de jure;- instances 668 Chapter XXVIII— Security taken by an officer upon an exercise of power. I. ' General rules, relating to securities taken by an officer for ease and favor, or otherwise colore officii. Provisions of the statute, 33 Hen. VI, ch. 9 ; rules respecting bail before that statute 669 lix CONTENTS. CHAP. XXVIII — CONTINUED Sec. American statutes, prohibiting taking securities colore offleii; whether they are declaratory of the common law 670 Exception as to securities allowed by law, not confined to those allowed by statute 671 Whether it is necessary that there should be a corrupt intent, to render the prohibition applicable 673 Case in New York, holding that corrupt intent not necessary, and that parties are not in pari delicto 673 Stricter, rule, where party was under constraint ; but where statute applies, want of constraint does not validate the security 674 Where security given to adverse party, not to officer, prohibition does not apply 675 Security void, when statute prescribes terms, and an additional term is added ; but separate additional security does not avoid the valid one ; void if bond for too large a sum ; or where note given in place of bond 676 Security to induce officer to violate his duty void ; or to induce action contrary to statute 677 Security void, where officer had no power or jurisdiction ; when good at common law ; when state may affirm officer's unlawful act, and recover 678 Bond to highway commissioners, by persons interested in opening highway, to pay town assessments therefor, void 679 Cfertain securities by prisoner to arresting officer or jailor, not involv- ing violation of duty, sustained 680 II. Contracts to indemnify officers. Such contracts not within the statute against securites colore officii; principles upon which they are sustained 681 They are valid, and officer may require indemnity, where he acts in good faith, and there is an honest doubt as to his right ; but not where he knowingly commits a trespass So, if directed to execute process in particular manner. But indemnity cannot exceed liability. Deputy's bond to principal vahd 683 Indemnity against future act of misfeasance or malfeasance by officer void, although taken on false representations 683 Indemnity void, where officer no lawful power to act, or where he is protected by law 684 Courts will not construe an indemnity, so as to cover an unlawful act, if any other construction is possible 685 Indemnity upon attachment will not cover detention, after attach- ment dissolved 686 Ix CONTENTS. CHAP. XXVIII — CONTINUED Sec. Indemnity against a past unlawful act is valid ; so to induce officer to pay over money, where claim of title made after sale ; so in replevin, where voluntarily given, and not forbidden by law. . . 687 Cases, where the law implies a promise of indemnity, or does not imply it 688 Officer's indemnitors are liable for his trespass ; exception 689 Officer accepting indemnity liable, if he releases the property ; liable for purchase money, although defendant did not own the property, and it was sold on credit 690 Indemnity covers only due course of proceedings, according to statute ; but if officer has sold goods, although not strictly according to statute, he is protected ; his right against indemni- tors not affected, by his consent to discontinue a former action. . 691 Officer cannot recover, if he fails to comply with a condition of the indemnity bond ; no implied contract in such a case 693 Officer may avail himself of security, in addition to the bond of indemnity 693 Where the claimant recovers judgment against the officer, the latter may enforce the indemnity, without payment of the judgment. 694 In action on indemnity bond, officer entitled to amount of judgment against him, and his expenses, including counsel fees 695 He is also entitled to recover expenses of a successful defence, but damages not included in an indemnity against costs, etc 696 III. Contracts of receiptors. Such contracts not deemed taken colore officii; when receiptor cannot reduce damages, by proving value of property 697 Nature of contract ; receiptor a bailee ; liable only to the extent of officer's UabUity to the creditor ; instances 698 Sheriff liaJble, and receiptor liable to him, for loss, except by act of God or the public enemy ; receiptor not exonerated, by produc- Lug other similar goods ; or by offer to redeliver without demand 699 Certain special circumstances, which do not discharge receiptor 700 Rule, where property was exempt ; where attachment was against a member of an insolvent partnership 701 Conflicting rulings, as to whether receiptor is estopped from show- ing, that goods were his own, or a stranger's 703 Whether officer is estopped, as against the creditor, from showiag that goods receipted for were not debtor's property 703 Receiptor has hen upon the property for his charges ; effect thereof ; Ixi CONTENTS. CHAP. XXVIII — CONTINUED Sec. rule where one having a lien became receiptor, and afterwards attached the property in his own suit 704 Special instances of defects in the proceedings, which do not dis- charge the receiptor. .'. 705 Necessity of demand to render receiptor liable ; how demand made. 706 BOOK VI. JUDICIAL PROCEEDINGS RELATING TO PUBLIC OFFICES AND OFFICERS. Chapter XXIX— Action at law by or against an officer. I. General rules, respecting an officer's liability to, or immunity from, a private action sounding in tort. Foundation of action against an ofl3.cer rests upon breach of a duty to the plaintiff ; thus, recording officer, employed by mortgagor to make search, not hable to mortgagee for nagUgently omitting a prior deed 707 So a private action will not lie against oiHoer, owing duty exclu- sively to the public, by a private person injured by his failure to discharge it ; postmaster not liable to publisher of newspaper having the largest circulation, for not giving him publication of letters uncalled for ; or alderman of city to lowest bidder for a contract 708 Members of legislative body not liable for legislative action, although founded on maUcious or corrupt motives ; but they are liable, where they perform ministerial duties 709 Constitutional exemption of members of the national and state legislatures , 710 Held, in some cases, that political officers not liable to an individual, because they represent the sovereign power 711 But executive officers liable ; conflict as to whether the president and the governor of a state are liable 712 Officer performing judicial or quasi judicial act, if he has jurisdic- tion, is not liable to private action therefor ; reason for the rule. 713 Rule extends to cases, where a statutory penalty is given to party aggrieved, as where habeas corpus is refused 714 Instances of application of the rule to quasi judicial officers 715 Rule extends to arbitrators, although chosen by consent of paities,. . 716 Ixii CONTENTS. CHAP. XXIX — CONTINUED Sec. Act mtist have been within officer's jurisdiction ; but in some cases his erroneous decision that he has jurisdiction, is a judicial act which protects him 717 Held, by U. S. supreme court, that judges of courts of record not liable for excess of jurisdiction 718 Rulings in New York in Lange v. Benedict, in action against U. S. cir- cuit judge, for imprisonment in excess of his jurisdiction 719 As to judges of inferior courts, and quasi judicial officers, no pre- sumption of jurisdiction ; where jurisdiction depends upon existence of certain facts, they are not protected by erroneously deciding that those facts exist ; but if they have general juris- diction of the subject, and jurisdiction in the particular case depends upon certain facts, they are protected, if there is any evidence of those facts before them 730 The same subject ; various rulings 731 Whether, in the case of an inferior or quasi judicial officer, the presence or absence of maUce or a corrupt intent, affects his liability to individuals 733 Whether a justice of the peace is liable, for acting under an uncon- stitutional statute ; an officer wrongfully acting cannot escape liabihty, because he acted under such a statute 733 Officer exercising ministerial powers liable for malfeasance or mis- feasance, to any person injured thereby ; and nonfeasance, to a party interested in the performance of his duty 734 The same subject ; illustrations 735 Officer owes to every person the duty of performing his official acts ' with due care, and is liable to any person, injured by his negU- gence in such performance ; reference to citations elsewhere on this subject 736 Illustrations ; members of common councU of a city, liable for suf- fering a sidewalk to be out of repair ; but justice of the peace not liable for losing jurisdiction, by delay in rendering judgment. . . 737 The same ; tender of drawbridge liable for not shutting gates, and hanging out lanterns, while opening the draw 738 Judge or judicial officer liable for omission or neglect in perform- ance of ministerial duty ; so as to quasi judicial officer 739 Officer exercising ministerial power cannot justify, under an uncon- stitutional statute, although he acted in good faith, etc 730 An officer's liabihty to private action is not a;ffected, by his having given an official bond ; effect of such a bond 731 Ixiii CONTENTS. CHAP. XXIX — CONTINUED II. Special rulings, respecting the liability of particular officers to private actions. Sec. References to rulings on the subject cited elsewhere 733 (1.) Justice of the peace. Variety of their functions raises many questions ; cases cited, wherein it was ruled that a justice was not liable, because the particular act was of a judicial character 733 Other cases cited, wherein it was held, that a justice was liable, because the particular act was of a ministerial character 734 Justice not liable for incorrect statement as to amount of judgment. 735 (2.) Highway officer. Duties as to opening, closing, etc. , and general management of high- ways, are quasi judicial; and for these there is no private liability, unless jurisdiction is exceeded 736 Duty of keeping highways and bridges in repair is ministerial, and for failure so to do, officer is liable, if he has sufficient funds for the purpose, but not otherwise ; and town not liable to reimburse officer in such a case. Officer liable, although his funds were insufficient, if he had authority to procure funds. But not liable for a latent defect. Qualification as to funds not applicable where officer was negligent. If he has funds but not sufficient for all repairs needed, not Uable for an error of judgment, in determining which repairs were most urgently needed 737 (3.) Assessors of taxes. What act of assessors are quasi judicial, and what acts are minis- terial ; a barik can recover against assessors, who tax it upon its capital, where the statute requires that the stockholders shall be taxed upon their shares 738 Assessors are not liable, for assessing a shareholder's stock at par value, although the statute requires them to assess it at its market value, or for assessing a dog tax upon one who neither owns or harbors the dog 739 Rulings, under the Massachusetts statute, protecting assessors acting in good faith ; their liability for omitting to tax a person, where his right to vote depends upon his payment of a tax 740 Miscellaneous rulings in different states, respecting the liability of assessors in particular cases , 741 Ixiv CONTENTS. CHAP. XXIX— CONTINUED (4.) Recording officer. Sec. His general duties are ministerial, and he is liable to person entitled to his service, for failure in diligent performance thereof ; as for failure properly to record a conveyance ; but the measure of damages, and whether he is liable to a subsequent purchaser for incorrect recording, etc., are open questions 742 He is liable, for failure to make and keep a correct index to the instruments recorded, to any one injured by relying upon an imperfect index ; but here also the measure of damage is uncer- tain, for courts hold that an error in the index does not affect the grantee's title 743 It is his duty to allow any person to iaspect the records, etc., and he is liable for refusal so to do ; but not if demand made in an insulting manner ; so this duty is subject to reasonable regula- tions, etc. He is also liable for furnishing incorrect copies of papers : 744 (5.) Clerk of a court. References to cases cited elsewhere, Clerk not liable for issuing a writ, which is a nullity, because no damages accrue i he is liable for misplacing papers filed with him. Many of his duties and liabilities the same as a recording oiHcer's 745 (6.) Election officer. Decision of inspectors, as to receiviilg a vote, and acts of can- vassers, are ministerial acts, and an action generally hes against election officers, by qualified voter, for refusing his vote. But this is controlled in some states by statute. The former and the present English statutes stated. Massachusetts statute, as to furnishing " sufficient evidence," and rulings thereupon 746 Maine statute, restricting liability to "unreasonable, etc., conduct'" and rulings thereupon 747 Cases holding, that in the absence of a statute, or where the statute is complied with, election officers are absolutely liable, for refus- ing qualified elector's vote 748 Other cases holding, that such liability depends upon the existence of malice, etc. ; sufficiency of proof thereof 749 Rulings, as to liability of officers of registration, for refusing to put a man's name on the registry, or striking it off, etc 750 (7.) Postmaster. Not liable for refusal to give publication of uncalled for letters, to Ixv CONTENTS. CHAP. XXIX — eONTINTJED Sec. publisher of newspaper, having the greatest circulation. He is liable for failure to deliver mail matter, to the person to whom it is addressed ; is not excused by an erroneous decision, that additional postage is chargeable thereupon, before .delivery He is liable for loss of a letter, but not if caused by carelessness of his subordinates 751 Liability for loss of a letter directed to be registered, and sent by the ordinary mail; not liable in equity to one, who had created a trust, for the benefit of the owner of money, stolen by the plaintiff.' 752 (8.) Sheriff, marshal, coroner, constable, etc. Eef erences to rulings cited elsewhere 753 Their ordinary functions ministerial; and in discharge thereof they may become Hable (1) to the person in whose favor the process was issued; (8) to the person against whom it was issued; (3) to a stranger. General principles regulating such liabilities. Offi- cer generally acts at his peril; instances 754 References to rulings cited elsewhere, respecting the liability of other oflScers 755 III. Protection of a ministerial officer by his process. General principle. The word "process," in considering this rule, has a more extensive signification, than when used in connec- tion with legal proceedings 756 The accepted doctrine has only comparatively recently been estab- lished; statement of the three propositions, established in the leading case of Savacool v Boughton, 5 Wend. (N. Y.) 170 757 The rule extended by other adjudications, so as to protect an officer in the execution of process, " fair on its face," issued by any court or officer, notwithstanding illegalities or irregularities, lying back of it. Many cases cited 758 The bad faith of the ofllcer, or his knowledge of antecedent defects, does not preclude him from protection under this rule 759 Cases denying the last proposition 760 Those cases criticised; ruling that a tax warrant, "fair upon its face," is an absolute protection to the collector 761 Process is not " fair upon its face," where it shows a want of juris- diction, or where, from the nature of the case, there could be no jurisdiction. But where jurisdiction exists, though not appar- ent, officer is protected on proving jurisdiction 762 Ixvi CONTENTS. CHAP. XXIX— CONTINUED Seo. Officer protected only where he obeys the command of the process, and the rules of law; instances where he forfeits his protection, by his own oppressive or otherwise unlawful conduct 763 Officer protected by his process in arresting a privileged person 764 Officer not protected, where he arrests the wrong person, unless mis- led by the person arrested; or where process shows plaintiffs to be fictitious persons; case where officer was protected, in arrest- ing a man, who .was a stranger to the suit, and of a different name, he having been served with the process and suffered judgment 765 Question whether officer, holding process in replevin, is protected, if he taJies the goods from the possession of a stranger 766 If process has alternative directions, one of which is lawful, and the other not, officer protected only where he obeys the lawful one; but if he has a discretion, he may pursue either course; lawful process protects him, although he also acts under unlaw- ful process 767 Officer's assistants protected by process, but, semble, not volunteers; party not protected 768 Where process issued without jurisdiction, etc., although " fair on its face," officer may refuse to execute it, in his discretion; but if he treats it as valid, he cannot afterwards set up defect 769 Officer's protection is a shield, not a sword; he cannot maintain an action in aid of his process, unless it is regular and lawful in fact , 770 IV.. Other actions at law by or against public officers. Actions by officers ; references to other parts of this book where they are incidentally considered. The doctrine of scandalum magnatum, not recognized here 771 References to other parts of this book, where actions against officers are incidentally considered 773 Questions relating to the personal liability of an officer, acting in behalf of the public, are generally the same as in cases of pri- vate agency 773 But there is this distinction, that the legal presumption is always that the officer binds the public, and does not bind himself, although, in a similar case, a private agent would be liable. ... 774 Additional references to other parts of this work, where actions against officers are incidentally considered 775 Ixvii CONTENTS Chapter XXX — Judicial proceedings to oust a usurper from an office, and to put the rightful officer in possession thereof, and of the appurtenances thereto. I. Information in the nature of a quo warranto : and other statutory proceedings to oust a usurper, and put the rightful officer in possession. Sec. Tlie ancient prerogative writ of quo warranto, superseded by the information in the nature of a quo warranto ; definitions of the latter 776 Information granted in the same cases, and g'overned generally by the same rules, as the ancient writ : modified in several states, and superseded in others, but general rules are the same. In ] some states, a special statutory proceeding exists to contest an election ; qu. whether this proceeding supersedes the informa- tion. An enactment, making a body the judge of the election, etc., of its members, does not oust the jurisdiction of the courts. 777 Not essential to the jurisdiction, that a person is to be put in posses- sion ; it sufiices that a person holding office unlawfully is to be ousted 778 Eight to maintain the proceedings is inherent in the sovereignty from which the office proceeds ; a state cannot maintain it, to oust a person from an office created by the United States 779 The proceedings cannot be taken, where the relief can be obtained by some other proceeding 780 A private relator must obtain leave of the court to file the informa- tion, and the granting or refusing of the application is discre- tionary ; but the attorney-general has an absolute right to take the proceedings ; what interest a private relator must have in the question to be decided 781 Principles, which control the discretion of the court, in granting or refusing the application 782 The controversy must relate to a lawful and public office as distin- guished from an employment, etc. ; but title to a petty office may be thus determined 783 The person, against whom the proceedings run, must be in actual possession of the office 784 Upon the trial, the burden of proof is upon the respondent to estab- lish a good title ; but a prima facie case shifts the burden. And Ixviii CONTENTS. CHAP. XXX — CONTINUED Sec. the relator cannot recover possession, unless he establishes his title, although the respondent may be ousted 785 Judgment of ouster must be rendered, although the usurpation has ceased before the trial. Where a fine may be imposed, it will not be substantial, if there was a fair question, etc. Rule as to the relator's damages, sustained by the usurpation 786 11. Proceedings by an officer, to recover possession of the books, papers, and other appurtenances of his office. Mandamus lies to compel an officer, whose term has expired, to deliver appurtenances of the office to his successor. Replevin also lies in a similar case 787 In many states, a statutory proceeding hes for that purpose ; general principles as to the right to maintain it 788 The proceedings will not he, unless the applicant has a clear prima facie title, and respondent withholds the boobs, etc., without color of title 789 The right to the office is not determined in these proceedings, and the applicant must have obtained possession ; if he is the actual incumbent, the validity of his appointment, etc., cannot be questioned 790 Although title cannot be tried, the proceedings can be maintained, ' if the respondent's claim is frivolous 791 The statute must be closely followed in the form of the proceedings ; instance 793 Chapter XXXI — Judicial proceedings to review compel, or restrain official action. I. Whether any offlxxrs are exempt from the judicial supervision, considered in this chapter. Judges having no superiors are necessarily exempt : members of the legislature are exempt, for reasons of public pohcy ; whether the principal poUtical or executive officers are exempt, is an open question 793 As to the president of the United States, the question of his exemp- tion considered 794 As to the governor of a state ; cases where his exemption is con- ceded ; conflict of authorities, whether granting a commission or certificate of election is one of them 795 Conffict of authorities, whether the courts have, in any case, juris- diction to control the action of the governor of a state 796 Ixix CONTENTS. CHAP. XXXI — CONTINUED .Sec. As to other officers of government ; in England, the lords commis- sioners of the treasury are exempt ; in ceutain cases, the United States cabinet officers are exempt ; but not where their functions are ministerial, and do not rest in their discretion 797 Rulings, in some states, that the secretary of state, and other principal state officers are not subject to control by mandamus ; this doctrine not sustained by the weight of authorities 798 No question has arisen as to other officers 799 II. Certiorari. At common law, certiorari lies only to bring up a record, but the statutes of the different states have extended the remedy; a statutory certiorari is governed by the same rules as at common law 800 Certiorari and its office defined 801 It lies only to review a judicial or quasi judicial decision; instances; it is not taken away by implication, but only expressly; it does not lie to review quasi legislative acts, or administrative acts; instances 802 It is not a writ of right; is granted or refused in the discretion of the court, and the exercise of such discretion cannot be reviewed; exceptions 803 It wiU not be granted, or, if granted, wiU be dismissed, where the apphcant is chargeable with laches 804 It will not lie, where the party may have adequate relief by appeal, etc.; court wUl grant it, where there is no appeal; or the right of appeal has been lost, without the applicant's fault 805 It will not lie, to review an executed decision; as where assessors have delivered the assessment roU to the collector, and in like cases 806 It will not lie, to review a void decision 807 In general, it will not he, until after a final decision; illustrations and exceptions 808 Where the mayor's decision, remioving a city officer, must be approved by the governor, certiorari will lie upon the decision, before approval 809 It will not lie to review a decision, resting in discretion or judgment; unless the discretion has not been exercised 810 It lies only for errors of law; what questions may be reviewed on certiorari .■ 811 III, Mandamus. Mandamus was originally a prerogative writ, but, in this country Ixx CONTENTS. CHAP. XXXI — CONTINUED Sec. it is an original common law writ, whereby a civU action is commenced; and power to grant it is not conferred by a grant of equity or appellate jurisdiction 812 Mandamus and its office defined 813 It will not lie to enforce legislative action, or political duties; when it lies against legislative officers; its usual function is to compel performance of ministerial duties, but it will lie in certain cases against judicial officers; instances where it will or will not lie against judges and other judicial officers 814 It can issue only by special direction of the court, and is granted or refused in the discretion of the court, subject, however, to legal rules, and to review; it will not be granted, where great laches have occurred, or where it will work hardships, etc., or the right or duty is doubtful 815 A private person applying for it must show^ a special interest; but some cases hold, that any citizen :nay have it, in a matter of public concern; other cases, contra ' 816 It is granted of course to the attorney general, in a matter of public concern; but not where private interests only are in- volved 817 It will not lie, where the party may have another adequate remedy; but, in a matter of public concern, it will be granted, although an action at law lies 818 The other remedy must be competent to afford the party full reUef ; if this is doubtful, mandamus lies. Liability to indictment does not prevent a mandamus 819 It will Ue, to enforce judicial or quasi judicial action, only where the officer, etc., refuses to act; but not to compel action in a particular way; still less to reverse action already taken, except where the decision has been reversed 830 But where the act is ministerial, mandamus will direct its perform- ance, and specify the mode of performance 831 It will not lie, to control the action of an officer or body, in whom a discretion is vested by law 833 It will not lie to compel performance of an act, which cannot law- fully be performed; or where the officer has been enjoined, or has no power to act; case where it was denied, because the officer's time and attention were fuUy occupied with judicial duties 833 It win not lie, to compel a financial officer to pay a demand, where no appropriation for the same has been made, or a lawful warrant, etc., has not been made 824 Ixxi CONTENTS. CHAP. XXXI — CONTINUED Sec. It will not lie, to determine, directly or indirectly, a dispute respect- ing the title to an office; in such a Case, the remedy is by information in the nature of a quo warranto; cases 825 So it win not lie, if favor of a claimant, for the salary of the office, or to obtain recognition as a member of a board 826 But some cases hold otherwise on this question 827 Where there is no other claimant, mandamus lies, to reinstate an officer unlawfully suspended, or to induct a person into office; it lies to put into possession one who has recovered judgment for the office, and in favor of the incumbent against a claimant wrongfuUy obtaining the official papers 828 Other rulings are found in works devoted specially to this subject; a few oases, presenting special features, will be added 829 Instances where mandamus was allowed in tax cases 830 It lies against a tribunal, erroneously deciding that it has no juris- diction; and in favor of a school teacner, to compel the proper officers to make and certify the pay roU 831 An application for a mandamus against a city officer will not be denied, because "there are thousands of such cases," which " would require an army of workmen," etc 832 It will not lie, to compel performance of a private right, or of a contract; or to compel a recording officer to cancel a convey- ance, where the right is disputed; or to compel a city officer to obey the order of the aldermen 833 It lies only against a court or an officer, not against an executor; and against a principal officer, not his deputy. When directed to a municipal officer, to compel performance of a continuing municipal duty, it runs against the municipality, and does not abate by the cessation of the officer's term. When issued in favor of a state, against the governor of another state, it nms in effect against the latter state, and the U. S. supreme coui-t has jurisdiction to grant it 834 IV. ProMbition. Office and function of the writ of prohibition 835 Writ issues upon special application, and is granted or refused in the sound discretion of the court; the applicant must have objected to proceedings below 836 Want of jurisdiction is the foundation of the writ; its office is not to set aside or correct an erroneous judgment, where the in- ferior tribunal has jurisdiction; whether it lies in any case, where a final decision has been rendered below 837 Ixxii CONTENTS. CHAP. XXXI^CONTINUED Sec. Whether it lies, where there is another remedy 838 It will issue to a court, or an officer exercising quasi judicial func- tions; but it wiU not lie, to prevent the exercise of ministerial, executive, or administrative power; or to prevent the usurpation of an office 839 It lies, to prevent action under an unconstitutional statute, or under a void judgment or order 840 V. Injunction Injunction is either a writ or an order, in either case governed by the same rules; here we shall only consider injunctions against public officers 841 Rules, governing the granting of an injunction against a public officer 843 It will not lie, to restrain administrative pr political officers, from the discharge of their ordinary official functions, or a judge from acting in a cause before him; or to restrain criminal pro- ceedings; or mandamus; or prohibition 843 It will not lie against a municipality, to prevent the passage of an ordinance, within the scope of its authority, but it will lie if the ordinance is without such scope, where irreparable injury to the plaintiff wiU result unless the ordinance would be void. . 844 When police authorities may, and when they may not, be re- strained from entering a club house 845 Generally, it lies, to prevent public officers from acting without lawful authority, to the plaintiff's prejudice; instances 846 When irreparable injury to the plaintiff must be shown 847 It will not lie, where the plaintiff has another adequate remedy; in- stances 848 It will not lie, to control, etc., discretionary power; exceptions to this rule 849 It will not lie to oust a usurper from an office, and put the rightful officer in possession; or in aid of proceedings at law for that purpose; or tinder the tax payers' statute, to prevent the pay- ment of the salaries, etc., of officers, who are charged with being usurpers 850 In many states, statutes have been enacted, allowing a tax payer to prevent, by suit and by injunction, misappropriation, etc., of public funds or property; whether such a suit can be main- tained, without a statute; authorities on the negative side 851 Authorities on the affirmative side 852 Miscellaneous rulings in New York, under the statute of that state allowing a tax payer to maintain such an action 853 Ixxiii CONTENTS Chapter XXXII — Criminal proceedings against a public officer. Sec. Liability of public officers to criminal proceedings, generally pro- vided for by statute; this chapter treats only of common law rules relating thereto, references to former chapters, where the subject is incidentally treated 854 General rules, respecting. oflB-cers' common law liability for neglect of their duties 855 The same, for wilful or corrupt abuse of discretionary power 856 The same, for fraud or breach of trust, respecting public funds or other public property 857 Exception in case of superior officers of government, who are pun- ishable only by impeachment; and of legislators. Quere, if the latter are punishable in any way 858 Exception in case of exercise of a judicial or quasi judicial function. 859 Superior judicial officers not punishable by indictment for any judicial act, however wrongful or corrupt 860 Justices of the peace pimishable, only where the act was instigated by a dishonest, oppressive, or corrupt motive; instances 861 Jurors punishable at common law by attaint, etc. ; now not punish- able, except under statute 862 Miscellaneous rulings, as to habUity at common law of ministerial officers to punishment t 863 Common law rules in cases of bribery, attempts to bribe, etc 864 Usurpation of office punishable 865 Ixxiv ABBREVIATIONS. A. &E. A. K. Marsh. A. & E., N. S. Abb. App. Dec. Abb. N. G. Abb. Pr. Abb. Pr., N. S. Abb. U. S. Ad. & El. Ad. & El., N. S. Aik. Ala. Ala. Sel. Cas. Alb. L. J. AUen. Am. or Amer. Amer. Dec. Ambl. And. Andrews. Anon. Anstr. Ariz. Ark. Asbm. Assize, Book of. Atk. B. N. P. B. R. B. & Ad. B. & Aid. B. &B. B. &C. B. &P. B. & P. N. R. B. &S. B. Mon. Bac. Abr. Bailey Adolphus & Ellis's Reports, Q. B. A. K. Marshall's Reports, Kentucky. Adolphus & Ellis's Reports, New Series, (Queen's Bench Reports). Abbott's Decisions of the Court of Appeals of New York. Abbott's New Cases, Practice Reports, New York (all the Courts). Ahbott's Practice Reports, New York (all the Courts). Abbott's Practice Reports, New Series, N. Y. (all the Courts). Ahbott's Reports, United States Circuit and District Courts. Adolphus & Ellis's Reports, K. B. Queen's Bench Reports, or Adolphus and Ellis's New Series. Aiken's Reports, Vermont. Alabama ; Alabama Reports. Alabama. Select Cases, Shephard. Albany Law Journal, N. Y. Allen's Massachusetts Reports. American Reports. American Decisions. Ambler's Reports, Cha,ncery, England. Anderson's Reports, K. B. Andrews's Reports, K. B. Anonymous. Anstruther's Reports, K. B. Arizona; Arizona Reports. Arkansas; Arkansas Reports. Ashmead's Nisi Prius Reports, Pennsylvania. Year Book. Atkyns's Chancery Reports, England, Buller's Nisi Prius. King's Bench. Barnewall & Adolphus's Reports, K. B. Barnewall & Alderson's Reports, K. B. Broderip & Bingham's Reports, C. P. Barnewall & Cresswell's Reports, K. B. Bosanquet & Puller's Reports, C. P. Bosanquet & Puller's New Reports, C. P. Best & Smith's Reports, Q. B. B. Monroe's Reports, Kentucky. Bacon's Abridgment. Bailey's Law Reports, South Carolina. Ixxv ABBREVIATIONS Bailey Ea- Baldw. Barb. Barb. CSh. Barn. Barn. Ch. Barn. & Ad. Barn. & Aid. Barn. & Cr. Barr. Baxt. Bay. Beav. Bee. Ben. Bibb. Bing. Bine. N. C. Binn. Biss. Bl. Com. Black. Blaokf. Blackst. Conunen. Blackst. H. Blackst. W. Bland. Blatchf. Bligh. Bligh N. S. Bond. Book of Assize. Bos. & Pull. Bos. & Pull., N. R. Bos. or Bosw. Bradf. Bradf. Surr. Branch. Brev. Brewst. Brightley. Bro. Ch. Bro. P. C. Brock. Brod. & Bing. Bull. N. P. Bulstr. Burr. Bush. C.B. Bailey's Equity Reports, South Carolina. Baldwin's United States Circuit Court Reports. Barbour's Reports, Supreme Court. New York. Barbour's Chancery Reports, New York. Bamardistou's Reports, K. B. Barnardiston's Reports, Chancery, England. Barnewall & Adolphus's Reports, K. B. Barnewall & Alderson's Reports, K. B. Barnewall & Cresswell's Reports, K. B. Barr's Reports, Pennsylvania. Baxter's Reports, Tennessee. Bay's Reports, South Carolina. Beavan's Reports, Rolls Court. Bee's U. S. District Court Reports. Benedict's Reports, U. S. District Court. Bibb's Reports, Kentucky. Bingham's Reports, C. P. Bingham's New Cases, C. P. Binney's Reports, Pennsylvania. Bissell's Reports, U. S. Circuit Court. Blaokstone's Commentaries. Black's Reports, U. S. Supreme Court. Blackford's Reports, Indiana. Blackstone's Commentaries. Henry Blackstone's Reports, C. P. Sir William Blackstone's Reports, K. B. Bland's Chancery Reports, Maryland. Blatchford's Reports, U. S. Circuit Court. Bligh's Reports, House of Lords. Bligh's Reports, Now Series, House of Lords. Bond's Reports, U. S. District Court. The Year Book. Bosanquet & Puller's Reports, C. P. Bosanquet & Puller's New Reports, C. P. Bosworth's Reports, Superior Court of New York city. Bradford's Reports, Iowa. Bradford's Reports, Surrogate's Court, New York. Branch's Reports, Florida. Brevard's Reports, South Carolina. Brewster's Reports, Nisi Prius, Pennsylvania. Brightley's Reports, Nisi Prius, Pennsylvania. Brown's Reports, Chancery, England. Brown's Parliamentary Cases. Brookenborough's Reports, U. S. Circuit Court. Broderip & Bingham's Reports, C. P. Buller's Nisi Prius. Bulstrode's Reports, K. B. Burrow's Reports, K. B. Bush's Reports, Kentucky. Common Bench or Common Fleas. Ixxvi ABBREVIATIONS C. B. C. B., N. S C. P. 0. & J. C. &K. C. &M. C. &. P. C. L. R. Gaines. Gaines Gas. Gala. Cald. GaU. Calth. Gampb. Car. & Kir.; Gar. & Mar. Gar. & P. Gartli. Gas. temp. Finch. Gas. temp. Hardwicke. Cas. temp. Holt. Gas. temp. Talbot. Gh. Gh'r. Gh. B. Ch. J. Gharlt. Gharlt. R. M. Ghitt. Chitt. Gontr. Giv. Proc. Rep. Gl. & Finn. Gliff. Go. Co. Ct. Goke. Goldw. Colo. Com. Dig. Comb. Comm. Commen. or Com. Gom'r. Comp'y. Comyn. Conn. Cooke. Common Bench Reports, by Manning, Granger & Scott. Common Bench Reports, New Series, by Scott. Common Pleas. Crompton & Jervis's Reports, Exchequer. Garrlngton & Kirwan's Reports, Nisi Prius, England. Crompton & Meeson's Reports, Exchequer. Garrington & Payne's Reports, Nisi Prius, England. Common Law Reports, England. Gaines's Reports, New York. Caines's Cases, New York. California; CalifomiaiReports. Caldecott's Reports, K. B. Call's Reports, Virginia. Calthorpe's Reports, K. B. Campbell's Reports, Nisi Prius, England. Garrington & Kirwan's Reports, Nisi Prius, England. Carrington & Marshman's Reports, Nisi Prius, England. Garrington & Payne's Reports, Nisi Prius, England. Carthew's Reports, K. B. Cases in the time of Finch, Chancery, England. Cases in the time of Hardwicke, K. B. Cases in the time of Holt, K. B. Gases in the time of Talbot, Chancery, England. Chancery. Chancellor. Chief Baron. Chief Judge or Chief Justice. T. U. P. Charlton's Reports, Georgia. R. M. Charlton's Reports, Georgia. Chitty's Reports, Bail Court, England. Chitty on Contracts. Civil Procedure Reports, New York. Clarke & Finnelly's Reports, House of Lordo. CUfiEord's Reports, U. S. Circuit Court. County. County Court. Coke's Reports, K. B. ColdweU's Reports, Tennessee. Colorado; Colorado Reports. Comyn's Digest. Comberbach's Reports, K. B. Commonwealth. . Commentaries. Commissioner. Company. Comyn's Reports, K. B. and G. P. Connecticut; Connecticut Reports. Cooke's Reports, Tennessee. Ixxvii ABBREVIATIONS Oooley Const. Lim. Cooley on Constitutional Limitations, Cooley Mun. Corp. Cooley on Municipal Corporations. Cooper. Cooper's Reports, Chancery, England. Cooper Ch. Cooper's Reports, Chancery, Tennessee. Cow. Cowen's Reports, N. Y. Cowp. Cowper's Reports, K. B. Cox. Cox's Reports, Chancery, England. Coxe. Coxe's Reports, New Jersey. Cr. or Cramch. Cranch's Reports, United States Supreme Court. Cranch C. C. Cranch's Reports, U. S. Circuit Court. Cro. Eliz. Croke's Reports, Queen Elizabeth. Cro. Jac. Croke's Reports, King James I. Cro. Car. Croke's Reports, King Charles I. Crompt. & J. Crompton & Jervis's Reports, Exchequer. Crompt. & M. Crompton & MeesOn Reports, Exchequer. Crompt. M. & B. Crompton, Meeson & Rbscoe's Reports, Exchequer. Ct. CI. Reports of the United States Court of Claims. Cunn. Cunningham's Reports, K. B Curtis. Curtis's Reports, U. S. Circuit Cour Cush. Cushing's Reports, Massachusetts. D. or Div. Division (in the reports of the English High Court of Justice), ex. or., Q.B. D., Queen's Bench Division, etc D. C. District of Columbia. D. & E. Durnford & East's Reports (Term Reports), K. B. jj. & L. Dowling and Lowndes's Reports, Bail Court. D. cfc B. Dowling & Ryland's Reports, K. B. Dak. Dakota Territory ; Dakota Reports. Dav. & M. Davison & Merivale's Reports, Q. B. Daly. Daly's Reports, Common Pleas, New York city & county. Dana. Dana's Reports, Kentucky. Davies. Davles's Reports, U. S. District Court. Day Day's Reports, Connecticut, De.Gex & J. De Gex & Jones's Reports, Chancery, England. De Gex, F. & J. De Gex, Fisher & Jones's Reports, Chancery, England. De Gex, J. & S. De Gex, Joneo & Smith's Reports, Chancery, England. De Gex, M. & G. De Gex, Macnaghton & Gordon's Reports, CJhancery, England. De Gex & Sm. -- De Gex & Smale's Reports, Chancery, England, Del * Delaware ; Delaware Reports, Del. Ch. Delaware Chancery Reports. Denio. Denio's Reports, New York. . Denn. Cr. Cas. Dennison's Crown Cases. Desau. Desausure's Equity Reports, South Carolina. Dev. Eq. Devereux's Equity Reports, North Carolina. Dev. L. Devereux's Law Reports, North Carolina. Dev. & B. Eq. Devereux & Battle's Equity Reports, North Carolina. Dev. & B. L. Devereux & Battle's Law Reports, North Carolina. Dillon. Dillon's Reports, U. S. Circuit Court. Dillon Mun. Corp. Dillon on Municipal Corporations. Ixxviii ABBREVIATIONS Dougl. Douglas's Reports, K. B. DougL (Mich.) Douglass's Reports, Michigan. Dow. & Ry. Dowlicg & Ry land's Reports, Nisi Prius, England. Dowl. P. C. DowUng's Practice Cases. Duer. Duer's Reports, Superior Court, city of New York, Duv. Duvall's Reports, Kentucky. Dy. or Dyer. Dyer's Reports, K. B. East. East's Reports, K. B. East P. C. East's Pleas of the Crown. Eden. Eden's Reports, Chancery, England. Edm. Sel. Cas. Edmonds's Select Cases, New York. Edw. Ch. Edwards's Chancery Reports, New York. El. & B. Ellis & Blackburn's Reports, Q. B. El. B. & E. EUis, Blackburn & Ellis's Reports, Q. B. El. B. & S. Ellis, Best & Smith's Reports, Q. B. El. & El. Ellis & Ellis's Reports, Q. B. Exch. Exchequer; Welsby, Hurlstone & Gordon's Reports, Exchequer. Fed. R. Federal Reporter, U. S. Courts. Fla. Florida ; Florida Reports. Freem. Freeman's Reports, K. B. Ga> Georgia; Georgia Reports. Ga. Dec. Georgia Decisions. GalL GaUison's Reports, Circuit Court, U. S. Gill. GUI's Reports, Maryland. Gill & J. Gill & Johnson's Reports, Maryland. Gilm. (111.) Gilman's Reports, Illinois. Gilm. (Va.) Gilmer's Reports, Virginia Gilp. Gilpin's Reports, U. S. District Court. Grant Cas. Grant's Cases, Pennsylvania. Gratt. Grattan's Reports, Court of Appeals, Virginia, Gray. Gray's Reports, Massachusetts. Greene. Greene's Reports, Iowa. H. L. or H. L. Cas. Clark & Finnelly's House of Lords Reports, New Series. H. & C. Hurlstone & Coltman's Reports, Exchequer. H. & M. Hening & Munf ord's Reports, Virginia. H. & N. Hurlstone & Norma'n's Reports, Exchequer. H. & R. Harrison & Rutherford's Reports, C. R. H. & W. Harrison & WoUaston's Reports, K. B. H. Blackst Henry Blackstone's Reports, C. P. HaU. Hall's Reports, Superior Court, New York city. Handy. Handy's Reports, Superior Court, city of Cincinnati. Hard, or Hardin. Hardin's Reports, Kentucky. Hardres. Hardres's Reports, Exchequer. Hare.. Hare's Reports, Chancery, Englana. Harr. (Del.) Harrington's Reports, Delaware. Harr. (Mich.) Harrington's Reports, Chancery, Michigan. Harr. & Gill. Harris & GiU's Reports, Maryland. Harr, & 3. Harris & Johnson's Reports, Maryland. Ixxix ABBREVIATIONS Harr. & MoH. Hawk. P. C. Hawks. Head. Heisk. Hen. & Mun. High Extr. Rem. High Inj. Hill (N. Y. Hill (S. C.) Hill Ed. HiU & Denio. Hilt. ^ Hobart. Holmes. Holt. Holt N. P. Hopw. & C Hopk. Houst. How. How. App. Cas. How. Pr. How. Pr., N. S. How. St. Tr. Hughes, (Ky.) Hughes, (U. S.) Humph. Hun. Idaho. 111. 111. App. lud. lud. App. Inst. Iowa. Ir. R., C. L. Ir. R., Eq. Ired. Eq. Ired. L. J. J. Marsh. J. P. Jac. & W. Johns, or Johns. Ch. Johns. Ch. (N. Y.) Johns. (N. Y.) Johns. Cas. Harris & McHenry's Reports, Maryland. Hawkins's Pleas of the Crown. Hawks's Reports, North Carolina. Head's Reports, Tennessee. Heiskell's Reports, Tennessee. Heniiig & Munford's Reports, Virginia. High's Extraordinary Rem.edies. High on Injunctions. Hill's Reports, New York. Hill's Law Reports, South Carolina. Hill's Equity Reports, South Carolina. Lalor's Supplement to Hill's and Demo's Reports, New York. Hilton's Reports, Common Pleas, city and county of New York. Hobart's Reports, K. B. Holmes's Reports, U. S. Circuit Court. Holt's Reports, K. B. Holt's Nisi Prius Reports, England. Hopwood & Coltman's Registration Appeal Cases, England. Hopkins's Reports, Chancery, New York. Houston's Reports, Delaware. Howard's Reports, U. S. Supreme Court. Howard's Court of Appeals Cases, New York. Howard's Practice Reports, New York, all the Courts, Howard's Practice Reports, New Series, New York. Howell's State Trials, England. Hughes's Reports, Kentucky. Hughes's Reports, U. S. Circuit Court. Humphrey's Reports, Tennessee. Hun's Reports, Supreme Court, New York. Idaho ; Idaho Reports. Illinois ; Illinois Reports. Illinois Appellate Court Reports. Indiana ; Indiana Reports. Indiana Appellate Court Reports. Coke's Institutes, Iowa; Iowa Reports. Irish Reports, Common Law, Ireland. Irish Reports, Equity, Ireland. Iredell's Equity Reports, North Carolina. Iredell's Law Reports, North Carolina. J. J. Marshall's Reports, Kentucky. The Justice of the Peace, English law periodical. Jacob & Walker's Reports, Chancery, England. Johnson's Reports, Chancery, England. Johnson's Chancery Reports, New York. Johnson's Reports, Law, New York. Johnson's Cases, New York. Ixxx ABBREVIATIONS Jones Eq. Jones L. Jones, W. Jur. Jur. N. S. K.B. Kan. Kay. Kay & J. Keb. Keling. Kent Coumen. Keyes. Kirby. Ky. L. J. L. R. L. T. La. La. Ann. Lalor Supp. Lane. Latch. Ld. Ray. Lea. Leg. Obs. Leigh. Leonard. Lev. Litt. Litt. Sel. Cas. Low. Dec. Lutw. M. &S. M. &W. Mao. & G. Mackey. MacArthur. Man. & G. Man. & By. Marsh. Marsh. A. K. Marsh. J. J. Mart. Mart. N. S. Mason. Mass. Maule & S. McAll. Jones's Equity Reports, North Carolina. Jones's Reports, Law, North Carolina. Sir Wm. Jones's Reports, K. B. The Jurist, Reports in all the (English) Courts. The Jurist, New Series, King's Bench. Kansas ; Kansas Reports. Kay's Reports, Chancery, England. Kay & tTohnson's Reports, Chaiicery, England. Keble's Reports, K. B. Sir John Keling's Reports, K. B. Kent's Commentaries. Keyes's Reports, N. Y. Court of Appeals. Kirby's Reports, Connecticut. Kentucky ; Kentucky Reports. The Law Journal, Reports in all the (English) Courts. The Law Reports, Reports in all the (English) Courts. The Law Times, Reports in all the (English) Courts. % Louisiana. Louisiana Annual Reports. Lalor's Supplement to Hill's & Denio's Rep , New York. Lansing's Reports, Supreme Court, New York Latch's Reports, K. B. Lord Raymond's Reports, K. B. Lea's Reports, Tennessee. The Legal Observer, New York. Leigh's Reports, Virginia. Leonard's Reports, K. B. Levinz's Reports, K. B. Littell's Reports, Kentucky. Littell's Select Cases, Kentucky. Lowell's Decisions, U. S. District Court. Lutwyche's Reports, C. P. Maule & Selwyn's Reports, K. B. Meeson & Welsby's Reports, Exchequer. Macnaghton & Gordon's Reports, Chancery, England. Maekey's Reports, District of Columbia. MacArthur's Reports, District of Columbia. Manning & Granger's Reports, C. P. Manning & Ryland's Reports, K. B. Marshall's Reports, C. P. A. K. Marshall's Reports, Kentucky. J. J. Marshall's Reports, Kentucky. Martin's Reports, Louisiana. Martin's Reports, New Series, Louisiana. Mason's Reports, U. S. Circuit Court. Massachusetts ; Massachusetts Reports. Maule & Selwyn's Reports, K. B. McAllister's Reports, U. S. Circuit Court. Ixxxi ABBREVIATIONS MoCord. McCord. Eq. McL. or McLean. McMull. MoMull. Eq. Md. Md. Ch. Me. Mees. & W. Met. (Mass.) Met. (Ky.) Mich. Minn. Minor. JWiss. Mo. Mo. App. Mod. Mon. B. Mon. T. B. Mont.; Monta. Mood. & M, Mood. & R. Moore. Moore, J. B. Moore P. C. Munf. Murph. Myl. & Cr. Myl. &K:. N. C. N. C. Conf. N. H. N.J. N. J. Eq. N. J. L. N. R. N. S. N. "W. Rep'r. N. Y. N. Y. City Ct. N. Y. Crlm. R. N.Y. Leg. Ots. N. Y. St. Rep'r. N. Y. Sup. Ct. N. Y. Super. Ct. N. Y. Supp. N. &M. MoCord's Reports, Law, Soutli Carolina. MoCord's Equity Reports, South Carolina. McLean's Reports, U. S. Circuit Court. McMuUan's Reports, Law, South Carolina. McMullan's Equity Reports, South Carolina. Maryland ; Maryland Reports. Maryland Chancery Decisions. Maine ; Maine Reports. Meeson & Welsby's Reports, Excheguer. Metcalf s Reports, Massachusetts. Metcalfe's Reports, Kentucky. Michigan ; Michigan Reports. Minnesota; Minnesota Reports. Minor's Reports, Alabama. Mississippi ; Mississippi Reports. Missouri ; Missouri Reports. Missouri Appellate Court Reports. Modern Repurts, K. B. B. Monroe's Reports, Kentucky. T. B. Monroe's Reports, Kentucky. Montana ; Montana Reports. Moody & Matkln's Reports, Nisi Frlus, England. Moody & Robinson's Reports, Nisi Prius, England. Sir G. Moore's Reports, published 1688; law French. J. B. Moore's Reports, C. P. and Exchequer Chamber. Moore's Privy Council Gases. Munford's Reports, Virginia. Murphey's Reports, North Carolina. Mylne & Craig's Reports, Chancery, England. Mylne & Keene's Reports, Chancery, England. North Carolina ; North Carolina Reports. North Carolina Conference Reports (decisions upon a conference of the judges). New Hampshire ; New Hampshire Reports. New Jersey. New Jersey Equity Reports. New Jersey Law Reports. New Reports, by Bosanquet & Puller, C. P. New Series. Northwestern Reporter. New York ; New York Reports, Court of Appeals. New York City Court Reports. New York Criminal Reports. New York Legal Observer. New York State Reporter. N. Y. Supreme Court Reports, by Thompson & Cook. Reports of the Superior Court of the city of New York. New York Supplement. Nevlle & Manning's Reports, K. B. Ixxxii ABBREVIATIONS N. &P, Neva. Nott & MoC. Ohio. OMo Cir. Ct. Ohio St. Greg. Overt. P.C. P.J. p. r. P. Wms. P.&D. Pa. Pa. Co. Ct. Pa. St. Paige. Paine. Park. Pars. Contr. Para. Sel. Cas. Peaks. Peck. Penna. Per. & D. Pet.; Peters. Peters C. C. Phila. Pick. Plowd. Port. Free. Ch. Price. Q. B. Q.B. Q. B. D. R.I. R. S. Eailw. Cas. Band. Bawle. Raym. Id. Raym. T. Rep.; Rep'r. R. M. Charlt. Rice Eg. Rice L. Rich. Eq. Nevile & Perry's Reports, K. B. Nevada ; Nevada Reports. , Nott & McCord's Reports, South Caroliha. Ohio ; Ohio Reports. Ohio Circuit Court Reports Ohio State Reports. Oregon ; Oregon Reports. Overton's Reports, 1 & 2 Tennessee. Pleas of the Crown ; Parliamentary Cases. Presiding Judge or Justice. Parties reversed. Peere ■Williams's Reports, Chancery, England. Perry & Davison's Reports, K. B. Pennsylvania. Pennsylvania County Court Reports. Pennsylvania State Reports. Paige's Chancery Reports, New York. Paine's Reports, United States Circuit Court. , 'arker's Reports, Exchequer. Parsons on Contracts. Parsons Select Cases, Equity, Pennsylvania. Peake's Reports, Nisi Prius, England. Peck's Reports, Tennessee. Pennsylvania Reports, by Penrose & Watts, 3 vols. Perry & Davison's Reports, K. B. Peters's Reports, United States Supreme Court. Peters's Circuit Court Reports, United States. Philadelphia Reports, Pennsylvania. Pickering's Reports, Massachusetts. Plowden's Commentaries or Reports, K. B., translated from law French, 1793. Porter's Reports, Alabama. Precedents in Chancery, hy Finch, England. Price's Reports, Exchequer. Queen's Bench. Queen's Bench Reports, or Adolphus and Ellis's Reports, New Series. Queen's Bench Division (English Reports,)^ Rhode Island ; Rhode Island Reports. Revised' Statutes. Railway Cases, England. Randolph's Reports, Virginia. Rawle's Reports, Pennsylvania. Lord Raymond's Reports, K. B. Sir Thos Raymond's Reports, K. B. Reporter. R. M. Charlton's Reports, Georgia. Rice's Equity Reports, South CaroUna. Rice's Law Reports, South Carolina. Richardson's Equity Reports, South Carolina. Ixxxiii ABBREVIATIONS Rioh. Eq. Cas. Rich. L. RoUe. Root, Russ. Rus8. & M. Russ. & R. Russ. Cr. Ry. & M. ». S. &R. S. C. St u. S. E. S.P. s. w. Salk. Sandf. Sandf . Ch. Saund. Sawyer. Scott, N. R. Selw. N. P. Serg. & R. Shearm. & Redf. Negl. Show. Show. P. C. Sid. Sim. Sim. N. S. Sim. & St. Skinner. Sm. & G. Sm. & M. Sm. & M. Ch. Smith. Smith, E. D. Sneed. Sneed Deo. South. L. Review, South. Rep. Speers. Speers Eq. St. Tr. Stark. Staunf. P. C. Stephen Dig. Cr. L. Stew. Stew. & P. Richardson's Equity Cases, South Carolina. Richardson's Law Reports, South Carolina. RoUe's Reports, K. B. Root's Reports, Connecticut. Russell's Reports, Chancery, England. Russell & Mylne's Reports, Chancery, England. Russell & Ryan's Crown Cases. Russell on Crimes. Ryan (felMoody's Reports, Nisi Prius, England. Section. Sergeant & Rawle's Reports, Pennsylvania. South Carolina ; South Carolina Reports. Same Case. Southeastern Reporter. Same Principle. Southwestern Reporter. Salkeld's Reports, K. B. Sandf ord'e Reports, Superior Court, city of New York. Sandford's Chancery Reports, New York. Saunders's Reports, K. B. Sawyer's Reports, Circuit Court of the United States. Scott's New Reports, C. P. Selwyn's Nisi Prlus Reports, England. Sergeant & Rawle's Reports, Pennsylvania. Shearman & Redfleld on Negligence. Shower's Reports, K. B. Shower's Parliament Cases. Siderfln's Reports, K. B. Slmons's Reports, Chancery, Engl. Simons's Reports, New Series, Chancery, England. Simons & Stuart's Reports, Chancery, England. Skinner's Reports, K. B. Smale & Giffard's Reports, Chancery, England. Smedes & Marshall's Reports, Mississippi. Smedes & Marshall's Reports, Chancery, Mississippi Smith's Reports, K. B. E. D. Smith's Reports, Common Pleas, city and county of New York. Sneed's Reports, Tennessee. Sneed's Kentucky Decisions. Southern Law Review. Southern Reporter. Speers's Reports, South Carolina. Speers's Equity Reports, South Carolina. Howell's State Trials, England. Starkle's Reports, Nisi Prlus, England. Staundeforde's Pleas of the Crown. Stephen's Digest of the Criminal Law, England. Stewart's Reports, Alabama. Stewart & Porter's Reports, Alabama. Ixxxiv ABBREVIATIONS Story. Story Bail. Story Const. Story Contr. Story Eq. Jur. Story Pro. N. Str.; Stra. Strobh. Eq. Strobh. L. Sumn. Sup. Ct. Super. Ct. Supp. Sup'r. Swan. Swanst. T. B. Men. T. R. T. R., N. S. T. U. P. Charlt. T. &C. T. Raym. Taunt. Tenn. Tenn. Ch. Tex. Tex. App. Tex. Supp. Toml. L. Diet. Tyler. Tyrw. Tyrw. & a. U.S. U. S. R. S. Utah. V. &B. Va. Va. Cas. Vaughan. Vent. ' Vem. Ves. Ves. Jun. Ves. & Bea. Vin. Abr. W. D. W. R. W. Va. W. W. & D. Story's Reports, Circuit Court of the United States. Story on Baihnent-i. £*tory on the Constitution. Story on Contracts. Story on Equity Jurisprudence. Story on Promissory Notes. Strange's Reports, K. B. Strobhart's Equity Reports, South Carolina. Strobhart's Law Reports, South Carolina. Sumner's Reports, Circuit Court of the United States. Supreme Court. Superior Court. Supplement. Supervisor. Swan's Reports, Tennessee. Swanston's Reports, Chancery, England. T. B. Monroe's Reports, Kentucky. Term Reports, or Durnford & East's Reports, K. B. Term Reports, New Series, or East's Reports, K. B. T. U. P. Charlton's Reports, Georgia. Thompson & Cook's Reports, Supreme Court, New York. Sir Thos. Raymond's Reports, K. B. Taunton's Reports, C. P. Tennessee ; Tennessee Reports. Tennessee Chancery Reports. Texas ; Texas Reports. Texas Court of Appeals Reports. Supplement to Vol. 25, Texas Reports. Tomlin's Law Dictionary. Tyler's Reports, Vermont. Tyrwhitt's Reports, Exchequer. Tyrwhitt & Granger's Reports, Exchequer. United States ; United States Reports. United States Revised Statutes. Utah ; Utah Territory Reports. Vesey & Beames's Reports, Chancery, England. Virginia ; Virginia Reports. Virginia Cases. Vaughan's Reports, K. B. Ventris's Reports, K. B. Vernon's Reports, Chancery, England. Vesey Senior's Reports, Chancery, England. Vesey Junior's Reports, Chancery, England. Vesey & Beames's Reports, Chancery, England. Viner's Abridgement. Weekly Digest, New York, all the Courts. Weekly Reporter, England, all the Courts. West Virginia; West Virginia Reports. Willmore, WoUaston & Davison's Reports Oi B. Ixxxv ABBREVIATIONS W. W. & H. W. Blackst. W, Jones. Walk. Walk. Ch. Wall. Ware. Wash. (Va.) Wash. (U. S.) Watts. Watts & Serg. Week. Dig. Wend. Whart. Whart. Or. L. Wheat. Willis. Wilm. WUs. Wils. Ch. Wils. & Shaw. Wiust. Wis. Wms. P. Wms. Saund. Woods. Woolw. Wright. Wyo. Y. B. Y. &C. Y. & J. Yates Sel. Cas. Yeates. Yelv. Yerg. Younge. Younge & C. Yotinge & J. Willmore, Wollaston & Hodgee's Reports, Q. B. Sir Wmiam Blackstone's Reports, K. B. Sir Wm. Jones's Reports, K. B. Walker's Reports, Mississippi. Walker's Chancery Reports, Michigan. Wallace's Reports, United States Supreme Court. Ware's Reports, District Court of the United States. Washington's Reports, Virginia. Washington's Reports, Circuit Court of the United States. Watts's Reports, Pennsylvania. Watts & Sergeant's Reports, Pennsylvania. Weekly Digest, New York, all the Courts. Wendell's Reports, New York. Wharton's Reports, Pennsylvania. Wharton's American Criminal Law. Wheaton's Reports, Supreme Court of the United States. Willis's Reports, C. P. Wilmot's Notes of Opinions, K. B. Wilson's Reports, C. P. Wilson's Chancery Reports, England. Wilson & Shaw's Reports, House of Lords. Winston's Law and Equity Reports, North Carolina. Wisconsin; Wisconsin Reports. Peere Williams's Chancery Reports, England. Saunders's Reports, K. B. with Williams's Notes. Woods's Reports, Circuit Court of the United States. Woolworth's Reports, Circuit Court of the United States. Wright's Nisi Prins Reports, Ohio. Wyoming ; Wyoming Reports. Year Books (1307-1537), K. B., cited by the year of each king's reign, the page, and the numher of the pi. Younge & Collier's Reports, Exchequer, Equity. Younge & Jervis's Reports, Exchequer. Yates's Select Cases, New York. Yeates's Reports, Pennsylvania. Yelverton's Reports, K. B. Yerger's Reports, Tennessee. Younge's Reports, Exchequer. Younge & Collier's Reports, Exchequer, Equity. Younge & Jervis's Reports, Exchequer. Ixxxvl CASES CITED. Sec. A bbott V Yost, 2 Denio (N. Y.) 86 -^ 758, 761 Abrams, In re, io Hun (N. Y.) 272. . . 820 B CarUale, 18 S. C. 242 733 V Ervin, 9 Iowa 87 570, 572, 584 Acheson u Miller, 2 Ohio St. 203 ... . 682 Achley's Case, 7 Abb. Pr. (N. Y.) 35 120, 532 Acker B BuiraU, 21 Wend. (N. Y.) 605 671, 697, 698 V Ledyard, 8 Barb. (N. Y.) 514. 588 Ackerley « Parkinson, 3 Maule & S. 411 713 Ackerman v Desha Co., 27 Ark. 457 . 823 Adair v McDaniel, 1 Bailey (S. C.) 158 682 Adams v Disston, 44 N. J. L. 662. .. . 690 B Jackson, 2 Alk.(Vt.; 145 558 V Richardson, 43 N. H. 212 . . 722, 736 BTator,42Hun(N.Y.)384..630, 659 I! Tyler, 121 Mass. 380 44 V United States, 20 Ct. of CI. (U.S.)115 456 uWhittlesey, 3Conn. 560. 7 AddingtonuSexton, 17Wis. 327.... 579 AdeeuAdee, 16Hun(N.Y.)46 674 Adkms V Brewer, 3 Co w. (N. Y.) 206 . 734 r Doolen, 23 Kan. 659 816 Adsit V Brady, 4 Hill (N. Y.) 630 712, 724, 737 Ah Lee, In re, 6 Sawyer (TJ. S.) 410. . 6.51 Aire v Sedgwlcke, 2 Rolle 197 713 Akers V State, 8 Ind. 484. 213 Alabama G. S. R. R. Comp'y v Christian, 82 Ala. 307 8C5 Albany v McNamara, 117 N. Y. 168 . . 559 Albany Co. Sup'rs v Dorr, 7 Hill (N.Y.)583 226 V Dorr, 25 Wend. (N. Y.) 440. . . 226 Albany N. R. R. Comp'y i" Brownell, 24N.Y.345 847 Albee v Ward, 8 Mass. 79. 734 Albreoht D Long, 27 Minn. 81 583 Albright V Bedford Co., 108 Pa. St. 582 445, 478 Sec. Alcorn v State, 57 Miss. 273 236 Aldermen of Denver v Darrow, 13 Colo. 460 364, 397 Aldrich v Aldrioh, 8 Met. (Mass.) 102 758 Alexander v Hoyt, 7 Wend. (N. Y.) 89 758 uMoKenzie, 2S.C.81...19, 307, 314 Alexandria v Corse, 2 Cranch C. C. (U.S.)363 243 Alger V Seaver, 138 Mass. 331. . . .818, 823,833, 834 AJiger v Keeler, 8 Hun (N. Y.) 125. . . 704 AUec V Reece, 39 Fed. Rep. (U. S.> 341 733 Allegany Co. Sup'rs v Van Campen, 3Wend. (N.Y.)48 192 Allegheny Co. Com'rs v Lecky, 6 S. &R.(Pa.)166 106 Allen i> Archer, 49 Me. 346 658, 664 1) Blunt, 3 Story (U.S.) 742.. 553, 713 uJay,60Me.l24 852 V McKeen, 1 Sumn. (U. S.) 276. 522 uMamey,65Ind.398 262 V Ramey, 4 Strobh. (S. C.) 30. . 257 V Smith, 1 Leigh (Va.) 231 560 •u State, 32 Ark. 241 402 V State, 6 Blackf. (Ind.) 252. .. . 251 B State, 21 Ga. 217 298,300, 624 Allison V Louisville, H. C. & W. Ry. Comp'y, 9 Bush (Ky.) 247 . 852 V United States, 10 Ct. of CI. (U.S.)449 11 AUweln v Sprinkle, 87 Ind. 240 682 Allwood V Cowen, 111 111. 481 846 Alvord V Collin, 20 Pick. (Mass.) 418 53 V Syracuse Sav. Bank, 34 Hun (N. Y.) 143 851 American Asylum v Phoenix Bank, 4Conn.l72 818 American Exchange F. Ins. Comp'y V Britton, 8 Bosw. (N. Y.) 148 530 American R'way Frog Comp'y v Haven, 101 Mass. 398 787 Ixxxvii CASES CITED Sec. American Steamship Comp'y v Young, 89 Pa. St. 186 530 Amherst Bank v Root, 2 Met. (Mass.)522 213 Amory v Justices, etc., 2 Va. Cas. 523 36 AmperseuWinslow, 75Mich. 234... 713 Amy V Supervisors, 11 Wall. (U. S.) 136 724, 725 Anderson v Baker, 23 Md. 531 ... 123, 124 B Brown, 9 Ohio 151 585 1) Colson, 1 Nehr. 172 825 B Farns, 7 Blaokf. (Ind.) 343. . . 682 B Johett, 14 La, Ann. 624 249 B McCormick, 129 11.1. 308 560 B Milliken, 9 Ohio St. 568 748 B Van Tassel, 53 N. Y. 631 545 Andrews B King, 77 Me. 224 386 B Knox Co., 70 111. 65 849 V Marris, 1 Q. B. (Ad. & E., N. S.)3 758 V Portland, 79 Me. 484 516 B Pratt, 44 Gala. 309 478, 811 V Southwiek, 13 Met. (Mass.) 535 698 B United States, 2 Story (U. S.) 202 19,460, 478 And?us B Bealls, 9 Cow. (N. Y.) 693. 600 Annan B Baker, 49 N. H. 161 560 Anne Arundel Co. Com'rs b Duck- ett, 20Md. 488 709, 724 Anonymous, 1 Barn. K. B. 279. . .781, 782 Free. 47.5 173 6 Mod. 96 855 11 Mod. 132 165 12 Mod. 256 324 22 N. J. L. 211 447 lSalk.396 609 Answer of the Justices, 3 Me. 484. . . 36 68 Me. 594 37, 38 70Me.560 143 70Me.593 171 Apple V Crawford County, 105 Pa. St. 300....' 441, 467 Appleby u State, 45 N. J. L. 161 248 Applegate b Eagan, 74 Mo. 258 158 Appleton B Water Com'rs, 2 Hill (N.Y.)432 593 Appo B People, 20 N. Y. 531 835, 836 Sec. Apthorp B North, 14 Mass. 167 184 Arapahoe Co. Com'rs v Crotty, 9 Colo. 318 822 B Graham, 4 Colo. 201 552 Arberry v Beavers, 6 Tex. 457 812 Arhuckle B Cowtan, 3 Bos. & P. 321 . 42 Arbuthnot B Norton, 5 Moore P. C. Cas.219 45 Archer B Noble, 3 Me. 418 241 Arlington (Lord) B Merricke, 2 Saund. 411 o 207 Armine B Spencer, 4 Wend. (N. Y.) 406 544 Armstrong v Garrow, 6 Cow. (N. Y.) 465 588 B Grant, 56 Hun (N. Y.) 226 . . . . 853 B St. Louis, 3 Mo. App. 151 844 B United States, Peters C. C. (U.S.)46 188, 192 Arnold b Shields, 5 Dana (Ky.) 18. . 836 Arris B Stnkely, 2 Mod. 260 603 Arundel B Gardiner, Cro. Jac. 652. . 682 Asbell I) Brunswick, 80 Ga. 503 398 Asbestine Tiling & M. Camp'y b Hepp, 39 Fed. Rep. (U.S.) 324 551, 593 Ashby B Wellington, 8 Pick. (Mass.) 524 247 B White, 2 Ld. Raym. 938; 6 Mod. 45 ; 1 Salt. 19 ; 1 Bro. Pari. Cas. 45 153, 708,723,724, 748 Aston B Gwinnell, 3 Younge & J. 136 42,46, 578 Astrom b Hammond, 3 McLean (U.S.) 107 730 Asylum b PhoBnix Bank, 4 Conn. 172 818 Atcheson B MaUon, 43 N. Y. 147 56,63, 64 Atchinson b Lucas, 83 Ky. 451, 69 AtkinsB Baily,9 Yerg. (Tenn.) HI. . 205 B Johnson, 43 Vt. 78 687 Attorney General, In re, 14 Fla. 277. 173 B Barstow, 4 Wis. 567 156, 159 B Board of Canvassers, 64 Mich.607 157 B Boston, 123 Mass. 460. . 813, 817, 823 B Brown, 1 Wis. 513. 711 B Brunst, 3 Wis. 787 320 Ixxxviii CASES CITED Sec. Attorney General v Davy, 2 Atk. 212 111 1) Detroit, 58 Mich. 213 73 1! Ely, 4 Wis. 420 145 V Holihan, 29 Mich. 116 778 D Kirk, L. R. 14 Eq. 558 843 V Lawrence, 111 Mass. 90 817 V Love, 39 N. J. L. 476. . .314,349, 435 V Marye, 80 Va. 485 19 V Matthias, 4 Kay & J. 579; 27 L. J. Ch. 761;4Jur. N. S. 628 12, 41 DMegin,63N.H. 378...778,782, 785 V Northampton, 143 Mass. 589 801, 802 V Simonds, 111 Mass. 256 827 « Squires, 14 Gala. 12 20 Atwater v Canandaigua, 56 Hun. (N.Y.)293 593 u Trustees, etc., 124 N.Y. 602.. 593 Auditor V Adams, 13 B. Mon. (Ky.) 150 469 Auditors v Beuoit, 20 Mich. 176. .473, 511, 512, 516, 641, 649 Augusta c Sweeney, 44 Ga. 463 19 Aiaaniert)Governor,lTex.653..623, 649 Auldi) Walton, 12 La. Ann. 129. .132, 135 Austin, Inre, 5 Rawle (Pa.) 191 13 V Coggeshall, 12 B. I. 329 852 DHelms,65N. C. 560........106, 109 ■u Johns, 62 Tex. 179 449 u State, 10 Mo. 591 124 Averill v Williams, 1 Denio (N. Y.) 501 688 Avery B Halsey, 14 Pick. (Mass.) 174 682 V Slack, 19 Wend. (N. Y.) 50. . . 544 Ayer v Hutchins, 4 Mass. 370 683 Ayers v Lawrence, 59 N. Y. 192 853 cNewark, 49 N. J. L. 170.... 366, 374,380, 398 Ayre v Aden, Cro. Jac. 73 336 Ayres v State Auditors, 42 Mich. 422 798, 819 TJahbitt v Savoy, 3 Gush. (Mass.) -'-* 530 495 Babcock v Giff ord, 29 Hun (N. Y.) 186 737 V Goodrich, 47 Gala. 488. . .552, 818, 819 DLamb,lGow.(N.Y.)238..10fl, 535 Seo. Backwell'a Gase, 1 Vern. 162 547 Bacon v Benchley, 2 Gush. (Mass.) 100 746 i;Benchley,3Cush.(Mass.)ll.. 750 V Gounty Canvassers, 26 Me. 491 156 V Daniels, 116 Mass. 474 702 Badger v United States, 93 U. S. 599 327, 412 Badham u Jones, 64 N. C. 655 249 Badlam v Tucker, 1 Pick. (Mass.) 389 698 Bagg's Gase, 11 Goke (Vol. 6) 98 b. . . 362 Bagley, In re, 27 How. Pr. (N. Y.) 151 425,788, 790 Bailey v Fisher, 38 Iowa 229 647, 649 1) Jewett, 14 Mass. 155 700 « Mayor, etc., 3 Hill (N.Y.) 531. 724 V Railroad Gomp'y, 22 Wall. (U.S.)604 758 « State, 56 Miss. 637 475 V Wiggins, 5 Harringt. (Del.) 462 713 u Winn, 101 Mo. 649 558 Bainbridge v Downie, 6 Mass. 253. . . 774 Baird v Bank of Washington, 11 Serg. & R. (Pa.) 411 649 Baker, In re, 11 How. Pr. (N. Y.) 418 789, 790 c Baldwin, 48 Conn. 131 210 V Gushman, 127 Mass. 105 89 V Fuller, 21 Pick. (Mass.) 318 698, 706 V Kirk, 33 Ind. 517 320, 795, 796 V Police Commissioners, 62 Mioh.327 102 V Preston, 1 Gilm. (Va.) 235. .. . 245 D Sheehan, 29 Minn. 235 759 B State, 27 Ind. 485 709 V United States, 4 Gt. of CI. (U.S.)22r 9, 11 vUtica, 19N.Y. 326 450 Baldwin v Bridges, 2 J. J. Marsh. (Ky.)7 581 » Hewitt, 88 Ky. 673 539 V Marshall, 2 Humph. (Tenn.) 116 742 uPhiladelphia, 99Pa. St. 164.. 470 BaU V Pratt, 36 Barb. (N. Y.) 402. .. . 682 Ixxxix CASES CITED Sec. Ballard v Thomas, 19 Gratt. (Va.) 14. 353 Ballou V O'Brien, 20 Mich. 304 624 Baltimore v Root, 8 Md. 95 48 D State, 15 Md. 376 19, 73 Baltimore Co. Com'rs v Baker, 44 Md.l 7?4 Baltimore Turnpike, In re, 5 Binn. (Pa.) 481 100 Bamford ti Hes, 3 Exch. 380 207 Bancroft v Lynnfleld, 18 Pick. (Mass.)56e 495 DWinspear,44Barb.(N.Y.)Z09. 694 Bangs « Bangs, 41 Hun (N. Y.) 41 . . . 261 u Beacham, 68 Me. 425 698 r Dunn, 66 Gala. 72 43, 44 Bank Lick Turnpike Comp'y v Phelps, 81 Ky. 613 837 Bank of Comm. v Mayor, etc., 43 N.Y.184 593 Bank of Monroe v State, 26 Hun (N.Y.)581 57, 66 Bank of Rome v Mott, 17 Wend. (N.Y.)554 707 Bank of the U. S. v Dandridge, 12 Wheat. (U.S.) 64.. 173, 298, 558 Banner v Mc Murray, 1 Dev. L. (N. C.)218 304, 581 Banton « Wilson, 4 Tex. 400 320 Barada v Carondelet, 8 Mo. 644 171 Barber v Harris, 6 Mackey (D. C.) 586 811 Barbour D United States, 17 Ct. of CI. (U. S.) 149 408, 420, 507 Barefield v State, 14 Ala. 603 864 Barhyte v Shepherd, 35 N. Y. 238 541, 738 Barkeloo v Randall, 4 Blackf. (Ind.) 476 713 Barker v People, 3 Cow. (N. Y.) 686 74,125,397, 400 V Pittsburg, 4 Pa. St. 49 19 c Remick, 43 N. H. 235 587 uStetson, 7 Gray (Mass.) 53... 723' Barkley v Levee Commissioners, 93 U.S.258 326 Barksdale v Cobb, 16 Ga. 13 814 Barlow v Ramsey, 114 U. S. 15 748 Barnard v Darling, 11 Wend. (N. Y.) 28 600 Sec. Barnard v Viele, 21 Wend. (N.Y.) 88. 676 Barnert v Pal erson, 48 N. J. L. 395. . 495 Barnes t) Brookman, 107 111. 317 188 V Pike County, 51 Miss. 305. .. . 138 Barnett v School Directors, 73 Iowa 134 818 Barney v Lowell, 98 Mass. 570 593 Barnum v Gilman, 27 Minn. 466 163 Barnwell, Ex parte, 8 S. C. 2C4 813 Barre v Greenwich, 1 Pick. (Mass.) 129 425 Barret v Reed, 2 Ohio 409 190, 631 Barry 1) Lauck, 5 Coldw. (Tenn.) 588 321 Barry's Lessee v Rhea, 1 Tenn. ■ (Overt.) 345 558 Bartlett v Attorney General, Park, 277 269, 271 V Board of Education, 59 111. 364 184,195, 198 V Crozier, 15 Johns. (N. Y.) 250 226,724, 728 V Crozier, 17 Johns. (N. Y.) 439. 723 t) Go vernor, 2 Bibb (Ky .) 586. . . . 272 Barton v New Orleans, 16 La. Ann. 317 446 V Swepston, 44 Ark. 437 551 Barwick v Reade, 1 H. Blackst. 637 42 Basham d Carroll, 44 Ark. 284 818 1) Comm., 13 Bush (Ky.) 36 288 Bass Foundry & M. Works v Co. Com'rs, 115 Ind. 234 542 Bassett v Denn, 17 N. J. L. 432 180 D Fish,- 12 Hun (N.Y.) 209 724 Bassf ord, In re, 50 N. Y. 509 562 Bates V Dyer, 9 Humph. (Tenn.) 162. 636 V Porter, 74 Cala. 224 823 ■B Taylor, 87 Tenn. 319 795 Batesville & B. R. R. Comp'y, Ex parte, 39 Ark. 82 537 BathuReed, 78Me. 276 333 Batho V Salter, Latch 54 ; W. Jones 65 477 Baugh 1) Lamb, 40 Miss. 493 10 Bauman v Hoboken, 49 N..J. L. 537. . 814 Baxter v Brooks, 29 Ark. 173 .. . .443, 618, 811 Bay City v State Treasurer, 23 Mich. 499 798 xc CASES CITED Skc. Bay County v Brock, 44 Mich. 45. . . . 190 Bayha v Webster County, 18 Nebr. 131 478 Bayllss V Pearson, 15 Iowa 279 774 Beach v Furman, 9 Johns. (N. Y.) 229 757 Beal V McVioker, 8 Mo. App. 202. .43, 44 I) Polhemus, 67 Mich. 130 60 D Ray, 17 Ind. 554 152 Beale v Comm., 7 Watts (Pa.) 183.. . 233 Beaman v United States, 19 Ct. of CI. (U.S.) 5 310, 4fil Bean v Crosby, 1 Allen (Mass.) 220 . . '767 uParker, 17Mass. 591 266 V Thompson, 19 N. H. 290. . .82, 624 Bearce v Fossett, 34 Me. 575 664 Beard v Decatur, 64 Tex. 7 519 «VanTromp,36Kan.225 777 Beasley v Beckley, 28 W. Va. 81 805 Beatty v Rhodes, 3 Neva. 240 466 Beaurain ti Scott, 3 Campb. 388. .713, 721 Beawf age's Case, 10 Coke 99 b 697 BeckerBTenEyck,6Palge(N.Y.)68 579 Beckwith v Racine, 7 Biss. (U. S.) 142 326 Bedford v Rice, 58 N. H. 446.. . 649, 662 V Tupper, 30Hun(N.Y.)174.. 743 Beebe v Robinson, 52 Ala. 66. .19, 393, 8^, 850 V Robinson, 64 Ala. 171 788 Beekman, In re, 31 How. Pr. (N. Y.) 16:lAbb.Pr.N.S.(N.Y.) 449 1C6 t) Bigham, 5 >r. Y. 366 560 V Frost, 18 Johns. (N. Y.) 544. . . 743 Beers v Board of Health, 35 La. Ann. 1132 721 Belcher v Treat, 61 Me. 577 815 Belfast V Morrill, 65 Me. 580 116 Belknap v Reinhart, 2 Wend. (N. Y.) 375 774 V United States, 18 Ct. of CI. (U.S.) 281 461 BeUi) Jasper, 2 Ired. Eq. (N. C.) 597, . 215 V McKinney, 63 Miss. 187. . .713, 715 V Overseers. 14 N. J. L. 131. .. . 804 V United States, 9 Ct. of CI. (U.S.)302 11 oVemooy, 18Hun(N.Y.)125.. 539 Sec. Bellamy v Burrow, Cas. temp. Talbot 97 52 Bellows V Russell, 20 N. H. 427 64 Bemi3«CountyCom'rs,23Minn. 73.. 551 Benedict u Bray, 2 Cala. 251 678 Beuford v Gibson, 15 Ala. S21 19 Benjamin » Wheeler, 8 Gray (Mass.) 409 736 V Wheeler, 15 Gray (Mass.) 486 736 Bennett v Burch, 1 Denio (N. Y.) 141 . . 768 r State, 58 Miss. 556 173, 212 V Whitney, 94 N. Y. 302. . . .724, 725,727, 737 Benoit v Auditors, etc., 20 Mich. 176 .. . 473, 511, 512, 516, 641, 649 Bensel v Lynch, 44 N. Y. 162 759 Bentleyi) Phelps, 27 Barb.(N.Y.) 524 164,630,649, 666 Benton v Martin, 52 N. Y. 570 261 ■!) Taylor, 46 Ala. 388 810 Benton County Com'rs v Harman, lOlInd.551 478 Beresf ord Hope v Sandhurst (Lady), L. R. 23 Q. B. D. 79; 58 L. J. Q.B. 316:61 L. T. 150; 37W. R. 548;53J. P. 805; aff'g37W.R.525;53J. P. 549 68 Bergen i) Powell, 30 Hun (N. Y.) 438 354 V Powell, 94 N. Y. 591 310, 354 Bergin v Hayv/ard, 102 Mass. 414. . . 758 Bergman v Bullitt, 43 Kan. 709 558 Bernard v Hoboken, 27 N. J. L. 413. . 419 Bernier v Russell, 89 111. 60 748 Berrien Co. Treasurer v Bunbury, 45Mich.79 187 Berry v Hamby, 2 111. 468 66 Berryman v Perkins, 55 Cala. 483. . . 795 V Wise, 4 T. R. (D. & E.) 366. . . 300 Berthoud v Mayor, etc., 35 Wend. (N.Y.)157 802 Bessinger ii Dickerson, 20 Iowa 260.. 235 Best V Polk, 18 Wall. (U. S.) 112 317 Bethel v Mason, 55 Me. 501 758 Betts V Dimon, 3 Conn. 107 539 V New Hartford, 25 Conn. 180. 309 Bevans v United States, 13 Wall. (U.S.)56. 223 XCl CASES CITED Sec. Bevard v Hofeman, 18 Md. 479 722 Biddle v Willard, 10 Ind. 62 415, 435 Biencourt v Parker, 27 Tex. 558 31 Bier v Gorrell, 30 W.Va. 95 522, 523 Bigelow V Bridge, 8 Mass. 275.. 205, 213, 214 Bilke V Havelock, 3 Campb. 374 ... . 477 Billings V Laflerty, 31 111. 318. . . .249, 722 V O'Brien, 14 Abb. Pr. N. S. (N. Y.) 238 ; 45 How. Pr. {N.Y.)392 43 V Russell, 23 Pa. St. 189 758 D Stark, 15 Fla. 297 107 V Teeling, 40 Iowa 607 291 V Tnomas, 114 Mass. 570 766 BiUingsley v State, 14 Md. 369. . .288, 664, 665 Bills V Comstock, 12 Met. (Mass.) 468 677 Bird )) Breedlove, 24 Ga. 623 59 V Meadows, 25 Ga. 251 59 V Perkins, 33 Mich. 28 758, 761 Birdsall v Clark, 73 N. Y. 73 573 Birkbeck v Stafford, 14 Abb. Pr. (N. Y.) 285; 23 How. Pr. (N.Y.)236 45 Bishop V Schneider, 46 Mo. 472. .742, 743 V Williamson, 11 Me. 495. .592, 751 Bissellj) Saxton,66N.Y. 55. .204, 205, 218, 245 V Saxton,- 77 N. Y. 191 204, 205, 218 Bivins v Helsley, 4 Met. (Ky.) 78. . . . 259 Blachford v Preston, 8 T. R. (D. & E.)89 50, 51 Black, Ex parte, 1 Ohio St. 30 814 V Oblender, 135 Pa. St. 526. .. . 209 Ross, 37 Mo. App. 250 852 Blaoket v Blizard, 9 B. cS: C. 851 Ill Blackett v Criasop, 1 Ld. Ray. 278. . 682 Black well v State, 26 Ind. 204 262 Blair 1) Ridgely, 41 Mo. 63 123, 124 Blake v Johnson, 1 N. H. 91 763 « Shaw, 7 Mass. 505 698 V Sturte vant, 12 N. H. 567 660 V United States, 14 Ct. of CI. (U.S.)463 416 Blanchard v Goss, 2 N. H. 491 758 V Stearns, 5 Met. (Mass.) 298. . . 746 Bland and G. County Judge Case, 33Gratt. (Va.)443....313, 652 Blankinship v Hadley, 11 Gray (Mass.)431 740 Bledsoe v International B. R. Com- pany, 40 Tex. 637 798 Bliss V Day, 68 Me. 201 630, 649 V Lawrence, 58 N. Y. 442. ... 43, 45 BLssel, In re, Dougl. 398 n 36 Bloom V Burdick, 1 Hill (N. Y.) 130 556, 720 Bloomfleld v Pierson, 47 N. J. L. 247. 649 Bloomlngton School Township v National School F. Co., 107 Ind. 43 551 Blount V Ramsey, Cooke (Tenn.) 489 558 Blunt V Sheppard, 1 Mo. 219 588 Blythe v Tompkins, 2 Abb. Pr. (N. Y.)488 734 Board v Helm, 2 Met. (Ky.) 500. ... . 682 Board of Aldermen v Darrow, 13 Colo. 460 364, 397 Board of Com'rs v Babcock, 5 Oreg. 472 743 Board of Education v Fonda, 77 N. Y.350 204, 205 1) Heckox, 12 Week. Dig. (N. Y.)206 295 V Jewell, 44 Minn. 427 224 I) Quick, 99 N. Y. 138 271, 279 1) Runnels, 57 Mich. 46 833 Board of Excise v Sackrider, 35 N. Y. 154 106 Board of Liquidation v McComb, 92U. S.531 730 Board of Water Com'rs v Lansing, 45N.Y.19 106, 107 Boardman v Flagg, 70 Mich. 372. .. . 282 V Halliday, 10 Paige (N. Y.) 223 '..582, 641 Bobbett V State, 10 Kan. 9 816 Bocard « State, 79 Ind. 270 244, 251 Bodine v Thurwachter, 34 Hun (N.Y.)6 770 Bodley v Archibald, 33 W. Va. 229 835, 837 Bogart V Green, 8 Mo. 115 235 Bolan V Williamson, 2 Bay (S. C.) 551 592 xcu CASES CITED Sec. Bolan V Williamson, 1 Brev. (S. C.) 181 593, 751 Bollman, Ex parte, 4 Cranch (U. S.) 75 630 Boltz's estate, 133 Pa. St. 77 203 Bond V Ward, 7 Mass. 123 682, 688 Bondurant v Buf ord, 1 Ala. 359; 35 Am. Dec. 83 336 Boner D Adams, 65 N. C. 639 24 Bouham v Weymouth, 39 Minn. 93. . 560 Bonnel v Dunn, 28 N. J. L. 153 724 Bonner v State, 7 Ga. 473 835 Bonta 1) Mercer Co. Court, 7 Busli (Ky.)5r6... 187, 283 Bookstaver v Jayne, 60 N. Y. 146. .. . 261 V Jayne, 2 T. & C. (N. Y.) 397. . 361 Boone County v Jonee, 54 Iowa 699 173,185,245, 288 B Keck, 31 Ark. 387 48 Booth V Lloyd, 33 Fed. Rep. (U. S.) 593 593 Boothbay v Giles, 68 Me. 160 194 Borden v Fitch, 15 Johns. (N. Y.) 131. 757 V Houston, 2 Tex. 594 275,288,664, 665 1) State, 11 Ark. 519 713 Bore V Bush, 6 Mart. N. S. (La.) 1-. . 734 Boreland v Washington County, 20 Pa.St.l50 286 Boring v Williams, 17 Ala. 510 187,192, 219 BorrodaUe v Leek, 9 Barb. (N. Y.) 611 571 Borton V Buck, 8 Kan. 302 329 Bosley v Smith, 3 Humph. (Tenn.) 406 235 Boston V Moore, 3 Allen (Mass.) 126 232 Bostwlck V Barlow, 14 Hun (N. Y.) 177 737 Bosworth V New Orleans, 26 La. Ann. 494 446 « Walters, 46 Ga. 635 428 Bouanchaud v D'Hebert, 21 La. Anu.138 38, 81 Bouchaud v Dias, 1 N. Y. 201 203 Boughton V State, 7 Humph. (Tenn.) 193 187 Bourland v Hildreth, 26 Cala. 161. . . i:5 Bovee v King, 11 Hun (N. Y.) 250. ., . 7i;8 Sec. Bowe V Brown, 4 N. Y. St. Rep'r 456 691 u Wilkius, 105 N. Y. 322 686 Bowen 1) Hixon, 45 Mo. 340 1.57 u Morris, 2 Taunt. 374 774 Bower v Washington Co. Com'rs, 25Pa.St. 69 286 Bowers v Fleming, 67 Ind. 541 231 Bowery Nat. Bank v Wilson, 122 N. Y.478 43 Bowley v Barnes, 8 Q. B. (Ad. & El. N.S.)1037 300 Bowman v Coffroth, 59 Pa. St. 19 59, 62 Bownes v Meehan, 45 N. J. L. 189. . . 778 Boyd D Desmond, 79 Cala. 250 293 Boyden v Brookline, 8 Vt. 284. . .445, 448, 478 V Burke, 14 How. (U. S.) 575 249, 744 V United States, 13 Wall. (U.S.)17 223 Boyer v Potts, 14 Serg. & R. (Pa.) 157 861 Boyers v Crane, 1 W. Va. 176 21, 551 Boykin v State, 50 Miss. 375 187 Boyter v Dodsworth, 6 T. R. (D. & E.) 581; 1 Selw. N. P. 81. . 522 Brackenridge v State, 27 Tex. Ct. App.513 527 BrackettD Blake, 7 Met. (Mass.) 335 44, 352 Bradford»Justices,eto.,33Ga.332.. 7 Bradley v Fisher, 13 Wall. (U. S.) 335 713,718,721, 722 D Richmond, 6 Vt. 121 48 D Rochester, 54 Hun (N.Y.) 140 573 D Ward, 58 N. Y. 401 758 Bradshaw v Camden, 39 N. J. L. 416 801, 802 Brad weU, In re, 55 m. 535 70 Brady d Ho we, 50 Miss. 607 .. 440, 652, 657 V Sweetland, 13 Kan. 41 649 Braidy v Theritt, 17 Kan. 468 644 Bralnard v Head, 15 La. Ann. 489. . . 758 Bramley v Wilds, 9 Lea (Tenn.) 674 263 Branch i) Comm., 2 Call (Va.) 428. . . 231 V Elliot, 3 Dev. L. (N. C.) 8fi. . 189 Brandon v Snows, 2 Stew. (Ala.) 255 658 ZClll CASES CITED Sec. Brandt* Mayor, etc., 48 N. T. Super. Ct.a93 610 Brauham v Long, 78 Va. 352 173, 331 Braudlaoht, Ex parte, 2 Hill (N. Y.) 367 838, 839 Braytou v Town, 12 Iowa 346 590 Brazelton v Colyar, 2 Baxter (Tenn.) 234 774 Brazil D McBride, 69 Ind. 244 19 Breed v Cduley, 14 Iowa 269 742 Breene, In re, 14 Colo. 401 255 Brem « Houck, 101 N. C. 627 848 Bremsen v Engler, 49 N. Y. Super. Ct.l72 , 59 Brennan v Mayor, etc., 62 N. Y. 365. 5 Brent D Hagner, 5 Cranch C. C. (U. S.)71 787 Bresler t) Ellis, 46 Mich. 335 804 Breslin'D Brown, 24 Ohio St. 565. .63, 64 Brewer v Boston, C. & F. R. R. Comp'y,113Mass.52..552, 624 V Davis, 9 Humph. (Tenn.) 208 19, 146 1) King, 63 Ala. 511 230 V Watson, 65 Ala. 88 712 Bridge v Cage, Cro. Jac. 103 477 B Oakey, 2 La. Ann. 968 749 Bridges v Perry. 14 Vt. 262 227 Bridgman v Hall, 16 Abb. N. C. (N.Y.)272 788, 789 cMallett, 1 "Winst. L. & E. (N.C.)n2 78 Briggs V Coleman, 61 Ala. 661 724 V Taunton, 110 Mass. 423. .' 478 1) Wardwell, 10 Mass. 366. .729, 734 Bright D Lynon, 1 Burr. 390 862 V Supervisors, 18 Johns. (N. Y.) 242 478 Brinlter v Leinkaufl, 64 Miss. 236. . . 695 Briscoe v Clark Co., 95 111. 309 442 Brissao v Lawrence, 2 Blatchf. (U.S.) 121 692 Brittainv Kinnaird,lBrod. & Bing. 432 720 Britten t) Fort Worth, 78 Tex. 227 220, 282 « Steber, 62 Mo. 370 29 Broad v Paris, 66 Tex. 119 220 Broadway Widening, In re, 63 Barb. SEa (N.Y.)572 115 Broad well v People, 76 111. 554 497 Brobst V Skillen, 16 Ohio St. 382. .. . 208 Brock V Hopkins, 5 Nebr. 231. .. .249, 724 Brockett v Martin, 11 Kan. 378 23o Brodhead v Milwaukee, 19 Wis. 624 146, 149 Brodie v Campbell, 17 Cala. 11 314 DRutledge,2Bay(S. C.)69.... 713 Brokaw v Com'rs of Highways, 130 IU.482 815,819, 823 Bronnenberg v Coburn, 110 Ind. 169. 487 BronsonuWoolsey, 17 Johns. (N. Y.) 46 774 Brooke v Widdicombe, 39 Md. 386 332,815 Brooks V Governor, 17 Ala. 806. .250, 258 D Rooney, 11 Ga. 423 560 Broome v United States, 15 How. (U.S.)143 183 Brophy v Marble, 118 Mass. 548 478 Brother v Cannon, 2 111. 200 758 Brower v O'Brien, 2 Ind. 423..156, 313, 320 Brown v Atwell, 31 Me. 351 698 D Austin, 1 Mass. -208 774 V Brown, 34 Barb. (N. Y.) 533 56, 57 1) Concord, 56 N. H. 375 853 1) County Com'rs, 38 Kan. 436.. 166 D Goben, 122 Ind. 113 79 I! Godfrey, 33 Vt. 120 486 1) Gordon, 1 Me. 165 587 D Grover, 6 Bush (Ky.) 1 341 V Haywood, 4 Heisk. (Tenn.) 357 73 V Lattimore, 17 Cala. 93 273 V Lester, 21 Miss. 392 249 c Lunt, 37 Me. 423 633, 649 V McCoUum, 76 Iowa 479 145 V Moseley , 19 Miss. 354 241 B O'Connell, 36 Conn. 432 637 1) Otoe County , 6 Nebr. Ill ... . 552 D Phipps, 15 Miss. 14 257 « Porter, 37 Ind. 206 553 V Ramsay, 29 N. J. L. 117 811 V Smith, 24 Barb. (N. Y.) 419 541, 713 D Sneed, 77 Tex. 471 272 u State, 78 111. 239 251 XCIV CASES CITED Sec. Brown v Turner, 70 N. C. 93. . . .3, 12, 825 I! Veazle, 25 Me. 359 560 o Wright, 17 Vt. 97 560 Brown Co. v Winona & St. P. Land Comp'y, 38 Minn. 397; 37 Northwestern Rep'r 949 820, 822 Brown Co Com'rs v Barnett, 14 Kan. 627 542, 553 ETOwning v Hanford, 5 Denlo (N.Y.) 586 699 V Hanford, 5 Hill (N. Y.) ,588 682, 699 V Hanford, 7 Hill (N. Y.) 120 . . . 699 Bruce v Fox, 1 Dana (Ky.) 447. . .315, 663 V State, 11 GiU & Johns. (Md.) 382 183 V United States, 17 How. (U.«.)437 208, 217 Bruce's (Lord) Case, 2 Stra. 819 780 Brunott V McKee, 6 Watts & S. (Pa.)513 241 Brun3uMayor,etc., 6Daly (N.Y.) 156 478 Brunswick i; Snow, 73 Me. 177 289 Brush Elec. 111. Comp'y v Grant, 55 Hun(N.Y.)222 849 Bryan v Cattell, 15 Iowa 538 19, 34,37,420,501, 798 ■uEast St. Louis, 12111. App. 390 846 V Reynolds, 5 Wis. 200 56, 57 V United States, 1 Black (U.S.) 140 296 V Walton, 14 Ga. 185 300, 624 Bryant, In re, 5 T. R. (T). & E.) 509. . 34 Brydon I) Campbell, 40 Md. 331 742 Buchaiaan v Alexander, 4 How. (U. S.)20 48 V State, 44 N. J. L. 667.. . . . .778, 786 Buckman v Co. Com'rs, 80 N. C. 121 813 Bucknam v Ruggles, 15 Mass. 180. . . 649 Bvickner D Gordon, 81 Ky. 665 126 DVeuve, 63Cala. 304 839 Buffalo, In re, 78 N. Y. 362 559 V Mackay, 15 Hun (N. Y.) 204 82, 310 Buffalo & S. L. R. R. Comp'y v Supervisors, 48 N. Y. 93.. 541 Buffendeau v Brooks, 28 Cala. . .641 683 Seo. Bulger, In re, 45 Cala. 553 19, 85, 305 Bullis V Montgomery, 50 N. Y. 852. . 766 Bullitt V Clement, 16 B. Mon. (Ky.) 193 713,722, 733 BuUwinkel v Guttenberg, 17 Wis. 583 291 Bunn V Jetmore, 70 Mo. 228 266 V People, 45 111. 397 3, 12 Buuner v Eastman, 50 Barb. (N. Y.) 639 ,560 Bunting v Willis, 27 Gratt. (Va.) 144 410,414, 415 Burch V Hardwioke, 23 Gratt. (Va.) 51 839 « Hardwlcke, 80 Gratt. (Va.) 24 355 Burchard, In re, 27 Hun (N. Y.) 429 14 Burehfleld v New Orleans, 42 La. Ann.235 651 Burditt 11 Barry, 6 Hun (N. Y.) 657 . . 658 Burke v Elliott, 4 Ired. L. (N. C.) 355 649 V Supervisors, 4 W. Va. 371 157 Burkett v MoCarty, 10 Bush (Ky.) 758 133 Burkhart v Reed, 1J4 U. S. 361 814 Burley v Bethune, 1 Marsh. En,T. Com. Pleas 220 722 Burnham v Stevens, 33 N. H. 247. . . 713 V Strafford Co. Sav. Bank, 5 N.H. 446 447 Burns v Bender, 36 Mich. 195 821 Buron v Dennan, 2 Exeh. 167 711 Burrall v Acker, 23 Wend. (N. Y.) 606 671,697, 698 Bursley i; Hamilton, 15 Pick. (Mass.) 40 702 Burt V Circuit Judge, 82 Mich. 251 . . 818 V Perkins, 9 Gray (Mass.) 317 . . 702 D Winona & St. P. R. R. Comp'y, 31 Minn. 472. ... 639 Burton v Fulton, 49 Pa. St. 151 722 V Patton, 2 Jones L. (N. C.) 124 624, 649 D Tuite, 78 Mich. 363 744 Bushell's Case.Vaughan 135; 6 How. St.Tr. 999 862 Bussier v Pray, 7 Serg. & R. (Pa.) 447 478 Busteed u Parsons, 54 Ala. 393 713 Butler V Bates, 7 Cala. 136 551 uKent,19Johns.(N.Y.)223..707, 708 XCV CASES CITED Sec. Butler V Neosho County, 15 Kan .178, 478 1) Pennsylvania, 10 How. (U. S.)«)3 19, 511 V Potter, 17 Johns. (N. Y.) 145 713, 733 I! Regents of the Univ., 32 Wis. 134 13 Butte County v Morgan, 76 Cala. 1 . 384 Butterfleld v Converse, 10 Cush. (MaBS.)317 698 Butterworth v United States, 113 U. S. 50 797 Buttrick v Lowell, 1 Allen (Mass.) 173 593 Buzzell V Johnson, 64 Vt. 90 763 Byler v Asher, 47 111. 101 133, 135 Byles u Gennng, 52 Mich. 504 758 Bynum v County Com'rs, 100 Ind. 90 478 Byrne v State, 50 Miss. 688 288 V Stewart, 3 Desau. (S. C.) 466. 15 /^able V Cooper, 15 Johns. (N. Y.) ^ 153 757 CafErey c Dudgeon, 38 Ind. 5ia 678 Cahill V Kalamazoo M. Ins. Comp'y, 2 Doug. (Mich.) 124 624 Cahokia School Trustees v Rauten- berg,88m.319 774 Cairns v O'Bleness, 40 Wis. 469 217 Calais V Whidden, 64 Me. 349 493 Calder v Halket, 3 Moore P. C. 38. . . 731 Caldwell v Harrison, 11 Ala. 755. ... 106 V Hawkins, 40 Me. 526 758, 761 Calender v Olcott, 1 Mich. 344 585 Calhoun v Millard, 121 N. Y. 69. . . . 853 CaUagan v Hallett, 1 Caines (N. Y.) 104 484 Callahan v State, 1 Stew. & P. (Ala.) 379 365, 393 Callen V Schuessler, 86 Ala. 527 203 Callisonv Hedrick, 15 Gratt. (Va.) 244 398,300, 634 Calloway v Comm., 4 Bush (Ky.) 383 174 Calvert Co. Com'rs u Hellen, 73 Md. 603 lOO Cambria Street, In re, 75 Pa. St. 357 180 Cambridge v Fifleld, 126 Mass. 428. . 375 Sbo. Cameron v Lightfoot, 3.W. Blackst. 1190 764 Campbell v Braden, 31 Kan. 754. ... 138 DCobb,3Sneed(Tenn.)18 210 iiComm., 96Pa. St. 344 651 V Hewlitt, 16 Q. B. (Ad. & El. N.S.)258 578 V Sherman, 35 Wis. 103 .... 730, 762 V Taggart, 10 Phila. (Pa.) 443. . 850 V Wallace, 13 N. H. 363 138 Canal & Banking Comp'y v Brown, 4La.Ann.545 263 Cannell v Crawford County, 59 Pa.St.l96 287 Canniff v Mayor, etc., 4E. D. Smith (N.YJ 430.... 116, 117, 178, 438, 510 Capen v Doty, 13 Allen (Mass.) 263 336 V Foster, 12 Pick. (Mass.) 485 132, 746 Card D Hope, 3 Barn. & Cr. 661 51 Cardigan v Page, 6 N. H. 183 579 Carey v State, 34 Ind. 105 333, 341 Carle v Delesdernier, 13 Me. 363. .. . 764 Carleton v People, 10 Mich. 250. .623, 634,638,639, 649 t)Whitcher,5N.H.196.. 50,65, 579 Carll V Rhener, 37 Minn. 293 649 Carlton Street, In re, 16 Hun (N.Y.) 497 559 Carmack v Comm., 5 Binn. (Pa.) 184 341 Carmichael V Governor, 4 Miss. 236 182 Carolan v Carolan, 47 Ark. ,511 805 Carpenter, In re, 7 Barb. (N. Y.) 30 10, 26 u Highway Com'rs, 64 Mich. 476 804 « People, 8 Colo. 116 84 V Superior Ct., 75 Cala. 596. ... 805 Carr v Northern Liberties, 35 Pa. St.334. 548 u St. Louis, 9 Mo. 190 458 estate. Ill Ind. 101 354 V sterling, 114 N. Y. 558 675 Carroll v Mayor, etc., 13 Ala. 173. ... 802 V Siebenthaler, 37 Cala. 193 464, 616 V Tyler, 1 Har. & G. (Md.) 64. . 484 Carroll County v Ruggles, 69 Iowa 269 187, 263 XCVl CASES CITED Sec. Carroll Co. Com'rs v Richardson, 54 Ind.153 552 Carrothers v Russell, 53 Iowa 346 76,452, 456 Carson v McPhetridge, 15 Ind. 327 160, 161 Carter v Dow, 16 Wis. 298 713 V Harrison, 6 Blackf. (Ind.) 138 722, 749 V MoFarland, 75 Iowa 196 114 V Sympson, 8 B. Mon. (Ky.) 155 298, 624 Cary v State, 76 Ala. 78 625, 646, 649 V Western Un. Tel. Comp'y, 47 Hun (N. Y.) 610 ; 20 Abb. N. C. (N. Y.) 333 57 Case V Blood, 71 Iowa 632 820 V Campbell, 16 Abb. N. C. (N.Y.)269 790 D State, 69 Ind. 46 631, 663 V Woolley, 6 Dana (Ky.) 17. . . . 720 Caspary v Portland, 19 Oreg. 496. .. . 593 Casper v People, 6 111. App. 28. . .242, 258 Cass V Bellows, 31 N. H. 501 338 Cass County v Johnston, 95 U. S. 360 139 Cassler « Fales, 139 Mass. 461 764 Cassin v Zavalla Co., 70 Tex. 419 106 Casteele v Cornwall, 5 Gala. 419 189 Castle V County Commissioners, 2 Wyo. 126 19 Caumeldi! Bullock, 18 B. Mon. (Ky.) 494 749 '« State, 1 S. C. 461 354 Cawley v People, 95 111. 249 79, 173 Cedar Rapids, I. F. & N. W. R'y Comp'y V Whelan, 64 Iowa 694, 805 Census Superintendent, In re, 15 R. 1.614 93 Central Pacific R. R. Comp'y v Gallatin, 99 U. S. 700,533, 552 Cercle Frangais de L'H. v French, 44 Hun (N. Y.) 123 845 Chadwick v Earhart, 11 Oreg. 389 322, 498 uKnox,31N. H. 226 CO Chalk V Darden, 47 Tex. 438 798 Chalker v Ives, 65 Pa. St. 81 762 Chamberlain « Bell, r Cala. 292 742 Sec. Chamberlain v Seller, 18 N. Y. 115 671, 672, 682, 696 u Sibley, 4 Minn. 309 796 Chamberlin v Barclay, 13 N. J. L. 244 804 ■!) Brewer, 3 Bush (Ky.) 561.263, 267 Chambers v State, 3 Humph. (Tenn.) 237 612 V Thomas, 1 Litt. (Ky.) 268 ... . ,587 Chance D Temple, 1 Iowa 179 816 Chandler v Bradish, 23 Vt. 416 325 V Lawrence, 128 Mass. 213. .304, 305, 352 V Railroad Com'rs, 141 Mass. 208 835 V State, 1 Lea(Tenn.)296. . .215, 273, 289 Chapman v Douglas, 5 Daly (N. Y.) 244; 15 Abb. Pr. N. S. (N.Y.)421 689 V O'Brien, 39 N. Y. Super. Ct. 244 689 Charles 1) Haskins, 11 Iowa 329. .190, 238, 241 ■uHoboken, 27N.J. L. 203..106, 355 V Hoskins, 14 Iowa 471 292 Charles River Bridge Comp'y v Warren Bridge Comp'y, 11 Peters (U. S.) 420 553 Chase v Andrews, 6 CuSh. (Mass.) 114 705 V Fish, 16 Me. 132 764 ■u Heaney, 70 111. 268 744 Dlngalls,97Mass, 524 758, 762 1) Lowell, 7 Gray (Mass.) 33 444 uMiller, 41Pa. St. 403 125 V Saratoga Co., 33 Barb. (N. Y.) 603 552 Chatham v Bradford, 50 Ga. 327. .. . 7i3 Cheeney v Brookfield, 60 Mo. 53 551 Cheever v Merritt, 5 AUen (Mass.) 563 758, 769 Chegarayt! Jenkins, 5N. Y. 376. .738, ' 761 V Jenkins, 3 Sandf. (N. Y.) 409 761 Chelmsford Company v Demarest, 7 Gray (Maes.) 1 205, 213 Chenango Co.Sup'rs v Birdsall, 4 Wend. (N. Y.) 453. . . .282, 295 Chenowlth v Co. Com'rs, 26 W. Va. XCVll CASES CITED Sec. Cherrlngton v Jerningan, 36 Kan. 225 777 Chesebro v Babcock, 59 Conn. 213 813, 815 Cheshire « Howland, 13 Gray (Mass.) 321 295 Chester, Exparte, 5 Hill (N. Y.) 555 240, 252 BHemphill,29S. C. 584 249 Chestnutwood v Hood, 68 111. 132. .. . 852 Chicago V Edwards, 58 111. 252 19 ti Gage, 95 111. 593 173,196, 245 Chicago & A. R. R. Comp'y v Suffern, 129IU.274 815 Chicago & N. W. R. R. Comp'y v Langlade County, 56 Wis.614 637 Chicago & R. I. R. R. Comp'y v Fell, 22 111. 333 811 Chicaso M. G. L. & F. Comp'y v Lake, 130 111. 42 844 Chickering v Robinson, 3 Cush. (Mass.) 543 713, 733 Childrey v Rady, 77 Va. 518 173 Chiles V State, 45 Ark. 143 649 Chinn i- Perry, 2 Blackf. (Ind.) 268. . 291 Chipstead v Porter, 63 Ga. 220 758 Chisholm v Coleman, 43 Ala. 204 ... . 419 Chorlton v Kes^er, L. R. 4 C. P. 397; 1 Hopw. & 0. 42 129 V Lings, L. R. 4 C. P. 374; 38 L. J. C. P. 25; 19 L. T. Rep. 534; 17 W. R. 284; 1 Hopw. &C.1 129 Chouteau v Rowse, 56 Mo. 65 724 Chrlsman v Bruce, 1 Duv. (Ky.) 63 722, 749 Christ V Polk County, 48 Iowa 302. . 462 Christian i) Gibbs, 53 Miss. 314.. .323, 661 Christlieb v Hennepin Co., 41 Minn. 142 802 Christopher v Van Liew, 57 Barb. (N. Y.)17 729, 734 Christy v Supervisors, 39 Cala. 3 305 Chumasero v Potts, 2 Monta. 242 . 166, 796 Church Street, In re, 49 Barb. (N. Y.) 455 112,113, 115 Churchill v Perkins, 5 Mass. 541 . 677, 683 u Walker, 68 Ga. 681 781 Seo. Citizens' Bank v Police Jury, 28 La. Ann. 263 543 D Terrell, 78 Tex. 450 551 V Wright, 6 Ohio St. 318 798 Citizens' Loan Ass'n v Nugent, 40 N.J.L.215 272 City Bank v Bangs, 2 Edw. Ch. (N. Y.)95 486 City Council v Hughes, 65 Ala. 201. . 213 V LonisTille & N. R. R. Comp'y, 84 Ala. 127 847 V Paterson, 2 Bailey L. (S. C.) 165 283 V Sweeney, 44 Ga. 463 19 1! Youmans, 85 Ga. 708 151, 411 City of London v Vanacker, 1 Ld. Raym. 496 ; 5 Mod. 438 ; 12 Mod. 269; Carth. 480; Holt 431 ; 1 Salk. 142..165, 167 Clan tonu Ryan, 14 Colo. 419 777 Clap V Cof ran, 7 Mass. 98 675 Clapp V United States, 7 Ct. of CI. (U.S.) 351 11 Claridge v Evelyn, 4 Barn. & Aid. 81 67, 160 Clark V Board of Examiners, 126 Mass. 282 145,156, 158 V Buchanan, Z Minn. 346 157 V Commonwealth, 29 Pa. St. 129 649 V County Commissioners, 33 Kan.202 158 V Ennis, 45 N. J. L. 69. .173, 181, 631 DHoldridge,58Barb.(N.Y.)61 713 I! Lamb, 76 Ala. 406 252 V McKenzie, 7 Bush (Ky.) 523 156, 157 u Miller, 54 N. Y. 528 724, 725 V People, 15 111. 213 362, 785 V Phelps, 4 Cow. (N. Y. ) 190. . . 736 I! Robinson, 88 111. 498. .130, 141, 145, 777 u Spioer, 6 Kan. 440 713 u Stanley, 66 N. C. 59 3 1) State, 7 Blackf. (Ind.) 570 183 V Woodruff, 18 Hun (N. Y.) 419 685 D WoodrufE, 83 N. Y. 518 685 Clarke 1) Harvey, 1 Stark. 92 (1st Am.Ed.,p.74) 62 xcviu CASES CITED Seo. Clarke v May, 2 Gray (Mass.) 410. . 713,734, 758 D Trenton, 49 N. J. L. 349 SOO Clawson v Ramsey, 114 U. S. 15 748 Clay V United States, 8 Ct. of CI. (U.S.)209 462 Clay County v Savings Society, 104 U.S.579 551 V Slmonsen, 1 Dak. 403 224 Clayton v Harris, 7 Neva. 64 ... .125, 133 Clearwater v Brill, 4 Hun (N. Y.) 728 770 T) Brill, 63 N. Y. 627 758, 770 Cleary v Trenton, 50 N. J. L. 331 ... . 307 Clelaud v Porter, 74 HI. 76 148 dementi v Jackson, 92 N. Y. 591. ... 830 Clements v Cassilly, 4 La. Ann. 380 259 Clerk V Withers, 6 Mod. 290; 1 Salk. 333; 2 Ld. Bay. 1072; 11 Mod.35 336 Cleveland F. A. Tel. Comp'y v Fire Com'rs, 55 Barb. (N. Y.) 288 849 Clinton v Strong, 9 Johns (N. Y.) 370 530 Clippinger v Hepbaugh, 5 Watts & S. (Pa.)315 57 Clougb V Curtis, 134 U. S. 381 814 Clute V Barron, 2 Mich. 192 613 Cobbey d Burks, 11 Nebr. 157 527 Cochran v MoGleary, 22 Iov?a 75 — 850 Cocke V Halsey, 16 Pet. (U. S.) 71 623, 649 Cody V Quinn, 6 Ired. L. (N. C.) 191. 758 Coe t' Columbus, P. &. I. R. R.' Comp'y, 10 Ohio St. 372. . 848 Cofley V Grand Council, 87 Cala.367 815 Coffin V State, 7 Ind. 157 19 Coffmani) Wilson, 2 Met. (Ky.) 542.. 259 Cogburn V Spence, 15 Ala. 549 758 Cohen » Goldsboro, 77 N. C. 2 848 D Harvey, 56 Cala. 70 135 D Wright, 22 Gala. 293 15 Cohn V Beal, 61 Miss. 393 641 Cohoes Water Com'rs V Lansing, 45 X. Y. 19 106, 107 Coker v Superior Ct., 53 Cala. 177. .. 835 Colburn v Ellis, 5 Maes. 427 660 Cole V Black River Falls, 57 Wis. 110 637, 639 Sec. Cole V White County, 32 Ark. 45 449 Cole County v Dallmeyer, 101 Mo. 57 170 Coleman v Ormond, 60 Ala. 328 2£0 1) Pike Co., 86 Ala. 393 2S0 Colerain v Bell, 9 Met. (Mass.) 489 219, 253 Coles County v Allison, 23 111. 437. .. . 630 CoUamer v Drury, 16 Vt. 574 760 CoUarn'a Petition, 134 Pa. St. 551. . 822 Colley 1) Webster, 59 Conn. 361 818 Collier v United States, 22 Ct. of CI. (U.S.) 125 490, 491 1) Windham, 27 Ala. 291.. ..682, 683 Collins V Gwynne, 2 Moore & Scott 640;9Bing. 544 283 V Huff, 63 Ga. 207 147, 778, 781 V McDauiel, 66 Ga. 203. . . .249, 724 « Mayor, etc., 3 Hun (N. Y.) 680 7, 10 1) State, 8 Ind. 344 431 1) Tracy, 36 Tex. 546 354 V United States, 15 Ct. of CI. (U.S.) 22 37,39, 496 Colman v Anderson, 10 Mass. 105 758, 761 V Shattuck, 62 N. Y. 348 180 Colter V Morgan, 12 B. Mon. (Ky.) 278 .• 272, 278 Colton V Beardsley, 38 Barb. (N. Y.) 29 300, 649 D Price, 50 Ala. 424 850 Colusa County v DeJarnett, 65 Cala.373 553 Colyer v Higgins, 1 Duv. (Ky.) 6 . . 204, 336 Comer v Bankhead, 70 Ala. 493 774 V Knowles, 17 Kan. 436 754 Comius V Supervisors, 64 N. Y. 626.. 851 D Supervisors, 3 T. & C. (N. Y.) 296 851 Commissioners, etc. v Babcock, 5 Oreg.472 743 V Co. Com'rs, 107 N. C. 335 823 1) Greenwood, 1 Desauss. Eq. (S. 0450 205, 214 V Hammill, 33 Hun (N. Y.) 348 676 V McDaniel, 7 Jones L. (N. C.) 107 623, 649 V Muse, 3 Brev. (S. C.) 150 288 XCIX CASES CITED Sec. CommiSBioners, etc., v Peck, 5 Hill (N.Y.)215 543, aw, 662 V People, 66 111. 339 819 People, 99 111. 587 815 V People, 19 111. App. 253 823 Common Council v Rush, 82 Mich. 532 142 Common School District v Garvey, 80Ky.l59 147 Commonwealth v Adams, 3 Bush (Ky.)41 206 V Alexander, 4 Hen. & Munf. (Va.)522 860 I) Allegheny Co. Com'rs, 16 S. &R. (Pa.)317 815 V Allen, 128 Mass. 308 102, 781 D Allen, 70 Pa. St. 465 429 V Arnold, 3 Litt. (Ky.) 309. .376, 383, 584 uArriaon, 15S. &R. (Pa.)127. 781 V Bacon, 6 S. & R. (Pa.) 322 ... . 19 V Bagley, 7 Pick. (Mass.) 279. . . 524 V Barry, Hard. (Ky.) 229. . .367, 376 V Baxter, 35 Pa. St. 263 435 i)Binns,17S.&R.(Pa.)219..12, 37 V Boone Co. Court, 83 Ky. 633 820, 822 uBoutwell, 13 Wall. (U. S.) 538 824 ■0 Browne, 1 Serg. & R. (Pa.) 382 781 1) Bunn, 71 Pa. St. 405 814 uBurding, 12Cush. (Mass.)506 609 V Callaghan, 2 Va. Cas. 460. .49, 55,860, 864 V Canal Commissioners, 9 Watts (Pa.) 466 106 V Chambers, 1 J. J. Marsh. (Ky.) 108 367, 376 V Cluley, 56 Pa. St. 270 163, 781 uCole, 7B.Mon.(Ky,)250..238, 731 tiComly, 3Pa. St. 372 224 V Cony, 2 Mass. 523 478 V County Com'rs, 5 Binn. (Pa.) 534 90 V County Com'rs, 1 S. & R. (Pa.) 382 781 V County Com'rs, 16 S. & R. (Pa.)317 815 Seo. Commonwealth v County Com'rs, 1 Whart. (Pa.) 1 815 V County Court, 82 Ky. 632.820, 822 V Dearborn, 15 Mass. 125 783 V Dennison, 24 How. (U. S.) 66 812, 834 V Douglass, 1 Binn. (Pa.) 77. . 94, 120, 610 V Drewry, 15 Gratt. (Va.) 1. . . . 273 V Emery, 11 Cush. (Mass.) 406.. 609 V Emminger, 74 Pa. St. 479 . .156, 157 1) Evans, 74 Pa. St. 124 8, 9 V Fairfax, 4 Hen. & Munf .'(Va.) 208 205 V Fltler, 136 Pa. St. 129 813, 821 V Fowler, 10 Mass. 290 -649 V Fugate, 2 Leigh (Va.) 724. .. . 430 V Gamble, 63 Pa. St. 343. . . .10, 19, 305 V Garrigues, 28 Pa. St. 9 777 V Guardians, etc., 6 S. & R. (Pa.) D Hanley, 9 Pa. St. 513 329, 431 cHargest, 7 Pa. County Court, 333 116 V Harriman, 134 Mass. 314. .356, 400 V Henszey, 81* Pa. St. 101 777 V Holmes, 25 Gratt. (Va.) 771 272,273, 278 V Hughes, 10 B. Men. (Ky.) 160 205 V Intoxicating Liquors, 105 Mass.178 762 ■0 Jackson, 10 Bush (Ky .) 424. . . 10 V Jackson, 1 Leigh (Va.) 485. . . 288 V James, 135 Pa. St. 480 814, 831 V Jones, 10 Bush (Ky.) 725 159 V Jones, 12 Pa. St. 365 781, 782 V Kane, 108 Mass. 423 301 D Kendig, 2 Pa. St. 448 235 V Kirby, 2 Cush. (Mass.) 577 37, 631 1) Leech, 44 Pa. St. 332 780 V Lewis, i Leigh (Va.) 664 857 uMcClelland, 83Ky. 686...132, 134 V McCombs, 56 Pa. St. 436..82, 624, 637, 649 cMcLaughlin, 120Pa. St. 518... 820 V Mann, 6 Watts & S. (Pa.) 403 19 V Martin, 105 Mass. 178 762 CASES CITED Seo. Commonwealth v Maxwell, 27 Pa. St. 444 133 V Meeser, 44 Pa. St. 341 781 1) Morrisey, 86 Pa. St. 416 7 V Murray, 11 Serg. & R. (Pa.) 73 777 V Netherland, 87 Ky. 195 713 i; Philadelpliia Co. Com'rs, 5 Binn. (Pa.) 534 90 V Philadelphia Co. Com'rs, 1 S. & R. (Pa.) 382 781 V Philadelphia Co. Com'rs, 1 Whart. (Pa.) 1 815 t> Plaisted, 148 Mass. 375 73 V Pomphret, 137 Mass. 564 845 ti Read, 2 Ashm. (Pa.) 261. .118, 173 V Reigart, 14 S. & R. (Pa.) 216 781, 782 V Rodes, 6 B. Mon. (Ky.) 171. . . 857 V Ryan, 5 Mass. 90 : . 609 V Shaver, 3 Watts & S. (Pa.) 838 77,362, 369 V Slifer, 25 Pa. St. 23. .350, 354, 389, 661 V Small, 26 Pa. St. 31 778 B Smith, 102 Mass. 144 845 uSmith, 132 Mass. 289 150 V Sommers, 3 Bush (Ky.) 555. . 235 V Stockton, 5 T. B. Mon. (Ky.) 192 241 V Sutherland, 3 S. & R. (Pa.) 145 20, 304, 861 i; Swope, 45 Pa. St. 535 2o7 D Taber, 123 Mass. 253 631 D Tobin, 108 Mass. 426 301 u Toms, 45 Pa. St. 408 220 V Tracy, 5 Met. (Mass.) 536 ... . 7C9 1) Walter, 83 Pa. St. 105. .77, 778, 781 V Walter, 86 Pa. St. 15 77 V Williams, 79 Ky. 42 341, 367,370, 400 V Woelper, 3 S. & R. (Pa.) 29. . 144 V Wolbert, 6 Binn. (Pa.) 292 188, 283 V Yarbrough, 84 Ky. 496 174 Compher v People, 12 111. 290 271 Comstocki) Grand Rapids, 40 Mich. 397 516, 522 Cone V Forest, 126 Mass. 97 763 Seo. Conger I! Couvery, 52 N. J. L. 417 777 V Gilmer, 32 Cala. 75 87 Conlin v Aldrioh, 98 Mass. 557 827 Connecticut River R. R. Comp'y v Co. Com'rs, 127 Mass. 50 835,836,838, 840 Connelly v Woods, 31 Kan. 359. .713, 733 ConneruLong, 104 U. S. 228 535 1) Mayor, etc., 5 N. Y. 285.. 17, 19,20,410,443, 513 V Mayor, etc., 2 Sandf. (N. Y.) 355.16,17,18,19,20,168,410, 443 Connersville v Connersville Hy- draulic Comp'y 86 Ind. 184 818 Conover v Devlin, 15 How. Pr. ON. Y.) 470; 6 Abb. Pr. (N. Y.)228 627, 641 ■cMiddletown, 42N. J. L. 382.. 206 Conover's Case, 5 Abb. Pr. (N. Y.) 73 788,789, 790 Conrad, Inre, 15 Fed. Rep. (U. S.) 641 496 Conrey v Copland, 4 La. Ann. 307 .. . 13 Conroy v Gale, 5 Lans. (N. Y.) 344. . . 712 u Gale, 47 N. Y. 665 712 V Mayor, etc., 6 Daly (N. Y.) 490 71 V Mayor, etc., 67 N. Y. 610 71 Contested Elections, etc., Inre, 1 Brewst. (Pa.) 67 649 Converse v United States, 21 How. (U. S.)463 478, 490) Conway V Russell, 151 Mass. 581 ... . 724 1) St. Louis, 9 Mo. App. 488. .. . 639 Con well t) Voorhees, 13 Ohio 523. . 592, 751 Cook 1! Freudenthal, 80 N. Y. 202 673, 675 V Horwitz, 14 Hun (N. Y.) 542. 675 V Merrifield, 139 Mass. 139 694 V Shipman, 24 111. 614 66 D Shipman, 51 111. 316 65, 66 V State, 13 Ind. 154 , . . 219 Cook County v Harms, 108 111. 151. . 551 Cooley V O'Connor, 12 Wall (U. S.) 391 106 Coolidge V Brigham, 1 Allen (Mass.) 333 631, 649 Coon uCongden, 12 Wend. (N.Y.) 496 758 01 CASES CITED Sec. Coons V People, 76 111. 383 204, Zli Cooper, In re, 22 N. Y. 67 ; 11 Abb. Pr. (N. Y.)301 13, 539 V Cherry, 8 Jones L. (N. C.) 323 219 V Galbraith, 3 Wash. (U. S.) 646 615 1) Lampeter; 8 Watts (Pa.) 125 106 11 Moore, 44 Miss. 386. .624, 635, 649, 652 D Mowry, 16 Mass. 5 688 J) Reilly, 2 Sim. 560 42 D Williams, 4 Ohio 253 849 Cooter V Bronson, 67 Barb. (N. Y.) 444 765 Coppock V Bower, 4 M. & W. 361 . . . 59 CoQuillard ti Bearss, 21 Ind. 479 56 CordieU v Frizell, 1 Neva. 130 325 Corliss, Inre, 11 R. I. 638 10, 163, 413 Cornell v Barnes, 7 Hill (N. Y.) 35 758, 769 V Dakin, 38 N. Y. 253.. .697, 699, 702 1) Guilford, 1 Denio (N. Y.) 510. 544 Cortis V Kent Waterworks Comp'y, 7B.&C.314 105 Cortlandvllle Town Com.'rsi} Peck, 5 Hill (N.Y.) 215. .543, 544, 662 Gotten V Ellis, 7 Jones L. (N. C.) 545 20,346, 796 Cotton V Atkinson, 53 Ark. 98 230 D Phillips, 56 N. H. 220 31, 36 County Com'rs v Anderson, 20 Kan. 298 512, 516 D Baker, 44 Md. 1 724 V Barnes, 13 Nebr. 294 552 i; Barnett, 14 Kan. 627 542, 553 D Bond, 3 Colo. 411 48 V Brewer, 9 Kan. 307 478, 492 V Brisbin, 17 Minn. 451 665 r Bromley, 108 Ind. 158 496 11 Bunting, mind. 143 542 uCrotty,9Colo. 318 822 V Dnckett, 20 Md. 468 709, 724 B Elliott, 39 Ind. 191 553 i! Graham, 4 Colo. 201 553 V Gregory, 42 Ind. 32 552 D Harman, 101 Ind. 551 478 D Hearne, 59 Ala. Sn 801 V Hellen, 72 Md. 6(8 100 V Honn, 23 Kan. 256 483 Sec. County Com'rs v Jones, 18 Minn. 199 . 19 B Kent, 5 Nebr. 327 557 B Kindt, 16 Kan. 157 482 V Lecky, 6 S. & R. (Pa.) 166. .. . 106 V Liueberger, 3 Mont. 231 .. 187, 224 c McCormick, 4 Mont. 115 204 B Mac Rae, 89 N. C. 95 283 D Magnin, 86 N. C. 285 187 V MuUikin, 7 Blackf . (Ind.) 301 55 V Richardson, 54 Ind. 153 552 u State, 24 Fla. 55 155 u Tower, 28 Minn. 45 320, 334 County Court v Sparks, 10 Mo. 117 157,181,649,825, 828 County of Cass v Johnson, 95 U. S. 360 139 County Treasurer v Dike, 20 Minn. 363 798 Courser v Powers, 34 Vt. 517 175, 660 Coutant V People, 11 Wend. (N. Y.) 511 320 Coventry v Barton, 17 Johns. (N. Y.)142 682 Covington v Mayberry, 9 Bush (Ky.)304 478 Cowan ti Baird, 77 N. C. 201 359 V Mayor, etc., 6T. & C. (N. Y.) 151; 3 Hun (N. Y.) 633. .. . 478 Cowle, In re, 25 Abb. N. C. (N. Y.) 455 142 Cox V Burlington, 43 Iowa 613 471 DKent,9Baxt.(Tenn.)493..802, 805 V Mayor, etc., 103 N. Y. 519. ... 454 V Miyor, etc., 23 Week. Dig. (N.Y.)355 454 V Ross, 56 Miss. 481 187 Coylei) Sherwood, 1 Hun (N. Y.) 272; 4 T. & C. (N. Y.) 34 653 Craig V Burnett, 32 Ala. 728 713 V Norfolk, 1 Mod. 123 86 Crampton v Zabriskie, 101 U. S. 601. 852 Crane V Camp, 12 Conn. 464 538, 539 11 Newell, 2 Pick. (Mass.) . . .612 600 Crawford v Carson, 35 Ark. 565 842 V Dunbar, 52 Cala. 36 . . 10, 39, 81, 163 11 Foster, 6 Ga. 202 262 ■uHoward, 9Ga. 314 590, 630 11 Jarrett, 3 Leigh (Va.) 630. ... 242 V Meredith, 6 Ga. 552 185 en CASES CITED Sec. 355 245 470 Crawford v Township Boards, 24 Mich. 248./ V Turk, 24 Gratt. (Va.) 176 Crawford County v Nash, 99 Pa. St. 2S3 Crawn v Comm., 84 Va. 282. .204, 219, 273,283, 286 Creighton v Comm., S3 Ky. 142. .173, 629, 649 D Piper, 14 Ind. 182 624 Cressey v Gierman, 7 Minn. 398 235 Crews 1) Taylor, 56 Tex. 461 248 Crisfield v Murdock, 55 Hun (N. Y.) 143 203 Crittenden v Terrill, 2 Head (Tenn.) 588 235 Crittenden County v Crump, 25 Ark. 235 447 Crocker v Crane, 21 Wend. (N. Y.) 211 106,535, 572 Crofut V Brandt, 5 Daly (N. Y.) 124; 46 How. Pr. (N. Y.) 481; 13 Abb. Pr. N. S. (N. Y.) 128 447 V Brandt, 58 N.Y.106; 17 Am. Rep.213 447 Cronin v Gundy, 16 Hun (N. Y.) 520 181,631, 641 V Stoddard, 97 N. Y. 271. . ..173, 185,631, 642 Crook V People, 106 HI. 237 19, 815 Crosier v Cornell Steamboat Comp'y, 27 Hun (N. Y.) 215 624 Cross V State, 1 Yerg. (Tenn.) 261 .. . 855 Crossman v Owen, 62 Me. 528 691 Crouther's Case, Cro. Eliz. 654. .856, 863 Crowell D Lambert, 9 Minn. 283 ... . 320 Cruger v Hudson River R. R. Comp'y, 12 N. Y. 190. .106, 115 Crygieru United States, 25 Ct. of CI. (U.S.)268 472 CullomiiDolloif, 94 III. 380 215 Culpeper County v Gorrell, 20 Gratt. (Va.)484 542 CulveruEggers, 63N. C. 630 624 Cumberland v Pennell, 69 Me. 357. . 227 Gumming « Brown, 43 N. Y. 514 240 V Mayor, etc., 11 Paige (N. Y.) 596 450 Sec. Cummings v Clark, 15 Vt. 653. . .649, 658, 660 V Missouri, 4 Wall. (U. S.) 277 177 Cumpston v Lambert, 18 Ohio 81 . . . 683 Cunningham, In re, 14 Kan. 416 796 I! Bucklin, 8 Cow. (N. Y.) 178 713,734, 860 V Macon & B. R. R. Comp'y, 109 U. S. 446 730 V Mitchell, 67 Pa. St. 78 758 Curles's Case, 11 Coke 2 86 Curran v Boston, 151 Mass. 505 593 V Norris, 58 Mich. 512 790 Currey d Wright, 9 Lea (Tenn.) 247 . 532 Currie v School Dist., 35 Minn. 168. . 612 Currier v Boston & M. R. R. Comp'y, 31 N. H. 209 304 Curry v Stewart, 8 Bush (Ky.) 560 178, 421, 425 u Wright, 86 Tenn. 686 256 Curtenius v Grand Rapids & I. R. R. Comp'y, 37 Mich. 588. . 851 Curtis V Butler, 24 How. (U. S.) 435. 106 V Lyman, 24 Vt. 338 743 Cushing V Frankfort, 57 Me. 541 . .634, 649 V Stonghton, 6 Cush. (Mass.) 389 495 Cusick's Election, 186 Pa. St. 459 133,135, 777 Cuthbert v Lewis, 6 Ala. 262 814 Cutler D Ashland, 121 Mass. 588 774 V Roberts, 7 Nebr. 4 268 Cuyler v Trustees, etc., 3 Hun (N. Y.) 549 ; 5T.& C. (N. Y.) 609 808 "PVacres, In re, Leonard 288 649 Dade v Morris, 3 Murph. (N. C.) 146 247 Daggett V Hudson, 43 Ohio St. 548 125,132, 134 Dailey v Bartholomew, 1 Ashmead (Pa.) 135 804 V State, 8 Blackf. (Ind.) 829.36, 81 Daily Register P. & P. Comp'y v Mayor, etc., 52 Hun (N. Y.) 543 563 Dair v United States, 16 Wall. (U. S.) 1 259, 260 cm CASES CITED Sec. Dale V Irwin, 78 111. 170 M9 Dalton V State, 43 Ohio St. 652 156 Dane v Derby, 54 Me. 95 815 V GUmore, 51 Me. 544 230, 587 Daniel v County Com'rs, 74 N. C. 494 551 W County Court, 1 Bibb (Ky.) 496 812 Danley v Wbiteley, 14 Ark. 687 798 Dannat v Mayor, etc., 8 Hun (N. Y.) 88 593 Danolds v People, 26 Hun (N.Y.) 241 542, 551 e State, 89 N. Y. 36 542, 551 Danvers « Boston, 10 Pick. (Mass.) 513 130 Darby v Wilmington, 76 N. C. 133 510,517, 518 DarleyuReg., 12C1. &Finn. 620.... 783 Darling v GiU, Wright (Ohio) 73. . . . 571 D St. Paul, 19 Minn. 389 573 ■Darmstaedter v Armour, 17 111. App. 285 805 Darrow v People, 8 Colo. 417 74 Dauphin Co. Diat. Attorney, In re, 11 Phila. (Pa.) 645 37 Davany I! Koon, 45 Miss. 71 558 Davenport v Hull, 18 Wend. (N. Y.) 510 116 V Kleinschmidt, 6 Mont. 502.. . 852 I) Mayor, etc., 67 N. Y. 456 40 David V Portland, 14 Oreg. 98 12 Davidson v State, 20 Fla. 784 778 ■" Washburn , 56 Ala. 696 820 DaviesB Burns, 5 Allen (Mass.) 349.. 486 V Jenkins, 11 M. & W. 745 754 V Los Angeles, 86 Cala. 37 572 DMoKeeby, 5 Neva. 369... 126, 133, 136 u Mayor, etc., 93 N. Y. 250 651 Davis, Inre, 19 How. Pr. (N. Y.) 323 790 V American Soc'y, etc., 75 N. Y. 362 845 liArledge, 3Hill(S. OirO.... 682 1) Brace, 82 111. 642 568 V Bush, 4 Blaokf. (Ind.) 330 ... . 758 V Capper, 10 Barn. & Cr. 28. . . . 722 1) County Com'rs, 63 Me. 396.815, 822 V County Com'rs, 4 Mont. 292 654 » County Com'rs, 74 N.C. 374.. 551 Sec. Davis V Hall, 1 Nott & Mc C. (S. C.) 292 128 u Haydon, 4 111! 35 182 V Hinton, 29 lU. App. 327 848 « Hull, 1 Litt. (Ky.) 9 581 V Marlborough (Duke of), 1 Swanst.74 42 V Mayor, etc.. 1 Duer (N. Y.) 461 555 V Newkirk, 6 Denio (N. Y.) 92 . 689 l> People, 6 111. 409 273 D State, 75 Tex. 420 145 V Thompson, 1 Neva. 17 742 V Tibbats, 7 J. J. Marsh. (Ky.) 264 682 1) Webster, 59 N. H. 471 763 Dawes v Jackson, 9 Mass. 490 774 Dawson d State, 38 Ohio St. 1 271 1! Ward, 71 Tex. 72 560 Day V Mayor, etc., 6 Hun (N. Y.) 92. 448 V Mayor, etc., 66 N. Y. 592 448 V Reynolds, 23 Hun (N. Y.) 131 248, 707 V Savadge, Hobart 85 609 V Springfield, 102 Mass. 310. .. . 835 V To wnsend, 70 Iowa 538 486 Dayton u Rutland, 84 111. 279 568 Dean v Gridley, 10 Wend. (N. Y.) 254 666 I! Healy, 66 Ga. 503 12, 783 DeardorfE v Foresman, 24 Ind. 481 259, 262 Decatur B Paulding, 14 Pet. (U. S.) 497 711, 797 V Vermillion, 77 111. 315 478, 497 Decker v Judaon, 16 N. Y. 439 671 Deehan v Johnson, 141 Mass. 23 822 De Forest v Brainerd, 2 Day (Conn.) 528 679 Delahanty D Warner, 76 111. 186.392, 787, 828 Delano Laud Company's Appeal, 103Pa. St. 347 852 Delaware & H. Canal Comp'y v At- kins, 48 Hun (N. Y.) 456. . 848 V Atkins, 121 N. Y. 246 763, 848 Delhi Soh. Dist. v Circuit Judge, 49 Mich. 432 814 Dells V Kennedy, 49 Wis. 555 134 CIV CASES CITED Sec. Demarest i; Wickham, 63 N. Y. 320 850 Dement v Rokker, 126 111. 174 551 Den V Den, 6 Cala. 81 558 1) Tunis, 25 N^. J. L. 633 556, C06 Denlo V State, 60 Miss. 949 276 Dennett, In re, 32 Me. 508 796 Dennie v Smith, 129 Mass. 143 253 Dennis v State, 17 Fla. 389 131 Dennison v United States, 25 Ct. of CI. (U.S.)304 539 Denniston v Clark, 125 Mass. 216 ... . 736 Denny v Lincoln, 5 Mass. 385 677 V Willard, 11 Pick. (Mass.) 519 698 Dent V Cook, 45 Ga. 323 853 Denton v Jackson, 2 Johns. Ch. (N.Y.)320 544 Denver v Hobart, 10 Neva. 28 19, 825 Des Moines Gas Comp'y v Des Moines, 44 Iowa 505 844 De Soto County v Westbrook, 64 Mlss.312 458 Despatch Line of Packets « Bellamy Man. Comp'y, 12 N. H. 205 103 Detroit i; Blaokeby, 21 Mich. 84..551, 593 V Jackson, 1 Dougl. (Mich.) 106 551 V Redfleld, 19 Mich. 376. . . .478, 483, 492 D Rush, 82 Mich. 532 142 V Weber, 26 Mich. 284 283, 286 V Weber, 29 Mich. 24 204, 214 Detroit, E. R. & I. R. R. Company V Bearss, 39 Ind. 598 158 Detroit, L. & N. R. R. Comp'y v Newton, 61 Mich. 33 820 De Turk v Comm., 129 Pa. St. 151 31,38,39,629,779, 786 De Tillers v Ford, 2 McCord (S. C.) 144 585 Devlin, In re, 5 Abb. Pr. (N. Y.) 281 789, 790 V Brady, 32 Barb. (N. Y.) 518 65, 677 B Brady, 36 N. Y. 531 65, 677 V Mayor, etc., 41 Hun (N. Y.) 281 505 V Piatt, 11 Abb. Pr. (N. Y.) 398 808 Devoy wMayor, etc., 39 Barb. (N.Y.) 169 28,446, 510 Sec. Devoy v Mayor, etc., 36 N. Y. 449. . . 28 Dew V Judges, etc., 3 Hen. & Muuf. {Va.)l 827 V Parsons, 2 B. & Aid. 562; 1 Chitty295 477, 530 Deweese v State, 10 Ind. 343 305 Dewey D Eay, 34 Vt. 138 706 V Field, 4 Met. (Mass.) 381 702 D Garvey, 130 Mass. 86 44 Dezell V OdeU, 3 Hill (N. Y.) 215. ... 702 Diaa v Bouchaud, 10 Paige (N. Y.) 445 203 Dioas V Brougham (Lord), 6 C. &.P. 249 713 Dickens v State, 7 Blackf. (Ind.) 358 204 Dickerson v Butler City, 27 Mo. App. 9 510, 521 Dickey v Hurlburt, 5 Cala. 543. .146, 148,149, 150 u Reed, 78 111. 261 842, 850 Dickinson v Billings, 4 Gray (Mass.) 42 740 Dickson u People, 17 111. 191 10, 39 Diggs V State, 49 Ala. 311 24, 668 Dilcher v Raap, 73 111. 286 724 Dillingham v Snow, 5 Mass. 547 741 Dillon V Myers, Brightly (Pa.) 426. . 659 Dimes v Grand Junction Canal Comp'y, 3 H. of L. Cas. 759 609 Dingwall v Detroit, 82 Mich.S668. ... 138 Dishont) Smith, 10 Iowa 212.... 150, 158,159, 884 District Attorney, In re, 11 Phila. (Pa.)645 37 Ditmars v Comm., 47 Pa. St. 335 ... . 235 Dive « Maningham, Plowd. Com. 60 672 Dixon County V Barnes, 13 Nebr. 294 552 Doane v Eldridge, 16 Gray (Mass.) '^ 254 197 Dohyns v Weadon, 50 Ind. 298 147 Dodd V State, 18 Ind. 56 243 Dodge V People, 113 111. 491 251 Dodge & Stevenson Manuf . Comp'y, 7«re, 77N. Y. 101 608 Doe V Barnes, 8 Q. B. (Ad. & El. N. S.)1037 300 D Biggers, 6 Ga. 188 558 V Donston, 1 B. & Aid. 230. .. . 336 cv CASES CITED Sec. Doe V Elliott, 4 Ired. L. (N. C.) 355... 6i9 V Young, 8 Q. B. (Ad. & El. N. S.) 63; 15 L. J. Q. B. 9; 9 Jur.941 300 Doepf ner v State, 36 Ind. HI 238 Doering v State, 49 Ind. 56 565 Doggett V Cook, U Gush. (Mass.) 263 734 Dolan V Brooklyn, 55 Hun (N. Y.) 448 510, 821 V Mayor, etc., 68 N. Y. 274. .512, 517,522, 659 Dole V Bull, 2 Johns. Cas. (N.Y.) 239 680 V Moulton, IJohns. Cas. (N.Y.) 129 676 Dolliver i; Parks, 136 Mass. 499 661 Donahoe v Richards, 38 Me. 379. ... 722 V Shed, 8 Met. (Mass.) 326 758 Donahue u Will County, 100 111. 94 17,343, 346 Donald v McKinnon, 17 Fla. 746. .. . 762 Donough V Dewey, 82 Mich. 309. .638, 802, 811 Doolittle V Atchison, T. & S. F. R. R. Comp'y, 20 Kan. 329. . 232 V Branford Selectmen, 59 Conn.402 834 Dorchester v Wentworth, 31 N. H. 451 802 Dorn V Backer, 61 Barb. (N. Y.) 597. 738 D Backer, 61 N. Y. 261 738 Dorr V Mickley, 16 Minn. 20 591 Dorsey, In re, 16 Ala. (7 Porter) 293.. 15 uAnsley, 72Ga. 460 781, 783 V Smyth, 28 Cala. 21 182, 516 Dorsey Co. v Whitehead, 47 Ark. 205. 551 Doswell V Impey, 1 Barn. & Cr. 163 713, 720 . Doty V Gorham, 5 Pick. (Mass.) 487. 649 15 Wilson, 14 Johns.(N. Y.) 378. . .687 Doughty V Hope, 3 Denio (N. Y.) 249 106, 108 V Hope, 3 Denio (N. Y.) 594. ... 106 D Hope, 1 N. Y. 79 106, 108 Douglas V Neil, 7 Heisk. (Teuu.) 437 631, 649 Douglass V State, Sl'lnd. 429 305 V Wickwire, 19 Conn. 489. . .82, 623,624, 649 Dover v Twomhly, 42 N. H. 59. . .205, 321 Sec. Dow V Bullock, 13 Gray (Mass.) 136.. 325 D Humbert, 91 U. S. 294 725 Downer v Lent, 6 Cala. 94 715 Downing v Herrick, 47 Me. 462. .713, 722, 860 D Roberts, 21 Vt. 441 760 V Rugar, 21 Wend. (N. Y.) 178 106,108,558, 606 Dows V Irvington, 13 Abb. N. C. (N. Y.) 162 147, 631, 649 Dox V Postmaster General, 1 Pet. (U.S.)318 283 Doyle V Raleigh, 89 N. C. 133 12, 378 Draper D Arnold, 12 Mass. 449 588 Drew D Livermore, 40 Me. 266 698 D Morrill, 62 N. H. 23 183 Dritt V Snodgrass, 66 Mo. 286 722 Druliner v State, 29 Ind. 308 143, 144 Druse v Wheeler, 22 Mich. 439 ... 624, 649 Dryden v Swinburne, 20 W. Va. 89 . . 163 Duane v McDonald, 41 Conn. 517 . 624, 825 Dublin (Mayor of) v Hayes, 10 Irish E., Com. Law Series 226 53, 452 Dubuc V Voss, 19 La. Ann. 210. .354, 362, 366 Dudley v Blountsville & W. Turn- pike Comp'y, 39 Ind. 288 . 553 DuganijFarrier, 47N. J. L.383..640, 649 Dukes V State, 11 Ind. 557 31, 38 DuUam v Willson, 53 Mich. 392.344, 346,379, 778 Dumas v Patterson, 9 Ala. 484 208 Dunbar v Boston, 113 Mass. 75 593 Duncan V State, 7 La. Ann. 377 ^3 V United States, 7 Pet. (U. S.) 435 263 Dunham uReilly, 47 Hun (N.Y.) 241. 769 V Reilly, 110 N. Y. 366 769 V Stockbridge, 133 Mass. 233. . . 485 Dunklin Co. v District Court, 23 Mo. 449 813 Duulap V Hunting, 2 Denio (N. Y.) 643..: 758, 770 u Knapp, 14 Ohio St. 64 737 1! Toledo, A. A. & G. T. Ry. Comp'y, 46 Mich. 190.802, 804 Dunlop V Munroe, 7 Cranch (U.S.) 343 592, 751 CVl CASES CITED Sec. Dunn V Gllman, 34 Mioli. 256 758 B Smith, 20 Miss. 602 259 Dunston v Paterson, 2 C. B. N. S; 495 754 Duntley v Davis, 43 Hun (N. Y.) 229 173, 631 Durham v Fowler, L. R. 22 Q. B. Div.394 389 Dutch V Harrison, 37 N. Y. Super. Ct. 306 64 Dwight V Rice, '5 La. Ann. 580 749 V Springfield, 4 Gray (Mass.) 107 801 Dyckman v Mayor, etc., 5 N. Y. 434. 559 Dye V Noel, 85 HI. 390 804 Dyer, In re, Dy. 158 b 30 D Bayne, 54 Md. 87 318 D Lowell, 30 Me. 217 803 V United States, 20 Ct. of 01. (U.S.)166 456 Dyson v Pope, 71 Ga. 205 126 TT'anies v Johnson, 4 Allen (Mass.) ^ 382 763 Earl V Camp, 16 Wend. (N. Y.) 562 758,768, 769 Earl of Shrewsbury v North Staf- fordshire Ry. Co., L. R. 1 Eq. .593; 35 L. J. Ch. 156 ; 12Jur. N. S. 63; 13 L. T. 648; 4W.R.220 58 Earl of Shrewsbury's Case, 9 Coke 46 16,418, 583 Early v Mannix, 15 Gala. 149 818 East River Gas Light Comp'y v Donnelly, 25 Hun (N. Y.) 614 708 V Donnelly, 93 N. Y. 557 708 Eastchester, In re, 53 Hun (N. Y.) 181 8:3 Eastern Counties Ry. Comp'y v Hawkes, 5 H. L. Cas. 331; IDeG., M. &G. 737; 24 L.J.Ch.601 58 Eastern Land, L. & M. Comp'y v Board of Education, 101 N. C. 35 560 Eastman v Curtis, 4 Vt. 616 585 vJudkins, 59N. H.576 588 Sec. Easton v Calendar, 11 Wend. (N. Y.) 90 539 V Lehigh Water Comp'y, 97 Pa.St.554 815 Eaton V Harris, 42 Ala. 491 624, 649 Ebon V Neville, 10 W. R. 6 713 Eby V School Trustees, 87 Gala. 166. 818 Echols, Ex parte, 39 Ala. 698 814 u State, 56 Ala. 131 159 Eddy V Capron, 4 R. I. 394 50, 55 Eden t) Templeton, 72 Iowa 687 820 Edmonds -j Banbury, 28 Iowa 267 132, 135 Edmunds v Hill, 133 Mass. 445 702 Edwards v Bridges, 2 Stark. 348 ... . 754 V Estell, 48 Gala. 194 613, 618 V Ferguson, 73 Mo. 686. . . .713, 733 11 Grand Junction Ry. Comp'y, IRailw.Cas. 173; 1 Myl. &Cr. 650; 7 Sim. 337 58 V United States, 103 U. S. 471 165,408,409, 413 V Watertown, 34 Hun (N. Y.) 436 670 Egremont v Benjamin, 135 Mass. 15. 218 Ehrgott V Mayor, etc., 96' N. Y'. 364. 593 Ela 1) Smith, 5 Gray (Mass.) 131 713 Elbin B Wilson, 33 Md. 135 732, 749 Elder v Bemis, 2 Met. (Mass.) 599. . . 736 El Dorado County v Reed, 11 Gala. 130 557 Eldred v Sexton, 5 Ohio 215 624 Election Petition, Iii re, 6 Ir.R, C. L. 464; 20W. R, 833;27L.T. Rep. 69 160 Election Petitions, In re, 9 Ir. R. C. L. 217 160 EUason v Coleman, 86 N. C. 235 783 Elkhart County Lodge v Crary, 98 Ind.238 57 Elkin V People, 4 111. 307 210 Elliott, Ex parte, 33 S. C. 602 . . . .156, 157 ■D Chicago, 48 111. 393 552 i; Eddins, 24 Ala. 508 560 V Peirsol, Pet. (U. S.) 328 757 u Willis, 1 Allen (Mass.) 461 623, 649 EUisD Karl, 7 Nebr. 381 846 V Kenyon, 25 Ind. 134 560 evil CASES CITED Sec. ElUs V Peck, 45 Iowa 113 612, 621 D State, 2 Ind. 262 187 t) State, 4 Ind. 1 10, 41 EUison V Raleigh, 89 N. C. 125. . .378, 625 D Stevenson, 6 T. B. Men. (Ky.) 271 584 Ebnendorf v Mayor, etc., 25 Wend. (N.Y.)693 804 Elmore v Overton, 104 Ind. 548. .713, 722 Ely V Parsons, 55 Conn. 83 592 V Thompson, 3 A. K. Marsh. (Ky.)70... 723 Emery v Harrison, 13 Pa. St. 317. ... 560 Emigrant Industrial Sav. Bank, Jn re, 75 N. Y. 388 573 Emmet, In re, 65 How. Pr. (N.Y.) 266 . 3£5 Enunitt v Mayor, etc., 38 N. Y. St. Rep'r 907; 28 North- eastern Rep'r 19 404, 507 Emmons V Campbell, 22 Hun (N. Y.) 582 843 Emory v Davis, 4 S. C. 23 682 Engelman v Skraiuka, 14 Mo. App. 438 03 England v Clark, 6 111. 486 688 Engle V Chipman, 51 Mich. 524 574 Euloe V Hall, 1 Humph. (Teuu.) 303 774 Erie « Knapp, 29 Pa. St. 173 48 Erie Co. Sup'rs v Jones, 119 N. Y. 339 478 Erskinei) Hohnbach, 14 Wall. (U. S.) 613 758, 761 Eslava v Jones, 83 Ala. 139. . . 707, 724, 745 Estes V Edmondson, 33 Gratt. (Va.) 510 623 Estis V Prince, 47 Ala. 269 635 EstopinaluPeyroux, 37La.Ann..477 734 Etheridge v Hall, 7 Port. (Ala.) 47. . 819 Evans v Bremridge, 8 De Gex, Mo N.&G.IOO 259> V Bremridge, 2 Kay & J. 174. . . 259 V Etheridge, 96 N. C. 42. . . .537, 607, 614 V Foster, 1 N. H. 374 713 1) Populus, 22 La. Ann. 121. .19, 346 vTrenton,24N. J. L. 764...478, 490 t> Wilder, 7 Mo. 359 585 Evansville v State, 118 Ind. 426 73 Evarts v Burgess, 48 Vt. 305 763 Sec. Evarts v Kiehl, 103 N. Y. 296 . 713, 727, 733 Everett v Smith, 22 Minn. 53 139 Evertson v Sutton, 5 Wend. (N. Y.) 281 734 Ewing V Cohen, 63 Tex-482 818 «Filley, 43Pa. St. 384 298 V Thompson, 43 Pa. St. 372. .299, 349 Excelsior Mut. Aid Ass'n v Riddle, 91Ind. 84 818 Excise Board v Sackrider, 35 N. Y. 154 106 Executive Communication, In re, 12 Fla.651 78 ]2Fla.653 405 14Fla.277 173 Exempt Firemen's Ben. Fund v Roome, 29 Hun (N. Y.) 391 .....9, 13 t) Roome, 93 N. Y. 313 9, 13 Tj^acey v Fuller, 13 Mich. 527 83, 634 -^ Fairchild v Keith," 29 Ohio St. 156 729, 734 Fake v Whipple, 39 Barb. (N. Y.) 339 221, 289 V Whipple, 39 N. Y. 394. . . .221, 289 Falconer v Shores, 37"Ark. 386 173 Fales V Filley, 2 Mo. App. 345 259 Falk V Strother, 84 Gala. 544 820 Fancher v Stearns, 61 Vt. 616... 636, 652 Faut V Gibbs, 54 Miss. 396 19, 305 Farebrother v Ansley, 1 Campb. 343 688 Farmer v Rogers, 85 Ga. 290 811 Farmers & M. Bank v Chester, 6 Humph. (Tenn.) 458 649 Farmers' Turnpike Comp'y v Coventry, 10 Johns. (N.Y.)389 725 Farmlngton v Stanley, 60 Me. 472 282, 283 Fai*mington R. W. P. Comp'y v Co. Com'rs, 113 Mass. 206 801,802, 811 Farr v Sims, Rich. Eq. Cases (S.C.) 122 558 Farrar v Barton, 5 Mass. 395 579 V United States, 5 Pet. (U. S.) 373....188, 192,208, 344, 294 Farrell v Bridgeport, 45 Conn. 191 10, 473 . V Sacramento, 85 Cala. 408 572 CVIU CASES CITED Sbc. Farrell v Taylor, 12 Mich. 113 805 Farrington v Turner, 53 Mich. 37 149, 778 Farwell v Adams, 113 111. 57 622 V Rockland, 62 Maine 296 19 Faulkner, Ex parte, 1 W. Va. 369. . . . 15 Faurie v Morin's Syndics, 4 Martin (La.) 39 55 FausleruParsons, 6 W.Va. 486.749, 750 Fawcett v Eberly, 58 Iowa 544 447 1} Woodbury Co., 55 Iowa 154. . 478 Fay, Petitioner, 15 Pick. (Mass.) 243 801 Feigert v State, 31 Ohio St. 432 290 Fellows 1) Mayor, etc., 8 Hun (N. Y.) 484 459 FeUs V Barbour, 58 Mich. 49 585 Fentiman, Ea;parfe,2Ad.&El.l^. 861 Ferguson ti KinnouU (Earl of), 9 CI. & Fin. 251 709, 724, 729 Ferkel v People, 16 HI. App. 310 527 Ferris v Adams, 23 Vt. 136 579 Field V Chipley, 79 Ky. 260 43 D Comm., 32 Pa. St. 478 361, 364 V Field, 9 Wend. (N. Y.) 394. . . 106 V Girard CoUege, 54 Pa. St. 233 304, 361 Fifty Thousand Cigars, 1 Low. Dec. (U.S.) 22 489 Filson V Himes, 5 Pa. St. 452 55 Finch V State, 71 Tex, 52 215 Finnegan v Mayor, etc., 6 T. & C. (N. Y.) 151: 3 Hun (N. Y.) 632 478 First National Bank v Co. Com'rs, 43 Kan. 648 846, 849 V Mount Tabor, 52 Vt. 87 106 •u Waters, 19 Blatchf. (U. S.) 342 538 First Ward Nat. Bank v Thomas, 125Mass.278 588 Fish V Dodge, 38 Barb. (N. Y.) 163. . 724 Fisher v Bartlett, 8 Me. 132 698 V Boston, 104 Mass. 87 593 V Deans, 107 Mass. 118. .713, 733, 734 1! McGirr, 1 Gray (Mass.) 1 . .730, 763 '0 United States, 15 Ct. of CI. (U. S.) 323 19 Fitch V Commissioners, 22 Wend. (N.Y.)133 108 Seo. Fltchburg R. R. Comp'y v Grand Junction K. R. & D. Comp'y, 1 Allen (Blass.) 553 623,634,626, 649 Fite V Black, 85 Ga. 413 835 . 688 C.) 204 753 849 Fitler v Fossard, 7 Pa. St. 540. . Fitts V Hawkins, 2 Hawks (N, 394 Fitzgerald v Burrill, 106 Mass. 446. .. V Harms, 93 111. 373 553, Fitzpatrick v United States, 7 Ct. of C1.(U.S.)390 33 Fitzsimmons v Brooklyn, 103 N. Y. 536 18, 443, 515 Flack V Harrington, 1 111. 213 , . 734 Flagley v Hubbard, 32 Cala. 34 818 Flarty u Odium, 3 T. R. (D & E.) 681 42, 46 Flatan v State, 56 Tex. 93 173, 360 Fleming, Ex parte, 4 HiU (N. Y.) 581 815, 823 V Election Com'rs, 31 W. Va. V Hudson Co. Clerk, 30 N. J. L. 380 744 V MulhaU, 9 Mo. App. 71 653 Flentge v Priest, 53 Mo. 540 787 Fletcher v Austin, 11 Vt. 447 263 V Chapman, 2 Leigh (Va.) 660. . 259 tjLeight, 4Bush(Ky.)303 265 FUppin, ExpcMte, 94U. S. 348 820 Plournoy v Clements, 7 Ala. 535 633 u Jeffersonville, 17Ind. 169.... 537 Floyd Acceptances, 7 WaU. (U. S.) Floyd V Barker, 13 Coke 23 713, Fogle V Gregg, 36 Ind. 345 Foley V Speir, 11 Daly (N. Y.) 354 .. . V Speir, 100 N. Y. 552 54, Folsom V Streeter, 34 Wend. (N. Y.) Foltz I) Kerlin, 105 Ind. 321. . . .10, 31, Foot V Prowse, Str. 635 ; 3 Bro. P. C. D Stevens, 17 Wend. (N. Y.)483. 1) Stiles, 57 N. Y. 399 173, 181, 185, 617, 637, 629, 649, Forbes v McDonald, 54 Cala. 98 FordvDyer,26 Miss. 243 687 551 860 818 54 57 539 36 324 720 658 55 CIX CASES CITED Ford V Parker, 4 Ohio St. 57(5. . . .592, 751 Formby v Pry or, 16 Ga. 258 59 Formwalt v Hylton, 66 Tex. 288.754, 765 Forniquet v Tegarden, 24 Miss. 96. . . 682 Forristal v People, 3 111. App. 470. . . 333 Forsythe v Ellis, 4 J. J. Marsh. (Ky.) 298 241, 688 Fort Wayne v Rosenthal, 75 Ind. 156 610 Fortenberry v State, 66 Miss. 286 ... . 668 Forward !) Marsh, 18 Ala. 645 232 Foster v Clark, 19 Pick. (Mass.) 329. . .683 V Jones, 79 Va. 642 19 V Kansas, 112 U. S. 201 364, 368 1) Metts, 55 Miss. 77 592 u Moore, 32 Kan. 483 850 V Pettibone, 20 Barb. (N. Y.) 350 758, 766 uPettit, 3Met. (Ky.)314...713, 720 V Soarff , 15 Ohio St. 532. . . . 161, 152 V Van Wyok, 4 Abb. Pr. N. S. (N.Y.)469 589 Fountain v Jackson, 50 Mich. 260. ... 461 Fowler v Atkinson, 6 Minn. 503 774 D Bebee, 9 Mass. 231 .... 631, 649, 659 V Peirce, 2 Gala. 165 798 •I! State, 68 Tex. 30 147 Fox V Drake, 8 Co w. (N. Y.) 191 774 uMcCord,54Iowa346 217 « Meacham, 2 Nebr. 530 237 V Thibault, 33 La. Ann. 32 248 Franke v Padueah Water Supply Comp'y, 88 Ky. 467 573 Frankfort c White, 41 Me. 637 289 Franklin v Kaufman, 65 Ga. 260.146, 147 V Pendleton, 3 Sandf. (N. Y.) 572.... 675 Franklin Bank v Cooper, 39 Me. 532. 267 Franklin Co. Com'rs ti Bunting, 111 Ind.143 542 u State, 24 Fla. 55 155 Frantz v Jacob, 88 Ky. 525 852 Fray v Blackburn, 3 Best & Smith 576 713 Frazier v Laughlin, 6 111. 347 295 Freatier v Yingling, 37 Md. 491 283 Free Press Ass'n v Nichols, 45 Vt. 7. 815 Freeman v Kenney, 15 Pick. (Mass.) 44 740 Sec. Freeman v Otis, 9 Mass. 272 774 V Selectmen, 34 Conn. 406 822 Freeport v Marks, 59 Pa. St. 253 709 Fremont v Crippen, 10 Cala. 211.818, 819 French v Barre, 58 Vt. 567 803 D Comm., 78 Pa. St. 339 19 D Cowan, 79 Me. 426 825, 826 V United States, 16 Ct. of CI. (U. S.) 419 461 Frewin v Lewis, 4 Myl. & Cr. 249, . . 843 Frey v Michie, 68 Mich. 323 825, 826 Friend v Hamill, 34 Md. 298 722, 749 Frost V Beekman, 1 Johns. Ch. (N. Y.)288 742 V Belmont, 6 Allen (Mass.) 152 57 V Mayor of Chester, 5 EU. & BL 531 825 V Mixsell, 38 N. J. Eq. 586. .218, 291 Fro wnf elter i) State, 66 Md. 80 . . 1 87, 286 Fry V Albemarle Co., 86 Va. 195 593 Fry's Case, 71 Pa. St. 303 131 Fuller V Dame, 18 Pick. (Mass.) 472 . . 57 V Gould, 20 Vt. 643 713 V Groton, 11 Gray (Mass.) 340. . 495 V Prest, 7 T. R. (D. & E.) 109. . . 669 1) Trustees, 6 Conn. 532 828 Fulton F. Ins. Comp'y t) Baldwin, 37 N. Y. 648 712, 724 r^ aal M Townsend, 77 Tex. 464 38 '^ Gaede ti Gallagher, 39 Kan. 225. 777 Gaffuey, In re, 20 N. Y. St. Rep'r 165; 3 N. Y. Supp. 664 96, 98 Gage V Chicago, 2 lU. App. 332. ..173, 196 V Currier, 4 Pick. (Mass.) 399. . 740 Gager v Supervisors, 47 Mich. 167 368,396, 803 Gaillard i; Anceline, 10 Mart. (La.) 479 338 Gaines v Thompson, 7 Wall. (U. S.) 347 797, 842 Gaither v Watkins, 66 Md. 576. . .803,. 805 Galbraith v McFarland, 3 Coldw. (Tenn.)267 632 Gale V Kalamazoo, 23 Mich. 344 573 V Mead, 4 Hill (N. Y.) 109 762 Galena v Amy, 5 Wall. (U. S.) 705 . . . 547 GaUoway v Corbitt, 52 Mich. 460. .. . 805 DJenkins,63N. C. 147 843 C2 CASES CITED Sec. Galveston, B. & C. N. G. R'y Comp'y 1) Gross, 47 Tex. 428 798 Gal way Election Petition, Inre, 6 Ir. R.C.L.464; 20W.B.833; 87L.T.Rep.a9 160 Galway Town Sup'r v Stlmson, 4 HiUfN. Y.)136 544, 662 Gammon v Lafayette'County, 76 Mo. 675 447 Garber v Conner, 98 Pa. St. 551 527 Gardner, Im re, 68 N. Y. 467 825 V People, 3 Hun (N."Y.) 222; 5 T. & C. (N. Y.):678 362 V People, 62 N. Y. 299 362 » Ward, 2 Mass. 244 note 746 Garey v People, 6 Cow. (N. Y.) 642. . . 27 V People, 9 Cow. (N. Y.) 640.19, 20 Garfield v Douglass, 22 lU. 100. . .713, 722 GarfortliDFearon,lH.Blackst.327. 52 Gairland, Ex parte, 4 Wall. (U. S.) 333.... 15, 78 Garlinghouse u Jacobs, 29 N. Y. 297 . 737 Garnett v Ferrand, 6 Barn. & Cr. 611 713, 722 Gamier i) St. Louis, 37 Mo. 554 446 Garrard « Davis, 53 Mo. 322 742 V NuttaU, 2 Met. (Ky.) 106 469 Garretson v Reader, 23 Iowa 21 188 Garrett v Doe, 2 111. 335 560 Garvie v Hartford, 54 Conn. 440 468 Marvin v Gorman, 63 Mich. 221 . . 802, 805 Gass t> State, 34 Ind. 425 150, 778 Gaston u Drake, 14 Neva. 175 54, 55 Gates V Delaware County, 12 Iowa 405 410, 414 V Neal, 23 Pick. (Mass.) 308. . 746, 749 Gaussen v United States, 97 U. S. 584 272, 278 Gavin v Shuman, 23 Ind. 32 560 Gay V Gilmore, 76 Ga. 725 812 Gaylor v Hunt, 23 Ohio St. 255 729 Gaylord v Scarfl, 6 Iowa 179 560 Genesee Co. Sav. Bank v Michigan Barge Comp'y, 52 Mich. 164 811 George v Oxford, 16 Kan. 72 150 V School District, 6 Met. (Mass.) 497 106 Gerarty v Reid, 78 N. Y. 64 146, 148 Sec. Gerber v Ackley, 32 Wis. 233. ... 238, 241 V Ackley, 87 Wis. 43. . .230, 238, 241 Gerken v Sibley Co., 39 Minn. 433. . . 478 German Am. Bank v Morris Run Coal Comp'y, 68 N. Y. 585 336 Gertum i; Supervisors, 109 N. Y. 170 20, 27 Gibbs V Morgan, 39 N. J. Eq. 126 . .10, 303 V Smith, 115 Mass. 592 63 V Usher, 1 Holmes (U. S.) 348, 842 Gibson « Bailey, 9 N. H. 168 338 V National Park Bank, 49 N. Y. Super. Ct. 429 575, 684 V National Park Bank, 98 N. Y. 87 575, 584 1) Superior Ct. 85 Gala. 216 806 Gil 1) Williams, 12 La. Ann. 219. . .56, 57 Gilbert v Hebard, 8 Met. (Mass.) 129 835 V Luce, 11 Barb. (N. Y.) 91 . .408, 410 Gildersleeve v Board of Education, 17 Abb. Pr. (N. Y.) 201 106,112,114,116,424, 604 GilesuSchoolDist., 31N. H. 304.... 424 GiUesple v Palmer, 20 Wis. 544. .153, 748 Gillmore v Lewis, 12 Ohio 281 ... . 478, 486 Gilman v Bassett, 33 Conn. 298 812 V Des Moines Valley R. B. Comp'y, 40 Iowa 200 452 Gilmore v Dodge, 58 N. H. 93 478 V Holt, 4 Pick. (Mass.) 258 649 D Wells, 78 Ga. 197 848 Given v Driggs, 1 Caines (N. Y.) 450. 687 Glascock V Lyons, 20 Ind. 1. . . .298, 523, 663 Glasgow V Rowse, 43 Mo. 479' 758 Glass V Ashbury, 49 Cala. 571 556 Glasspoole v Young, 9 Bam. & Cr. 696 754 Gleeae, In re, 60 N. Y. Super. Ct. 473; 67 How. Pr. (N. Y.) 372 347,828, 831 Glencoe v People, 78 lU. 382..585, 816, 820, 822 Glidden v Towle, 31 N. H. 147 106 Gloucester Co. Com'rs v Catlett, 86 Va. 158 564 Glover v Taylor, 38 La. Ann. 634. .. . 54 Goddard, In r«, 94 N. Y. 544 550 CXI CASES CITED Sec. Godolphin v Tudor, 1 Bro. P. C. 135. 578 vTudor, aSalk. 468 578 Goedgen v Manitowoc County, 2 Biss. (U. S.) 328 557 Goetcheus v Matthewson, 5 Lans. (N. Y.) 2U 722, 748 V Matthewson, 61 N. Y. 420 124,153,722,748, 749 Goettman v Mayor, etc., 6 Hun (N. Y.)132 10,29,32,37, 167 Gofl V Bankston, 35 Miss. 518 259 Gold 1) Bissell, 1 Wend. (N. Y.) 210. . 757 V Fite, 2 Baxt. (Tenn.) 237 . . .88, 439 Golder d Bressler, 105 111. 419 649 Golding, In re, 57 N. H. 146 67 Goode V Alt, 2 N. Y. City Court 167 694 Goodell, In re, 39 Wis. 232 70 48W1S.693 69 Goodin v State, 18 OMo 6 284 Goodrum v Carroll, 2 Humph. (Tenn.) 490 187, 188 Goodwin v Bunzl, 102 N. Y. 224 675 Goodwine v State, 81 Ind. 109 217 u Stephens, 63 Ind. 112 768 Gore, Ex parte, 57 Miss. 251 486 I) Mastin, 66 N. C. 371 758 Gorham v Camphell, 2 Cala. 135 435 Gorman v County Com'rs, 1 Idaho 655 516 Goshen v Stonington, 4 Conn. 209. . . 9 GosUng V Veley, 7 Ad. & EI. N. R. 406; 4 H. L. Cas. 679; 1 C. L. R. 950; 17Jur. 939.. 160 Gosman v State, 106 Ind. 203 329 Gossard v Vaught, 10 Kan. 162 150 Gotcheus V Matheson, .58 Barb. (N. Y.) 152 ... . 124, 153, 722, 748 Gott 11 Mitchell, 7 Blackf. (Ind.) 270. 758 Gould V Glass, 19 Barb. (N. Y.) 179. . 662 V Hammond, 1 McAllist. (U. S.) 235 713 V United States, 19 Ct. of CI. (U.S.) 593 100 Governor t) Cobb, 2 Sneed (Tenn.) 18, 210 V Coble, 2 Dev. (N. C.) 489 205 V Dodd, 81 111. 162 242, 724 D Edwards, 4 Bibb (Ky.) -,19... 242 V Gordon, 15 Ala. 72 10 V Hancock, 2 Ala. 728 239 Sec. Governor v Jones, 2 Hawks (N. C.) 359 242 V Lee, 4 Dev. & B. (N. C.) 457 204 V Matlock, 2 Hawks (N. C.) 366 187 V Miller, 3 Dev. & Bat. L. (N. C.)55 187 V Montfort, 1 Ired. L. (N. C.) 155 187 V Morris, 3 Murph. (N. C.) 146 247 V Nelson, 6 Ind. 496 .. . .305, 795, 796 V Perrine, 23 Ala. 807 232 V Porter, 5 Humph. (Tenn.) 165 187 uEidgway, 12 111.14... 271 D Robbius, 7 Ala. 79 208 V Twitty, 1 Dev. L. (N. C.) 153 189 Gower v Emery, 18 Me. 79 682, 688 Gowing 1) Gowgill, 12 Iowa 495 237 Grace v Mitchell, 31 Wis. 533 760 Gradle v Hoffman, 105 111. 147. . .188, 596 Graduates, In re, 11 Abb. Pr. (N. Y.) 301;22N. Y.67 539 Grady v Bowe, 11 Daly (N. Y.) 259 . . . 758 Graeme v Wroughton, 11 Exch. 146 j 24 L. J. Exch. 265 53 Graff V Evans, L. R., 8 Q. B. Div. 373 845 Graham v Cowgill, 13 Kan. 114. 421 t! Horton, 6 Kan. 343 842 J) State, 66 Ind. 386 198 Grant, Ex parte, 53 Ala. 16 813 V Fancher, 5 Cow. (N. Y. ) 309. 544 V Lyman, 4 Met. (Mass.) 470. . . 698 u McLester, 8 Ga. 553 579 Graves v Moore, 58 Cala. 435 695 Gray v Hook, 4 N. Y. 449 54, 581 c State, 72 Ind. 567 796 V United States, 23 Ct. of CI. (U.S.)323 478 Grayham v Washington County Court, 9 Dana (Ky.) 183 272, 295 Great Barrington v Austin, 8 Gray (Mass.) 444 289 Great Charte, etc.. In re, 3 Str. 1173. 609 Greathouse, In re, 3 Abb. (U. S.) 383. 78 Green, In re, 134 U. S. 377 124 V Beeson, 31 Ind. 7 556 V Burke, 23 Wend. (N. Y.) 490 636,649, 660 1) Cape May, 41 N. J. L. 45 651 cxu CASES CITED Sec. Green v Hewett, Peake X. P. 182 ., . 522 V MiUer, 6 Johns. (X. Y.) 39 ... . 106. V Ward well, 17 111. 278 182, 187 Greene, Ex parte, 29 Ala. 52 837 V Hudson County, 4i N. J. L. 388 465 Greenfield v Ward, 58 X. Y. 401 758 V Wilson, 13 Gray (Mass.) 384. . 241 Greenleaf v Low, 4 Denio (X. Y.) 168 630, 649 GreenwellDComm., 7SKy.320 238 Greenwood v Murphy, 131 111. 604 777 D State, 17 Ark. 332 581 Gregg V Jamison, m Pa. St. 468 623 V Pierce, 53 Barb. (N. Y.) 387 . . . 186 Gregory v Brooks, 37 Conn. 365 722 V Brown, 4 Bibb (Ky.) 28. . .722, 733 Mayor, etc., 11 N. Y. St. Rep'r506 404 V Mayor, etc., 113 N. Y. 416. ... 404 D Morisey, 79 N. C. 559 205 D Small, 39 Ohio St. 346 722 Grenville v College of Physicians, 12Mod.386 715 Gresham, Ex parte, 82 Ala. 359 822 Greville v Attkins, 9 B. & C. 462 ; i Man. &R. 372 52, 578 Grider v Tally, 77 Ala. 422. ..535, 538, 713,724, 729 Griebel v State, 111 Ind. 369 305, 778 Grier v Hill, 6 Jones L. (X. C.) 572. . 195 Griffin, In re, 25 Tex. Supp. 623 78 V Clay Co., 63 Iowa 413 478 V Rising, 11 Met. (Mass.) 339. . . 740 D Danbury, 41 Conn. 96 338 Griffiths V Hardenbergh, 41 X. Y. 464 671,682, 687 Grimwood v Wilson, 31 Hun (X. Y.) 215 261 Grinager v Norway, 33 Minn. 127. . . 808 Grindley v Barker, 1 Bos. & Pul..229 105, HI Griswold V Sedgwick, 6 Cow. (N.Y.)456 765 V Sedgwick, 1 Wend. (X. Y.) 126 765 Groenwelt v Burwell, 1 Ld. Ray. 454;12Mod.386;lSalk,396 715 Grogan, In re, 24 N. Y. St. Rep'r 473; 6 N. Y. Supp. 499 370 Sec. Groome V Gwinn, 43 Md. 572 795 Groton u Waldoborough, 11 Me. 306 50,54, 55 Grove v Van Duyn, 44 N. J. L. 654 721, 733 Grubb V Louisa County, 40 Iowa 314 4?2 Grumon v Raymond, 1 Conn. 40 734 Guenther v Whiteacre, 24 Mich. 604 734 Guild V Thomas, 54 Ala. 414 259 Guille V Swan, 19 Johns. (X. Y.) 381 226 Guillotte V Poincy, 41 La. Ann. 333 850 Gulf R. R. Comp'y v Co. Com'rs, 12 Kan. 280 ^842 Gulick V New, 14 Ind. 93 161, 298 eWard, lON.J. L. 87 63 GuUif ord v De CardoneU, 2 Salk. 466 578 Gumbertj xi Adams Express Comp'y. 28 Ind. 181 624, 649 Gumm V Hubbard, 97 Mo. 311 '. 145 Gunn V Tackett, 67 Ga. 725 630 Gurnsey V LoveU, 9 Wend. (N. Y.) 319 27, 765 Gwinne D Pool, Lutw. 290 713 Gwyn 1! Patterson, 72 N. C. 189 263 Gwynne v Burnell, 7 Clark & F. 572 ; 6 Bing N. C. 453; 1 Scott N.R. 711 219 TTaas v Fenlon, 8 Kan. 601 54, 55 -*^ Haberstro v Bedford, 43 Hun (N.Y.)201 674 D Bedford, 118 N. Y. 187 674 Haddoxu Clarke County, 79 Va. 677. 150 Hadley i) Jtayor, etc., 33 N. Y. 603 155,157,378, 512 Hadsell v Hancock, 3 Gray (Mass.) 526 495 Hafford v New Bedford, 16 Gray (Mass.) 297 593 Hagan v Brooklyn, 126 N . Y. 643 510 Hagar v Supervisors, 47 Gala. 222. . . 804 Hager v Catlin, 18 Hun (N.Y.) 448 . 55, 580 Hagner v Heyberger, 7 W. & S. (Pa.) 104 024,666, 8:0 Haight V Love, 39 N. J. L. 14 314, 349, 366 uLove, 39N.J. L. 476..314, 349, 435 Haines v Camden, 47 N. J. L. 454. .. . 802 Halbeck v Mayor, etc., 10 Abb. Pr. (N.Y.)439 179 0X111 CASES CITED Sec. Haltert v State, 23 Ind. 125 S24 Haldeman d Davis, 28 W. Va. 324. . . 837 Hale V Comm., 8 Pa. St. 415 235 V Evans, 12 Kan. 562 313 V Risley , 69 Mich. 596 816 Haley v Petty, 42 Ark. 392 204, 217 V Whitney, 53 Hun (N. Y.) 119 738 Hall, In re, 50 Conn. 131 69 uCarter, 2Moa. 304 669 « Gavitt, 18 Ind. 390 679 1) Huntoon, 17 Vt. 244 687 V Luther, 13 Wend. (N. Y.) 491 82,288, 624 V Parker, 37 Mich. 590 259, 266 V Parker, 39 Mich. 287 266 B People, 67 111. 307 816 i' Ray, 40 Vt. 576 763 1) Sawyer, 47 Barb. (N. Y.) 116. 13 ti Smith, 2 Bing. 156 728 V State, 39 Wis. 79 10, 19, 475 V Stewart, 23 Kan. 896 815 i; WiscouBin, 103 U. S. 5 3 Halleck v Boylston, 117 Mass. 469. . . 338 Hallett V Byrt, Carthew 380 766 Hallgren v Campbell, 82 Mich. 255 362,641, 787 Hallman v Campbell, 67 Tex. 54. . . . 448 HalloweU & A. Bank v Howard, 14 Mass. 181 754 Halsey v Gaines, 2 Lea (Tenn.) 310. . 475 Ham V Smith, 87 Pa. St. 63 54 Hamilton, Ex parte, 51 Ala. 62. .835, 836 V Harwood, 113 111. 154 811 V State, 3 Ind. 452 816 1) Williams, 26 Ala. 527 237, 713 V Wright, 37 N. Y. 502 14 Hamilton Co. v Mighels, 7 Ohio St. 109 593 Hamlin v Dingman, 41 How. Pr. (N.Y.)132 658 V Dingman, 5 Lans. (N. Y.) 61 82,624,658, 659 D Kaesafer, 15 Oreg. 456 623, 641, 649 V Stevenson, 4 Dana (Ky.) 597.. 130 Hammer v State, 44 N. J. L. 667 . ...778 786 Hamond v Howell, 1 Mod. 184; 2 Mod.218 713 Hamtramck V Holihau, 46 Mich. 127 396 Sbo. Hancock V Hazzard, 12 Cush. (Mass.) 112 224 Handy v Clippert, 50 Mich. 355 763 D Hopkins, 69 Md. 157 333 Hanington d Du Chatel, 1 Bro. Ch. 124 49, 60 Hanni) Lloyd, SON. J.L.I..'. 758 Hannah DjFife, 27 Mich. 172 63 Hannibal & St. J. R. R. Comp'y v State Bd. of Equaliza- tion, 64 Mo. 294 801 Hannon t) Agnew, 96 N. Y. 439 673 V Grizzard, 96 N. C. 293 . . . . 516, 722 Hanscomb v Russell, 11 Gray (Mass.) 373 609 Hanson v Eichstaedt, 69 Wis. 538. . . 744 Harbaugh v Cicott, 33 Mich. 241 . .131, 141, 154 Harbeck v Mayor, etc., 10 Bos. (N.Y'.) 368 28 Hardenbergh v Van Keuren, 4 Abb. N.C.(N.Y.)43 254 cVanKeuren,16Hun(N.Y.)17. 254 Hardesty v Price, 3 Colo. 556 682 Hardin v Carrico, 3 Met. (Ky.) 289. . 233 V Colquitt, 63 6a. 588. .147, 298, 781 Hardin County v McFarlan, 82 111. 138 543 Harney v Sup'rs, 44 Iowa 203 802 Harrell D Holt, 76 Ga. 25 802 Harrington D Com'rs, etc., 2McCord (S.C.)400 736 D Fuller, 18 Me. 277 591 V Wadsworth, 63 N. H. 400. . . . 724 u Ward, 9 Mass. 251 707 Harris, E^r porte, 52 Ala. 87 825 V Hanson, 11 Me. 241 187, 241 B Jays, Cro. Eliz. 699 649 D M6re, 70 Cala. 502 487 V Roof's Executors, 10 Barb. (N. Y.) 489 57 1) Schryock, 82 111. 119 843 V Simonson, 28 Hun (N. Y.) 318 57 V Whitcomb, 4 Gray (Mass.) 433 746; 750 V Whitney, 6 How. Pr. (N. Y.) 175 106 Harrison v New Orleans, 33 La. Ann. 222 843 CXIV CASES CITED Seo. Harrison v Simonds, U Conn. 318. . . 835 Harrold, iJx parte, 47 Gala. 129 865 Harshman v Winterbottom, 123 U. S. 215 285 Hart V Dubois, 20 Wend. (N. Y.) 236 758 V Poor Guardians, 81* Pa. St. 4B6 225 D Taylor, 61 Ga. 156 837 V Seixas, 21 Wend. (N. Y.) 40. . 720 D United States, 95 U. S. 316 . . . 281 Hartford v Bennett, 10 Ohio St. 441. 167 V Franey, 47 Conn. 76 217 Hartford Fire Ins. Comp'y v Ray- mond, 70 Mich. 485 821 Hartranft's Appeal, 85 Pa. St. 43a . . 795 Hartshorn v SchofE, 58 N. H. 197. . . . 604 Hartson v United States, 21 Ct. of CI. (U. S.)451 496 Hartt V Harvey, 32 Barb. (N. Y.) 55. . .154 Hart well v Hartwell, 4 Ves. 811 52 0) Littleton, 13 Pick. (Mass.) 229. 338 V Root, 19 Johns. (N. Y.) 345. . , 558 Harvey v Tama Co., 63 Iowa 228 453 Harwood u Marshall, 9 Md. 83... 179, 827 HaskeU v New Bedford, 108 Maes. 208 593 Haskins v State, 47 Ark. 243 375 HasseU D Long, 2 M. & S. 363 207 Haswell v Mayor, etc., 81 N. Y. 255 446, 478 Hatch V Attleborough, 97 Mass. 533 206,245, 278 V Hawkes, 126 Mass. 177 736 T)Mann,9W^<«id,-ai. YJ262... 482 V Mann, 15 Wend. (N. Y.) 44. . 481 Hatcheson v Tilden, 4 Harr. & McH. (Md.)279 161 Hathaway, In re, 9 Han (N. Y.) 79. . 4 Jrare,71N.Y.238 3, 4 I! Goodrich, 5 Vt. 65 760 Hatzfield v Gulden, 7 Watts (Pa.) 152 59 Havemeyer v Superior Ct., 84 Cala. 327 835,836, 838 Havens v Lathene, 75 N. O. 605 225 Haverley v McClelland, 57 Iowa 182 249 Hawes I) People, 129 lU. 123 812, 814 Hawkeye Ins. Comp'y v Brainard, 72 Iowa 130 462,456 Sec. Hawkins v Governor, 1 Ark. 570 795 V Kercheval, 10 Lea (Tenu.) 535 393 Hawley v Butler, 54 Barb. (N. Y.) 490 665 Hawley's (Lord) Case, 1 Vent. 143. . 418 Hawthorn v St. Louis, 11 Mo. 59 48 Hawver v Seldenridge, 2 W. Va. 274 635, 649 Haxton v Harris, 19 Kan. 511 612, 621 Hayes v Buzzell, 60 Me. 205 763 V Kyle, 8 AUen (Mass.) 300 7f« D Porter, 22 Me. 371 724, 725 Haynei) Justice's Court, 82 Cala. 284 835 Haynes v Bridge, 1 Coldw. (Term.) 32 2a5 D Butler, 30 Ark. 69 642 «HaU,37Vt.20 527 1! State, 3 Humph. (Tenn.) 480. 19 Hays V Drake, 6 Gray (Mass.) 387 758, 767 V Jones, 27 Ohio St. 218 832 Haywood v Wheeler, 11 Johns. (N. Y.)433 168 Hazard v Israel, 1 Binn. (Pa.) 240. . . 588 Hazard's Case, 2 Rolle 11 374 Heard v Harris, 68 Ala. 43 713, 733 Heath, Ex parte, 3 Hill (N. Y.) 42 166,178, 638 c State, 36 Ala. 273 654 Hebrew Benevolent Asylum, In re, 70N.Y.476 562 Hedley v Co. Com'rs, 4 BUckf . (Ind.) 116,433, 4S7 Heffner v Conun., 28 Pa. St. 108 816 Heidelberg School Dist. v Horst, 62 Pa.St.301 774 Heidenheimer v Brent, 59 Tex. 533. . 241 Heinemann v Heard, 62 N. Y. 448 . . . 562 Heister v Metropolitan Board of Health, 37 N. Y. 661 539 Held D BagweU, 58 Iowa 139 708 Helms V Wayne Agr. Comp'y, 73 Ind.325 267 Hemphill D Collins, 117 111. 396 818 Hempstead Co. v Grave, 44 Ark. 317. 820 Hench v State, 72 Ind. 297 313 Henderson v Smith, 26 W. Va. 829. . 722 Henderson's Lessee v Robertson, Cooke (Tenn.) 207 668 Hendrlok D Walton, 69 Tex. 192 589 cxv CASES CITED Sec. Hendriekson v Bender, 5 Week. Dig. (N. Y.) «6 56 Henke v McCord, 55 Iowa 3T8 723 Henly v Mayor, etc. of Lyme, 5 Bing. 91 2, 734 Hennen, Ex parte, 13 Pet. (U. S.) 230 350,354,361, 364 Hennepin Co. Com'rs v Jones, 18 Minn. 199 ■. 19 Hennessey v Hill, 52 111. 281 684 Henry v Lowell, 16 Barb. (N. Y.) 268 759 V Sargeant, 13 N. H. 321 758 B State, 98 Ind. 381 233 DTilson, 17 Vt.479 527 Henshaw v Cotton, 127 Mass. 60 835 V Foster, 9 Pick. (Mass.) 312. . . 143 Heppe V Johnson, 73 Cala. 265. . .217, 291 Herf V Shulze, 16 Ohio 263 808 Herpending v Haight, 39 Cala. 189. . 796 Heslep V Sacramento, 2 Cala. 580 478, 479 Hessell v Johnson, 63 Mich. 623 259 Hetfleld v Towsley, 3 Greene (Iowa) 584 722 Hettriok v Page, 82 N. C. 65 848 Heuitt V State, 6 Harr. & J. (Md.) 95 Heydenfeldt v Towns, 27 Ala. 423. . . Hickok v Plattshurgh, 15 Barb. (N. Y.)427 Hicks i; Chaffee, 13 Hun (N. Y.) 293. V Dorn, 42 N. Y. 47 V Moore, 2 Ga. 240 Hiestand v New Orleans, 14 La. Ann. 330 19, Hightower v Slaton, 54 Ga. 108 Highway Com'rs v Ely, 54 Mich. 173 V Peck, 5 Hill (N. Y.) 215. . .543, 644, V People, 86 111. 339 r People, 99 111. 587 V People, 19 111. App. 253 Hilbish V Hower, 58 Pa. St. 93 Hildreth v Crawford, 65 Iowa 339. . . V Heath, 1 111. App. 83 V Mclntire,'! J. J.IMarsh. (Ky.) 206 .■ 635, V Rutherford, 52 N. J. L. 501. . . 205 724 737 724 447 444 48 736 662 819 815 823 762 810 825 S04 Sec. HiU u Bateman, 2 Str. 710 758 V Boston, 122 Mass. 344 593 V Figley, 25 111. 156 758 V Haynes, 54 N. Y. 153 758 i)Hill,-4McCord(S. C.) 277.... 159 D Kemble, 9 Cala. 71 232 V Paul, 8 Clark & Finn. Pari. R.295 42 V Reg., 8 Moore P. C. C. 138. . . 13 D State, 1 Ala. 659 88, 298 V Sweetser, 5 N. H. 168 259 V Thompson, 48 N. Y. Super. Ct. 481 555 V WeUs, 6 Pick. (Mass.) 104. .. . 609 HUls V Peekskill Sav. Bank, 26 Hun (N.Y.)161 853 Hilton V Bender, 69 N. Y. 75 560 V Fonda, 86 N. Y. 339 738 Hines v Lockport, 50 N. Y. 236 737 Hinkle, In re, 31 Kan. 713 639 Hinton v Perkerson, 46 Ga. 350 843 Hinze v People, 92 111. 408 166 Hire v New Orleans, 31 La. Ann. 438 19 Hitch V Lambright, 66 Ga. 228. . .723, 733 Hoagland v Culvert, 20 N. J. L. 387 . . 180 Hobart v Tillson, 66 Cala. 210 839 Hobbs V Yonkers, 32 Hun (N. Y.) 454 453 V Yonkers, 103 N. Y. 13 453 Hoboken v Evans, 31 N. J. L. 342. . . . 187 V Gear, 27 N. J. L. 265. .19, 364, 366,396,411,443, 512 uKamena, 41N. J. L. 435 314 Hodgdon v Co. Com'rs, 68 Me. 226. . . 805 Hodge V Linn, 100 111. 397 143 Hodgkin i) Holland, 34 Ark. 303 195 Hodgkinson, In re, 5 Hill (N. Y.) 631, note 789 Hodgson V Dexter, 1 Cranch (U. S.) 345 774 Hodsdon v Wilkins, 7 Me. 113 683 Hodskin v Cox, 7Cush. (Mass.) 471 706 Hoge V Trigg, 4 Munf . (Va.) 150 682 Hogg V Dorrah, 2 Port. (Ala.) 213. ... 771 Hoggatt V Bigley, 6 Humph. (Tenn.) 238 723 Hoglan V Carpenter, 4 Bush (Ky.) 89 36 Hoke 1) Henderson, 4 Dev. (N. C.) 1 18,20,346, 411 Holbrook t) Klenert, 113 Mass. 268. . . 678 CXVl CASES CITED Sec. Holcomb V Cornish, 8 Conn. 375.713, 733 Holden v Eaton, 8 Pick. (Mass.) 436. 758 c People, 90 111. 434 310 Holland v Beard, 59 Miss. 161 250 1) Davies, 36 Ark. 446 148 HoUey v Mayor, etc., 59 N.Y. 166. .5, 354 Holliday v Henderson, 67 Ind. 103. . . 822 D Poole, 77 Ga. 159 803 HoUi mant! CarroU, 27 Tex. 23 241 Holloman v Langdon, 7 Jones L. (N. C.) 49 205 Holmes v Nuncaster, 12 Johns. (N. Y.)395 762 V Sparks, 12 C. B. 242 ; 21 L. J., C. P. 194; 15Jur. 975 530 Holt V McLean, 75 N. C. 347 250, 731 Holten V County Com'rs, 55 Ind. 194 542 Holtzman v Robinson, 2 MacArthnr (D.C.)520 733 Home Ins. Comp'y v Watson, 1 Hun (N.Y.) 643: 4T. & C. (N. Y.)226 696 c Watson, 59 N. Y. 390 696 Hommerich v Hunter, 14 La. Ann. 221 ,... 798 HoneaiJ Monroe Co., 63 Miss. 171.... 824 Honey v Davis, 38 Tex. 63 648 ij Graham, 39 Tex. 1 437 Hook V Gray, 6 Barb. (N. Y.) 398. ... 54 Hooper v Fifty-one Casks of Brandy, Daveis (U. S.) 370 489 D Goodwin, 4S Me. 79 623 Hoosac Tunnel D. & E. Comp'y v O'Brien, 137 Mass. 424 713,, 716 Hope 01 Sawyer, 14 111. 254 584 Hopkins v Prescott, 4 C. B. 578. . . .52, 56 Hopley I) Young, 8 Q. B. (Ad. & El. N. S.) 63 ; 15 L. J. Q. B. 9;9Jur.941 300 Horan v People, 10 111. App. 21 241 HornB\Vhittier, 6 N.H. 88.187, 288, 664 Horton v Carrington, 1 How. Pr. N. S. (N. Y.)124 180, 181 V Garrison, 23 Barb. (N. Y.) 176 106, 112 V Parsons, 37 Hun (N. Y.) 42 180,181,631, 663 Gec. Hoskins v Brantley, 57 Miss. 814. .79, 163 Hospers v Wyatt, 63 Iowa 264 852 Hottinger ii New Orleans, 42 La. Ann. 629 843 Houghton V Swarthout, 1 Denio (N. V.) 589 729, 734 Houghton County v Auditor Gen- eral, 36 Mich. 271 820, 822 Houghton Co. Sup'rs v Rees, 34 Mich. 481 561 Houlden v Smith, 14Q. B. (Ad. & El. N. S.) 841 ; 19 L. J. Q. B. 170 ; 14 Jur. 598. . .713, 721, 860 House Bill, In re, 9 Colo. 631 127 Houseman v Comm., 100 Pa. St. 222. 354 V Girard Mut. B. &. L. Ass'n, 81 Pa. St. 256 707 Housh V People, 75 111. 487 769, 865 Houston Tap & B. R'y Comp'y v Randolph, 24 Tex. 317 ... . 795 Hover u BarkhooA 44 N. Y. 113.712, 724,725, 737 Hovey v State, 119 Ind. 386 796 Howard I) Gage, 6 Mass. 462 828 u Gosset, Car. & Mar. 380 858 t) McDiarmid, 26 Ark. 100 156 . u Proctor, 7 Gray (Mass.) 128 53,768, 761 u St. Louis, 88 Mo. 656 608 B State, 10 Ind. 99 19, 305 V United States, 22 Ct. of CI. (U. S.) 306 507 D Wood, 2 Levinz 245 522, 663 Howe V Freidheim, 27 Minn. 294. ... 694 V Mason, 12 Iowa 202 237 u Mason, 14 Iowa 510 722, 729 D State, 53 Miss. 57 554 Howland v Coffin, 47 Barb. (N. Y.) 653; 33 How. Pr. (N, Y.) 300 63 V Eldredge, 43 N. Y. 4,57 820 uLuce, 16 Johns. (N.Y.) 135.... 37 Hoxie V Shaw, 75 Iowa 427 567 Hoyt 1! Dillon, 19 Barb. (N. Y.) 644. . 560 V Hudson, 13 Johns. (N. Y.) 207 697 Hubbard v Crawford, 19 Kan. 570 . . 335 V Elden, 43 Ohio St. 380. . . .236, 241 BSadler, 104N. Y. 223 543 V Switzer, 47 Iowa 6S1 249 CXVll CASES CITED Sec. Hubbard DWilliamstown, 61 Wis. 397 ICO Hubbell V Weldon, Lalor's Surp. (Hill & Denio, N. Y.) 139 560 Huber v Eeily, 53 Pa. St. 113. . 123, 124, 1.53 Hubert v Mendheim, 64 Ca,la. 213.187, 596 Hudmon v Slaughter, 70 Ala. 546.156, 538 Hudson V Mayor, etc., 64 Ga. 286. ... 852 1' Superior Ct., 42 Mich. 239 835,836, 837 Hudspeth v Garrigues, 21 La. Ann. 684 78 Huels V Hahn, 75 Wis. 468 850 Huff V Cook, 44 Iowa 639 69 Huffman v County Com'rs. 23 Kan. 281 478, 492 V Koppelkom, 8 Nebr. 344.. 190, 238 V Mills, 39 Kan. 577 787 Hughes V Buckingham, 13 Miss. 632 306,314, 320 V Co. Com'rs, 107 N. C. 598. .813, 815 D Felton, 11 Colo. 489 397 1) McCoy, 11 Colo. 591 713 V Marshall, 2 Tyrw. 134 ; 2 C. & J. 118; 5 C.& P. 150 864 D Parker, 20 N. H. 58 850 V People, 82 111. 78 .,255, 497 V Statham, 6 D. & R. 219 ; 4 B. & C. 187 52 HuU V Ely, 2 Abb. N. C. (N. Y.) 440. 853 V Marshall Co., 12 Iowa 142. .. . 556 V Superior Court, 63 Cala. 174 187,630, 790 V Superior Ct., 63 Cala. 179. ... 887 Hultz 1) Comn^., 3 Grant Cas. (Pa.) 61 196 Humboldt i) Co. Com'rs, 6 Neva. 30 814, 821 Humphrey, Ex parte, 10 Wend. (N. Y.;613 117 Hunt V Ellisden, 2 Dyer 152 b 86 uState, 53'Ind. 321 263 D State, 93 Ind. 311 554 .Hunter v Agee, 5 Humiph. (Tenn.) 57 683, C87 ■V Chandler, 45 Mo. 452 521, 533 I! Field, 20 Ohio 340 66 .1), Gardner, 5 Wilson & Shaw, .616 42 Hunter v Nolf, 71 Pa. St. 282 54 t> Pfeiffer, 108 Ind. 197 63 V Routlege, 6 Jones L. (N. C.) 216 431 « Windsor, 24 Vt. 327 743 Huntington v BardweU, 46 N. H. 492 64 V United States, 8 Ct. of CI. (U.S.) 495 11 Hutchins v Brackett, 22 N. H. 353 592, 751 Hutchinson v State, 36 Tex. 293 864 Hutson V Mayor, etc., 9 N. Y. 163 712,724, 737 Hutton V Lewis, 5 T. R. (D. & E.) 639 65 Hyatt V Bates, 35 Barb. (N. Y.) £08, . 847 Hyde v Boyle, 86 Cala. 352 814 V Brush, 34 Conn. 454 132, 135 tiState, 52 Miss. 665.19, 327, 346, 778 Hyner v Dickinson, 32 Ark. 776 206 TUinols V Delafleld, 8 Paige (N. Y.) -*- 527 [ 551 Indiana, I. & I. R. R. Comp'y u McCoy, 23 111. App. 143. . 802 Indianapolis v Indianapolis Gas Light & C. Comp'y, 66 Ind. 396 573 IngersoU v Howard, 1 Heisk. (Tenn.) 247 15 Ingerson v Berry, 14 Ohio St. 315 157 V Starkweather, Walk. Oh. (Mich.) 346 613 Inglee v Bos worth, 5 Pick. (Mass.) 498 740 Inglis V Shepherd, 67 Cala. 469 158 lugraham, r™ re, 64 N. Y. 310 562 V Doggett, 5 Pick. (Mass.) 451.. 740 D Olcock, 14 N. H. 243. 587 Ingram v MoCombs, 17 Mo. 358 210 Inos t) Winspear, 18 Cala. 397 734 Insurance Comp'y v Raymond, 70Mich. 485 821 Iowa City v Foster, 10 Iowa 189 19 Irion V Lewis, 56 Ala. ISO.. 713, 722, 731, 733 Irish V Webster, 5 Me. 171 66 Isbell V Farris, 5 Coldw. (Tenn.) 436 316 IshpemingDMaroney,49Mioh.326.. 805 Iske V Newton, 54 Iowa 586 802 CXVIU CASES CITED Sec. Ives Case, 2 Douglas Eleo. Gas. 403 . . 75 V Hamlin, 5 Gush. (Mass.) 534 7C0 1' Jones, Sired. L.CN.C.) 538.. 682 D Lucas, 1 C. & P. 7 758 V Sturgis, 12 Met. (Mass.) 462. . 700 Ivy V Lusk, 11 La. Ann. 486 92 Tackson v Brown, 5 Wend. (N. Y.) " 590 543 D Buchanan, 89 N. C. 74 539 V Davis, 18 Johns. (N. Y.) 7. . . . 584 D People, 9 Mich. HI 811 V Simonton, 4 Cranch C. C. (U.S.)255 173, 192 V United States, 8 Gt. of Gl. (U.S.)354 478 Jackson City » Bowman, 39 Miss. 671. 580 Jackson County u Brush, 77111. 59.. 573 V Rendleman, 100 111. 379 543 Jackson Co. Gom'rsB Elliott, 39 Ind. 191 553 Jacksonville v AUen, 25 111. App. 54 10, 385 Jacobs V Gomm., 2 Leigh (Va.) 709 . . 860 V PoUard, 10 Gush. (Mass.) 287. 682 V Tobiason, 65 Iowa 245 ; !>4 Am. R.9 59 Jacquemine v State, 48 Miss. 280 571 Jamieson v Calhoim, 2 Speers (S. C.) 19 682 Jarmain v Hooper, 6 M. & G. 827 754 Jarnagin v Atkinson, 4 Humph. (Tenn.) 470 236, COl Jarvls D Mayor, etc., 2 N. Y. Leg. Obs.396 389 Jay County v Templer, 34 Ind. 322. . 478 Jeffers v Johnson, 18 N. J. L. 382. . . . 204 Jefferson v Hartley, 81 Ga. 716 ; 9 S. E.174 241 Jefferson County V Slagle,66 Pa. St. 202 106, 109 Jefferson Go. Com'rs v Lineberger, 3Mont.231 187, 224 Jeffries v Ankeny, 11 Ohio 372, 748 V Harrington, 11 Colo. 191 12 Jenkins v Hooker, 19 Barb. (N. Y.) 435 47 uLemonds, 29Ind. 294 241 V Waldron, 11 Johns. (N. Y.) Sec. 114 153, 722 Jenks V Osceola Township, 45 Iowa 554 48 Jenney v Rodman, 16 Mass. 464 100 Jenning's Case, 12 Mod. 402 408 Jermaine v Waggener, 1 Hill (N. Y.) 279 564 Jersey City v Quaif e, 26 N. J. L. 63. . 450 Jessop V Brown, 2 Gill & J. (Md.) 404 682 Jessup V United States, 106 U. S. 147 188, 190 Jester v Spurgeon, 27 Mo. App. 477. . 641 Jeter D State, 1 McCord (S. C.) 233 88, 298 JeweU « GUbert, 64 N. H. 13 649 « Mills, 3 Bush (Ky.) 62. . . .238, 241 D Swain, 54 N. H. 506 763 V Van Steenburgh, 58 N. Y. 85 560 Jewett D Alton, 7 N. H. 253 1C6 ■0 Torrey, 11 Mass. 219 697, 698 Jhons V People, 25 Mich. 499 624, 649 Joe D Ash, Prec. in Gh. 99 52 Johns V Church, 12 Pick. (Mass.) 557 702 Johnson, Es; parte, 15 Nebr. 512 649 V Belden, 2 Lans. ( X. Y.) 433. . 712 B Belden, 47 N. Y. 130 712 ■0 Burnham, 22 Vt. 639 528 D Caffey, 59 Ala. 331 188 D Dodd, 56 N. Y. 76 106. 110 V Dunn, 134 Mass. 522 736 « Poran, 58 Md. 148 230, 336 V Gilbert, 9 Hun (X. Y.) 469 .. . 694 V Goodridge, 15 Me. 29 289 V Hacker, 8 Heisk. (Tenn.) 388 273 V Haynes, 37 Hun (N. Y.) 303. . 251 V Lucas, 11 Humph. (Tenn.) 306 823 D McGinly, 76 Me. 432 649 V McLaughlin, 9 Ala. 551 587 » Mann, 77 Va. 265 173 D Mills, 10 Gush. (Mass.) 503... 284 » Stedman, 3 Ohio 94 624 Johnson Co. Com'rs v Mullikin, 7 Blackf . (Ind.) 301 55 Johnston v Charleston, 1 Bay (S. C.) 441 542 t! Gwathney, 2 Bibb (Ky ) 186 187, 198 V Kimball, 39 Mich. 187 266 u Lovett, 65 Ga. 716 462 D Moorman, 80 Va. 131 . 713, 722, 733 CXIX CASES CITED Sec. Johnston v RUey, 13 Ga. 97 765 V Wilson, 2 N. H. 202. . . .88, 90, 164,350,649,660, 664 Johnstone v Sutton, 1 T. R. (D. & E.) 538 711 Joint Free High School Dist. v Green Grove, 77 Wis. 532 830 Jones D Bird, 5 B. & Aid. 837 728 u Brown, 54 Iowa 74 713, 716 V CaldweU, 21 Kan. 186 147 V Gallatin County, 78 Ky. 491 215, 268 c Gibson, 1 N. H. -866 649 D Gridley, 20 Kan. 584 150 V Jefferson, 66 Tex. 576 327, 411 V La Tombe, 3 Dall. (U. S.) 384 774 V Loftiu, 2 Hawks (N. C.) 199. . 612 1) Newman, 36 Hun (N. Y.) 634 193 D North, L. R. 19 Eg. 426 64 D People, 19 m. App. 300 241 » People, 79 N. Y. 45 803 c Pickering, 29 L. T. 210 748 V Pugh, 2 Salk. 465 603 V Scanland, 6 Humph. (Tenn.) 195 664, 665 V Shaw, 15 Tex. 577 19, 475 V State, 112 Ind. 193 781 V State, 1 Kan. 273 150 1) State, 7 Mo. 81 174 V Supervisors, 14 Wis. 518 478 V United States, 18 Wall. (U. S.) 662 283 V Wiley, 4 Humph. (Tenn.) 146 189 Jones' Case, 31 How. St. Tr. 251 857 Jonesboro, F. B. & B. G. Turnpike Comp'y V Brown, 81 Bax- ter (Tenn.) 490 795 Jordan, In re, 37 Minn. 174 305 V Hanson, 49 N. H. 199 713, 733 V Loftin, 13 Ala. 547 259 Jordon v Hayne, 36 Iowa 9 802 Joyce D Joyce, 5 Cala. 449. 585 Judd V Thompson, 125 Mass. 553 740 Judevine v Jackson, 18 Vt. 470 560 Judkins v Reed, 48 Ma. 386 758 Juker V Commonwealth, 20 Pa. St. 484 147 Sec. .lustices V Armstrong, 3 Dev. (N. C.) 284 191 DBartlett, SB.Mon. (Ky.) 195 187 V Clark, 1 T. B. Mon. (Ky.) 82. . 88 V Ennis, 5 Ga. 569 199 V Harcourt, 4 B. Mon. (Ky.) 499 39 DMunday,2Leigh(Va.)165... 818 V Wynn, Dudley (Ga.) 22 192 T7" ahn !) Locke, 75 Ala. 332 447 -*^ Kanet) Union P. B.R. Comp'y, 5Nebr.l05 252 Kansas Pacific Ry. Comp'y v McCoy, 8 Kan. 538 57 Kaufman v Stone, 25 Ark. 336. .304, 624, 649 Kavanagh v Saunders, 8 Me. 422 675 Kavanaugh v State, 41 Ala. 399 12 Keane v Cannovan, 21 Cala. 291 560 Kearney v Andrews, 10 N. J. Eq. 70 173 Kearney Co. Com'rs v Kent, 5 Nebr. 227 557 Keating i) Hyde, 23 Mo. App. 555. ... 54 Keck V Coble, 2 Dev. (N. C.) 489 205 Keeleri) Frost, 22 Barb. (N. Y.) 400 106,107,108, 101 V Woodard, 4 Chand. (Wis. ) 34. 733 Keenan, Expairte, 21 Ala. 558 802 D Cook, 12 R, L 52 723, 749 II Perry, 24 Tex. 253 344 i!Southworth,110Mass.474..592, 751 Kehn 0) State, 93 N. Y. 291 456 Keith -I! Howard, 24 Pick. (Mass.) 292 724, 746 B State, 48 Ark. 439 652 Kellar v Savage, 17 Me. 444 ' 289 V Savage, 20 Me. 199. .289, 758, 761 Keller u Chapman, 34 Cala. 635 147 KelleyiiNoyes, 43N. H.209 758 V Story, 6 Heisk. (Tenn.) 202. . . 649 Kellogg, Ex porte, 6 Vt. 509 571 V McLaughlin, 8 Ohio 114 560 Kellum V Clark, 97 N. Y. 390 204, 205 Kelly V Bemis, 4 Gray (Mass.) 83. . . . 723 V Edwards, 69 Cala. 460 825 V Hunter, 12 Ohio 216 808 uMedlin, 26Tex. 48 560 t) Moore, 51 Ala. 364 734, 861 V State, 25 Ohio St. 567 .. . .217, 288 cxx CASES CITED Sec. Kelly V Wimterly, 61 Miss. 548 666 Kelsey v King, 32 Barb. (N. Y.) 410. . 849 Kemp V Neville, 10 C. B. N. S. 523 ; 31 L. J. C. P. 158; 7 Jirr. N. S. 913; 4 L. T. 640; 10 W.R.6 713,721, 722 Kemper v Kemper, 3 Rand. (Va.) 8 . . 687 Kendall, Tnre, 85 N. Y. 302 631 u Canton, 53 Miss. 526 19 V Powers, 4 Met. (Mass.) 553. . . 734 V Stokes, 3 How. (U. S.) 87.535, 724, 812 V United States, 13 Pet. (U. S.) 524 794,797, 812 Kendell v Camden. 47 N. J. L. 64. . . 378 Kenfield v Irwin, 5 Gala. 174 150 Keniston v Little, 30 N. H. 318 758 Kennard v Louisiana, 92 U. S. 480. . . 364 Kennedy v Barnett, 64 Pa. St. 141. . 713 V Murdiok, 6 Harr. (Del.) 458. . 63 Kenney v Goergen, 36 Minn. 190. . .31, 37 « Greer, 13 111. 432 720 Kentucky v Boutwell, 13 Wall. (U. S.) 526 824 V Dennison, 24 How. (U. S.) 66 812, 834 Keokuk 1) Merriam, 44 Iowa 432 813 Kern D Davis, 7 lU. App. 407 803 Kerns v Schoonmaker, 4 Ohio 331. . 734 Kerr I) Brandon, 84 N. C. 128 236 D Jones, 19 Ind. 351 36, 81 V Mount, 28 N. Y. 659 758 V Russell, 69 111. 666 742 c Trego, 47 Pa. St. 292 298 Kesler v Haynes, 6 Wend. (N. Y.) 547 674 Kessel v Zeiser, 102 N. Y. 114 522 Ketchum v Superior Ct., 65 Cala. 494 810 Kewaunee Sup'rs v Knipfer, 37 Wis. 496 282 Keys V Marin Co., 42 Cala. 252. . .802, 804 V Mason, 3 Sneed (Tenn.) 6. . . . 320 Keyser v McKlssan, 2 Rawle (Pa.) 139 : 659 Kibling i) Clark, 53 Vt. 379 713 Kiernan v Newton, 20 Abb. N. C. (N. Y.)398 843 KUbourne v AUyn, 7 Lans. (N. Y.) Sec. 352 851 Kilbourne d St. .lohn, 59 N. Y. 21 . . . . 851 Kiley D Cranor, 15 Mo. 541 338 V Oppenbeimer, 55 Mo. 374 338 KUgore v Magee, 85 Pa. St. 401 19 KilhamDWard, 2Mass. 236 746 KUpatriok v Frost, 2 Grant (Pa.) 168 768 u Pickens Co., 86 Ala. 422 245 « Smith, 77 Va. 347 173, 850 Kimball v Alcorn, 45 Miss. 151 . . .659, 661 V Lamprey, 19 N. H. 215 787. V Marshall, 44 N. H. 465. . . .114, 117 Kimple v Superior Ct., 66 Cala. 136. . 804 Kindle v State, 7 Blackf . (Ind.) 586. . 272 King, In re, 25 N. Y. St. Rep'r 792; 6 N. Y. Supp. 420 356, 400 u Hunter, 65 N. C. 603 19 1! Ireland, 68 Tex. 682 188, 190 V Nichols, 16 Ohio St. 80. .. . 208, 271 V Rice, 13 Cusb. (Mass.) 161. .. . 588 V Smith, 2 Leigh (Va.) 157. .. . 259 King William Justices v Munday, 2 Leigh (Va.) 165 818 Kings Co. Com'rs of Charities t> Hammill, 33 Hun (N. Y.) 348 676 Kingsbury v Ellis, 4 Gush. (Mass.) 578 677 V Pond, 3 N. H. 511 754 V School District, 12 Met. (Mass.)99 106 Kingston M. Ins. Comp'y v Clark, 33 Barb. (N. Y.) 196 205 Kinneen v Wells, 144 Mass. 497. .124, 125, 132 Kinsey v Sherman, 46 Iowa 463 462 Kinyon v DuchSne, 21 Mich. 498 ... . 120 Kip V Buffalo, 123 N. Y. 152 96, 510 Kirbie v State, 5 Tex. App. 60 768 Kirk V Rhoads, 46 Cala. 398 143 Kirkland u Texas Express Comp'y, 57 Miss. 316 612 Kirkseyi) Bates, 7 Port. (Ala.) 529. . 10 Kirkwood v Smith, 9 Lea (Tenn.) 228 570 V Soto, 87 Cala. 394 442, 466 Kisler v Cameron, 39 Ind. 488. ... 156, 157 Kitson V JuUan, 4 El. & Bl. 854 ; 24 L. J. Q. B. 202 ; 1 Jur. N. S.754 207, 272 CIIXl CASES CITED Sec. Knap V Sprague, 9 Mass. 358 698 Knapp B Heller, 33 Wis. 467 803 Knappeu v Barry Co. Supervisors, 46 Mich. 23 19 Knight V Clark, 48 N. J. L. 32 774 B Herrin, 48 Me. 538 613 V WeUs, Lutw. 608, 519 649 Knighton t) Curry, 62 Ala. 404 203 Knipe t' Hohart, 1 Lutw. 593 683 Knote V United States, 95 U. S. 149. 78 Knott V Jarboe, 1 Met. (Ky,) 504, . . .' 587 Knowles v Boston, 12 Gray (Mass.) 339 353 V Davis, 3 Allen (Mass.) 61 734 V Luce, Moore 109 649 V Yeates, 31 Cala. 83 149 Knowlton v Bartlett, 1 Pick. (Mass.) 271 239, 591 Knox V Police Jury, 27 La. Ann. 204 842 Kolb V O'Brien, 86 111. 210 724 Koonoe i) Co. Com'rs, 106 N. C. 193. . . 814 Koontz V Franklin County, 76 Pa. St.l54 19 Kopplekom v Huffman, 12 Nebr. 95 187, 190 Kortz V County Canvassers, 13 Abb. N. C. (N. Y.)84 156, 158 Kottman v Ayer, 3 Strobh. (S. C.) 93 630 Kreidler v State, 24 Ohio St. 23 335 Kreitz DBehrensmeyer, 125 111. 141 131, 145, 158 Kress v State, 65 Ind. 106 722, 733 Kribben v Haycraft, 26 Mo. 396 59 Kruttsohnitt v Hauck, 6 Neva. 163. . 274 T achance v Auditor General, 77 -•^ Mich.563 798 Lachmau v Clark, 14 Cala. 131 560 La Croix v Co. Com'rs, 50 Conn. 321 839 Ladbroke v Crickett, 2 T. R. (D. & E.)649 758 Ladd 1) Board of Trustees, 80 111. 233 206, 364 V North, 3 Mass. 514 698 Lafayette v James, 92 Ind. 240. ..276, 378 D State, 69 Ind. 318 150 La Grange v State Treasurer, 34 Sec. Mich. 468 V87, 798. 818 Laimbeer v Mayor, etc.,4Sandf. (N. Y.) 109. 354 Lally V Holland, 1 Swan (Tenn.) 396 743 Lambert, Ex parte, 53 Ala. 79 19 V People, U Hun (N. Y.) 512. . . 646 , V People, 76 N. Y. 220 . . .67, 627, 631, 636, 646, 649, 653, 658 Lament v Haight, 44 How. Pr. (N.Y.)l ,... 737 Lammon i! Feusier, 111 U. S. 17 241 Lainoreaux v O'Ronrke, 2 Keyes (N. Y.)499 106 Lamphere v Grand Lodge, 47 Mich. 429 815 Lampton v Taylor, 6 Litt. (Ky.) 273. 682 Land Comp'y v Board of Education, 101 N. C. 35 560 Landon v Mayor, etc. , 39 N. Y. Super. Ct.467 29 Landram v United States, 16 Ct. of C1.(U.S.)74 12 Lane v Bommelmann, 21 111. 143 560 V Cotton, 1 Salk. 17 ; 1 Ld. Raym. 646; 12 Mod. 472 226,592,724, 7.51 V Harrison, 6 Munf. (Va.) 573. . 288 V Howell, 1 Lea (Tenn.) 275. .. . 273 V Morrill, 51 N. H. 422 842, 849 V Sewell, 1 Chitty 175 477 V State, 47 N. J. L. 363 526 D State, 49 N. ,L L. 673 526 Langdon v Castleton, 30 Vt. 285 492 V Mayor, etc., 63 How. Pr. (N. Y.) 134 347 V Mayor,.etc., 27 Hun (N. Y.) 288 347 1) Mayor, etc., 92 N. Y. 427 347 Lange, Ex parte, 18 WaD. (U. S.) 163 719 1! Benedict, 8 Hun (N. Y.) 362., 719 V Benedict, 73 N. Y. 12. .719, 730, 860 1) Benedict, 99 U. S. 68 719 Langston v United States, 21 Ct. of CI. (U.S.) 10 461 Lanpher v Dowell, 56 Iowa 153 734 Lansing v Wood, 57 Mich. 201 285 Lantz V Hightstown, 46 N. J. L. 103 378 Lapan v Co. Com'rs, 65 Me. 160. . .801, 8' La Pointe v 0' Malley, 46 Wis. 35. . . 332 cxxu CASES CITED Sec. Larew B Newman, 81 Cala. 588 465 Lamed v Briscoe, 62 Mich. S93 73Q 11 Wheeler, 140 Mass. 390... 746, 7B0 Laroche v Wasbrough, 3 T. R. (D. &E.)737 758 Las Anamas Co. Com'rs v Bond, 3 Colo.411 48 Lashus 1) Matthews, 75 Me. 446 758 Latham v Brown, 16 Iowa 118 235 Lattin v Smith, 1 III. 361 758 Lauderdale v Alf ord, 65 Miss. 63 . 205, 219 Lauenstein v Fond du Lac, 28 Wis. 336 573 Lauterjung, In re, 48 N. Y. Super, Ct. 308 802 Laver v McGlaclilin, 28 Wis. 364. .. . 634 Law, Ex -parte, 35 Ga. 285 15 V Law, Cas. Temp. Talbot, 140 ; S. C. 3 P. Wms. 391 50 Lawhome, Ex parte, 18 Gratt. (Va.) 85 325 Lawlor v Alton, 8 Ir. R. Com. L.160 522 Lawrence, Ex parte, 1 Ohio St. 431.. 476 V Mc Alvin, 109 Mass. 311 495 Laws V Burt, 129 Mass. 202. 752 Lawson v Pinclcney, 40 N. Y. Super. Ct.l87 ■.. 561 u State, 10 Ark. 28 763 Lawton v Erwin, 9 Wend. (N. Y.) 233 291 Lazier 1) Westcott, 26 N. Y. 146 558 Leach v Casaidy, 23 Ind. 449 649 uPeople, 122IU. 420 637, 639 Leachman v Dougherty, 81 111. 324. . 760 Leak v Howel, Cro. Eliz. 533 649 Learned v Bryant, 13 Mass. 224. .698, 702 Leavenworth Co. Com'rs v Brewer, 9 Kan. 307 478, 492 Ledbetter v State, 10 Ala. 241 370 Lee, In re, 6 Sawyer (U. S.) 410. ..... 651 1) Colehill, Cro. Eliz. 529 50 D Harper, 90 Ala. .548 814 V Parry, 4 Denlo {N. Y.) 125. . . 1C6 V Supervisors, 62 How. Pr. ■(N.Y.)201 853 u Waring, 3 Desau. (S. C.) 57. . 188 Leech v State, 73 Ind. 570 410, 415 Leeds v Atlantic City, 52 N. J. L. 332 784, 828 Sec, Leefe, In re, 2 Barb. Ch. (N. Y.) 39. . 609 Leeman v Hinton, 1 Duv. (Ky.) 37 320, 334 K State, 35 Ark. 438 527 Lehigh Water Comp'y v Easton, 97 Pa.St.654 815 Leigh, In re, 1 Munf . (Va.) 468 15 « State, 69 Ala. 261 15» , V Taylor, 7 Barn. & Cr. 491. ... 231 Leitch V Wentworth, 71 111. 146 852 Lemont v Dodge Co., 39 Minn. 385 . . 803 Leonard v Bartels, 4 Colo, 95 838 uComm., ]12Pa.St. 607 127 Lescouzeve v Ducatel, 18 La. Ann. 470 234 Levy V Shockley, 29 Ga. 710 688 V Shreveport, 27 La. Ann. 620. 846 V Shurman, 6 Ark. 182 720 Lewark v Carter, 117 Ind. 208 591 Lewenthal v State, 51 Miss. 645 214 Lewes V Thompson, 3 Cala. 266 585 Lewis V ..County Commissioners, 16 Kan. 102 157 V Knox, 2 Bibb (Ky.) 453 581 V Lee County, 66 Ala. 480 229 V Lewis, 9 Mo. 183 570 V Palmer, 6 Wend. (N. Y.) 367 758, 759 I) State, 65 Miss. 468 249 « WaU, 70 Ga. 646 37 V Webber, 116 Mass. 450. . .698, 701 Lexington v MuUiken, 7 Gray (Mass.)280 818 Lexington & H. Turnpike Road Comp'y V McMurtry, 6 B. Mon. (Ky.)214 631 Lidderdale v Montrose (Duke of), 4 T. R. (D. & E.) 248 43, 46 Ligeart v Wiseham, 3 Dyer, 323 (b) . 683 Lightly V Clouston, 1 Taunt. 112 663 Lightner u United States, 18 Ct. of CI. (U.S.) 281 461 Lllienthal v Campbell, 22 La. Ann. 600 722 Limerick t) Murlatt, 43 Kan. 318. .. . 861 Linch V Litchfield, 16 111. App. 612. . . 230 Lincoln v Chapin, 132 Mass. 470..289, 664 1) Hapgood, 11 Mass. 350 746 Linden v Case, 48 Cala. 171 851 CXXlll CASES CITED Sec. Lindsey v Attorney General, 33 Miss.508...' 40, 777 D Auditor, 3 Bus]i(Ky.) 231.... 157 u Luckett, 20 Tex. 516 435 V Parker, 1 42 Mass. C83. 695 Lmess u Hessing, 44 111. 113 54, 55 Linford v Fitzroy, 13 Q. B. (Ad. & E1.N.S.)240; 3NewSess. Cas. 438 ; 18 L. J. M. C. 103 ; 13 Jur. 303 722 Lining v Bentham, 2 Bay (S. C.) 1 713, 733 Linn County v Fan-is, 52 Mo. 75 263 Lisbon v Bow, 10 N. H. 167 630 List V Wlieeling, 7 W. Va. .501 K)2 Litchfield v Register, etc., 9 Wall. (U. S.)575 797 Little V Herndon, 10 Wall. (U. S.) 26 560 V Merrill, 10 Pick. (Mass.) 543. . 740 V Moore, 4 N. J. L. 74 713, 733 uState, 75Tex. 616 172 Little Rock, Ex parte, 26 Ark. 52. . . . 836 Liverpool v Wright, 1 Johns. 359; 28 L. J. Ch. 868; 5 Jur. N. S. 1156 42,52,66, 453 Liverpool Waterworks Comp'y v Atkinson, 6 East 507 ; 2 Smith 654 207 Livingston v Cheetham, 2 Johns. (N.Y.)479 584 V Miller, 48 Hun (N. Y.) 232. . . . 758 V Rector, etc., 45 N. J. L. 230. . 810 Lloyd V Chambers, 56 Mich. 236 814 Loaiza v Superior Ct., 85 Cala. 11. . . 811 Locke I) Central City, 4 Colo. 65 .. 443, 416 I) Lexington, 122 Mass. 290.. 801, 802, 807 D Speed, 62 Mich. 408 814 Lookhart v Troy, 48 Ala, 579. .78, 636, 649, 652 Lockwood, In re, 9 Ct. of CI. (U. S.) 346 70 Logansport v Wright, 25 Ind. 512. . . 648 Logue u Clark, 62 N. H. 184 805 Lombard v Oliver, 3 Allen (Mass.) 1 746 V Oliver, 7 Allen (Mass.) 155 746, 750 Londegan i; Hammer, 30 Iowa 508. . 713 London v Headen, 76 N. C. 72. 167 Seg London!) Vanacker, 1 Ld. Raym. 496; 5 Mod. 438; 12 Mod. 270; Carth. 480; Holt. 431; 1 Salk.142 165, 167 V Wilmington, 78 N. C. 109, 846, 852 Long V County Com'rs, 76 N. C. 273. 553 V Long, 57 Iowa 497 723, 724 V Mayor, etc., 81 N. Y. 425 639 t) Neville, 36 Cala. 455 682 Longacre v State, 3 Miss. 637 .... 664, 665 Longan v Taylor, 130 111. 412 245 Longdill V Jones, 1 Stark. 276; 530 Loomis V Spencer, 1 Ohio St. 153 758 Looney v Hughes, 30 Barb. (N. Y.) 005 221, 283 uHughes, 26N.Y. 514 231, 283 Lord V Every, 38 Mich. 405 780 V Lancey, 21 Me. 468 187 V Oconto, 47 Wis. 386 573 Lord Arlington v Merricke, 2 Sau'nd. 411a 207 Lord Bruce's Case, 2 Stra. 819 780 Lord Hawley's Case, 1 Vent. 143. .. . 418 Lorillard v Monroe, 11 N. Y. 392. .10, , 593 Loring, Ex parte, 94 U. S. 418 820 D Benedict, 15 Minn. 198 433 Lott V Hubbard, 44 Ala. .593 758 Louisiana Nat. Bank v New Orleans, 27La. Ann. 446 ..846, 851 Louisiana State Lottery Comp'y v Fitzpatriek, 3 Wood (U. S.)222 845 Louisville & N. A. R. R. Comp'y v State, 35 Ind. 177 818 Louisville & N. R. R. Comp'y v Davidson Co. Court, 1 Sneed (Tenn.) 637 139 Louisville Industrial School of Re- form V Louisville, 88 Ky. ■ 584 814 Louk u Woods, 15 m. 256 106, 108 Love V Baehr, 47 Cala. 364 468 V Buckner, 4 Bibb (Ky .) 506. . . . 581 vJerseyCity, 40N. J. L. 456... 19 1! Palmer, 7 Johns. (N. Y.) 159. . 683 Lo w I) Pettengill, 12 N. H. 337 338 I) Towns, 8 Ga. 360 298, 795 Lowe V Comm., 3 Met. (Ky.) 337. .19, 305,341,362, 402 CXXIV CASES CITED Lowe 1) Elliott, lOTN. C. 718 802 Lowell V Co. Com'rs, 6 Allen (Mass.) 131 801 » Flint, 20 Me. 401 558 V Parker, 10 Met. Lyman, 11 Mass. 317.. 697, 698, 700 V Windsor, 24 Vt. 575 249, 744 Lynch v Crosby, 134 Mass. 313 801 ^Livingston, 6N. Y. 422 67 Lynde v Noble, 20 Johns. (N. Y.) 80 808 Lyndon v Miller, 36 Vt. 329 219, 288 Lynn v Adams, 2 Ind. 143 737 uPolk, 8Lea(Tenn.)121 730 LyonuComm., 3Bibb{Ky.)430...... 425 « Goree, 15 Ala. 360 724 1) Hunt, 11 Ala. 295 660 V Irish, 58 Mich. 518 774 V Mitchell, 36 N. Y. 235, 682.. . . 56, 57, 61 Lyons v Gloucester City, 49 N. J. L. 177 SCO Lyth V Bufifalo, 48 Hun (N. Y.) 175. . 572 Lyttle 1) Cozad, 21 W. Va. 183 259 Sec. "lyTabry v Baxter, 11 Heisk. (Tenn.) ^^^ 682 ; 532 McAffee v Russell, 29 Miss. 84 516 McAllister i; Scrice, 7 Yerg. (Tenn.) 277 249 V State, 6 Bush (Ky.) 581 78 V United States, 22 Ct. of CI. (U.S.)318 507 McArthur v Nelson, 81 Ky. 67 12 Macbeath v Haldimand, 1 T. R. (D. &E.)172 774 McBeth V Mclntyre, 57 Gala. 49 694 McBratney v Chandler, 22 Kan. 692. 57 McBrlde V Grand Rapids, 17 Mich. 236 492 V Grand Rapids, 49 Mich. 239. . 492 McCaffertyi'Guyer, 59Pa. St. 109.. 125 McCahon v County Com'rs, 8 Kan. 437 641 McCall V Byram Manuf. Comp'y, 6 Conn. 428 649 V Cohen, 16 S. C. 445 713, 721 McCaraher v Comm., 5 Watts & S. (Pa.)21...187, 198,248, 292, 707, 744 McCarthy v Boston, 18S Mass. 197. . . 593 I) Judge, etd., 36 Mich. 274 822 « Syracuse, 46 N. Y. 194 724 McCartle v Bates, 29 Ohio St. 419. . . 66 McCartney i! Shepard, 21 Mo. 573 .. . 682 McCarty v Froelke, 63 Ind. 507 80 McCauley v Brooks, 16 Gala. 11 798 McChesneyi) Trenton, 50 N. J. L. 338 362 McClenticks V Bryant, 1 Mo. 598. .. . 774 McClung V Ross, 5 Wheat. (U. S.) 116 560 D St. Paul, 14 Minn. 420 450 McClure d Hill, 36 Ark. 268 722, 724 McGollum, Ex parte, 1 Cow. (N. Y.) 550 20, 27 McComas v Krug, 81 Ind. 327. . . .370, 400 McConnell v Simpson, 36 Fed. R. (U.S.)750 292 McCord V High, 24 Iowa 336.722, 724, 729 V Pike, 121 III. 288 852 McCormick v Bay City, 23 Mich. 457 262 •B Burt, 95 111. 263 722 D Fitch, 14 Minn. 252. 649 cxxv CASES CITED Sec. McConniok u Syracuse, 25 Hun (N. Y.)300 464 MoCortle v Bates, 29 Ohio St. 419 .. . 121 McCoy V Curtice, 9 Wend. (N. Y.) 17 7,106,108,113, 300 McCracken v Soucy, 29 lU. App. 619 659 V Todd, 1 Kan. 148 182 MeCraw v Williams, 33 Gratt. (Va.) 510 623, 652 McCreary 1) Rogers, 35 Ark. 298 822 McCue t) Superior Ct., 71 Gala. 545.. 805 V WapeUo County, 56 Iowa 698 517, 661 McCullooli V Stone, 64 Miss. 378. .. . 798 McCurdy v Rogers, 21 Wis. 197 774 McDanieluKing, 89N. C. 29 818 t) Tebbetts, 60 N. H. 497 741 McDermott v Miller, 45 N. J. L. 251 828 McDonald v Atkins, 13 Nebr. 568 .. . 233 I! Mayor, etc., 68 N. Y. 23 551 t) Rehrer, 22 Fla. 198 848, 850 V Woodbury County, 48 Iowa 404 478 McDougal V Hennepin County, 4 Minn.184 48 McDowell V Burivell, 4 Rand. (Va.) 317 259 u Mass. & S. Construction Comp'y, 95 N. C. 514 137 McEachron v New Providence, 35 N.J. L.528 187 McElhaney v Gilleland, 30 Ala. 183 Za McGahen ti Carr, 6 Iowa 331 560 McGargello! Hazleton Coal Comp'y, 4W. &S. (Pa.)424 623 McGee i) Eastis, 3 Stew. (Ala.) 307. . . 577 11 Gill, 79 Ky. 106 314 V State, 103 Ind. 444 785, T87 McGehee i> Gewin, 25 Ala. 176. . .232, 600 1) Lindsay, 6 Ala. 16 611 MoGiU V Burnett, 7 J. J. Marsh. (Ky.)640 59 MoGowen v Deyo. 8 Barb. (N. Y.) 340 675 McGrath v Chicago, 24 111. App . 19 . 315 McGregort) Allen, 33La. Ann. 870.. 425 I! Balch, 14 Vt.. 428 649 V Loganspor t . 79 Ind. 166 612 McGre w 1) Go ven I . r, 19 Ala. 89 237 Sec. MoGrory v Henderson, 43 Hun (N. Y.)438 792 McGuffle 1) State, 17 Ga. 497 575 McGulnty v Herrick, 5 Wend.,(N. Y.)240.. 758 McGuire, In re, 50 Hun (N. Y.) 203. . 98 D Galligan, 57 Mich. 38 724 Maohiasport v Small, 77 Me. 109. ... 605 Mcluery v Galveston, 58 Tex. 334. . . 452 Mclnstry v Tanner, 9 Johns. (N. Y.) 135 623,636, 649 Mclntyre v School Trustees, 3 111. App.77 218 V TrumbuU, 7 Johns. (N. Y.) 35 588 McKay v Buffalo, 9 Hun (N. Y.) 401 593 V narrower, 27 Barb. (N. Y.) 163 ma McKecknie v Ward, .58 N. Y. 541. . . . 2t3 McKee v Cheney 53 How. Pr. (N. Y.) 144..; 57 V Grlffln, 66 Ala. 311. . . .230, 2:i6, 241 V Love, 2 Overt. (Tenn.) 243. .. . 242 McKeoni)Horsfall, 88N. Y. 429.... 493 Mackey, Ex parte, 15 S. C. 322 818 McKim V Somers, 1 Penn. (Penrose & Watts) 297 421, 631, 649 McKinley v Bowe, 97 N. Y. 93 689 V Freeholders, 29 N. J. Eq. 164. 849 McKinnon v People, 110 111. 305 145 Macklot V Davenport, 17 Iowa 379.. . 722 McLean v Buchanan, 8 Jones L. (N.C.)444 162 » Cook, 23 Wis. 364 7£8 V State, 8 Heisk. (Tenn.) 22. . . . 665 McLeod V Burkhalter, 57 Miss. 65. . . 612 McMahan v Green, 34 Vt. 69 765, 768 McMahon v Lennard, 6 H. L. Cas. 970 300 V Mayor, 66 Ga. 217 132 McManust;Newark,49N. J. L. 175. 347 McMeechen, Ex parte, 12 Ark. 70. . . 836 McNee i) Sewell, 14 Nebr. 533., 210 McNeill, In re. 111 Pa. St. 235 397 McNutt V Livingston, 15 Miss. 641,. . 249 Macomber v Doane, 2 Allen (Mass.) 541 44 Macon v Cook, 2 Nott & Mo C. (S.C.) 379 722. « Shaw, 16 Ga. 172 369 CXXVl CASES CITED Sec. Macon v Shaw's Adm'r, 25 Ga. 590. . 369 MoOsker v Burrell, 55 Ind. 435 722 McRea v Mc Williams, 58 Tex. 328. . 257 McRoberts v Winant, 15 Abb. Pr. N. S. (N. Y.) 210 173 MoSpedon v Supervisors, 10 Abb. Pr. (N. Y.) 233; 18 How. Pr. (N. Y.)152 106, 112 V Supervisors, 21 How. Pr. (N , Y.) 288 106, 112 McTeer b Lebow, 85 Tenn. 121. . .722, 729 McVeany v Mayor, etc., 1 Hun (N. Y.)35 513 V Mayor, etc., 80 N.Y. 185. .397, 499, 513 Madison v Kelso, 32 Ind. 79 389 D Korbly, 32 Ind. 74 364, 389 Madison Co. « TuUia, 69 Iowa 720. . . 231 Magee v Supervisors, 10 Cala. 376. . . 157 Magie v Stoddard, 25 Conn. 565. . .31, 36 Magnay v Burt, 5 Q. B. {Ad. & EL, N. S.) 381 ; Dav. & M. 652; 7 Jur. 1116 758, 764 MagruderuSwann, 25Md. 173...795, 796 Maguire v Smocli, 42 Ind. 1 59 Mohaska County v Ingalls, 14 Iowa 170 279 V Ruan, 45 Iowa 328 239 Mahone, Ea; porte, 30 Ala. 49 814 Malcom v Rogers, 5 Cow. (N. Y.) 188 547, 548 Mallan v Bransf ord, 86 Va. 675 840 MaUett I! Uncle Sam G. &' S. Mining Comp'y, 1 Neva. 188 . . 649, 657 Mailing Union v Graham, L. R. 5 C. P. 201; 39 L.J. C. P. 74; 22 L. T..789 ; 18 W. R. 674 269 Mallory v Supervisors, 2 Cow. (N. Y.) 531 478 V United States, 3 Ct. of CI. (U.S.)257 11 Malone v United States, 5 Ct. of CI. (U.S.)486 223 Mandell d New Orleans, 21 La. Ann. 9 19 Mandeville v Reynolds, 5 Hun (N. Y.)338 558 Reynolds, 68 N. Y. 528 658 Mangam v Brooklyn, 98 N. Y. 585. . . 12 Mangold v Thorpe, 33 N. J. L. 1134 713,722, 733 Manley v Atchison, 9 Kan. 358 284 Mannix u State, 115 Ind. 245 828 Manor v McCall, 5 Ga. 522 814 Mansfield v Sumner, 6 Met. (Mass.) 94 588 Marathon School District v Gage, 39 Mich.484 48' Marbury v Madison, 1 Cranch (U. S.) 137....88, 314, 711, 787, 794, 797, Marden ti Portsmouth, 69 N. H. 18. . 19 Margate Pier v Hannam, 3 B. & A. 266 649 Marie v Garrison, 45 N. Y. Super. Ct.l57 64 D Garrison, 83 N. Y. 14 64 Markle j) Co. Com'rs, 55 Ind . 185 . . . . 846 1) Wright, 13 Ind. 548 850 Marlar ii State, 62 Miss. 677 286 Marney v State, 13 Mo. 7 204, 272 Marquette County v Ward, 50 Mich. 174 279 Marsh,Jrere, 71N. Y. 316 559 V Chamberlain, 2 Lans. (N. Y.) 287 542 V Gold, 2 Pick. (Mass.) 285. . . . . 682 Marshall v Baltimore & O. R. R. Comp'y, 16 Hew. (U. S.) 314 57 V Dunn, 69 Cala. 223 495 V Hamilton, 41 Miss. 229 191 V Harwood, 5 Md. 423 314, 320, 325 1) Hosmer, 4 Mass. 60 688 « Sloan, 35 Iowa 445 818 Martin v Ingham, 38 Kan. 641 . . .795, 796 V Mayor, etc., 1 Hill (N. Y.) 545 548, 549, 593, 708, 709 V Mott, 12 Wheat. (U. S.) 19. . . 713 V Pettit, 3 Met. (Ky.) 314. . .713, 720 u Royster, 8 Ark. 74 579 V Seeley, 15 Nebr. 136 247 ■•D Supervisors, 29 N. Y. 645 553 11 Wade, 37 Cala. 168 54, 55 Martyn v Blithman, Yelv. 197 683 Mason D Briggs, 16 Mass. 453 706 V Vance, 1 Sneed (Tenn.) 178 . . 759 Massing v State, 14 Wis. 502 478 Mast V Nacogdoches Co., 71 Tex. 380 289 CXXVll CASES CITED Sec. Mastin v Cullom, 28 Ala. 670 447 Mathei) Plaquemines Parish, 28 La. Ann. 77 543 Mathis V Morgan, 72 Ga. 517 267 Matthews v Alexandria, 68 Mo. 115 573 V Densmore, 109 U. S. 216 758 DHoughton, UMe. 377 338, 539 1) Lee, 25 Miss. 417 187 u Light, 33 Me. 305 560 V Montgomery, 25 Miss. 150 233 V Supervisors, 53 Miss. 715.510, 517, 518 MattOou t) Kidd, 7 Mass. 33 579 Mauran v Smith, 8 R. 1. 192 795 Maximilian v Mayor, etc., 2 Hun (N.Y.)263 593 Maxmilian » Mayor, etc., 63 N. Y. 160 593 Maxwell u Bay City Bridge Comp'y, 41Mich.453 573 B Co. Com'rs, 119 Ind. 20 552 i)McIlvoy,2Bibb(Ky.)211..592, 751 ■i) Pike, 2 Me. 8 349 ■0 Tolly, 26 S. C. 77 156, 542 May V Walters, 2 McCord (S. C.) 470 587 Mayfleld v Moore, 53 lU. 428.522, 523, 661 Maynard v Board of Canvassers, 84 Mich.228 140 Mayo V Co. Com'rs, 141 Mass. 74. . . . 822 V Renfroe, 66 Ga. 408 187, 195 Mayor, etc., Tn re, 34 Hun (N. Y.) 441 28 Z« re, 99 N. Y. 569 28 In re, 1 Stra. 583 778 D Blache, 6 La. 500 384 V Bowman, 39 Miss. 671 580 V Crowell, 40 N. J. L. 207.205, 213, 272 V Dlckerson, 45 N. J. L. 38 288 U Evans, 31 N. J. L. 343 187 V Fahm, 60 Ga. 109 473 V Flagg, 6. Abb. Pr. (N. Y.) 296 517 uGear, 37 N. J. L. 365. . .19, 364, 366, 396, 411, 443, 512 u Gill, 31 Md. 375 853 V Hayes, 10 Irish R., Com. Law Series226 452 D Hays, 35 Ga. 590 389, 516 D Hoffman, 29 La. Ann. 651.... 624 V Horn, 2 Harr. (Del.) 190. . 305, 213 Sec. Mayor,etc.,DHufE,60Ga.321....6ia, 620 V Jackson, 1 Dougl. (Mich.) 106. 551 B Kamena, 41 N. J. L. 435 214 uKeUy, 98N. Y. 467 371 i; Keyser, 72 Md. 106 852 V Knight, 13 Lea (Tenn.) 700. . . 273 V Markwick, 11 Mod. 164 609 V Merritt, 27 La. Ann. 568 283 D Muzzy, 33 Mich. 61 492 1) Oswald, 1 E. & B. 295; 32 L. J.Q.B.139 269 V Quaife, 26 N. J. L. 63 450 V Redmond, 28 La. Ann. 274. . . 283 DRoot,8Md.95 48 V Ryan, 7 Daly (N. Y.) 436 341 tj Shaw, 16 Ga. 172 362, 369, 516 V Shaw's Adm'r, 25 Ga. 590 . . . . 369 iiSibberns, 3 Abb. Ct. App. (N. Y.) 266; 35 How. Pr. (N. Y.)408 378 u State, 15 Md. 376 19, 73 D Stout, 53 N. J. L. 35 286 V Thompson, 12 Lea (Tenn.) 344 649 V Tucker, 1 Daly (N. Y.) 107. .82, 624, 649 V Woodward, 12 Heisk. (Tenn.) 499 516 Mead v Co. Treasurer, 36 Mich. 416 362, 834 V Haws, 7 Cow. (N. Y.) 332 765 MeadowsuNesbit,13Lea(Tenu.)486. 830 Meagher v Storey County, 5 Neva. 244 516,637, 661 Means D Hendershott, 34 Iowa 78... 486 Mears v Comm., 8 Watts (Pa.) 323.. 199 Meehau v Hudson County, 46 N. J. L.276 518, 523 Meeks v Windon, 10 W. Va. 180 805 Meguire v Corwlne, 3 MaoArthur (D.C.)81 54 t) Corwine, 101 U. S. 108 54, 55 Mehringer v State, 20 Ind. 103 36 Melllss V Shirley Local Board, L. R. 16Q. B. D. 446; 55L. J. Q. B. 143; 53L.T. 810; 34 W. R. 187 ; 50 J. P. 214 613 Melvin, In re, 68 Pa. St. 333. .146, 148, 149 Memphis v Woodward, 12 Heisk. (Tenn.) 499 516 CXXVlll CASES CITED Sec. Mendocino County v Morris, 35 Gala. 145 185 Merchants' Bank v Bergen County, 115U.S. 384 551 Meredith v Ladd, 2 N. H. 517. .50, 55, 579 V Supervisors, 50 Cala. 433 825 Meredith's Case, 33 Gratt. (Va.) 119. 320 Merrell v Campbell, 49 Wis. 535. .. . 48 Merriam, In re, 84 N. Y. 596 108, 604 V Supervisors, 72 Cala. 517 851 MerriolL v Township Board, 41 Mich. 630 803 V Wallace, 19 111. 486 742 Merrill v Berkshire, 11 Pick. (Mass.) 268 106 V Palmer, 13 N. H. 184 631, 649 V Plainfleld, 45 N. H. 126 852 Merritt v Lambert, 10 Paige (N.Y.) 352 13 Merryweather v Nixan, 8 T. R. (D. &E.)186 682 Merwin v Chicago, 45 m. 133 48 V Rogers, 24 N. Y. St. Rep'r 496 ; 6 N. Y. Supp. 882. .. . 733 Messinger v Kintner, 4 Binn. (Pa.) 97 720 Metevier v Therrien, 80 Mich. 187. .. 362 Methwold v Walbank, 2 Ves. 238.. . . 52 Metropolitan Board of Health v Heister, 37 N. Y. 661. . .28, 539 MetskeruNeally, 41Kan. 122...404, 828 Metzger B Attica & A. R. R. Comp'y, 79N.Y.171 853 Meyer v Bishop, 27 N. J. Eq. 141 ... . 13 V Dubuque fio., 43 Iowa 592. .. . 818 Miami v Blake, 21 Ind. 32 19 Michaelis v Jersey City, 49 N. J. L. 154 347 Mickles v Hart, 1 Denio (N. Y.) 548. . 588 Middleton v Low, 30 Cala. 593 796 Midland Co. Sup'rs v Auditor Gen- eral, 27 Mich. 165 802, 810 Milburn v Gilman, 11 Mo. 64 758 Miles V Bradford, 22 Md. 170 795 V Thome, 38 Cala. a35 56 MiUord v Milford Water Comp'y, 124Pa. St.610 620 Millard v Jenkins, 9 Wend. (N. Y.) 298 722 Sec. MiUe Lacs Co. Treas. uDike,20Minn. 363 798 Miller v Bradford, 12 Iowa 14 742 D Brown, 56 N. Y. 383 500, 736 V Callaway, 32 Ark. 666. . . .659, 660 V Commissioners, 1 Ohio 271. . . 189 V Commonwealth, 8 Pa. St. 444 211 V Davis, 7 Ired. (N. C.) 198 205 V English, 21 N. J, L. 317 785 V Ford, 4 Rich. L. (S. C.) 376. . . 774 V Grandy, 13 Mich. 540 851 V Grice, 2 Rich. L. (S. C.) 27. . . 734 V Lewis, 4 N. Y. 654 10, 568 V Lockwood, 17 Pa. St. 248. ... 530 V Macoupin County, 7 111. 60. . . 218 V Moore, 2 Humph. (Tenn.) 421 187 V Moore, 3 Humph. (Tenn.) 189 215 1) Rhoades, 20 Ohio St. 494 682 V Rucker, 1 Bush (Ky.) 135.722, 749 V School Trustees, 88 111. 26. . . 801 V Scare, 2 W. Blackst. 1141 ... . 713 V Stem, 12 Pa. St. 383 259 V Stewart, 9 Wheat. (U. S.) 680 270, 274 V Supervisors, 25 Cala. 93. .2, 170,413, 540 V Yeadon, 3 McCord (S. C.) 11. 587 MiUett V Parker, 3 Met. (Ky.) 608. . . 263 Millholland v Bryant, 39 Ind. 363 ... . 144 Milliken v City Council, 54 Tex. 388 828 Mills V Mills, 36 Barb. (N. Y.) 474. . . r6 uMills, 40N. Y. 543..... 56 Milner v Reihenstein, 85 Cala. 593. . 465 Milward v Thatcher, 2 T. R. (D. & E.)81 30 Milwaukee County v Hackett, 21 Wis.613 466 Milwaukee Co. Sup'rs V Ehlers, 45 Wis. 281 220 «Pabst, 70Wis. 352 220 Milwaukee Iron Comp'y v Schubel, 29Wis.444 802 MimsD Mims, 35 Ala. 23 742 Minier, Ex porte, 2 Hill (N. Y.) 411. . 447 Minkler v State, 14 Nebr. 181 367 Minor v Happersett, 21 Wall. (U. S.) 162 123,124, 129 Minot V West Roxbury, 112 Mass. 1 495 CXXIX CASES CITED Sec. Mississippi V Johnson, 4 Wall. (U. S.) 475 635,794, 843 Mississippi Central R. R. Comp'y v State, 46 Miss. 157 635 Missoula Co. Com'rs v McCormick, 4Mont. 115 204 Missouri v Wlnterbottom, 123 U. S. 215 285 Missouri R., Ft. S. & G. R. R. Comp'y V Co. Com'rs, 13 Kan.230 843 Mitchell V Boardman, 79 Me. 469. ... 816 V County Com'rs, 18 Kan. 188. . 542 V County Com'rs, 24 Minn. 459 551 1) Horton, 75 Iowa 271 113 V United States, 18 Ct. of CI. (U.S.)281 461 Mobile V Louisville & N. R. R. Comp'y, 84 Ala. 115 847 Mobile & O. R. R. Comp'y v Wis- dom, 6 Heisk. (Tenn.) 125 818 MofEett V Hill, 131 111. 239 131 Mohan 1) Jackson, 52 Ind. 599 29, 37 Mohawk & Hudson R. R. Comp'y, In re, 19 Wend. (N. Y.) 136 631, 649 Moher D O'Grady, 4 L. R. Ir. 54 65 Money v MacLeod, 2 Sim. & St. 301. 52 Monk V New Utrecht, 104 N. Y. 552. 737 Monreal v Bush, 46 Cala. 79 811 Monroe D Collins, 17 Ohio St. 665.125, 132, 748 V Mayor, etc., 38 Hun (N. Y.) 258 347,456, 513 Monroe Co. Sup'rs u Clark, 25 Hun {N.Y.)282 278, 295. V Clark, 92 N. Y. 391 .... 269, 278, 295 V Otis, 63 N. Y. 88 283 Montague v Dudmau, 2 Ves. Sr. 396 843 cMassey, 76 Va. 807 465 Monteith v Comm., 15 Gratt. (Va.) 172 288 Montgomery v Governor, 8 Miss. 68. 204 V Hughes, 65 Ala. 201 213 . V Louisville & N. R. R. Comp'y, 84 Ala. 127 847 Montgomery Co. Com'rs v Bromley, 108Ind.l58 496 Sec. Monticello B Lowell, 70 Me. 437 227 Montville v Haughton, 7 Conn. 548. . 188 Mooers v Smedley, 6 Johns. Ch. (N.Y.)28 847, 849 V White, 6 Johns. Ch. (N. Y.) 360 609 Moon u Cort, 43 Iowa 503 816 uWellford, 84Va. 34.. 818 Mooney v Edwards, 51 N. J. L. 479 539,821, 822 Moore v Allegheny City, 18 Pa. St. 55 758 D Allen, 25 Miss. 363 682 l> Boudinot, 64 N. C. 190 215 D Fargo, 113 Mass. 254 706 1- Kessler, 59 Ind. 153. 156 c Loring, 106 Mass. 455 700 V MoKinley, 60 Iowa 367 195 1) Madison County, 38 Ala. 670 208 II State, 9 Mo. 330 182 11 Steelman, 80 Va. 331 848 V Treasurers, 1 Nott & McC. (S.C.)214 295 Moore Co. Com'rs v Mac Rae, 89 N. C.95 283 Moran v McClearns, 4 Lans. (N. Y.) 288 567 1) Rennard, 3 Brewst. (Pa.) 801 732 Morange v Mix, 44 N . Y. 315 707, 744 Moravia v Sloper, Willes 30 768 Morbeo « State, 28 Ind. 86 224 More V Superior Ct., 64 Cala. 345. . . 837 Moren » Blue, 47 Ala. 709 506 Moretz B Ray, 75 N. C. 170 250 Morgan v Dudley, 18 B. Mon. (Ky.) 693 713,722, 749 V Gloucester, 44 N. J. L. 137 . . . 150 D Hale, 13 W. Va. 713 682 V Hughes, 2 T. R. (D. & E.) S5 734 u Long, 39 Iowa 434 233 u Miller, 59 Iowa 481 846 V Quackenbush, 32 Barb. (N. Y.)72 156,378,538, 641 V Register, Hardin (Ky.) 609. . . 812 V Vance, 4 Bush (Ky.) 323 173 Morley v Metamora, 78 111. 394 245 Morrell t! Quarels, 35 Ala. 544 486 11 People, 32 111. 499 653 V Sylvester, 1 Maine 248 170 cxxx CASES CITED Sec. Morrill v Haines, 2 N. H. 846 10 D Thurston. 46 Vt. 732 734 Morris v Burdett, 1 Campb. 218 477 t) Carey, 27 N. J. L. 377 713 DMcCuUock, Ambler 432; 2 Eden 190 50, 52 D Mayor, etc., 99 N. Y. 645 456 V Powell, 125 Ind. 281. .125, 132, 133 t) State, 47 Tex. 583 290 V Vanlanlngham, 11 Kan. 269. . 147 Morrison v Howe, 120 Mass. 565 7S6 V McDonald, 21 Me. 550 713 V MoFarland, 51 Ind. 206 722 V Say re, 40 Hun (N. Y.) 465.636, 649 Morrow v State, 5 Kan. 563 571 i) "Wood, 56 Ala. 1 :....220, 279 Morse D Galley, 5 N. H. 222 624 D WiUiamson, 35 Barb. (N.Y.) 472 736 Morton V Campbell, 37 Barb. (N. Y.) 179 674 V Comptroller General, 4 S. C. 430 535 u Lee, 28 Kan. 286 6C2, 649 V ScuUy, 9 Ir. R. C. L. 217 100 Mosby V Mosby, 9 Gratt. (Va.) 684. . 238 Mosedel v Middleton, T. Raym. 222 ; 1 Tent. 237 6SJ Moser v Mayor, etc., 21 Hun (N. Y.) 163 5 V Shamleffer, 39 Kan. 635 325 Moses V Kearney, 31 Ark. 261 816 Mosness, In re, 39 Wis. 509 15 Moss V Cmnmings, 44 Mich. 359.707, 708 D State, 10 Mo. 338 205 Mostyn v Fabrigas, I Cowp. 161.711, 713 Mott V Robbins, 1 Hill (N. Y.) 21.579, 596, 682 Moultoni! Norton, 5 Barb. (N. Y.) 286 591 D Reid, 54 Ala. 320 850 Mount Morris Elec. Light Comp'y I! Grant, 55 Hun (N. Y.) 222 849 Mowbray v State, 88 Ind. 324.183,187, 262, 263, 265 Mowery v Camden, 49 N. J. L. 106 802,807, 808 Moyer v Cantieny, 41 Minn. 242 59 Sec. Muhler v Hedekin, 119 Ind. 481. .392, 850 Mulhalli) Quinn, 1 Gray (Mass.) 105. 44 Mullen V Whitmore, 74 N. C. 477 598, 601 MuUlkin v State, 7 Blaokf. (Ind.) 77 273 Mullinga v Bothwell, 29 Ga. 706 688 Mumford v Memphis & C. R. R. Comp'y, 2 Lea (Tenn.) 393 278 Munf ord v Rice, 6 Munf . (Va.) 81 . . . 205 Munsell v Temple, 3 Gilm. (lU.) 93 66 Mtirphy v East Portland, 42 Fed. R. (U.S.)308 844 V English, 64 How. Pr. (N. Y.) 862 64 V New Orleans, 11 La. Ann. 323 486 « Ramsay, 114 U. S. 15 748 V She^pard, 52 Ark. 356 630 V Superior Ct. , 58 Gala. 520 . 835, 837 V Superior Gt., 84 Cala. 592 .837, 838 1) Webster, 131 Mass. 482 352 Murray v Clarendon, L. R. 9 Eq. 11. 842 V Shearer, 7 Gush. (Mass.) 333 . 700 Murtagh v Conner, IS Hun (N. Y.) 488 493 Muscatine W. R. R. Comp'y v Horton, 38 Iowa 33 722 Musselman v Comm., 8 Pa. St. 240 182, 187 Mutual Life Ins. Comp'y v Dake, 1 Abb. N. G. (N. Y.) 381. ,. . 743 D Dake, 87 N. Y. 257 743 Mutual Loan Ass'n v Price, 16 Fla. 204 213 Muzzy V Shattuck, 1 Denio (N. Y.) 233 221 Myers v Chalmers, 60 Miss. 772 820 V Marshall County, 55 Miss. 344 447 V United States, 1 McLean (U. S.)493 204, 208 Mygatt V Washburn, 15 N. Y. 316 541, 738 Nalle V Fenwick, 4 Rand. (Va.) 585 556, 560 Names v Highway Com'rs, 30 Mich. 490 802 CXXXl CASES CITED Sec. Nash, In re, 16 Abb. Pr. (N. Y.) 281, 25 How. Pr. N. Y. 307; 5 Park. Cr. (N. Y.) 473 534 Fugate, 24 Gratt. (Va.) 202 259, 263 V Fugate, 32 Gratt. (Va.) 595. . . 259 D People, 36 N. Y. 607 534, 539 NashvlUe v Knight, 12 Lea (Tenn.) 700 273 Nason v Directors of the Poor, 126 Pa.St.445 106, 225 National Bank of Chemung v Elmira,6Lans.(N.Y.)116 738 V Elmira, 53 N. Y. 49 . . .551, 738, 758 National Fire Ins. Comp'y v Loomis, 11 Paige (N. Y.) 431 64 Naylor v Sharpless, 2 Mod. 23 604 Neal « Allen, 76 Va. 437 465 Neale v Overseers, 5 Watts (Pa.) 538 661,664, 668 Neeland v State, 39 Kan. 154. . . .778, 850 Nef zger v Davenport & St. P. Ry. Comp'y, 36 Iowa 642 138 Neighbour v Trimmer, 16 N. J. L. 58 722 Neiser t) Thomas, 99 Mo. 224 848 Nelson t) Cook, 17 111. 443 682, 688 1) Mayor, etc., 63 N. Y. 535 551 V Milford, 7 Pick. (Mass.) 18.. . 495 ^feth V Crofut, 30 Conn. 580 758 Nevil V Clifford, 55 Wis. 161 852 New Haven & N. Comp'y t) Hayden, 117 Mass. 433 478 New Orleans v Gauthreaux, 36 La. Ann. 109 215 New Orleans Elev. R. Comp'y v New Orleans, 39 La. Ann. 127. 844 Nev;- Orleans, M. &. C. R. R. Comp'y V Dunn, 51 Ala. 128 852 New Providence v McEachron, 33 N. J. L. 339 224 New York & Brooklyn S. M. & L. Comp'y V Brooklyn, 8 Hun (N. Y.)37 593 V Brooklyn, 71 N. Y. 580 593 New York & Harlem R. R. Comp'y V Mayor, etc., 1 Hilt. (N. Y.) ,562 29 New York Central & H. R. R. R. Comp'y, In re, 7 Abb. N. Sec. C. (N. Y.)408 478 New York Fire Department v Atlas Steamship Comp'y, 106 N. Y. 566 12 New York Life Ins. & T. Comp'y v Staats, 21 Barb. (N. Y.) 570 606 Newark v Stout, 52 N. J. L. 35 286 Newbern Bank v Jones, 2 Dev. Eq, (N. C.) 284 249 Newburg v Munshower, 29 Ohio St. 617...; 769 Newbnrgh Turnpike Comp'y v Miller, 5 Johns. Ch. (N. Y.)101 547 Newcum v Kirtley, 13 B. Mon. (Ky.) .515 159 Newell V People, 7 N. Y. 9 606 Newlin, In re, 133 Pa. St. 541 820 Newman v Superior Ct., 62 Cala. 545 805 V Sylvester, 42 Ind . 106 774 Newmeyer v Missouri & M. R. R. Comp'y, 53 Mo. 81 852 NewsomuEarnheart, 86N. C. 391.. 138 Newson v Cocke, 44 Miss. 352 354 Newton v Commissioners, 100 IJ. S. 559 19 V Newell, 26 Minn. 529 145, 158 Nichols t! Branham, 84 Va. 923 522 V Comptroller, 4 Stew. & P. (Ala.) 154 304 V MacLean, 101 N. Y. 526 . .18, 19, 522, 659 V MacLean, 19 Week. Dig. (N. Y.)96;63How.Pr.(N.Y.) 448 ,522, 659 V Moody, 22 Barb. (N. Y.) 611. . 774 V Mudgett, 32 Vt. 546 54 V Thomas, 4 Mass. 233 758, 765 Nicholson v Cook, 76 Ga. 24 848 Nieoulin v Lowery, 49 N. J. L. 391 . . 805 Niles V Muzzy, 33 Mich. 61 492 Nims V Spurr, 138 Mass. 209 705 Noble D Himeo, 12 Nebr. 193 241 uHolmes, 5Hill(N. Y.)194.... 758 Noel V Fisher, 3 Call (Va.) 215 579 Nolan V New Orleans, 10 La. Ann. 106 473 Noland v Busby, 28 Ind. 154 758, 761 CXXXll CASES CITED Seo. Nolley V Callaway County Court, 11 Mo. 447 231 Nooe V Bradley, 3 Blaokf. (lud.) 158. 435 Norcross v Nunan, 61 Cala, 640 758 Normand v Co. Com'rs, 8 Nebr. 18. . t'oS Norridgewocku Hale, 80 Me. 362.205, 213 Norria D Ea; parte, 8 S. C. 408 333, 643 V Mersereau, 74 Mich. 687 ; 43 N.W.153 241 North V Gary, 4 T. & C. (N. Y.) 357 788, 791 North Carolina v Temple, 134 U. S. 22 798, 834 Northrop v Gregory, 2 Abb. (U. S.) 503 327 Northwestern N. C. R. R. Comp'y V Jenkins, 65 N. C. 173. . . 798 Northwood v Barrington, 9 N. H.369 624 Norton 1) Nye, 56-Me. 211 588 V Shelby County, 118 U. S. 425 628,638,649, 730 Nowell V Tripp, 61 Me. 426 758, 761 ■» Wright, 3 Allen (Mass.) 166 724, 728 Nowles V County Com'rs, 86 Ind. 179 478 Noxont) Hill, 2 Allen (Mass.) 215.729, 734 NuU I) Zierle, 52 Mich. 540 807 /"kakes V Hill, 8 Pick. (Mass.) 47. . . . 815 ^^ V HiU, 10 Pick. (Mass.) 333. 746 Oakley v Mayor, etc., i Hun (N. Y.) 72 ; 6 T. & C. (N. Y.) 221..7, 478 Oaths, etc., In re, 20 Johns (N. Y.) 492 4, 14 Oats V Bryan, 3 Dev. L. (N. C.) 451. . 215 O'Brian v Knivan, Cro. Jac. 552 649 O'Brien V Annis, 120 Mass. 143 336 V McCann, 58 N. Y. 373 561 Ocean u Lacey, 42 N. J. L. 536 823 O'Connor i;0'Connor,47N.Y. Super. Ct.498 447, 482 OcontoCounty uHall, 47Wis. 208.. 251 Odincal v Barry, 24 Miss. 9 66 Odiome V Rand, 59 N. H. 504 741 Odom V GUI, 59 (Ja. 180 588 O'Donnel v Dusman, 39 N. J. L. 677 828 O'Donohue v Simmons, 31 Hun (N. Y.)267 681,685, 691 O'Dowd V Boston, 146 Mass. 443 364 Sec. O'Ferrall v Colby, 2 Minn. 180 156 Ogden i; Maxwell, 3 Blatchf . (U. S.) 319 445, 530 « Raymond, 22 Conn. 379 7 Oglesby u Sigman, 58 Miss. 502. .143, 114 O'Gorman v Mayor, etc., 67 N. Y. 480 494 O'Hair v Wilson, 124 111. 351 131, 143 O'Hara v State, 112 N. Y. 146 551 Ohio & I. R. R. Comp'y D Co. Com'rs, 70hioSt.278 823 OhmuSuperiorCt., 85Cala. 545.... 802 Old town V Bangor, 58 Me. 353 128 Clean v King, 42 Hun (N. Y.) 651 ... . 273 V King, 116 N. Y. 355. . .253, 273, 289 O'Leary v Board of Education, 9 Daly (N. Y.) 161 505 »BoardofEducation,93N.Y.l 505 Oliphant v Co. Com'rs, 18 Kan. 386 . . 842 Olive V Ingram, 2 Str. 1114 68 Oliver u Americus, 69 Ga. 165 396 V Town, 24 Wis. 512 338 Olmstead v Mayor, etc., 42 N. Y. Super.Ct.481 2, 6 Olmsted v Dennis, 77 N. Y. 378 . .327, 410,658,659,666,724, 787 u Elder, 5 N. Y. 144 106 Ohiey V Wickes, 18 Johns. (N. Y.) 122 774 Olson V Circuit Judge, 49 Mich. 85. . 818 O'Marrow v Port Huron, 47 Mich. 585 185 Omro Sup'rs v Kaime, 39 Wis. 468 225, 436 Onondaga Co. Sup'rs v Briggs, 2 Denio (N. Y.) 26 552, 564 Opinion of the Justices, 12 Fla. 651 78 12Fla. 653 405 14Fla. 277 173 3Me.481 3 3Me.486 36 38Me.597 158, 163 50Me.607 320 64Me.596 156,158, 320 68Me.594 37, 38 70Me.560 143 70 Me. 566 143 70Me.593 171 107Ma88.60'- 69 cxxxm CASES CITED Sec. Opinion of the Justices, 115 Mass. 603 69 UTMass. 599 157 117 Mass. 603 19 138Masa. 601 802 145 Mass. 687 97 58N.H.621 156 O'Rear i' Kiger, 10 Leigh (Va.) 622. . 579 Oregon v Jennings, 119 TJ. S. 74 604 Oregon Territory v Pyle, 1 Oreg. 149 19 O'ReiUy v Kingston, 39 Hun (N. Y.) 285 617 Orono V Wedgwood, 44 Me. 49 289 Orr, Ex parte, 51 Ala. 43 840 D Box, 22 Minn. 485 758 Oshome v Kerr, 12 Wend. (N. Y.) 179 774 B Tunis, 25 N. J. L. 633 556, 606 Osborne Co. Gom'rs B Honn, 23 Kan. 256 482 Oscanyan v Arms Company, 103 U.S. 261 65,57, 60 V Winchester Rep. Arms Comp'y, 15 Blatch. C. C. (U.S.)79 55 Osgood D Jones, 60 N. H. 282. 156 V Jones, 60 N. H. 543. . . 776, 778, 850 V Nelson, 41 L. J. Q. B. 329; L. R.5H.L.636 393 O'Shaughnessy v Baxter, 121 Mass. 515 754, 765 Osterhoudt v Rigney, 98 N. Y. 222. . . 853 Osterhout v Hyland, 27 Hun (N. Y.) 167 863 Ostrander v People, 29 Hun (N. Y.) 513 651 Oswald V Mayor of Berwick, 5 H. L. 856 ; 2 Jur. N. S. 743 269 Oswego Falls Bridge Comp'y v Fish, IBarb. Ch. (N. Y.)547... 553 OtasDWiUiams, 70N. Y. 208 766 Ottawa D People, 48 111. 233 814, 816 Ottendorfer v Agnew, 13 Daly (N.Y.)16 863 Otterbourg v United States, 5 Ct. of CI. (U. S.)430 178 Outon V Rodes, 3 A. K. Marsh. (Ky.) 432 50, 55 Overacre v Garrett, 5 Laus. (N. Y.) 166 209 Overseers, etc., v Overseers, etc., 18 Sec. Johns. (N. Y.) 407 644 Overseers, etc., t! Overseers, etc., 82 Pa.St.25 819 Owen D Baker, 101 Mo. 407 568 D Saunders, 1 Ld. Ray. 158 86 Owens V Crossett, 105 lU. 354 846 V Gatewood, 4 Bibb (Ky.) 494.. . 478 i! O'Brien, 78 Va. 116 173 "Dace I! People, 50 111. 432 414 •^ Pacheco v Beck, 52 Cala. 3 156 Peiciflc R. R-. Comp'y v Governor, 23M0.353 796 Page 1) AUen, 58 Pa. St. 338 132, 133 i: Clopton, 30 Gratt. (Va.) 415. 813 V Hardin, 8 B. Mon. (Ky.) 648 341, 346, 364, 422, 437, 570 V Supervisors, 85 Cala. 50. .150, 823 Palmer, In re, 1 Abb. Pr. N. S. (N.Y.)30 107 D Bate, 2 Brod. & Bing. 673; 6 Moore28 42, 578 ■B Doney, 2 Johns. Cas. (N. Y.) 346 lOo, lOr V Mayor, etc., 2 Saudf. (N. Y.) 318 19, 478 V Oakley, 2 Dougl. (Mich.) 433 720 « Vaughan, 3 Swanst. 173 42 V Woods, 75 Iowa 402 286 Palo Alto County v Burlingame, 71 Iowa201 447 Paola & Fall River By. Comp'y v County Com'rs, 16 Kan. 302 106, 557 Pappa V Rose, L. R. 7 C. P. 32, 525. . . 716 Paradise Road, In re, 29 Pa. St. 20. . 106 Parcel v State, 110 Ind. 122 320 Paris u Hiram, 12 Mass. 262 425 Park V United States, 9 Ct. of CI. (U.S.)315 11 Parker 0) Baker, 8 Paige (N. Y.) 428 649 D Kett, 1 Ld. Raym. 658 ; 1 Salk. 95 583, 625 V Rule, 9 Cranch (U. S.) 64 . . . . 560 u Smith, 3 Minn. 240 80 V Walrod, 16 Wend. (N. Y.) 514 758 V Warren, 2 AUen (Mass.) 187 700 Parkinson v Parker, 48 Iowa 667. .. . 741 Parks, Ex parte, 3 Mont. 426 624 CXXXIV CASES CITED Sec. Parks V Boston, 8 Pick. (Mass.) 218 801, 802 « Marquette Judge, 38 Mich. 344 822 Parliamentary Elections Act, in re, 6 Ir. R. C. L. 464 ; 20 W. R. 833 ; 27 L. T. Rep. 69. . 160 Parmater v State, 102 Ind. 90 320 Pairet D Shaubhut, 5 Minn. 323 743 Parrott v Bridgeport, 44 Conn. 180. . 833 1) Knickerbocker Ice Comp'y, 8 Abb. Pr. N. S. (N. Y.) 234 106, 539 Parse! u Barnes, 25 Ark. 261 551 V Merchants' Nat. Bank, 25 Ark. 272 551 Parsons v Loyd, 3 Wils. 341 768 V Pettingell, 11 AUen (Mass.) 507 110 V Thompson, 1 H. Blaokst. 322 50, 52 Partridge v Jones, 38 Ohio St. 375. . . 196 Patchin v Ritter, 27 Barb. (N. Y.) 34 758 Patrick v Solinger, 9 Daly (N. Y.) 149....- 765 Patterson v Anderson, 40 Pa. St. 359 682 V Barlow, 60 Pa. St. 54 132, 134 V D'Auterive, 6 La. Ann. 467. . 749 D Hubbs, 66 N. C. 119 850 V MiUer, 2 Met. (Ky.) 493. . .659, 660 Patton V Coates, 41 Ark. Ill 156 V Stephens, 14 Bush (Ky.) 324. . 852 ■u Vaughan, 39 Ark. 211 304, 354, 396 Paulding v Cooper, 10 Hun (N. Y.) 20 724 Paw Paw V Eggleston, 25 Mich. 36. . 204 Pawling V United States, 4 Cranch (U.S.) 219 269, 260 Payne v Green, 18 Miss. 507 768 V McCabe, 37 Ark. 318 802, 805 Peabody v State,' 4 Ohio St. 387 235 Pearce, Ea; porte, 44 Ark. 509 803 V Atwood, 13 Mass. 324 609, 762 V Hawkins, 2 Swan (Tenn.) 87 649, 660 Pearsall, In re, 9 Abb. Pr. N. S. (N. Y.)203 107 Sec. Pearson v United States, 9 Ct. of CI. (U.S.) 152 11 V Wilsoi;!, 57 Miss. 848 1T2 Peavey v Robbins, 3 Jones L. (N.C.) 339 723, 749 Peck II Belknap, 55 Hun (N. Y.) 91 98, 833 V Freeholders, etc., 20 N. J. L. 457 609 V James, 3 Head (Tenn.) 75. . . . 253 I! Rochester, 18 N. Y. St. Rep'r 244; 3N. Y. Supp. 872.... 95 Pedlgo V Grimes, 113 Ind. 148 131 Peebles v Breaswell, 170 N. C. 68. . . . 804 V County Commissioners, 82 N.C. 385. 158 Peel V Elliott, 7 Abb. Pr. (N. Y.) 433; 16How. Pr. (N. Y.) 481.. 644 V ElUott, 28 Barb. (N. Y.) 200.. 544 Peeling v York County, 113 Pa. St. 108 467 Peirce v "Weare, 41 Iowa 378 649 Pell V Ulmar, 21 Barb. (N. Y.) 500 . . 606 D Ulmar, 18 N. Y. 139 106 Penn v Ingles, 82 Va. 65 848 B ToUison, 26 Ark. 545 635 Pennie v Reis, 80 Cala. 266 '. 496 t) Reis, 132 U. S. 464 498 Pennington v Gammon, 67 Ga. 456. . 543 t) Streight, 54 Ind. 376 5S7 Pennsylvania, Ex parte, 109 U. S. 177 837 Penobscot Boom Corp'n v Wilkins, 27Me.345 703 Penryn, Mayor of. In re, 1 Stra. 582 778 People V Adams, 51 Hun (N. Y.) 583 98 D Adams, 53 Hun (N.Y.) 141... 96 t> Addison, 10 Cala. 1 310, 321 V Aikenhead, 5 Cala. 106 214 V Albany Common Pleas, 19 Wend. (N. Y.) 27 408 V Albany County Sup'rs, 13 Wend. (N. Y.) 257 478 V Albertson, 8 How. Pr. (N. Y.) 363 623, 653 V Alberston, 55 N. Y. 50 20, 28 D Allegany Co. Sup'rs, 15 Wend. (N. Y.) 198 808 V AUen, 43 Barb. (N. Y.) 203 663,788, 790 cxxxv CASES CITED Sec. People V Allen, 51 How. Pr. (N. Y.) 9T 788, 791 V Allen, 1 Lans. (N. Y.) 248. .. . 798 D Allen, 42 N. Y. 404 798 D Ames, 19 How. Pr. (N. Y.) 551 145, 564 e Amnions, 10 111. 105 649 V Andrews, 52 N. Y. 445 803 11 Angle, 47 Hun (N. Y.) 183. . . . 95 1) Angle, 109 N. Y. 564 95 B Anthony, 6 Hun (N. Y.) 143. 656 V Anthony, 25 HI. App. 532.814, 820 V Anthony, 129 111. 218 814 1) Assessors, 39 N. Y. 81 802 D Assessors, 40 N. Y. 154 802 V Attorney General, 32 Barb. (N.Y.)114 814 « Auditor, 2 m. 537 19 V Auditor, 3 111. 567 558 V Auditor General, 9 Mich. 141 798 D Auditor General, 36 Mich. 271 820, 822 » Auditors, etc., 13 Mich. 233. . 459 V Auditors, etc., 42 Mich. 4S£. 798, 819 V Baker, 14 Abb. Pr. (N. Y.) 19 821 V Bank of North Am. 75 N. Y. 547 570 1) Banvard, 27 Cala. 470 19 V Barber, 48 Hun (N. Y.) 198 123, 129 BBardin, 7N. Y. Supp. 123.... 96 t! Barker, 20 Johns. (N. Y.) 457 74 V Barnes, 66 Cala. 594 814, 820 V Barnes, 114 N. Y. 317 820, 821 V Barnett Township, 100 111. 332 327,328, 411 V Barrett, 29 N. Y. St. Rep'r 159; 8 N.Y. Supp. 677.... 791 V Bartlett, 6 Wend. (N. Y.) 422 649, 785 V Batchellor, 53 N. Y. 128. .. . 254 V Batchelor, 28 Barb. (N. Y.) 310 106, 112, 113, 114 V Batchelor, 22 N. Y. 128. . . .20, 106, 110, 112, 113, 114, 311 Sec. People u Beach, 77 111. 52 632 V Bearfleld , 35 Barb. (N. Y.) 254 396 V Bedell, 2 Hill (N. Y.) 196. . .8, 10 V Bell, 54 Hun (N. Y.) 567. . 153, 154 B Bell, 119 N. Y. 175 153, 154 V Bell, 21 N. Y. St. Kep'r 895; 3N Y. Supp. 314 372 V Bell, 24 N. Y. St. Rep'r 114; 4N. Y. Supp. 869 372 V Bell, 24 N. Y. St. Rep'r 301 ; 3N.Y. Supp. 812 372 ti Bell, 29 N. Y. St. Rep'r 551 ; 8 N. Y. Supp. 748 372 V Bell, 32 N. Y. St. Rep'r 914 ; ION. Y. Supp. 829 372 V Bennett, 54 Barb. (N. Y.) 480 26 V Benton, 27 N. Y. 387 798 V Berner, 13 Johns. (N. Y.) 383' 286 DBingham, 82Cala. 238....397, 778 11 Bi8sell,-49 Cala. 407 431 V Blssell, 19 111. 229 795, 796 V Blackford, 16 111. 166 272 V Blanding, 63 Cala. 333 93 V Blodgett, 13 Mich. 127 141 V Board of Assessors, 16 Hun (N. Y.)40r.... 806 V Board of Assessors, 39 N. Y. 81 802 V Board of Assessors, 40 N. Y. 154 802 V Board of Canvassers, 12 Abb. N. C. (N. Y.) 77; 64 How Pr. (N. Y.) 334 156 V Board of Canvassers, 46 Hun • (N. Y.)390; 20Abb. N.C. (N.Y.)19 155 V Board of Canvassers, 54 Hun (N.Y.) 595 156, 157 1) Board of Education, 54 Cala. 375 802 V Board of Excise, 24 Hun (N. Y.) 195 810 u Board of Police, 3 Abb. App. Deo. {N. Y.)488 381 V Board of Police, 35 Barb. (N. Y.) 644; 14 Abb. Pr. (N.Y.)151 408 V Board of Police, 12 Hun (N. y.)663 456 CXXXVl CASES CITED People 1) Board of Police, 46 Hun (N.Y.)296 93, U7 V Board of Police, 26 N. Y. 316 408 V Board of Police, 39 N. Y. 506 398 V Board of Police, 69 N. Y. 408 398 V Board of Police, 72 N. Y. 415 398 V Board of Police, 75 N. Y. 38 453, 456 V Board of Town Auditors, 74 N.Y.310 737 V Board of Town Auditors, 75 N.Y.316 737 ■uBostwick, 43Barb.(N.Y.)9.. 261 V Bostwick, 32 N. Y. 445 261 . I- Bradley, 64 Barb. (N. Y.) 228 108, 605 V Breen, 53 N. Y. Super. Ct. 167 320 ■B Brenham, 3 Gala. 477 150 V Brennan, 39 Barb. (N. Y.) 651 814 D Brighton, 20 Mich. 57 802 I) Brite, 55 Gala. 79 425 V Brooklyn, 8 Hun (N. Y.) 56. . 801 V Brooklyn, 77 N. Y. 503. . . .10, 185 V Brooklyn Oom'rs, 103 N. Y. 370., 364 V Brooklyn Gom'rs, 106 N. Y. 64 364 1) Brooks, 16 Gala. 11 798 V Brown, 47 Hun (N. Y.) 459 181, 667 V Bull, 46 N. Y. 57. ..20, 84, 148, 311,323, 325 D Bunker, 70 Gala. 213 668 V Burbank, 12 Gala. 378 320 V Burkhart, 76 Gala. 606 236 V Burnside, 3 Lans. (N. Y.) 74. 373 V Burrows, 27 Barb. (N. Y.) 89 ; 16 How. Pr. (N. Y.) 27. . . . 443 D Bush, 40 Gala. 344 539, 729 1) Gady, 99 N. Y. 620 560, 830 V Cady, 51 N.Y. Super. Gt. 316 560, 830 V Calhoun Go. Sup'rs, 36 Mich. 10 478 V Callaghan, 83 lU. 128 778, 781,782, 784 i)Campbell,2Gala.l35. 118,435, 436 V Campbell, 8 111. 466 446 Sec. People V CarapbeU, 72 N. Y. 496 818 V Campbell, 82 N. Y. 247 ... 374, 398 V Campbell,- EON. Y. Super. Ct. 82 365, 381, 388 V Canaday, 73 N. C. 198. .. .125, 132,133, 137 V Canal Board, 55 N. Y. 390 842, 846 V Carpenter, 24 N. Y. 86 540 V Carr, 86 N. Y. 512 798 « Carr, 100 N. Y. 236 309 V Carrique, 2 Hill (N. Y.) 93 . .31, 350, 354 V Carroll, 43 Hun (N. Y.) 438 371,382, 388 V Carter, 52 Hun (N. Y.) 458. . . 802 • V Cazneau, 20 Gala. 504 100, 328 V Champion, 16 Johns. (N. Y.) 61 834 V Chapin, 103 N. Y. 635 8^ V Chapin, 104 N. Y. 96 . .798, 815, 820 D Chapin, 104 N. Y. 369. .802, 807, 808 1) Chapin, 105 N. Y. 309 798 I) Chapin, 106 N. Y. 265 802 V Chenango Co. Sup'rs, 11 N. Y. 563. 106,541,609, 818 V Christie, 115 N. Y. 158 811 1) Church, 6 Gala. 76 316 V Church, 3 N. Y. Grim. R. 57; 1 How. Pr. N. S. (N. Y.) 366 668 a)Clcott,16Mich.283...145,156, 158 V Circuit Judge, 38 Mich. 244. . 822 » Civil Service Boards, 17 Abb. N. C. (N. Y.) 64 ; 3 How. Pr. N. S. (N. Y.) 40 98 V Civil Service Boards, 41 Hun (N. Y.) 287 98 ■0 Clayton, 4 Utah 421 785 V Glingan, 5 Gala. 389 . . 171, 30O, 624 uClute, 13 Abb. Pr. N. S. (N.Y.) 399 38,81,126, 162 V Glute,63Barb. (N. Y.)356. .81, 126, 162 V Clute, 50 N. Y. 451 ; 10 Am. B. 503. .39, 81, 126, 139, 162, 163 V Cobb, 14 Abb. N. C. (N. Y.) 493 802 CXXXVll CASES CITED People V Coleman, 107 N. Y. 541 V Collins. 7 Johns. (N. Y.) 549 Sec. 811 V Collins, 19 Wend. (N. Y.) 56 535, 539, 816, I! Columbia Co. Sup'rs, 67 N. Y. 649 834 330 813 J) Com'rs of Canal Fund, 3 Hill (N.Y.)599 606 D Com'rs of Highways, 27 Barb. (N. Y.) 94 108 V Common Council, 16 Abb. N. C. (N. Y.)96 816 V Common Council, 65 Barb. (N. Y.) 9; 45 How. Pr. (N. Y.)289 803,804, 808 V Common Council, 38 Hun (N.Y.)7 802 V Common Council, 18 Mich. 338 825 V Common Council, 77 N. Y. 503 - 10, 185 V Common Council, 78 N.Y. 33 820 V Common Council, 78 N. Y. 56 549, 815 D Common CouncU, 101 N. Y. 82 617 V Comptroller, 77 N. Y. 45 798 1) Comptroller, 20 Wend. (N. Y.)595 10,304, 361 V Conover, 17 N. Y. 64 29 V Connor, 13 Mich. 238 785 DCook, 14 Barb. (N. Y.) 259 138, 147, 653 V Cook, 8 N. Y. 67. .138, 147, 156, 631, 653 V Coon, 15 Wend. (N. Y.) 277 855, 860 u Cooper, 21 Hun (N.Y.) 517... 809 V County Canvassers, 12 Abb. N. C. (N. Y.) 77 ; 64 How. Pr.(N.Y.)334 156 V County Canvassers, 46 Hun (N.Y.) 390; 20Abb. N.C. (N.Y.)19 155 V County Canvassers, 54 Hun (N.Y.) 595 156, 157 V County Court, 28 Hun (N.Y.) 14 624 Sec. People V County Judge, 13 How. Pr. (N. Y.)277 821 1! County Treasurer, 86 Mich. 416 824 V Court of Sessions, 45 Hun (N. Y.)54 802 V Coutant, 11 Wend. (N.Y.) 132 320 D Covert, IHiU (N.Y.) 674.649, 807 «Covill, 20Hun(N. Y.)460.... 808 1) Cowles, 13 N. Y. 360 152 V Crawford, 7 Alb. L. J. 204. . . . 27 V Crissey, 91 N. Y. 616. .140, 150, 152,173,181,331,332,405, 463 1) Culldm, 100 111. 472 795, 796 11 Gushing, 36 Hun (N. Y.) 483 216 1) Dayton, 50 How. Pr. (N. Y.) 143; 3 Weekly Dig. (N. Y.)341 43 V Dean, 3 Wend. (N. Y.) 438.82, 170 D De CarrlUo, 35 Cala. 37 539 V Delegates of S. F. Fire Dep't, 14Cala. 479 802 V De Mill, 15 Mich. 164 783 V Dennison, 28 Hun (N. Y.) 328 805 i> Detroit, 18 Mich. 338 825 D Devlin, 33 N. Y. 269 19, 443 V Dickson, 57 Hun (N. Y.) 312. . 815 V District Court, 6 Colo. 534. . . 839 V District Court, 11 Colo. 574. . 837 V District Court, 14 Colo. 396 813, 820 V Donohue, 15 Hun (N. Y.) 418. 805 V Doolittle, 44 Hun (N. Y.) 393. 383 V Draper, 24 Barb. (N. Y.) 265. . 850 V Draper, 25 Barb. (N. Y.) 344 . 28 D Draper, 15 N. Y. 532 28 II Duane, 55 Hun (N. Y.) 315 .. . 39 i> Duane, 131 N. Y. 367. 37, 39 » Dubois, 23 111. 547 305 V Dubois, 33 111. 9 798, 815 « Dulaney, 96 111. 503 822 «Dunkirk,38Hun(N.Y.)7.802, 806 V Durston, 3 N. Y. Supp. 523 95, 354 D Dutchess Co. Sup'rs, 9 Wend. (N.Y.)508 642 » Dwyer, 90 N. Y. 402 845 D Edmonds, 15 Barb. (N. Y.) 529 609 CXXXVlll CASES CITED Sec. People V Edwards, 9 Gala. 288 182 D El Dorado County, 8 Gala. 58 533 V Election Gom'rs, 54 Gala. 404 839 V Ennis, 27 N. Y. St. Rep'r27B; T N. Y. Snpp. 630 380 D Evans, 29 Gala. 429 185 V Every, 38 Mich. 405 780 V Excise Board, 24 Hun (N. Y.) 195 810 V Excise Gom"rs, 61 How. Pr. (N. Y.)514 837 V Fairbury , 51 111. 149 150, 325 11 Fairchild, 67 N. Y. 334. . . .808, 822 D Fancher. 50 N. Y. 288 100 « Faulkner, 38 Hun (N. Y.) 607 226 V Faulkner, 107 N. Y. 477 226 V Ferguson, 8Gow. (N. Y.) 102. 145 V Ferguson, 20 Week. Dig. (N. Y.)276 173 V Ferris, 16 Hun (N. Y.) 219.325, 825 V Ferris, 76 N. Y. 326 825 I' Fields, 58 N. Y. 491 851 V Fire Gom'rs, 12 Hun (N. Y.) 500 374, 382 V Fire Oom'rs, 23 Hun (N. Y.) 317 361 V Fire Gom'rs, 43 Hun (N. Y.) 554 374 I) Fire Gom'rs, 47 Hun (N. Y.) 528 348 V Fire Gom'rs, 72 N. Y. 445 347,365,366,379,382, 398 V Fire Gom'rs, 73 N. Y. 437.354, 366 V Fire Gom'rs, 77 N. Y. 153.382, 398 V Fire Gom'rs, 77 N. Y. 605.398, 804 u Fire Gom'rs, 82N.Y. 358. .370, 398 V Fire Gom'rs, 86 N. Y. 149 . . . . 361 V Fire Gom'rs, 96 N. Y. 672 ... . 377 V Fire Gom'rs, 100 N. Y. 82. .398, 810 V Fire Gom'rs, 106 N. Y. 257. . . 374 V Fire Gom'rs, 114 N. Y. 67 348 ■» Fire Gom'rs, 3 N. Y. St. Rep'r 144 382 t)Fire Gom'rs, 26 N. Y. St. Rep'r 648 ; 7 N. Y. Supp. 439 380 V Fire Com'rs, 49 N. Y. Super. Ct.369 377 Sec People V Fire Com'rs, 9 Week. Dig. (N. Y.) 390 370, 398 I) Fitzsimmons, 68 N. Y. 514. . . . 86 V Flanagan, 6 Hun (N. Y.) 187 127 u Flanagan, 66 N. Y. 237 127 I! Fogg, 11 Gala. 351 824 V Force, 100 111. 549 613, 616 u Forquer, 1 111. 104 815, 825 V Fowler, 55 N. Y. 252 823 u Fredericks, 48 Barb. (N. Y.) 173 806 V French, 24 Hun (N. Y.) 263 503, 822 V French, 25 Hun (N. Y.) HI; 10 Abb. N. C. (N. Y.) 418. 347 BFrench, 32Hun(N. Y.)l]2... 371 V French, 44 Hun (N. Y.) 24. . . . 359 V French, 46 Hun (N. Y.) 232. . . 359 V French, 51 Hun (N. Y.) 345 ; 20 N. Y. St. Rep'r 928 ; 4 N.Y. Supp. 330 9« c French, 52Hun(N.Y.) 90.370, 398 V French, 52 Hun (N. Y.) 464. . . 97 u French, 91 N. Y. 265 503 V French, 102 N. Y. 583 . 348, 370, 388 1) French, 108 N. Y. 105 359 D French, 110 N. Y. 645 370 V French, 119 N. Y. 493 811 t) French, 119 N. Y. 603. 370, 380, 811 V French, 2 N. Y. St. Rep'r 608 389 V French, 11 N. Y. St. Rep'r 520 98 V French, II N. Y. St. Rep'r 577 370 DFrench, 13N. Y. St. Rep'r584 389 V French, 23 N. Y. St. Rep'r 384 ; 5 N. Y. Supp. 57 384 V French, 25 N. Y. St. Rep'r 536 ; 6 N. Y. Supp. 213. . . 386 V French, 29 K. Y. St. Rep'r 304 ; 8 N. Y. Supp. 459... . 811 V French, 29 N. Y. St. Rep'r 923 ; 8 N. Y. Supp. 874. ... 370 V French, 31 N. Y. St. Rep'r 87; 9 N.Y. Supp. 262 372 V French, 32 N. Y. St. Rep'r • 190 ; 10 N. Y. Supp. 217. . . 370 1! French, 32 N. Y. St. Rep'r 444 ; 10 N. Y. Supp. 792. . . 370 D French, 32 N.Y. St. Rep'r 557 ; 11 N. Y. Supp. 181. . . 370 CXXXIX CASES CITED Sec. People V French, 32 N. Y. St. Rep'r 840 ; 10 N. Y. Supp. 860. . . 370 0! Fulton Co. Sup'rs, 53 Hun (N.Y.)254 820 V Gardner, 55 Cala,. 304 236 V (iarey, 6 Cow. (N. Y.) 642. .19, 20, 27 1) Garner, 47 111. 246 139 V Garnett, 130 111. 340 818, 820 ■0 Gasherie, 9 Johns. (N. Y.) 71 . 295 1) Gerow, 66 N. Y. 606 816 V Gilon, 24 Abb. N. C. (N. Y.) 125 820 U GUon, 121 N. Y. 551 802, 806 V Goddard, 8 Colo. 432 75 V Goodwin, 22 Mich. 496 425 V Governor, 29 Mich. 320. . .795, 796 B Grant, 12 Daly (N.Y.) 294.366, 394 V Grant, 58 Hun (N. Y.) 455 547, 822 V Green, 5 Daly (N. Y.) 254. .34, 37,422, 50O V Green, 46 How. Pr. (N. Y.) 169 34, 37 t) Green, 58 N. Y. 295. .19, 34, 37, 422, 500 V Green, 2 Wend. (N.Y.) 266.. 320 V Greene Co. Sup'rs, 14 Abb. N. C.(N.Y.)29 820 V Greene Co. Sup'rs, 12 Barb. (N.Y.) 217 155,157, 825 » Gunn, 85 Cala. 238 150, 781 1) Hall, 80 N. Y. 117 397 I! Hall, 104 N. Y. 170 101 D Halsey, 37 N. Y. 344 816 V Hamilton, 24 111. App. 609. . . 79 i) Hamilton Co. Sup'rs, 56 Hun (N.Y.)459 821 V Hammond, 66 Cala. 654 304 D Hanif an, 96 111. 420 31 V Hannan, 56 Hun (N. Y.) 469 360, 379 D Harper, 91 111. 357 253 V Harrington, 63 Cala. 257..112, 604 «Harshaw,60Mioh. 200...397, 782 V Hartley, 21 Cala. 685 195 V Hartwell, 67 Cala. 11 419 D Hart well, 12 Mich .508 150 V Haskell, 5 Cala. 357 19 Sec. 305 815 818 354 People u Hastings, 29 Cala. 449 D Hatch, 33 111. 9 798, V Hawkins, 46 N. Y. 9 V Hayden, 32 N. Y. St. Rep'r m6;10N.Y. Supp. 794... V Hayes, 7 How. Pr. (N. Y.) 248 2. 10 ■uHayt, 7Hun(N. Y.) 39 20 ' 1) Hayt, 66 N. Y. 606 20 11 Head, 25 111. 325 787, 825 V Health Department, 24 Week. Dig. (N. Y.) 197 347, 364 u Henry, 62 Cala. 557 29 V Henshaw, 76 Cala. 436 315 IjHioks, 105N. Y. 198 811 V Higgins, 15 111. 110 362 V Higgins, 3 Mich. 233 145 V Highway Com'rs, 16 Mich. 63 338 D Hill, 7 Cala. 97 304,341, 354 D Hill, .53 N. Y. 547 803, 804 D Hilliard, 29 111. 413 156 V HiUs, 1 Laus. (N. Y.) 202 783 V Hillsdale & C. Turnpike Comp'y, 2 Johns. (N. Y.) ISO 780 uHoffman, 116 lU. 587.132, 133, 134 V Holden, 28 Cala. 123 777, 779 uHolley,12Wend. (N. Y.)481.. 173 D Hopkins, 55 N. Y. 74 586 t) Hopkins, 1 T. & C. (N. Y.) 195 586 V Hopson, 1 Denio (N. Y.) 574 82,517,649,654, 659 V Hosmer, 2 How. Pr. N. S. (N.Y.)472 135 V Hubbard, 23 Cala. 34 818 vHulse, 38Huu(N. Y.)388.... 820 1) Huson, 78 Cala. 154 288 D Hyde Park, 117 111. 462 823 uHynds,30N. Y. 470 108 V Illinois Cent. R. R. Comp'y, 62111. 510 815 t> IngersoU, 58 N. Y. 1 851 V Inspectors, etc., 4 Mich. 187.. 816 D Jack, 4 Utah 438 785 V Jansen, 7 Johns. (N. Y.) 332. . 283 V Jenkins, 17 Cala. 500 2^, 288 vJewett,6Cala.291 3il, 368 cxl CASES CITED Sec. People I! Johr, 22 Mich. 461 . . .182, 185, B85 u Jones, 20 Cala. 50 159 1) Jones, 49 Hun (N.Y.)365.. 807, 810 D Jones, 112 N. Y. 597. .802, 807, 810 ?) Jourdan, 90 N. Y. 53 398 i; Judge, 29 Mich. 487 818 V Judge, 36 Mich. 274 822 D Judge, 41 Mich. 5 820 V Kane, 23 Wend. (N. Y.) 414. . 649 V Keeler, 25 Barb. (N. Y. ) 421 . . 27 V Keeler, 17 N. Y. 370 27, 148 » Keeling, 4 Colo. 129 781-, 782 I) Kelsey, 34 Gala. 470 305 v Kennedy, 37 Mich. 67 145 D Kenney, 96 N. Y. 294 140 V Kent Co. Sup'rs, 38 Mich. 421 816 « Ketchum, 72 111. 212 815 V Kilduff, 15 111. 492. . . .144, 156, 159, 787 V Kings Co. Sup'rs, 38 Hun (N.Y.)373 457 V Kings Co. Sup'rs, 106 N. Y. 180 457,461, 464 V Kingston & M. Turnpike Road Comp'y, 23 Wend. (N.Y.)193 421 V Kingston Common Council, 101N.Y.82 617 V Knapp, 22 N. Y. St. Rep'r 468 ; 4 N. Y. Supp. 825 96, 98 V Kneissel, 53 How. Pr. (N. Y.) 404 103 V Knickerhocker, 114 111. 539. . . 822 V Knight, 13 Mich. 230 781, 785 V Knight, 13 Mich. 424 150 uKoppelkom, 16 Mich. 342 132,135, 138 » Lacoste, 37 N. Y. 192 '. . . . 785 c Laine, 33 Cala. 55 135, 138 1) Lane, 55 N. Y. 217 825 V Laugdou, 40 Mich. 673 8 c Leahy, 71 N. Y. 527 551 1) Leaton, 121 ni. 666 249, 745 D Leavitt, 41 Mich. 470 807 « Lee, 28 Hun (N. Y.) 469 10 V Leonard, 73 Cala. 230 81 D Leonard, 74 N. Y. 443 822 V Letson, 3 How. Pr. N. S. (N. Y.)381 837 Sbc. People V Lieb, 85 111. 484 649 11 Lippincott, 67 111. 333 19 V lavingston Co. Sup'rs, 26 Barb. (N. Y.) 118 539 V Livingston Co. Sup'rs, 43 Barb. (N. Y.) 232 539 u Livingston Co. Sup'rs, 12 How. Pr. (N. Y.) 204 639 V Livingston Co. Sup'rs, 34 N. Y.616 805 V Locke, 3 Sandf . (N. Y.) 443 . . 676 w Lohnas, 54 Hun {N. Y.) 604 . . 805 V Londoner, 13 Colo. 303. . .397, 781 V Loomis, 8 Wend. (N. Y.) 396 145,785, 786 V Lord, 6 Hun (N. Y.) 390. . . .66, 551 DLord,9Mlch.227..84,101,312, 326 V Lott, 43 Hun (N. Y.) 408 818 « Love, 19 Cala. 676 190 V Lucas, 25 Hun (N. Y.) 610. ... 240 1) Lucas, 93 N. Y. 585 230, 240 V Lyons, 7 Daly (N. Y.) 182 ... . 671 V MoAdam, 2 Browne Civ. Proc. Rep. (N. Y.) 52; 2 McCarty Civ. Proc. Rep. (N.Y.)86 837 V McAdam, 28 Hun (N. Y.) 284 823 V McAdam, 91 N. Y. 655 823 V McCarthy, 102 N. Y. 630. .803, 810, 811 DMcClave,99N. Y. 83 322 D McClave, 121 N. Y. 677 811 V McClave, 123 N. Y. 512.. . .380, 385, 388, 811 u McClave, 29 N. Y. St. Rep'r 366 ; 8 N. Y. Supp. 615. ... 811 1) McClave, 31 N.Y. St. Rep'r 246; 9 N.Y. Supp. 263.... 373 V McClave, 32 N. Y. St. Rep'r 434 ; 11 N. Y. Supp. 124. . 370 V McClave, 32 N. Y. St. Rep'r 820 ; 10 N. Y. Supp. 560. . . 370 V McHatton, 7 111. 638 271, 273 uMcIver, 68N. C.467 331 V McKinney, 52 N. Y. 374. . ..20, 24,311, 328 V McLane, 62 Cala. 616 818 V MacLean, 25 Abb. N. C. (N. Y.)470 81fi cxli CASES CITED Sec. People V MacLean, 57 Hun (N. Y.) lil 3T2, 380 V MaoLean, 58 Hun (N. Y.) 152 365 V MacLean, 131 N. Y. 704 372 I) MacLean, 29 I'f. Y. St. Rep'r 108 ; 8 N. Y. Supp. 511 ... . 372 V MacLean, 32 N. Y. St. Rep'r 838;11N.Y. Supp. 110... 372 V MacLean, 32 N. Y. St. Rep'r 844 ; 10 N. Y. Supp. 851 .. . 370 cMcManus, 34 Barb. (N. Y.) 620 22 How. Pr. (N. Y.) 25 158, 172 « MoNeal, 63 Mich. 294 145 V Manistee Co. Sup'rs, 26 Mich. 432 813 V Mann, 32 Hun (N. Y.) 440. .. . 309 » Mann, 97 N. Y. 530 309 D^Marin Co. Sup'rs, 10 Cala. 344 540 » Martin, 13 Cala. 409 150 1) Martin, 121 N. Y. 676 373 V Martin, 29 N. Y. St. Rep'r 369 ; 8 N. Y. Supp. 516. .. . 373 D Martin, 32 N. Y. St. Rep'r 440 ; 11 N. Y. Supp. 123. . . 833 B Martin, 32 N. Y. St. Rep'r 543; ION. Y. Sup >. 511. . . 388 uMatteson, 17 111. 167 158, 159 B May, 3 Mich. 598 73 DMayor,etc.,5Barb. (N.Y.)43.. 354 V Mayor, etc., 32 Bi.rb. (N. Y.) 103 849 V Mayor, etc., 3 Hill (N. Y.) 9 802, 804 V Mayor, etc., 3 Hun (N. Y.) 433; 5T. &C. (N.Y.)6L.. 605 V Mayor, etc., 16 Hun (N. Y.) 309 361 V Mayor, etc., 52 Hun (N. Y.) 483 371 V Mayor, etc., 3 Johns. Cas. (N. Y.)79....... 624, 825 V Mayor, etc., 63 N. Y. 291 605 e Mayor, etc. , 83 N. Y. 491 361 V Mayor, etc., 10 Wend. (N. Y.) 395 819 t) Mayor, etc., 35 Wend. (N. Y.) 680 510 V Mayworm, 5 Mich. 146.. . .172, 785 Seo. People i)Meakim,56Hun(N.Y.)626.. 830 V Meishan, 1 Hill {N. Y.) 298. . , 670 V Mersereau, 74 Mich. 687 ; 42 N.W. 153 241 V Metropolitan Board of Police, 35 Barb. (N. Y.) 644; 14 Abb.Pr. (N. Y.) 151 408 V Metropolitan Board of Police, 19N.Y.188 427 V Metropolitan Board of Police, 26N. Y.316 408, 427 V Metzker, 47 Cala. 524 397 V Middleton, 28 Cala. 603. ..... 12 B Miles, 2 Mich. 348 785 D Miller, 43 Hun (N. Y.) 463 815,818, 833 « Miller, 16 Mich. 56 172 u Miller, 24 Mich. 458 532 V Mills, 32 Hun (N. Y.) 459 89 V Mitchell, 4 Sandf . (N. Y.) 466 676 1) Mizner, 7 Cala. 519 331 uMoUtor, 33 Mich. 341 163, 785 V Moore, 73 111. 133 781, 782 V Moore, 39 Hun (N. Y.) 478. . . 97 V Moore, 16 N. Y. St. Rep'r 469 ; IN. Y. Supp. 405 807 « Morrell, 21 Wend. (N. Y.) 563 20 V Mosier, 56 Hun (N. Y.) 64. .801, 805 V Murray, 15 Cala. 221 148 V Murray, 8 Daly (N. Y.) 347 . . . 37 V Murray, 5 Hun (N. Y.) 43.17, 86 V Murray, 8 Hun (N. Y.) 577 . . . 86 V Murray, 70 N. Y. 531 17, 86 V Murray, 73 N. Y. 535 37, 656 uNash, 5 Park. Cr. (N. Y.) 473 ; 16 Abb. Pr. (N. Y.) 281 ; 25 How. Pr. (N. Y.) 807 534 V New York, 1 Hill (N. Y.) 362 450,478, 479 V New York, 21 How. (N. Y.) 288 106, 112 V New York, 3 Johns. Gas. (N. Y.)79 634 V New York Infant Asylum, 133N. Y. 190 815 V Newell, 13 Barb. (N. Y.) 86. . 606 V Newton, 30 Abb. N. C. (N. Y.) 387 832 cxlii CASES CITED Sec. People t! Nichols, 18 Hun (N. Y.) 530 379, 398 D Nichols, 52 N. Y. 478.. 9, 106, 107,110, 112 ) Nichols, 79 N.Y. 582.. 364, 379, 398 ) Nolan, 101 N. Y. 539 522 ) Nordheim, 99 111. 553 147 ) Norton, 7 Barb. (N. Y.) 477. . 855 ) Nostrand, 46 N. Y. 375.2, 3, 4, 10,31,517,605,659, 662 ! OaklandB'dof Ed'n,5' Gala. 375 802 )O'Keefe,100N.Y. 572 823 ) Oldtown, 88 111. 202 815 ) Oneida Co. Sup'rs, 24 Hun (N.Y.)413 822 ; Ontario Co. Sup'rs, 17 Hun (N.Y.)501 816 ! Orleans County Court, 28 Hun (N. Y.) 14 624 ) Oshorn, 38 Mich. 313 814 ) OttB, 77 Cala. 45 199, 584 ) Oulton, 28 Cala. 44 325, 516 ) Palmer, 52 N. Y. 8» 605 J Palmyra, 3 Hun (N. Y.) 549 ; 5 T. & C. (N. Y.) 609 808 ) Park Com'rs, 97 N. Y. 37. . 803, 803, 810 ) Parker, 37 Cala. 639 330, 431 ) Parker, 6 Hill (N. Y.) 49 358 ) Parker, 63 How. Pr. (N. Y.) 837 r Parker, 117 N.Y. 86 800, 807 ! Partridge, 13 Abb. N. C. (N. Y.) 410 357, 370 V Peabody, 6 Abb. Pr. (N. Y.) 228 ; 15 How. Pr. (N. Y.) 470 627 « Peabody, 26 Barb. (N. Y.) 437 808 V Pease, 30 Barb. (N. Y.) 588 128, 153, 154, 538, 785 V Pease, 27 N. Y. 45; 25 How. Pr. (N. Y.) 495. . . .128, 145, 153, 154, 159, 538, 785 1) Pennock, 60 N. Y. 421 231 -J PerceUs, 8 lU. 59 174 I! Perkins, 85 Cala. 509.172, 173, 180 1) Perley, 80 N. Y. 624 140 vi vi 1!] Sec. People V Perry, 79 Cala. 105 175 « Perry, 16 Hun (N. Y.) 461 . .804, 805 V Petty, 33 Hun (iJ. Y.) 443. . . . 835 V Phillips, 1 Denio (N. Y.) 388 . . 785 V Plnckney, 32 N. Y. 377 12, 28 V Piatt, 50 Hun (N. Y.) 454 80 ^) Piatt, 117 N. Y. 159 80 V Poillon, 16 Abb. N. C. (N. Y.) 119 97 V Police Com'rs, 6 Hun (N. Y.) 239 388 V Police Com'rs, 10 Hun (N. Y.) 106 379, 390, 398 V Police Com'rs, 11 Hun (N.Y.)403 369 I! Police Com'rs, 20 Hun (N. Y.) 333 371 V Police Com'rs, 23 Hun (N. Y.) 351 385 V Police Com'rs, 37 Hun (N. Y.) 261 504 V Police Com'rs, 27 Hun (N.Y.) 4S3 385 V Police Com'rs, 31 Hun (N. Y.) 40 386 V Police Com'rs, 31 Hun (N. Y.) 209 385 V Police Com'rs, 39 Hun (N. Y.) 507 348,370, 388 V Police Com'rs, 41 Hun (N. Y.) 389 372 V Police Com'rs, 46 Hun (N. Y.) 476 93,147, 451 V Police Com'rs, 65 Hun (N. Y.) 445 372 V Police Com'rs, 67 N. Y. 475 388 V Police Com'rs, 76 N. Y. 613 379,390, 398 V Police Com'rs, 82 N. Y. 506 398, 803 V Police Com'rs, 93 N. Y. 97 372,380,385, 398 » Police Com'rs, 98 N. Y. 332 380, 385 V Police Com'rs, 99 N. Y. 676 385, 386 I) Police Com'rs, 108 N. Y. 475.. 451 V Police Com'rs, 121 N. Y. 716 . 372 cxliii CASES CITED Sec. People V Police Com'rs, 32 N. Y. St. Rep'r 824 ; 10 N. Y. Supp. 784 373 V Police Com'rs, 20 Week. Dig. (N. Y.)552 394, 406 •B Porter, 6 Gala. 26 150, 410 ■0 Potter, 63 Cala. 127. ..172, 516, 661 uPurroy, 31 N. Y. St. Rep'r 934 ; 10 N. Y. Supp. 181. . . 354 V Queens Co. Sup'rs, 1 Hill (N. Y.)195 106,107,808, 839 V Queens Co. Sup'rs, 82 N. Y. 275 803 V Rand, 41 Hun (N. Y.) 529 811 1) Ransom, 58 Cala. 558 10 ti Raymond, 37 N. Y. 428 29 V Reardon, 49 Hun (N. Y.) 425 155, 157 V Reddy, 43 Barb. (N. Y.) 539, . 806 « Reeder, 25 N. Y. 302 703 V Regents, etc. , 4 Mich. 98 816 V Registrar of Arrears, 114 N. Y.19 830 I) Reld, 6 Cala. 288 330 D Reid, 11 Colo. 138 325 D Reid, 11 Colo. 141 94 V Reilly, 38 Hun (N. Y.) 429.. . 744 V Rensselaer Co. Canvassers, 54 Hun (N.Y.) 595.... 156, 157 V Rensselaer Co. Sup'rs, 34 Hun(N. Y.)266 806 V Rensselaer Co. Sup'rs, 52 Hun (N.Y.) 446 552, 573 V Rice, 25 Abb. N. C. (N. Y.) 460 142 D Richards, 99 N. Y. 620 744 1) Richmond Co. Sup'rs, 20 N. Y.252 103 DRobb, 55 Hun (N.Y.) 425.365, 374 D Robb, 126 N. Y. 180 354, 374 V Robb, 29 N. Y. St. Rep'r 59; 8 N. Y. Supp. 418 372 V Robb, 31 N. Y. St. Rep'r 640 ; 9 N. Y. Supp. 831 372 V Robb, 32 N. Y. St. Rep'r 945 ; 10 N. Y. Supp. 867 370 V Roberts, 6 Cala. 214 633 V Robertson, 27 Mich. 116. .157, 158 D Rochester, 44 Hun (N.Y.) 166 805 Sec. People D Rome, W. & O. R. R. Com- p'y, 103N.Y.95 817 V Rosborough, 14 Cala. 180 150,305, 311 V Russell, 4 Wend. (N. Y.) 5r0 283 u Ryder, 13 N. Y. 433 781 V St. Lawrence Co. Sup'rs, 25 Hun (N.Y.) 131 801, 802 ■uSalomou, 46111. 415 818 V Sanderson. 30 Cala. 160 10 V Saratoga Springs, 54 Hun (N.Y.) 16 97, 820 V Sassovich, 29 Cala. 480 624 V Saxton, 22 N. Y. 309 145 V Soannell, 7 Cala. 432 183 u Schenectady Co. Sup'rs, 35 Barb. (N. Y.) 408. .536, 540, 564 V Sohiellein, 95 N. Y. 124. . .146, 148, 820 V Schoharie Co. Sup'rs, 121 N. Y.345 835 V Schoonmaker, 19 Barb. (N.Y.) 657 539 V Schoonmaker, 13 N. Y. 238. . .W V Schuyler, 5 Barb. (N. Y.) 166 240 V Schuyler, 4 N. Y. 173 203, 240,681, 682 V Schuyler, 79 N. Y. 189 798 V Seaman, 5 Denio (N. Y.) 409 120,145, 159 V Secretary of State, 58 111. 90 . . 798 V Seward, 7 Wend. (N. Y.) 518. 836 V Sexton, 37 Cala. 532 814 V Shannon, 10 111. App. 364 . 187, 217 1) Sheffield, 47 Hun (N. Y.) 481 82, 826 V Shepard, 36 N. Y. 285 28 V Sherwood, 4 T. & C. (N. Y.) 34; 1 Hun (N. Y.) 272 652 V Slocum, 1 Idaho 62 187 i; Smith, 43 111. 219 798 D Smith, 81 N. C. 305 173 B Smyth, 28 Cala. 21 182, 516 uStarks, 33 Hun (N.-Y.) 384 .382, 387 V State Auditors, 42 Mich. 422 798, 819 " V State Treasurer, 23 Mich. 499 798 cxliv CASES CITED Seo. People V State Treasurer, 24 Mich. 468 787,793, 818 V Staton, 73 N. C. 546. . .627, 649, 657 V Stedman, 57 Huu (N. Y.) 280 801 V Stephens, 71 N. Y. 527. .21,64, 551 V Stevens, 5 Hill (N. Y.) 616 624,649,656,790, 825 V Stewart, 6 111. App. 62 236 D Stilwell, 19 N. Y. 531 803 V Stocking, 50 Barb. (N. Y.)57a 552,564, 713 V Stout, 11 Ahh. Pr. (N. Y.) 17; 19 How. Pr. (N. Y.) 171 . . . 396 V StoweU, 9 Abb. N. C. (N. Y.) 456 87,121,180, 349 uStrattDn, 28Cala. 382 2, 10 I) Sturtevant, 9 N. Y. 263 555 V Sullivan Co. Sup'rs, 56 N. Y. 249 816 II Supervisors, 10 Abb. Pr. (N. Y.) 233; 18 How Pr. (N. Y.) 152 106, 112 « Supervisors, 14 Abb. N. C. (N.Y.)29 820 V Supervisors, 12 Barb. (N. Y.) 217 155,157, 825 V Supervisors, 15 Barb. (N. Y.) 607 155 II Supervisors, 26 Barb. (N. Y.) 118 539 V Supervisors, 35 Barb. (N. Y.) 408 536,540, 564 V Supervisors, 43 Barb. (N. Y.) 232 539 1) Supervisors, 10 Cala. 344 640 V Supervisors, 1 Hill (N. Y.) 195 106,107,808, 839 1) Supervisors, 1 HiU (N. Y.) 362 450,478, 479 II Supervisors, 12 How. Pr. (N. Y.)204 539 V Supervisors, 21 How. Pr. (N. Y.)288 106, 112 V Supervisors, 11 Huu (N. Y.) 306 816 D Superrisors, 17 Hun (N.Y.) 501 816 V Supervisors, 24 Hun (N. Y.) 413 822 Sec. People 11 Supervisors, 25 Hun (N.Y.) 131 801, 802 V Supervisors, 30 Hun (N. Y.) 146 823 11 Supervisors, 34 Hun (N. Y.) 266 806 11 Supervisors, 38 Hun (N. Y.) 373 457 V Supervisors, 49 Hun (N. Y.) 476 805 11 Supervisors, 52 Hun (N. Y.) 446 552, 573 V Supervisors, 53 Hun (N. Y.) 254 820 V Supervisors, 56 Hun (N. Y.) 459 821 11 Supervisors, 88 111. 202 815 11 Supervisors, 100 111. 332. . . .327, 328, ai ti Supervisors, 26 Mich. 422 ... . 813 II Supervisors, 36 Mich. 10 478 V Supervisors, 38 Mich. 421 ... . 816 V Supervisors, 11 N. Y. 583.. 106, 541,609, 818 V Supervisors, 20 N. Y. 252 103 11 Supervisors, 34 N. Y. 516 805 II Supervisors, 58 N. Y. 249 816 11 Supervisors, 67 N. Y. 330 813 uSuperviaors, 73 N.Y. 173.813, 818 V Supervisors, 82 N. Y. 275 806 11 Supervisors, 105 N. Y. 180 457,461, 464 V Supervisors, 121 N. Y. 345. .. . 835 11 Supervisors, 9 "Wend. (N. Y.) 508 542 11 Supervisors, 12 Wend. (N. Y.) 257 478 11 Supervisors, ISWend. (N. Y.) 198 808 f Surrogate's Court, 36 Hun (N.Y.)218 837 11 Sweeting, 2 Johns. (N. Y.) 184 778,781, 782 u Swift, 59 Mich. 529 831 11 Tax Com'rs, 9 Hun (N. Y.) 609 806 u Tax Com'rs, 85 N. Y. 655 803 11 Taylor, 1 Abb. Pr. N. S. (N. Y.)200 639 cxlv CASES CITED Sec. People V Taylor, 57 Cala. 620 173 V Taylor, 9 Hun (N. Y.) 143. .. . 337 V Teague, 106 N. C. 576 131 D Terry, 42 Hun (N.Y.)273.634, 651 V Terry, 108 N. Y. 1 ... .634, 649, 651 D Thacher, 55 N. Y. 525 785 V Therrien, 80 Mich. 187 362 V Thomas, 33 Barb. (N. Y.) 287 120, 611 V Thompson, 26 Hun (N. Y.) 28 365,366,381,395, 398 V Thompson, 94 N. Y. 451. ..365, 366,381,395, 398 V Thompson, 99 N. Y. 641 818 V Thompson, 21 Wend. (N. Y.) 235 785 V Thornton, 60 How. Pr. (N. Y.) 457 75, 177 V Thornton, 25 Hun (N. Y.) 458 75,76, 177 V Thurston, 2 Park. Cr. (N. Y.) 49 27 V Tleman, 30 Barb. (N. Y.) 193 ; 8Abb. Pr. (N. Y.)359.3Z3, 517, 625 V Tilton, 37 Cala. 614. . .325, 330, 431 I) Tisdale, 1 Dougl. (Mich.) 59 145,156, 158 1) Toal, 85 Cala. 333 638 V Tompkins, 40 Hun (N. Y).228. 806 V Toomey, 25 111. App. 46 239 ■B Toomey, 122 111. 308 239 1) Town Auditors, 1 How. Pr. N. S. (N. Y.) 224 818 V Town Auditors, 74 N. Y. 310. . 737 V Town Auditors, 75 N. Y. 316. 737 uTownsend, 40 Hun (N. Y.) 360 320 V Townsend, 103 N. Y. 430 320 D Township Board, U Mich. 222 612 D Treadway, 17 Mich. 480 239 V Treasurer, etc., 30 Mich. 416. 824 V Trustees, etc., 3 Hun (N. Y.) 549 ; 5 T. & C. (N. Y.) 609. 808 V Turner, 20 Cala. 142 39 V Tyrrell, 87 Cala. 475 313, 330 r Ulster Co. Sup'rs, 30 Hun (N. Y.) 146 823 Sec. People V Utica, 65 Barb. (N.Y.) 9; 45 How. Pr. (N. Y.) 289..802, 804, 808 V Utica Ins. Comp'y, 15 Johns. {N. Y.) 358 776 V Vail, 20 "Wend. (N. Y.) 12 . . . . 145 ■"VanCleve,! Mich. 362... 156, 159 V "Van Gaskin, 5 Mont. 352 . . 19, 20 V "Van Home, 18 "Wend. (N. Y.) 515 431 V Van Slyck, 4 Cow. (N. Y.) 297 156,159, 538 V Vilas, 36 N. Y. 459 ; 3 Abb. Pr. N. S. (N. Y.) 252 271 1) "Waite, 70 m. 25 781, 782 V "Walker, 23 Barb. (N. Y.) 304 ; 2 Abb. Pr. (N.Y.) 421.106, 109, 112, 113, 116 V "Wallace, 55 Hun (N. Y.) 149 97, 98 V "Walsh, 67 How. Pr. (N. Y.) 482 805 i>"Walter, 68N.Y. 403 802 t' "Warfield, 20 111. 159 139, 158 B "Warren, 5 Hill (N. Y.) 440 758, 759 V "Wayne Co. Canvassers, 12 Abb. N. C. (N. Y.)77; 64 How. Pr. (N. Y.) 334 158 « "Wayne Co Sup'rs, 49 Hun (N.Y.)476 805 V "Weaver, 34 Hun (N. Y.) 321 . . 802 V "Weber, 86 111. 283 659, 660, 812 1) "Weber, 89 111. 347 859, 660 V "Weller, U Cala. 49 150, 152 J) "Wells. 2 Cala. 198 425 B "Wells, 2 Cala. 610 425 V "Wemple, 52 Hun (N. Y.) 414. 443 V "Wemple, 58 Hun (N. Y.) 275 455 1! "Wemple, 115 N. Y. 302 443 B "Wemple, 125 N. Y. 485 455 V "Wendell, 57 Hun (N. Y.) 362. 98,813, 823 V "Westchester Co. Sup'rs, 15 Barb. (N. Y.) 807 155 V "Westchester Co. Sup'rs, 11 Hun (N. Y.) 306 .■ 816 V "Westchester Co. Sup'rs, 73 N.Y.178 813, 818 cxlvi CASES CITED Sec. People » Weygant, U Hun (N. Y.) 546 369, 398 D Whaley, 6 Cow. (N. Y.) 661. . 527 V Wheeler, 21 N. Y. 83 617 V Whipple, a Mich. 548 814 V White, 54 Barb. (N. Y.) 622. . 19 V White, 22 Wend. (N. Y.) 167 651 V White, 24 Wend. (N. Y.) 520 649,651, 659 V Whiteside, 23 Wend. (N. Y.) 9 113, 117 1) Whitlock, 92 N. Y. 191. . . .19, 304,343,346, 861 V Whitman, 10 Gala. 38 10, 330 1) Whittemore, 27 Week. Dig. (N.Y.)213 379 11 Wiant. 48 111. 263 139, 850 BWillard, 44Hun(N. Y.)580.. 87 V Wmiams. 17 Abh. N. C. (N. Y.)366 811 V Williams, 36 N. Y. 441. . . .106, 108, 110 1) Wilson, 3 Hun (N.Y.) 437. 138, 147 uWilson, 63N. Y. 186..135,138, 147 V Wilson, 119 N. Y. 515 813, 830 V Wilson, 72 N. C. 155. .308, 320, 428, 432 V Witherell, 14 Mich. 48 . . . .150, 435 V Woodruff, 29 How. Pr. (N. Y.)203 563 1) Woodruff, 32 N. Y. 355. . . .29, 90,431, 563 1) Yates, 40 111. 126 796 V Yonkers Police Com'rs, 41 Hun (N.Y.) 389 372 V Yonkers Police Com'rs, 55 Hun (N.Y.) 445 872 V Yonkers Police Com'rs, 121 N.Y.716 372 Pepper v State, 22 Ind. 399. ..184, 259, 262,263, 2C5 Peppln w Cooper, 2 B. & A. 431 207 Perkins v Carraway, 59 Miss. 222.132, 135, 145 V Proud, 62 Barb. (N. Y.) 420. . . 478 D Reed,. 14 Ala. 536 575 I) Thompson, 3 N. H. 144 612 Pei-ley v Muskegon Co., 32 Mich. 132 225 Perrin « Lyman, 32 Ind. 16 774 Sec. Perrine v Hamlin, 48 Mich. 641 822 Perry, Ex parte, 102 U. S. 183 820 V Burton, 126 111. 599 560 D Cheboygan, 55 Mich. 250 446 D Hyde, 10 Conn. 329 7 i> Reynolds, 53 Conn. 527 136 V Tynen, 22 Barb. (N. Y.) 137 106,112, 606 Peter v Prettyman, 62 Md. 566 852 Peters v Land, 5 Blackf . (Ind.) 12. . . 729 V State Canvassers, 17 Kan. 365 157 Petersilea v Stone, 119 Mass. 465 625,626,633, 649 Peterson, Ex parte, 33 Ala. 74 837 V Mayor, etc., 17 N. Y. 449 551 Petit V Rousseau, 15 La. Ann. 239. .. 523 Petition of Portsmouth, 19 N. H. 115 648 Pettigrew i> Washington Co., 43 Ark. 33 805 Pettljohn V Hudson, 4 Harr. (Del.) 178 229 Peyton v Cabaniss, 44 Miss. 808 354 Phares 1) State, 3 W. Va. 567 348 Phelps V Call, 7 Ired. L. (N. C.) 262. . 190 V Dolan, 75 111. 90 716 V Hawley, 3 Lans. (N. Y.) 160., 547 1) Hawley, 52 N. Y. 23 .''. 547 I! Mayor, etc., 113 N. Y. 216. ... 573 V SiU, 1 Day (Conn.) 315 713 DWatertown, 61 Barb. (N. Y.) , 121 849 Phenix D Clark, • 2 Mich. 327 787 Philadelphia v Given, 60 Pa. St. 136 175, 661 V Shallcross, 14Phila. (Pa.) 135 187 Philbriok i) Shaw, 61 N. H. 356 203 PhUip's Lessee V Robertson, 2 Tenn. (Overt.)399 558 Philips V Bury, 2T. R. (D. & E.) 346 401 V Spotts, 14 Nebr. 139 758 uWickham, 1 Paige (N. Y.) 590 323 Phillips V Boston, 150 Mass. 491 . .432, 51 V Bridge, 11 Mass. 242 693 V Mayor, etc., 1 Hilt. (N. Y.) 483 19 V Mayor, etc., 88 N. Y. 245 347 cxlvii CASES CITED Sbo. Phillips V Mayor, etc., 13 Week. Dig. (N.Y.)426 347 V United States, 11 Ct. of CI. (U.S.)5rO 11 Phlpstarg V Dickinson, 78 Me. 457. . 217 Piatt V People, 29 111. 54 148 Pickard v Henderson, 15 Lea (Tenn.) 430 469 Pickering u Day, 3 Houst. (Del.) 474 284, 699 1) James, L. R. 8 C. P. 489; 43 L. J.C. P.217;21 W. R. 786; 29L.T.210 748 Pickett, Ex parte, 24 Ala. 91 814 V Scliool Dist., 25 Wis. 551 612 B Wallace, 57 Gala. 555 713 Pierce, In re, 89 Ala. 177 840 V Benjamin, 14 Pick. (Mass.) 356 612, 763 V Getchell, 76 Me. 216 747 V Richardson, 37 N. H. 306.184, 187, 338 Piercy v Averill, 37 Hun (N. Y.) 380 724,727, 737 Pierpont v Harrisville, 9 W. Va. 215 844 pierson 0) Gale, 8 Vt. 509 758 PikeuCarter, 3 Ring. 78 721 V Megoun, 44 Mo. 491. .722, 729, 749 11 Middleton, 12 N. H. 278 495 Pilie V New Orleans, 19 La. Ann. 274 488 Pine County v Willard, 39 Minn. 125 204,214,217,219, 286 Pingry v Wastiburn, 1 Aik. (Vt.) 264 57 Pioneer Printing Comp'y v Sanborn, 3Minn. 413 579 Piper V Pearson, 2 Gray (Mass.) 120 713,733,734, 762 Pitman v Brownlee, 2 A. K. Marsh. (Ky.)210 560 Pittsburg V Tabor, 61 N. H. 100 253 Pittsburg, Ft. W. & C. Ry. Comp'y V Shaeffer, 59 Pa. St. 850 283 Plttstown Overseers V Plattsburgb Overseers, 18 Johns. (N. Y.) 407 ; 544 Place V Providence, 12 R. 1. 1 852 I! Taylor, 22 Ohio St. 317. . . ,187, 237, 729 Sec. Placket V Gre8ha,m, 3 Salk. 75 484 Planters' f '. Ass'n v Hanes, 52 Miss. 469 850 Piatt V Stout, 14 Abb. Pr. (N. Y.) 178 45 11 Woodruff. 61 N. Y. 378 843 Platter v County Com'rs, 103 Ind. 360 538 Plymouth v Painter, 17 Conn. 585 181,623,624,849, 661 11 Plymouth County, 16 Gray (Mass.)341 106 Poer V Brown, 24 Tex. 34 184 Poindexter v Greenhow, 114 U. S. 270 730 Police Jury v Brltton, 15 Wall. (U.S.)566 643 uHaw, 2La. 41 263 Police Justice v Kent Supervisors, 38Mich. 421 816 Polk 11 Cosgrove, 4 Biss. (U. S.) 437. . 742 V Minnehaha Co., 5 Dak. T. 129 465 II Plummer, 2 Humph. (Tenn.) 500 187, 188 Polk's Lessee v Hill, 2 Tenn. (Overt.) 118 658 PolUng Lists, In re, 13 R. I. 729. .132, 134 Pomf rey v Saratoga Springs, 104 N. Y.459 737 Pool V Boston, 5 Cush. (Mass.) 219. , 485 u Perdue, 44 Ga. 454 649 Poole V Cox, 9 Ired. L. (N. C.) 69. . . . 215 Pooler u Reed, 73 Me. 129 31, 36 Pope V Halifax, 12 Cush. (Mass.) 410 852 V Headen, 5 Ala. 433 560 V Stout, 1 Stew. (Ala.) 375 587 Port Huron B'd of Ed'n v Treasurer, 67Mich. 46 833 Port of Mobile v Louisville & N. R. R.Comp'y, 84Ala. 115,,, 847 Porter v Haight, 45 Gala, 631 713 V Pillsbury, 11 How. Pr. (N.Y.) 240 10 D Purdy, 29 N. Y. 106 720, 758 1) Stanley, 47 Me. 515 219 V Stapp, 6 Colo. 32 682, 684 Portsmouth Petition, 19 N. H. 115;. 648 Post V Sparta, 63 Mich. 323 822 cxlviii CASES CITED Sec. Postmaster General v Munger, 3 Paine (U. S.) 189 215, 275 i)Norwell,Gilp. (U.S.) 106.183, 184 V Reeder, 4 Wash. C. C. (U. S.) 678 270 Potter V Luther, 3 Johns. (N. Y.) 431 300, 624 V School Trustees, 11 lU. App. 280 204 1) Tltcomb, 7 Me. 302. 227, 294 V United States, 107 U. S. 126. . 291 Poughkeepsie v Wiltsie, 36 Hun (N.Y.)270 478 PoweU V Newburgh, 19 Johns. (N. Y.) 284 495 DTuttle,3N.Y.396.... 106,570, 606 uWikon, loTex.59 31 Powelson v Lockwood, 82 Cala. 613 838 Powers V Skinner, 34 Vt. 274 66, 57 V Springfield, 116 Mass. 84 801 Powesheik County v Ross, 9 Iowa 511 244 Pratt V Gardner, 2 Gush. (Mass.) 63 713,733, 860 V Hill, 16 Barb. (N. Y.) 303 720 I! Ramsey, 114 U. S. 15 748 V Swanton, 15 Vt. 147 148, 148 Preston b United States, 37 Fed. R. (U. S.) 417 37 V Yates, 17 Hun (N. Y.) 92 693 V Yates, 24 Hun (N. Y.) 534. .. . 692 Prettyman v Supervisors, 19 111. 406 159 Pre Witt V Garrett, 6 Ala, 128 .... 682, 683 Price V Co. Com'rs, 1 Whart. (Pa.) 1 815 V Cutts, 29 Ga .142 447 D Har wood, 3 Campb. 108 765 Prict V De La Montanya, 85 Cala. 148 242 PrinceiiBoston, 148 Mass. 285... 778, 850 V Lynn, 149 Mass. 193 551, 593 D McNeill, 77 N. C. 398 193 V Skillin, 71 Me. 361 . 19, 156, 159, 828 V Thomas, 11 Conn. 472 758 Pritchett v People, 6 111. 525 188, 649 Privett V Bickford, 26 Kan. 62 ; 40 Am. R. 301 78,81, 163 V Stevens, 25 Kan. 275 78 Probate Court v Strong, 27 Vt. 202. . 187 Sec. Prospect Park & C. I. R. R. Comp'y V Williamson, 24 Hun (N. Y.) 216 847 Prosser v Seoor, 5 Barb. (N. Y.) 607. . 738 Prowse V Foote, 2 Bro. P. C. 289 173 Pruden v Love, 67 Ga. 190 713, 722 Pryce v Belcher. 3 C. B. 58 ; 4 D. & L. 238; 15 L. J. C. P. 305; U Jur. 675 748 V Belcher, 4 C. B. 866; 18 L. J. C.P.264 748 Pucket V Bean, llHeisk. (Tenn.)600 82, 826 Pulaski CJo. V Lincoln, 9 Ark. 320 106, 110 Pumphrey v Mayor, etc., 47 Md. 145 816 Purcell V Parks, 82 ni. 346 467 Purdy V Independence, 76 Iowa 356 456 ■w Stacey, 5 Burr. 2698 50 Pursel V State, HI Ind. 619 305 Putnam v Langley, 133 Mass. 204. . . 89 V Woodbury, 68 Me. 58 '. 484 Pybus I! Gibb, 6 Ell. & Black. 903; 28L.J. Q. B. 41;3Jur. N. S.315 268, 278 Quackenbush, Ex parte, 3 HUl (N.Y.)369 148 Quarles v Grovernor, 10 Humph. (Tenn.)123 263 Queen v Atlanta, 69 Ga. 318 473 Quimby D Adams, 11 Me. 333 187 Quinn D Markoe, 37 Minn. 439 .... 144, 147 V Mayor, etc., 44 How. Pr. (N. Y.) 366 29 DMayor, etc., 63N. Y. 627 29 D State, 35 Ind. 485 126 T> ader v Davis, 5 Lea (Tenu.) 530 -^ 196,235, C95 Rahway v Crowell, 40 N. J. L. 207 205,213, 273 Rail V Potts, 8 Humph. (Tenn.) 225 723, 749 Railway Company, Ex parte, 101 U. S. 711 822 V Mayor, etc., 39 La. Ann. 127. 844 Rainey D State, 30 Tex. App. 455, .. . 758 Rains V Simpson, 60 Tex. 495. . . .635, 713 cxlix CASES CITED Ramsay i) Callaway, 15 La. Ann. 4Si 155 Ramsey v Riley, 13 Ohio 15T 713, 723 Ramsey Co. Com'rs.s Brisbln, 17 Minn. 451 665 Randall v Brigliam, 7 Wall. (U. S.) 523 713 D Ramsey, 114 U. S. 15 748 Randolph i! Good, 3 W. Va. 551 125 V Pope Co., 19 111. App. 100. ... . 373 Ranger v Great West. Railway Comp'y,5H. ofL.Cas.72 609 Ranlett v Blodgett, 17 N. H. 298.682, 688 Ranney v Bader, 67 Mo. 476 758 Ransom i) Cummins, 66 Iowa 137. . . 805 Rany v Governor, 4 Blackf. (Ind.) 2. 212 Rt>.thbon V Budlong, 15 Johns. (N. Y.)l 774 Rawson v Spencer, 113 Mass. 40 761 Ray t) Birdseye, 5 Denio (N. Y.) 619. 14 u Mackln, 100 111. 246 63 Raymond v BoUes, 11 Cush. (Mass.) 315 733 V County Com'rs, 5 Mont. 103. . 478 V Lent, 14 Johns. (N. Y.) 401. . . 194 Raynsford v Phelps, 43 Mich. 342 707,722, 725 Rea V Smith,' 2 Handy (Ohio) 193. .. . 486 Read, In re, 34 Ark. 239 187, 198 V Buffalo, 4 Abh. Ct. App. Deo. (N. Y.)22;3Keyes(N.Y.) 447 ;.... 632 V McLemore, 34 Miss. 110 259 Readfield v Shaver, 50 Me. 36. . . .219, 259, 263 Reagan v Copeland, 78 Tex. 551 814 Redwood v Grimmenstein, 68 Gala. 512 236 Redwood County D Tower, 28 Minn. 45 220, 224 Reed, Ex parte, 4 Hill (N. Y.) 572 ... . 24D 01 Conway, 20 Mo. 22 ■ 722 V Peper Tobacco W. Comp'y, 2 Mo. App. 82 57 u Scituate, 5 Allen (Mass.) 120. 106 Reedy v Eagle, 23 Kan. 254 816 Reeside v Walker, 11 How. (U. S.) 272 824 Reeves D.Winn, 97 N, C. 246.'. 771 Sec. Reg. V Badger, 8 Jur. 994 860 V Badger, i Q. B. (Ad. & El. N. S.)468 856, 861 V Birmingham & G. Ry. Comp'y, 2 Q. B. (Ad. & E1.N.S.)47 823 Blizard, L. R. 2 Q. B. 55 ; 36 L. J. Q. B. 18; 15 L. T. 242; 15W.R.105; 7 B. & ' S.922 413 V Bristol Dock Comp'y, 1 G. & D. 286; 2Q. B. (Ad.&El. N. S.) 64; 2Railw. Cas. 599; 6 Jur. 216 819 V Charretie, 13 Q. B. (Ad. & El. N. S.)447; 13 Jur. 450. . . . 52 V Coaks, 3 El. & Bl. 249 ; 2 C. L. R. 947; 23 L. J. Q. B. 133; 18 Jur. 378 160, 164 V Corporation of Durham, 10 Mod.148 324 « Councillors of Derby, 7 Ad. & Ell. 419 ; 2 Nev. & P. 589;W. W. & D. 671 825 V Cousins, 42 L. J. Q. B. 124 ; 28 L.T.116 781 11 Dodson, 9 Ad. & El. 704 861 V Eastern Counties Ry^ Comp'y, 10 Ad. &E1. 531; 2 P. & D. 648; 1 Rajlw. Cas.509.... 819 V Franklin, 6 Ir. R. C. L. 239. . 160 V Hampton, 6 B. & S. 923; 13 L. T. 431 ; 12:Jur. N. S.583; 15W.R.43 783 V Herf ord, 3 El. & El. 115 835 V Hungerford, 11 Mod. 142. .165, 166, 780 1) Ipswick Bailiffs, 2 Ld. Ray. 1232; 2 Salk. 434 418 1! James, 2 Den. Cr. Cas. 1 863 1) Johnson, 11 Mod. 62 863 uLarie, 2Ld. Ray.1304; Fort- escue 275 ; 11 Mod. 270 . 408 409 II Lookhouse, 14 L.'T. N. S. 359 782 u Lords Com'rs, etc., L. R. 7 Q. B. 387 ; 41 L. J. Q. B. 178; 26L. T. 64; 20W.R. 336 797 Cl CASES CITED Sec. Reg. V Mayor, etc., 25 L. J. Q. B. 61; 2Jur. N. S. 114 825 V Murphy, 8 C. & P. 297 300 t) Peach, 2 Salk. 572 825 II Ponsf ord, 1 D. &. L. 116 ; 12 L. J. Q. B. 313 ; 7 Jur. 767 818 V Poor Guardians, 17 Q. B. (Ad. &E1I.,N. S.)149 783 V Registrar, etc., L. R. 21 Q. B. D. 131; 57 L. J. Q. B. 433 ; 59L. T. 67; 36W. R. 695; 52J.P. 710 818 V Richmond, 11 W. R. 65 166 V St. Martin's, 17 Q. B. (Ad. & E1.N.S.)149 8 V Smith, 5 Q. B. (Ad. & El. N. S.)6M 398 V Tewkesbury, L. R. 3 Q. B. 629; 37L.J. Q.B. 288; 18 L. T. 851; 16W. R.1200; 9B.& S.683 180 V Trustees of Orton Vicarage, 14 Q. B. (Ad. & El. N. S.) 139 ; 18 L. J. Q. B. 321 ; 13 Jur. 1049 819 V Wigau Corporation, L. R. 14Q. B. D.908; 54L.J.Q. 3.338; 52L. T. 435; 49 J. P.372 414 uWyatt, 1 Salk. 380; 2 Ld. Raym. 1189 855, 863 Reid V Hood, 2 Nott & Mc C. (S. O.) 168 733 V Humphreys, 7 Jones L. (N. C.)258 187 V Stegman, 99 N. Y. 646 769 Reif 1) Paige, 55 Wis. 496 488 Reilly, Ex parte, 85 Gala. 632 638 V Dodge, 42 Hun (N. Y.) 646. . .. 188 V Mayor, etc., 48 N. Y. Super. Ct. 274 347 I! Moffat, 20 Week. Dig. (N. Y.) 390 695 Remey v Board. of Equalization, 80 Iowa 470 802 Rendlemant) Jackson County, 8 111. App.287 543 Renfroe v Colquitt, 74 Ga. 618. . .255, 259 Reutz 1) Detroit, 48 Mich. 544 804 Sec, Republic Co. Com'rs v Kindt, 16 Kan. 157 482 Respublicav Montgomery, 1 Yeates (Pa.) 419 861 Revill t> Pettit, 3Met. (Ky.) 314. .713, 720, 734 Rex V Andover, 1 Ld. Ray . 710 362 1) Antrohus, 2 Ad. & El. 788. . . 863 V Bankes, 3 Burr. 1452 ; 1 W. Blackst. 445, 452 624 Barker, 3 Burr. 1266 828 II Barlow, 2 Salk. 609; Carth. 293 647, 855 B Beale, 1 East 183 864 V Bedford Level, 6 East 356 625,649, 783 II Beeston, 3 T. R. (D. & E.) 592 106 V Bembridge, 3 Dougl. 327 .. 856, 857 V Bembridge, 1 Salk. 381, note 855 V Borrett, 6 Car. & P. 124 668 II Borron, 3 B. & Aid. 432 861 II Bower, 2 Dow. & Ry. 842 ; 1 B.&C.585 165, 166 V Boyles, 2 Stra. 836 778 V Boys, Say. 143 855 V Bridge, 1 Maule & S. 76 160 V Burder, 4 T. R. (D. & E.) 778 165 V Compton, Cald. 246 863 II Cope, 7 C. & P. 720 863 V Coventry, 1 Ld. Ray. 391 ... . 362 V Cummings, 5 Mod. 179 855 V Davis, 3 Burr. 1317 856 V Dawes, 4 Burr. 2120 782 V De Mierre, 5 Burr. 2787 72 II Derby, Skinner 370 547 V Ellis, 9 East 252 n ; 2 Str. 994 178 V Foxcrof t, 2 Burr. 1017 160 V Gaakin, 8 T. R. (D. & E.) 209 362 D Gayer, 1 Burr. 246 33 II Gibbs, 1 East 183 864 ti Grimes, 5 Burr. 2599 655 V Grosvenor, 1 Wils. 18 ; 2 Str. 1193 165 e Hann, 3 Burr. 1716 856 u Hann, 3 Burr. 1786 856 V Harwood, 2 East 177 784 V Hawkins, 10 East 211 160 V Heaven, 2 T. R. (D. & E.) 772 780 V Hebden, Andrews 389 655 cli CASES CITED Sec. Rex V Herbert, 1 East P. C, c. 11, s. ll.p.4fil 863 V Holland, 1 T. R. (D. & E.) 693 856 V HoUond, 5 T. R. (D. & E.) 607 855 V Huglies, 6 B. & C. 886 30 V Jackson, 1 T. R. (D. & E.) 653 856 V Jeyes, 3 Ad. & El. 416 ; 5 N. & M.101; 1H.&W.325.... 834 11 Jones, 1 B. & Ad. 677 30, 33 r Jones, 81 How. St. Tr. 251 ... . 857 01 Jones, a Str. 1146 166, 166 1) Justices of Herefordshire, 1 Chitty700 783 V Langhorne, 6 N. & M. 203 ; 4 A.&.E.538 Ill « Leigh, 4 Burr. 2143 785 1) Leyland, 3 M. &. S. 184 166 V Lisle, Andrews 163 ; 2 Strange 1090 623,649, 655 1) Lone, 2 Stra. 920 165, 166 V Lords Com'rs, etc., 4 Ad. & E1.984 797 V Marsden , 3 Burr. 1812 776 V Marten, 4 Bnrr. 2122 781, 782 V Martin, 2 Camph. 268 857 V Mayor, etc., 6 Ad. & El. 349 ; INev. &P. 474 825 V Mayor, etc., 7 Ad. & El. 215 ; 2Nev. &. P.274 825 V Mayor, etc,, 4 Dougl. 14 166 V Mayor, etc. , 1 Lev. 291 362 V Mayor, etc., 2 T. R. {D. & E.) 259 624, 825 V Mayor, etc., 5 T.R. (D. &E.) 66 655 ■!) Mead, 3 Burr. 1335 864 V Miller, 6 T. R. (D. & E.) 269. . Ill II Mills, 2 Show. 181 863 D Monday, 2 Cowp. 530 160 D Okey, 8 Mod. 45 856 V Oxford, 2 Salk. 428 362 V Palmer, 2 Burr. 1162 860 V Parry, 6 Ad. & El. 810. . .781, 782 !) Parry, 14 East 549 160 V Pateman, 2 T. R. (D. & E.) 777; Dougl. 398 30 V Patteson, 4 B. & Ad. 9 30 V Patteson, 1 N. & M. 612 30 SBC. Rex V Payn, 6 Ad. & El. 392 ; 1 N. & P. 524; W. W. & D. 142; 1 Jur.54 834 V Peacock, 4 T. R. {D. & E.) 684 781, 782 V Pinney, 5 Car. & P. 254 861 « Pitt, 3 Burr. 1335 864 V PoUman, 2 Campb. 229 49, 50, 864 V Poynder, 2 Dow. & Ry. 258; 1 B;&C. 178. 165 V Richardson, 1 Burr. 517 418 DRippon, 1 Ld. Ray. 563; 2 Salk.433 408 D Sainsbury, 4 T. R. (D. &. E.) 451 861 V Severn & W. Ry. Comp'yi 2 B.&Ald.646 819 V Shepherd, 4 T. R. (D. & E.) 381 776 V Southerton, 6 Bast 136 857 V StafEerton, 1 Bulst. 55 776 V Stubbs, 2 T. R. (D. & E.) 395. 68 n Stukely, 12 Mod. 493 859 V Tarrant, 4 Burr. 2106 863 t» Tate, 4 East, 337 784 V Taylor, 3 Salk. 231 370 V Tizzard, 9 B. & C. 418 . .30, 33, 36 D Trelawney , 3 Burr. 1616 30 V Trevenen, 2 B. & Aid. 479.. . . 781 V Vaughan, 4 Burr. 2494..49, 50, 864 1) Verelst, 3 Campb. 432 653 V Vice-chancellor, 3 Burr. 1647 159 i> Warrington, 1 Salk. 152 604 V Webb, 1 W. Blackst. 19 860 D Wells, 4 Burr. 1999 418 V Wetherill, Cald. 432 863 V Wheeler, Lee's Cas. temp. Hardwicke 99 833 DWhitaker, 9B. &C. 648...... 105 V Whitwell, 5 T. R. (D. & E.) 85 165, 784 1) Williams, 3 Burr. 1317 856 u Winshlp, Cald. 72 863 V Woodrow, 2 T. R. (D. & E.) 731 165 1) Young, 1 Burr. 556 856 Reynel's Case, 9 Coke 95 a 16 Reynolds v Blue, 47 Ala. 711 506 clii OSES CITED Seo. Reynolds i; Moore, 9 'Wend. (N. Y.) 35 758 1) Snow, 67 Cala. 497 144 Rice V Austin, 19 Minn. 103 796 V Comm., 3 Bush (Ky.) 14 623 D HarreU, 24 Ark. 402 10 u Stevens, 25 Kan. 302 156 V Walker, 44 Iowa 458 823 Rich V Player, 2 Show. 286 604 Bloh&ida, Ex parte, h. R. 3 Q. B. Div. 368 : 47 L. J. Q. B. 498 ; 38 L. T. 684 ; 26 W. R.695 782 V Kirkpatrick, 53 Gala. 433. ... 848 Richardson v Boston, 1 Curtis (U. S.)250 609, 615 1) Brooklyn, C. & N. R. R. Comp'y, 22 How. Pr. (N. Y.) 368 13, 14 «CrandaU, 48N. Y. 348....670, 673 D Heydeufeldt, 46 Gala. 68 573 D MeUish, 2 Bing. 229 51 V Smith, 2 Jones L. (N. C.) 8 204, 205 Richland County v Miller, 16 S. C. 244 529, 554 Richmond v Roberts, 7 Johns. (N. Y.)319 676, 683 Richmond Go. Sup'rs v Wandel, 6 Lans. (N. Y.) 33 . .255, 282, 283 Riddle v Bedford Connty, 7 Serg. & R. (Pa.) 386 4 . .10, 517, 659 Rider v Chick, 59 N. H. 50 588 Ridley v Sherhrook, 3 Gold w. (Tenn.) 569 124 Riggs V Boylan, 4 Biss. (U. S.) 445. . . 742 Rigsbee v Durham, 98 N. C. 81 157 RUey V Kansas City, 31 Mo. App. 439 510 V Mayor, etc. , 96 N. Y. 331 . . 347, 456 V Mayor, etc., 49 N. Y. Super. Gt.537 347, 456 Rindge v Lamb, 58 N. H. 278 478 Ring V Devlin, 68 Wis. 384 485 V Gibbs, 26 Wend. (N. Y.) 503. . 675 Ripley v Gelston, 9 Johns. (N. Y.) 201 530 u Gifford, 11 Iowa 367 448 Rlson V Farr, 24 Ark. 161 125 Ristiae V State, 20 Ind. 328 551 Seo. Robb B Carter, 65 Md. 321 325 Robbins v Lexington, 8 Gush. (Mass.) 292 801 Roberts v Davidson, 83 Ky. 279 823 V State, 34 Kan. 151 676 Robertsoni! Robinson, 65 Ala. 610.54, 55 • V Sichel, 127 U. S. 507 592 Robins, Ex parte, 7 Dowl. P. G. 566 ; IW. W. &H. 578; 3 Jur. 103 818, 819 Robinson, In re, 131 Mass. 376.15, 68, 70 V Bishop, 39 Hun (N. Y.) 370. . . 723 IJ Chamberlain, 34 N. Y. 389 713,724,727, 737 » Dunn, 77 Gala. 473 19 V Ensign, 6 Gray (Mass.) 300. . . 588 V Kalbflelsch, 5 T. & G. (N. Y.) 212 54 V Mansfield, 13 Pick. (Mass.) 139 702 V Rowland, 26 Hun (N. Y.) 501 739 V State, 60 Ind. 26 251 c White, 26 Ark. 139 19 Rochereau D Jones, 29 La. Ann. 28. . 285 Rochester v Randall, 105 Mass. 295 204,218, 245 Rochester & G. V. R. R. Comp'y v Clarke Nat. Bank, 60 Barb. (N. Y.) 234 623, 648 Rock « Stinger, 36 Ind. 346 224 Roderigas v East R. Sav. Inst'n, 63 N. Y. 460 720 Rodman v Harcourt, 4 B. Jlon. (Ky.) 224..... 39, 660 Rogers, Ex parte, 7 Cow. (N. Y.) 526 105, 106, 107, 110, 535, . 606 V Beauchamp, 102 Ind. 33 634 V Buffalo, 22 Abb. N. C. (N. Y.) 144;2N. Y. Supp. 326.... 98 V Buffalo, 123 N. Y. 173 73, 95 V Jacob, 88 Ky. 502 142 V Reeves, 1 T. R. (D. & E.) 418 669 V Slonaker, 32 Kan. 191 411 V State, 99 Ind. 218 204, 219 V United States, 32 Fed. R. (U. S.)890 187 Rollins V State, 13 Mo. 437 238, 291 Ronkendorff i! Taylor, 4 Peters (U. S.)349 560 cliii CASES CITED Sec. Roosevelt v Draper, 7 Abb. Pr. (N. Y.)10»; 16 How. Pr. (N. Y.)137 619 r Draper, 23 N. Y. 318 619, 851 V Edson, 51 N. Y. Super. Ct. 237 846, 853 Roper V Cady, 4 Mo. App. 693. . .835, 836 V Sangamon Lodge, 91 111. 518 245 Rose V Truax, 21 Barb. (N. Y.) 361. . 57 Rosenthal v Davenport, 38 Minn. 543 249, 745 Ross V Bro'Tn, 74 Me. 352 774 V Campbell, 19 Him (N. Y.) 615 588 ■B Hatch, 5 Iowa 149 221 1) Lane, 11 Miss. 695 823 V WUliamson, 44 Ga. 501. . .173, 434 Rossiter v Peek, 3 Gray (Mass.) 538. . 720 Roth D DuvaU, 1 Idaho 149 758 Rothrock D Carr, 55 Ind. 334 554, 852 Roudanez v New Orleans, 29 La. Ann. 271 844 Roulhac V MiUer, 89 N. C. 190. . .801, 805 Rounds D Bangor, 46 Me. .541 183 u Mansfield, 38 Me. 586 183 D Smart, 71 Me. 380 147 Roundtree, Ex parte, 51 Ala. 42 840 Ronse v Moore, 18 Johns. (N. Y.) 407 544 Rowe V Addison, 34 N. H. 306. . . .722, 729 V Kern County, 72 Cala. 353. . . 478 Rov/land v Cooper, 16 Gray (Mass.) 53 699 DMayor;etc., 83N. Y. 372 5 V Mayor, etc., 44 N. Y. Super. Ct.559 5 Rowley v Howard, 23 Cala. 401 585 Rowuing V Goodchild, 3 Wils. 443 ; 2 W. Blackst. 906 . 592, 724, 751 Royce v Goodwin, 22 Mich. 496 425 u Jenney, 50 Iowa 676 802 Rueker v Stipervisors, 7 W. Va. 661. 467 Ruggles V Collier, 43 Mo. 353 573 Rugle D Webster, 55Mo.246 338 Rule V Tait, 38 Kan. 765 522 Rumney v Campton, 10 N. H. 567. . . . 424 Runion i> Latimer, 6 S. C. 126., . .644, 666,787, 828 Runnels v State, 1 Miss. 146 341 Rupp V Rust, 4 Ohio Clr. Ct. 329 . . . . 69 Sec. Russell, In re, 51 Conn. 577 485 V Burton, 66 Barb. (N. Y.) 539. 58 D Freer, 56 N. Y. 67 261 D Jaooway, 33 Ark. 191 836 « Lawton, 14 Wis. 202 588 V Mayor, etc., 2 Denio (N. Y.) 461 593 ePhelps, 4aMich. 377 724 D State, 11 Kan. 308 147 D Walker, 150 Mass. 531 688 Ruthlaud v Paige, 24 Vt. 181 194 Ryers, In re, 10 Hun (N. Y.) 93. ..609, 617 i™re,72N. Y.l 609, 617 Oacramento County v Bird, 31 '^ Cala.66 186, 275 Sage V Laurain, 19 Mich. 137 736 St. Charles v Rogers, 49 Mo. 530 802 St. Helena Pai'ish v Burton, 35 La. Ann.521 288 St. Joseph & D. C. R. R. Comp'y v Buchanan Co. Court, 39 Mo.485 125 St. Joseph Co. Sup'rs v CofEenbury, 1 Mich. 354 187, 188 St. Joseph F. & M. Ins. Comp'y v Leland, 90 Mo. 177 ... . 724, 725 St. Joseph Township v Rogers, 16 Wall. (U. S.) 644 139 St. Louis Building & S. Ass'n v Lightner, 47 Mo. 393 .... . 758 St. Louis Co. Court v Sparks, 10 Mo. 117 181,649,825, 828 St. Paul V Marvin, 16 Minn. 102 811 St. Stephen Church Cases, 25 Abb. N. C. (N. Y.) 242 815 Saline County Com'rs v Anderson, 20 Kan. 298 512, 516 Saline County Subscription, In re, 45M0.52 802 Sailing V McKinney, 1 Leigh (Va.) 43 54, 579 Saltenberry v Loucks, 8 La. Ann. 95 231 Sample i) Davis, 4 Greene (Iowa) 117 231 Samuel v Comm. 6 T. B. Mon. (Ky.) 173 587 ' Sanborn v Neal, 4 Minn. 126 7 San Diego v San Diego & L. A. R. R. Comp'y, « Cala. 106 611 cliv CASES CITED Sbc. Sanders v GetcheU, 76 Me. 158. . .131, 7i7 cMetoalf,lTenn. C11.419..843, 846 Sandwich v Fish, 2 Gray (Mass.) 298 218,289, 664 Sanfason v Martin, 55 Me. HO 605 Sanford d Boyd, 2 Crancli C. C. (U.S.)78 3 Sanger v Co. Com'rs, 25 Me. 291 816 1) Craigue, 10 Vt. 555; 742 Sangster v Comm., 17 Gratt. (Va.) 124 241 San Jos6 V Welch, 65 Cala. 358 230 Sanshury v Middleton, 11 Md. 296. . . 320, 325 Sasportas v De la Motta, 10 Rich. Eq. (S. C.) 38 128 Satterfleld r People, 104 lU. 448 236 Satterlee v Jones, 3 Duer (N. Y.) 102 65 V San Francisco, 23 Cala. 314 82,147, 649 Saunders v Grand Rapids, 46 Mich. 467 32S u Haynes, 13 Cala. 145 163 D Lawrence, 141 Mass. 380 119 V Owen, 2 Salk. 467 ; 12 Mod. 199 86 V United States, 21 Ct. of CI. (TJ. S.) 408 496 Saunderson v Baker, 3 Wils. 309. .. . 754 Savaoool v Boughton, 5 Wend. (N. Y.) 170 757, 758 Savage v Gibbs, 4 Gray (Mass. ) 801 . . 774 V Piokard, 14 Lea (Tenn.) 46 . . . 508 Savings Bank v Ward, 100 U. S, 195 248 Saw MiU Comp'y v Brooklyn, 8 Hun (N. Y.) 37 593 Sawyer u Corse, 17 Gratt. (Va.) 230 12, 751 •B Wilson, 61 Me. 539 763 Sayers v Superior Ct., 84 Cala. 642 808, 811 Scammon i) Scammon, 28 N. H. 419. 179 Scarborough v Parker, 53 Me. 252 187, 204 Scarffl V Foster, 15 Ohio St. 137 . . .320, 777 Scarlet's Case, 12 Coke 98 865 Scheer v Keown, 29 Wis. 586 705 Scheerer v Edgar, 76 Cala. 569 820 ScheU V Stein, 76 Pa. St. 398 743 Sec. Schenoku Peay, 1 Woolw. (TJ. S.) 175 106, 113 Scherr v Little, 60 Cala. 614 693 Schiek v School Trustees, 16 111. App.49 195 Schinotti v Bumsted, 6 T. R. (D. & E.)646 728 Sohloss V Hewlett, 81 Ala. 266, . . .43, 579 B White, 16 Cala. 65 233 Schmalz v United States, 4 Ct. of C1.(U.S.)142 31 Schmidt, Ex parte, 63 Ala. 353 818 Schmitt V Drcmet, 43 La. Ann. 1064. 230 School Directors v People, 79 111. 511 177 School District v Atherton, 13 Met. (Mass.) 105 325, 338 V Gage, 39 Mich. 484 48 u Lyford, 27 Wis. 506 295 School Trustees v Sheik, 119 111. 579 195, 266 Schroepel v Taylor, 10 Wend. (N. Y.)196 27 Schroyer v Lynch, 8 Watts (Pa.) 453. 592 Schuchardt v People, 99 111. 501 69 Schuessler v Dudley, 80 Ala. 547 203 Schuyler v Marsh, 37 Barb. (N. Y.) 350 106, 110 Schuylkill Co. v Boyer, 125 Pa. St. 226 510 Schwab, Ex parte, 98 U. S. 240 813 V Coots, 44 Mich. 463._. 810 Schwartz!) Flatboats, 14 La. Ann. 340... 624 SchwarzvCounty Ct., 14Colo. 44... 808 Scofleld V Perkerson, 46 Ga. 350 843 Scoles V Wilsey, 11 Iowa 261 743 Scott V Co. Com'rs, 17 Fla. 707 816 V Detroit Y. M. Soc, 1 Dougl. (Mich.; 119 106, 108 B McGuire, 15 Nebr. 303 846 t> State, 46 Ind. 203 233 V Superior Ct., 75 Cala. 114. ... 820 V Tyler, 14 Barb. (N. Y.) 202.. . . 696 V Whittemore, 29 N. H. 309. .. . 699 Scott County v King, 29 Minn. 398 205,213,213, 333 Scoville V Calhoun, 76 Ga. 263 814 Scroggs V Alexander, 88 N. C. 64. . . . 805 clv CASES CITED Sec. Scroggs Case, 8 How. St. Tr. 163. .. . 856 Scryven v Dyther, Cro. Ellz. 672. ... 669 Seaman v Patten, 3 Caines (N. Y.) 312 713 Searcy u Grow, 15 Gala. 117 39 Searie v Williams, Hob. 288 835 Seaver D Pierce, 42 Vt. 325 567, 588 I) Young, 16 Vt. 658 292 Secombe v Kittelson, 29 Minn. 555 798, 843 Seoor V Bell, 18 Johns. (N. Y.) 52. . . . 764 Secord v Foutch, 44 Mich. 89 150 Secretary v McGarrahan, 9 Wall. (U.S.)298 155,797, 832 Sedgwick V Stanton, 14 N. Y. 289.56, 57 Seekins v Goodale, 61 Me. 400. . . . 758, 768 Seeley v People, 27 HI. 173 267 Seim D State, 55 Md. 566 845 Selma & G. R. R. CompV, Ex parte, 46Ala.423 798 Selser v Brock, 8 Ohio St. 302 267 Sessums t) Botts, 34 Tex. 335 730 Settle V VanEvrea, 49 N. Y. 280 309 Sevier v Justices, Peck (Tenn.) 334. 376 Sewall V Bates, 2 Stew. (Ala.) 462. . . 587 V Placer County, 42 Cala. 650. . 460 Seymour v Ellison, 2 Cow. (N. Y.) 13 14 Shackell v Rosier, 2 Bing. (N. C.) 634 687 Shadgett v Clipson, 8 East 328 765 Shanley v Brooldyn, 30 Hun (N. Y.) 396 12 Shannon v Baker, 33 Ind. 390. . . .298, 314 V Portsmouth, 54 N. H. 183.403, 507 Sharp t) Speir, 4 Hill (N. Y.) 76 559 V Thompson, lOOIU. 447 649 V United States, 4 Watts (Pa.) 21 199 V Wright, 35 Barb. (N. Y.) 236. 63 Shattuck t) State, 51 Miss. 575 342 DWoods,lPick.(Mass.)171.524, 530 Shaw V Dennis, 10 ID. 405 758, 761 «Havekluft,2ini.l27 288 I) Hill, 67 ni. 455 846 V Mayor, etc., 19 Ga. 468. .. .369, 516 uMayor,etc.,21Ga. 280....369,- 516 uPeckett, 25Vt.423 760 D Reed, 16 Mass. 450 734 V Tobias, 3 N. Y. 188 674 Sec. Sheehan D Gleeson, 46 Mo. 100 572 Sheehan's Case, 122 Mass. 445 631 Sheen v Stothart, 29 La. Ann. 630. . . 843 Sheik V School Trustees, 16 111. App. 49 , 195 Shelby v Alcorn, 36 Miss. 273 . 2, 8, 10. . . 649 Sheldon v Payne, 7 N. Y. 453 588 1) Van Buskirk, 2 N. Y. 473 . 758, 770 V Wright, 7 Barb. (N. Y.) 39. . . 559 SheU V Cousins, 77 Va. 328 837 Shephard v Payne, 16 C. B., N. S. 132 ; 33 L. J., C. P. 158 ; 10 Jur. N. S. 540 ; 10 L. T. 193; 12W.R.581 445 Shepherd v Burkhalter, 13 Ga. 443. . 742 V Haralson, 16 La. Ann. 134 ^8 V Lincoln, 17 Wend. (N. Y.) 250 724 V Staten, 5 Heisk. (Tenn.) 79. .. 659 Sheppard v Collins, 13 Iowa 570 188 Sherburne v Horn, 45 Mich. 160 815 Shergold v HoUoway, 2 Str. 1002. ... 768 Sherlock v Jacljsonville, 17 Fla. 93. . 837 D Winnetka, 59 111. 389 852 V Winnetka, 68 111. 530 542, 852 Sherman v Carr, 8 R. I. 431 495 u Torrey, 99 Mass. 472 769 Sherman County v Simons, 109 U. S. 735 551 Sherrell v Goodmm, 3 Humph. (Tenn.)419 210 Sherwood v Duluth, 40 Minn. 22. . . . SCB Shields v McGregor, 91 Mo. 534 144 Shipman v Clark, 4 Denio (N. Y.) 446 76d V McMlnn, 1 Wins. (N. C.) 122 200 Shober v Cochrane, 53 Md. 544 822 Shoemaker v Nesbit, 2 Rawle (Pa.) 201 722 Short V Symmes, 150 Mass. 298 660 ShotweU V Hamblin, 23 Miss. 156 682, 683 Shrewsbury (Earl of) Case, 9 Coke 46 16,418, 583 Shrewsbury (Earl of) v North Staf- fordshire Ry. Comp'y, L. R. 1 Eq. 593 ; 35 L. J. Ch. 156; ISJur. N. S. 63; 13L.T.648; 14W.R.220. 58 clvi CASES CITED Sec. Shrewsbury & B. Ry. Comp'y v London & N. W. Ry. Comp'y, 2Mac. & Gordon 324; 6 H. L. Cas. 113; 3 Mac. & Gordon 70; 21 L. J. Q. B. 89; 17A. &E.N. S.652 58 Sliriver v Hartaugh, 37 Pa. St. 399. . 682 Sliumway v Carpenter, ,13 Allen (Ma8S.)68 698 D Leakey, 73 Cala. 260 464 Shuttlewortli v Levi, 13 Bush (Ky.) 195 676 Sidway v South. Park Com'rs, 120 111.496 478, 483 Slgur V Crenshaw, 10 La. Ann. 297. . 523 Sikes V Hatfield, 13 Gray (Mass.) 347 446 SiUars v Collier, 151 Mass. 50 771 SiUiman v Frederlckshurg, O. & C. R. R. Comp'y, 27 Gratt. (Va.) 119 5S6 Silver v Cummlngsi 7 Wend. (N. Y. ) 181 544 SUvey V Lindsay, 42 Hun (N. Y.) 116 154 V Lindsay, 107 N. Y. 55 131, 154 Simmons v Wagner, 101 U. S. 260. . . 538 Simon v Hoboken, 52 N. J. L. 367. .. . 802 Simons v Jackson, 63 Tex. 428 255 V People, 119 111. 617 149 Simonson v Falihee, 25 Hun (N. Y.) 570 743 Simpson v Bovard, 74 Pa. St. 351. .. . 265 V Brown, 18 N. Y. St. Rep'r 781 ; 2 N. Y. Supp. 571 141 V Howden, 10 A. & E. 793; 9 CI. & Finn. 61 ; SRailw. Cas. 294 58 Suns V County Com'rs, 39 Ind. 40 553 Sinclair v Co. Com'rs, 23 Minn. 404. . 852 V Slawson, 44 Mich. 123 742 Singer Man. Comp'y i) Cole, 78 Ga. 353 811 Sinking Fund Cases, 99 U. S. 700..532, 552 Sinks V Reese, 19 Ohio St. 306 130 Skillett V Fletcher, L. R. 1 C. P. 217; 35L. J.C. P. 154; 12 Jur. N. S.295;1H. &R. 197.. 269 Sec. Skillett V Fletcher, L. R. 2 C. P. 469 ; 36L. J. C. P. 206;16L. T. 426;15W. B. 876 269 Skinner v Wilson, 61 Miss. 90 588 Sleigh V United States, 9 Ct. of CI. (U.S.) 369 501 Slifer D State, 114 Ind. 291 293 Slingsby's Case, 3 Swanst. 178. . .401, 507 Sloan V Case, 10 Wend. (N. Y.) 371. . 240 Slotts V Rockingham County, 53 N. H.598 542 Smith, Ex parte, 8 S. C. 495 333, 643 In re, 18 N. Y. St. Rep'r 785 ; 3 N. Y. Supp. 107 148 V Abrams, 90 N. C. 21 802, 805 V Albany, 7 Lans. (N. Y.) 14. . . 619 V Albany, 61 N. Y. 444 619 V Berry, 37 Me. 298 588, 598 uBirdsaU, 9 Johns. (N. Y.) 328 448 V Bouchier, 2Stra. 993; 2 Bam. 331 ; Cas. temp. Hard- wicke 62; Cunn. 89, 127 ; 2Kelyn. 144,pl. 123...721, 757 B Brown, 59 Gala. 672 354 D Cansler, 83 Ky. 367 632 D Cicotte, 11 Mich. 383 682 DComm., 25 Gratt. (Va.) 780 273, 283 V Comm., 41 Pa. St. 335 450 ■u Cronkhite, 8 Ind. 134 173 V Cudworth, 24 Pick. (Mass.) 196 701 D Doak, 3 Tex. 215 259 » Dyer, 1 CaU (Va.) 562. 91 V Frisbie, 7 Iowa 486. 571 1! Gates, 21 Pick. (Mass.) 55. . . . 763 V Holmes, 54 Mich. 104 248, 249,707, 744 t) Jones, 76 Me. 138 764 B Judkins, 60 N. H. 127 588 V Keniston, 100 Mass. 172 762 V Lovell, 2 Mont. 332 237 u Lynch, 29 Ohio St. 261 634 V Madison Parish, 30 La. Ann. Partl,461 543 V Magourich, 44 Ga. 163 852 V Mayor, etc., 67 Barb. (N. Y.) 223 7 clvii CASES CITED Sec. Smitli V Mayor, etc., 1 Daly (N. Y.) 219 511 V Mayor, etc., 37 N. Y. 518..511, 512, 513 DMeador, 74Ga. 416 649 D Moody, 26 Ind. 399 80 V Moore, 90 Ind. 294 81, 164, 187 D Newburgh, 77 N. Y. 130 551 DOsgood, 46N. H. 178 682 1) People, 99 111. 445 758 ■i! Peoria County, 59 111. 413 262, 263 ■u Philadelphia Co., 2 Pars. Eq. Cases (Pa.) 293 19 D Powdlch, 1 Cowp. 182 751 u Reed, 24 Mich. 240 805 V Saginaw, 81 Mich. 123 816 1) Shaw, 12 Johns. (N. Y.) 257. . 757 D Smith, 1 Bailey (S. C.) 70 530 1) Stapler, 53 Ga. 300 231 D State, 24 Ind. 101 426 D State, 1 Kan. 365 548 1) Strobach, 50 Ala. 462 798 V United States, 5 Pet. (U. S.) 292 283 D Taylor, 66 Ga. 292 187 V Trawl, 1 Root (Conn.) 165. ... 729 V Waterbnry, 54 Conn. 174 465 V Whildin, 10 Pa. St. 39 486 V Whitney, 116 U. S. 167. . . .835, 836, 839 V Wingate, 61 Tex. 54 187, 190 « Wright, 24 Barb. (N.Y.) 170. 724 Smyth V Latham, 9 Bing. 692 16 uMunroe, 19Hun(N. Y.)550.. 567 « Munroe, 84 N. Y. 354 567 Sneed u BuUocls, 77 N. C. 383 850 SneU D State, 43 Ind. 359 353 Sniffen v Mayor, etc., 4 Sandf. (N.Y.) 193 441 Snow I' Fitchburg, 136 Mass. 179 ... . 801 Snyder, Ex parte, 64 Mo. 58 639 V Schram, 59 How. Pr. (N. Y.) , 404 624 Soens V Racine, 10 Wis. 271 106 Scper D Henry Co. , 36 Iowa 264 593 Soucy V People, 113 111. 109 149 Soudant v Wadham, 46 Conn. 218... 630, 660 Sec. South i> Maryland, 18 How. (U. S.) 396 535 South & N. A. R. R. Comp'y, Ex parte, 65 Ala. 599 818 South Carolina Soc. v Johnson, 1 McCord (S. C.) 41 214 South Carolina Ins. Comp'y v Smith, ,2Hill(S. C.) 589 214 Southern Boulerard, In re, 3 Abb. Pr. N. S. (N. Y.) 447 617 Spain V Clements, 63 Ga. 786 349 Spalding v Preston, 21 Vt. 9 543 Spangler v Comm., 16 Serg. & R. (Pa.) 68 683 Spaulding v Vincent, 24 Vt. 501 . .302, 634 Speakership, In re, 15 Colo. 530. .400, 858 Spear v Robinson, 29 .Me. 631 81 « Tilson, 34 Vt. 420 760 Spears v Smith, 9 Lea (Tenn.) 483. . . 729 Specht V Detroit, 30 Mich. 168 805 Speed V Crawford, 3 Met. (Ky.) 307 84, 303 Spenoe D Harvey, 33 Cala. 337 56 Spencer v Perry, 17 Me. 413 713, 734 Spencer Co. Court Justices i) Har- court, 4 B. Mon. (Ky.) 499 39 Sperry v Willard, 1 Wend. (N. Y.) 32 764 Spicer v Slade, 9 Johns. (N. Y.) 359. 106 Spitzer v Blanchard, 82 Mich. 234. . . 551 Spitznogle v Ward, 64 Ind. 30. . .713, 723 Spragins v Houghton, 3 111. 377 748 Sprague v Bailey, 19 Pick. (Mass.) 436 649, 758, 761 V Norway, 31 Cala. 173 147 V Wheatland, 3 Met. (Mass.) 416 698 Spring Valley Water Works v Bartlett, 63 Cala. 245. .. . 839 V Bartlett, 8 Sawyer (U. S.) 555 844 Springfield v Edwards, 84 111. 636. . . 852 Springhead Spinning Comp'y v Riley,L.R. 6Eq.Cas.651 845 Sprowl V Lawrence, 33 Ala. 674 173 Stack V Bangs, 6 Lans. (N. Y .) 262. . . 712 StackpoleuEarle, 2Wils. 133 52 Stadler t! Detroit, 13 Mich. 346. .101, 312,333,351,364, 516 olviii CASES CITED Sec. Stahl V O'Malley, 39 Wis. 328 7.58 Stamper V MiUar, 3 Atk. 211 547 V Temple, 6 Humph. (Tenn.)113 486 Standart v Burtla, 46 Hun (N. Y.) 82 853 Stanley v Chester & B. Ry. Comp'y, 1 Railw. Cas. 58 ; 3 Myl. & Or. 773 ; 9 Sim. 264 58 DMoimet,34Kan. 708 822 Stansbury v United States, 1 Ct. of CI. (U.S.) 123 480 V United States, 8 Wall. (U. S.) 33 480, 490 Stanton v MoMullen, 7 111. App. 326 682, 691 Staples 1) Fairchild, 3 N. Y. 41 720 Starin v Mayor, etc., 43 Him (N. Y.) 549 853 Stark 11 Raney, 18 Cala. 622 682 State, Ex parte, 89 Ala. 177 840 V Abbott, 41 La. Ann. 1096 80 1) Adams, 45 Iowa 99 128 V Adams, 2 Stew. (Ala.) 231.125, 126 D Albin, 44 Mo. 346 137, 138 V Aldricb, 14 R. 1. 171 131 V AUen, 21 Ind. 516 298, 408, 420, 425 V Allen, 2 Ired. L. (N. C.) 183. . 649 V Allen, 5 Ired. L. (N. C.) 36. . . 577 V Allen, 7 Jones L. (N. C.) 564. 232 D AUen, 5 Kan. 213 368 » AUen, 92 Mo. 20 814 D AUen, 12 Ohio 59 252 V AUlng, 12 Ohio 16 657 ■uAlsup, 91Mo. 172 204 D Alt, 26 Mo. App. 673 304 V Ancker, 2 Rich. (S. C.) 245. . . 408 D Anderson, IN. J. L. 318 636 V Anderson Co. Com'rs, 28 Kan. 67 • 815 V Appleby, 25 S. C. 100 815 V Archibald, 43 Minn. 328. .814, 823 D Askew, 48 Ark. 82 315 V Atlantic City, 52 N. J. L. 332 784, 81:8 V Auditor, 36 Mo. 70 825 1) Avery, 14 Wis. 122 159 D Babcock, 22 Nebr. 38 818 D BaUey, 7 Iowa 390 812 D Baird, 47 Mo. 301 422 Seo. State D Baker, 47 Miss. 88 250, 258 D Baker, 64 Mo. 167 263, 267 V Baker, 38 Wis. 71 . 125, 132, 134, 138 V Baker Co. Com'rs, 22 Fla. 29. 820 V Baldwin, 14 S. C. 135 207 V Baltimore Co. Com'rs, 46 Md. 621 818 V Bank, etc., 45 Mo. 528 656 V Bankston, 23 La. Ann. 375. . . 299 V Barbour, 53 Conn. 76 90 1) Barden, 77 Wis. 601 144 D Barker, 4 Kan. 379 7S8 i; Barnes, 24 Fla. 29 455 « Barrow, 29 La. Ann. 243 354 V Bartlett, 30 Miss. 624 188, 189 V Bateman, 102 N. C. 52 220 D Bates, 86 Vt. 387 286, 288 u Batt, 40 La. Ann. 582 833 V Beecher, 15 Ohio 723 . ; 785 « Bell, 116 Ind. 1 19 V Bemenderf er, 96 Ind. 374 329 V Benedict, 15 Minn. 198. . . .329, 433 u Berg, 50 Ind. 496 333 l) Berg, 76 Mo. 136 158 v Bevers, 86 N. C. 588 551, 556 D Bieler, 87 Ind. 320 785 V Bird, 2 Rich. (S. C.) 99 295 V Bishop, 42 Mo. 504 824 1) Black, 22 Minn. 336 308 K Blair, 32 Ind. 313 182 V Blair, 76 N. C. 78 323 V Blakemore, 7 Heisk. (Tenn.) 638 294 D Blasdel, 4 Neva. 241 796 D Bloom, 17 Wis. 521 637 V Blossom, 19 Neva. 312 641 r Boal, 46 Mo. 528 163, 781 V Board of Health, 49 N. J. L. 349 £00 V Board of Liquidators, 23 La. Ann. 388 814 1) Board of Police, 88 Mo. 144 304, 363 V Board of PubUc Lands, 7 Nebr.42 304 V Board of State Canvassers, 17Fla. 29 156 V Board of State Canvassers, 36Wis.498 156 clix CASES CITED Sec. State V Boeoker, 56 Mo. 17 411, 415 u Bonner, 72 Mo. 387 231 I) Boone, 98 N. C. 573 156 « Bordelou, 6 La. Aim. 68 798 DBoutwell,13WaU.{U. S.)526. 824 u Bowen, 8 S. C. 400 779 u Boyd, 21 Wis. 208 83 •B Bradshaw, 10 Ired. L. (N. C.) 229 279 u Brady, 42 Ohio St. 504. 313 V Brennan's Liquors, 25 Conn. 278 623 V Brewer, 59 Ala. 130 446, 478 D Brewster, 44 Ohio St. 589.305, 326 V Brinkerhoff, 66 Tex. 45. .. .31, 36 V Brown, 11 Ired. L. (N. C.)141 241 DBrowu, 54Md. 318 241 « Brown, 38 Ohio St. 344 310 DBrown, 5R. LI 34,781, 786 11 Bninst, 26 Wis. 412 19 V Bryce, 7 Ohio, Part IL 82.421, 437 ■!) Bryson, 44 Ohio St. 457 328 V Buckland, 23 Kan. 259 785 I) Buckles, 39 Ind. 272 552 I) Budd, 39 La. Ann. 232 375 V Buffalo, 2 Hill (N. Y.) 434.576, 678 V Buffalo Comity, 6 Nebr. 454. 552 ■u Buhler, 90 Mo. 560 818 V Burckhartt, 87 Mo. 533 837 i> Burgoyne, 7 Ohio St. 153 814 V Burnside, 33 S. C. 276 813, 814 V Butman, 42 N. H. 490 624 « Butts, 31 Kan. 537 132 B Buttz, 9 S. C. 156 31,33, 36 V Buxton, 2 Swan (Tenn.) 57. . . 855 V Calvert, 98 N. C. 580. .147, 149, 156 V Camden, 39 N. J. L. 416. .801, 802 D Camden, 47 N. J. L. 64 378 D Camden, 47 N. J. L. 454 802 V Campbell, 2 Tyler (Vt.) 177. . 713 «) Cannon, 34 Iowa 322 678 ■uCansler, 75N. C. 442 668 V Capers, 37 La. Ann. 747 298 V Carleton,l GiU (Md.) 249..272, 273 V Carrick, 70 Md. 586 729, 734 V Carroll, 38 Conn. 449. .623, 625, 628,637,638,649, 651 D Carson, 27 Ark. 469 430 1! Cavers, 22 Iowa 343 156 Sec. State V Centreville Bridge Comp'y, 18Ala.678 782 V Chadwlok, 10 Oreg. 465 243 DChamplin,2 Bailey L. (S.C.) 220 795 V Chapin, 110 Ind. 272 313 u Charleston, 1 S. C. 30 156 V Chase, 42 Mo. App. 343 814 V Chase, 5 Ohio St. 528 796 u Choate, 11 Ohio 511 19, 426 V Churchill, 48 Ark. 426.197, 204, 217 « Churchill, 41 Mo. 41 173 V City Council, 3 Harr. (Del.) 294 12 V City CouncU, 39 N. J. L. 416 80i; 802 V City Council, 47 N. J. L. 64. . 378 V Clark, 1 Head (Tenn.) 369 ... . 288 u Clark, 52 Mo. 508 521 V Clarke, 3 Harr. (Del.) 557. .. . 130 u Clarke, 3 Neva. 566 39,81, 410 « Clarke, 73 N. C. 255 224, 554 V Clayton, 27 Kan. 442; 41 Am. R.418 411, 415 V Clendenin, 24 Ark. 78 37 vClerk, etc., 25N. J.L.354.... 159 D Cocke, 54 Tex. 482 329 1) Coco, 42 La. Ann. 408 801 K Collier, 72 Mo. 13 456, 778 u Collins, 5 Wis. 339 609, 615 u Colrig, 15 Oreg. 57 173 1) Columbia, 17 S. C. 80 837 V Commissioners, 2 Bailey L. (S.C.)220 795 « Commissioners, 2 Carolina L. Repository 617 855 V Common Council, 25 N. J. L. 536 362,369,378,404, 828 V Common Council, 33 N. J. L. 110 816 V Common Council, 49 N. J. L. 177 360 V Common Council, 9 Wis. 254 362,378, 828 1! Comptroller General, 9 S. C. 259 496 V Connor, 34 N. W. Rep'r (Nebr.) 499 ; 22 (Nebr.) 265 125,133, 134 clx CASES CITED Sec. State V Conover, 28 N. J. L. 224. .230, 241, 731 V Constable, 7 Ohio 7 314 V Constantine, 42 OMo St. 437 12,5, 140 «Cook,72Mo.496 187 V Cook, 57 Tex. 205 461, 462 c Cooper, 53 Misa. 615 288 V Corner, 22 Nebr. 265 ; 34 N. W. Rep'r 499 125, 132, 134 V County Commissioners, 17 Fla.7OT •• 816 D Co. Com'rs, 20 Fla. 859 138 V Co. Com'rs, 22 Fla. 29 820 V Co. Com'rs, 125 Ind. 247 822 V Co. Com'rs, 23 Kan. 264 157 V Co. Com'rs, 26 Kan. 419 815 D Co. Com'rs, 28 Elan. 67 815 V Co. Com'rs, 36 Kan. 236 149 ■!) Co. Com'rs, 39 Kan. 85 778 V Co. Com'rs, 46 Md. 621 818 V Co. Com'rs, 6 Nebr. 454 552 V Co. Com'rs, 12 Nebr. 6 553 V Co. Com'rs, 7 Neva. 392 532 D Co. Com'rs, 14 Neva. 66 554 V Co. Com'rs, 5 Ohio St. 497. .. . 816 V County Court, 39 Mo. 375 ... . 833 V County Court, 44 Mo. 230. .. . 173 I! County Court, 68 Mo. 29 818 V County Court, 80 Mo. 500. .. . 805 V County Court, 33 W. Va. 589 814,818,820, 822 V County Judge, 2 Iowa 280. .. . 816 V County Judge, 7 Iowa 186 156,157, 816 u Covington, 29 Ohio St. 102 26, 74 I! Craft, 17 Fla. 723 815 D Craig, 58 Iowa '238 197, 262 J) Crooks, 7 Ohio 573 205 V Crooks, 7 Ohio, Part 2, 221. .. 215 I! Curran, 10 Ark. 142 31 V Dahl, 65 Wis. 610 172, 175 r Davis, 96 Ind. 539 293 B Davis, 117 Ind. 307 293 D Davis, 44 Mo. 129 17, 20 D Davis, 88 Mo. 585 230, 236 l> Davis, 45 N. J. L. 390 330 1) DeGress, 53 Tex. 387 39 Seo. State V Delafleld, 8 Paige (N.Y.) 627 551 V Dellwood, 33 La. Ann. 1229 31, 36 V Dennison, 24 How. (U. S.) 66." 812, 834 V Deslonde, 27 La. Ann. 71 798 V Dews, R. M. Charlt. (Ga.) 397 19 V Dierberger, 90 Mo. 369 .... 654, 668 D Dike, 20 Minn. 363 798 V District Court, 44 Minn. 244.. 808 V District Court, 49 N. J. L. 537 814 V District Judge, 32 La. Ann. 1305 820 1) District Judge, 32 La. Ann. 1306 814 V District Judge, 42 La. Ann. 847 818 V Doherty, 25 La. Ann. 119. .304, 364, 396 V Donnewirth, 21 Ohio St. 216 155, 157 V Dougherty, 45 Mo. 294 818 V Douglass, 26 Wis. 428 19 uDoyle, 40Wis. 175 538, 798 c Draper, 45 Mo. 355 31 ■!) Draper, 48 Mo. 213 621 1) Draper, 50 Mo. 353 305, 426 B Drew, 17 Fla. 67 795, 796 V Druly, 3 Ind. 431 238, 241 D Dubuc, 9 La. Ann. 237 328 V Dubuclet, 26 La. Ann. 127. .. , 798 V Dubuclet, 28 La. Ann. 698 ... . 820 V Dulle, 48 Mo. 282 758 V Dunn, Minor (Ala.) 46 825 DDunn, 73N. C.595 79 V Dusman, 39 N. J. L. 677 828 V Dustin, 5 Oreg. 375 75, 76 » Echeveria, 33 La. Ann. 709. . . 79 V Edwards, 51 N. J. L. 479.. 539, 821, 822 V Elkinton, 30 N. J. L. 335 165 t)Ellis,33N.J. L. 102 864 D Elwood, 13 Wis. 551 158 t) Ely, 43 Ala. 568 173 V Eskridge, 5 Ired. (N. C.) 411.. 235 V Fagan, 42 Conn. 32 328 uFagan, ejonesL. (N. C.)62.. 208 V Falconer, 44 Ala. 696 173 B Farmer, 21 Mo.160 238 clxi CASES CITED Sec. State V Farrier, 47 N. J. L. 383. , .640, 649 V Feibleman, 28 Ark. 424 37 B Felton, 69 Miss. 402 220 V Ferguson, 31 N. J. L. 107 . .300, 411 « Fetter, 12 Wis. 586 159 V Field, 37 Mo. App. 83 814 V Findley, 101 Mo. 368 197, 200 V Findley, 10 Ohio 51. . .173, 192, 288 V Finn, 23 Mo. App. 290 216 D Finney. 125 Ind. 427 220 V Fisher, 30 La. Ann. Part I, 514 452 V Fisher, 28 Vt. 714 781, 782 DFiske,9R. 1.94 , 573 1)Fitts,49Ala. 402 410, 414 V Fletcher, 39 Mo. 388 795 DFlinn, 3Blackf. (Ind.)72.... 237 u Flinn, 77 Ala. 100 200 V Foster, 33 Kan. 14 368 V Foster 7 N. J. L. 101 378 V Foster, 38 Ohio St. 599. . . .145, 158 V Fowler, 41 La. Ann. 380 80 V Frambach, 47 N. J. L. 85 156 D Francis, 23 Kan. 495 798 V Francis, 95 Mo. 44 816 V Fritz, 27 La. Ann. 689. 638,645, 651 V Fulkerson, 10 Ho. 681 313 V Furguson, 76 N. 0. 197 855 I! Fyler, 48 Conn. 145 818 u Gaines, 2 Lea CTenn.) 316. ... 475 V Galbraith, 65 N. C. 409. . .204, 205 r Gales, 77 N. C. 283 19 V Gallagher, 81 Ind. 558 777 I) Gamble, 13 Fla. 9 798 1! Gardner, 2 Mo. 23 860 V Garesoh^, 3 Mo. App. 526. .. . 813 I! Garton, 32 Ind. 1 262 « Gastinel, 20 La. Ann. 114' ',63 D Gates, 43 Conn. 533 . 145 V Gates, 35 Minn. 385 397 V Gibbs, 13 Fla. 55 157 I! GObreath, 48 Mo. 107 426 V Giles, 1 Ghand. (Wis.) 112. .. . 163 t! GiYan, 45 Ind. 267 233 V Glasgow N. C. Conf. R. 176 (38) 858 V Gleason, 12 Fla. 190 785 V Gloucester, 49 N. J. L. 177 . . . 360 V Gcetze, 22 Wis. 363 160, 151 Sec. State V Goff, 15 R. 1. 505 31, 34, 36 V Good, 41 N. J. L. 296 150, 151 u Goowin, 69 Tex. 55 147 u Goss, 69 Me. 22 688 I) Governor, 39 Mo. 388 795, 796 B Governor, 25 N. J. L. 331 . .156, 796 uGovernor, 5 0hioSt. 528..796, 821 V Gracey, 11 Neva. 223 . .812, 813, 816 V Graham, 13 Kans. 136. . . .778, 784 V Graham, 25 La. Ann. 73 366 V Graham, 26 La. Ann. 588 423 V Graham, 60 Wis. 395 802 « Graves, 19 Md. 351 815 u Green, 15 N. J. L. 88 179 • V Guiney, 26 Minn. 313 106, 112 u Haben, 22 Wis. 860 818 V Hadley, 27 Ind. 496 434 iiHall, 6Baxt. (Tenn.) 3 812 V Hallock, 19 Neva. 371 461 V Hamilton Co. , 7 Ohio 134. ... . 89 u Hamilton Co. Com'rs, 39 Kan. 85 778 V Hammer, 43 N. J. L. 435 781 V Hammonton, 38 N. J. L. 430. 495 I) Harney, 57 Miss. 863. .188, 197, 289 ti Harper, 6 Ohio St. 607 224 B Harris, 89 Ind. 363 707 D Harrison, 113 Ind. 434. . . .326, 330, 431 V Harrison, 116 Ind. 300 496 V Harrison, 38 Mo. 540 156, 157 D Harwood, 36 Kan. 236 149 D Hastings, 10 Wis. 518 542 V Hastings, 12 Wis. 596 21, 551 V Hastings, 15 Wis. 75 43 V Hauser, 63 Ind. 166 673 t)Hauss,43Iud.l05 410, 414 1) Hawkins, 77 N. C. 494 865 V Hawkins, 44 Ohio St. 98. .19, 327,392,396, 778 V Hay, Wright (Ohio) 96 373 D Hayne, 8 S. C. 367 ' 156 D Hays, 52 Mo. 678 556 V Heinmiller, 38 Ohio St. 101. . 405 D Heisey, 56 Iowa 404 188 V Henderson, 40 Iowa 242 190 D Henderson, 15 Lea (Tenn.) 274 448 V Henderson, 38 Ohio St. 644. .. 816 V Henry, 41 La. Ann. 908 836 clxii CASES CITED Sec. State V Hemdon, 107 N. C. 934 801 V Herron, 24 La. Ann. 432 406 V Herron, 29 La. Ann. 848 813 V Hicks, 2 Blackf. (Ind.) 336. . . 291 V Hightstown, 46 N. J. L. 102. . 378 •B Hill, 10 Nebr. 58 156, 157 D HiU, 20 Nebr. 119 156 ■D Hixon, 27 Ark. 898 778 V Hodgeman Co. Com'rs, 23 Kan.264 157 u HoUaday, 67 Mo. 64 478, 496 V Hopkins, 10 Ohio St. 609 329 D Horn, 94 Mo. 162 188, 190 u Houston, 78 Ala. 576 228 V Houston, 83 Ala. 361 228 V Houston, 4 Blackf. (Ind.) 291 237 V Houston, 40 La. Ann. 393 ... . 837 V Howard Co. Court, 39 Mo. 375 833 V Howe, 25 Ohio St. 588 . .19, 328, 431 u Hoyt, 20reg. 246 36,120, 611 u Hudson, 32 N. J. L. 365 811 V Hudson Co., 44 N. J. L. 388. . 465 V Hudson Co. Avenue Com'rs, 37N. J.L. 12 808 « Hunt, 54 N. H. 431 432 V Hunton, 28 Vt. 584 785 V Hutson, 1 McCord (S. C.) 240 320 cHutt, aArk. 282 36 V Irwin, 5 Keva. Ill 91 V Jacobs, 17 Ohio 143 657, 782 I) Jarrett, 17 Md. 309 183, 328 D Jefferson, 66 N. C. 309 571 V Jefferson Co. Com'rs, 17 Fla. 7OT 816 D Jenkins, 43 Mo. 261 329 1) Jennings, 4 Ohio St. 418 241 V Jennison, 20 Minn. 363 798 V Jersey City, 25 N. J. L. 536. . . 362,369,378,404, 828 V Jersey City, 35 N. J. L. 404. . 808 V Jervey, 4 Strobh. (S. C.) 304. 758 u John, 81 Mo. 13 521, 826 V Johnson, 17 Ark. 407 , 298 V Johnson, 2 Bay (S. C.) 385. . . 733 V Johnson, 52 Ind. 197 55 V Johnson, 100 Ind. 489 173 V Johnson, 7 Ired. L. (N. C.) 77 . 235 DJohnson,28La.Ann.932..796, 814 V Johnson, 29 La. Ann. 399 825 State V V Sec. Johnson, 101 N. C. 711 478 Johnson, 4 Wall. (U. S.) 475 535,794, 842 Jones, 19 Ind. 356 150, 438 Judge, 13 Ala. 805 145 Judge, 32 La. Ann. 1305 820 Judge, 32 La. Ann. 1306 814 Judge, 33 La. Ann. 1284 838 Judge, 34 La. Ann. 611 837 Judge, 34 La. Ann. 782 837 Judge, 34 La. Ann. 1177 820 Judge, 36 La. Ann. 394 818 Judge, 40 La. Ann. 852 822 Judge, 41 La. Ann. 540 835 Judge, 41 La. Ann. 951 822 Judge, 42 La. Ann. 71 837 Judge, 42 La. Ann. 847 818 Judge, 43 La. Ann. 1089 801 Judge, 4a La. Ann. 1104 846 Judges, 41 La. Ann. 10]2 822 Jumel, 31 La. Ann. 142 824 Justice of the Peace, 41 La. Ann. 908 836 Justices, 4 Hawks (N. C.) 194 855 Justices, IN. J. L. 244 159 Kalb, 50 Wis. 178 19 Kearney County, 12 Nebr. 6. . 553 Kearns, 47 Ohio St. 566. . . .32, 397 Kelsey, 44 N. J.L.I 19 Kempf, 69 Wis. 470 397 Kenan, 94 N. C. 296 252 Kennon, 7 Ohio St. 546 8 Kenny, 45 N. J. L. 251 828 Kern, 51 N. J. L. 259 855 Kilroy, 86 Ind. 118 80 Kinkaid, 23 Nebr. 641 818 Kirby, 9 Mo. 295 187 Kirk, 44 Ind. 401 81 Kirke, 12 Fla. 278 815 Kirkley, 29 Md. 85 815 Klrkwood, 14 Iowa 162 796 Kraft, 18 Greg. 550 172, 175 Kuehn, 34 Wis. 229 362 Kuhl, 51 N. J. L. 191 100 Kurtzebom, 78 Mo. 98 213 Kurtzeboru, 9 Mo. App. 245. 213 Lake, 30 S. C. 43 249 Lamantia, 33La. Ann. 446... 398 Lamberton, 37 Minn. 382. .. . 807 clxiii CASES CITED Sec. State V Lancaster Co., 6 Nebr. 474 . . 139 V Lanier, 31 La. Ann. 423 228 V Lawrence, 3 Kan. 95 156, 798 I! Leach, 60 Me. 58 367, 388 D Lean, 9 Wis. 279 125, 126 V Leigh, 3 Dev. & Bat. (N. C.) 127 855 V Leonard, 86 Tenn. 485 352 V Lewis, 22 La. Ann. 33. .78, 624, 649 » Lewis, 42 La. Ann. J47 818 D Lewis, 73 N. C. 138 265 I! Lewis, 107 N. C. 967 628, 652 I! Lewis, 10 Ohio St. 128 780 V Lingo, 26 Mo. 496. 403 V Littlefield, 4 Blackf. (Ind.) 129 237 1) Long, 8 Ired. L. (N. C.) 415. . 232 V Long, 8 Ired. L. (N. C.) 513. . . 232 D Long, 76 N. C. 254 668 u Lott, 69 Ala. 147 253 V Love, 39 N. J. L. 14. . .314, 349, 366 V Lowery , 49 N. J. L. 391 805 D Lubke, 85 Mo. 338 818 BLupton,64 Mo. 415 392 D Lusk, 18 Mo. 333 330, 431 uLutz, 65N. C. 503.." 758 V Lylles, 1 McCord (S. C.) 238 88, 298 V Lynch, 6 Blackf. (Ind.) 395. . 187 uMaberry, 3 Strobh. (S. C.) 144 668, 855 B McCann, 88 Mo. 386 785 11 MoCarty, 65 Wis. 163 382 I! MoCllntock, 1 McCord (S. C.) 245 320 V McCoUister, 11 Ohio 46 . . .38, 84 V McDonough, 9 Mo. App. 63. . 238 V McDowell, 19 Nebr. 442 467 V McEntyre, 3 Ired. L. (N. C.) 171 167,668, 855 V McGarry, 21 Wis. 496. . . .361, 553 D McGonlgle, 101 Mo. 353 197 D McGovney, 92 Mo. 428 305 V McGrath, 64 Mo. 139 435 V McJunkln, 7 S. C. 21 649 1) McKlnnon, 8 Oreg. 493 144 V McLaughlin, 15 Kan. 228 851 I! McMillen, 23 Nebr. 385 80 V MoNally, 34 Me. 810 758 Sec. State V McNeely, 24 La. Ann. 19 ... . 298 V McNeiU, 74 N. C. 535 214 cMaconCo. Court, 68Mo. 29.. 818 V Manly, 11 Lea (Tenn.) 636. .. . 684 i; Mann, 21 Wis. 684 238 V Marlow, 15 Ohio St. 114 . .777, 780 V Marshall County Judge, 7 Iowal86 156, 157 V Martin, 46 Conn. 479 781 V Martin, 38 Kan. 641 795 V Martin Co. Com'rs, 125 Ind. 247 822 V Martindale, 1 Bailey (S. C.) 163 566 1) Matheny, 7 Kan. 327 173, 175 V Mayes, 54 Miss. 417 244 V Mayor, etc., 28 Ind. 248 320 V Mayor, etc., 15 Lea (Tenn.) 697 458 V Mayor, etc., 34 Minn. 250. ... 802 V Mayor, etc. . 37 Mo. 270 139 uMayor, etc., 4Nebr. 260 410 V Mayor, etc., 25 N. J. L. 536. . . 369 V Mayor, etc., 27 N. J. L. 185 . . . 436 ■uMayor, etc., 32N. J. L. 365... 811 ■uMayor, etc., 34N. J. L. 163... 572 573, 808 V Mayor, etc., 35 N. J. L. 404. . . 808 V Mayor, etc., 39 N. J. L. 489. . . 802, 808 V Mayor, etc., 52 N. J. L. 332. . . 784, 828 « Mead, 56 Vt. 353 781 V Mechem, 31 Kan. 435 158 V Meehen, 45 N. J. L. 189. . . .92, 778 V Meeker, 19 Nebr. 444 787 V Megown, 89 Mo. 156 818, 822 1! Messmore, 14 Wis. 163 305 « Miller, 45 N. J. L. 251 828 V Milwaukee Co., 21 Wis. 443. . 426 V Milwaukee Co., 58 Wis. 4. . . . 804 1) Minton, 49 Iowa 591 185 uMofflltt, 5 0hio358 796 V Monroe, 33 La. Ann. 923 . .836, 838 V Montgomery, 25 La. Ann. 188 12 V Moore, 19 Mo. 369. .. .238, 241, 590, 591 D Moore, 48 Mo. 243 37 V Moore, 74 Mo, 413 221, 225 clxiv CASES CITED Sec. State V Morgan, 59 Miss. 349 210 uMoses, 18S. C. 366. 208 •u Muir, 20 Mo. 303 242 D Murdock, 86 Ind. 124 651 1) Murray, 28 Wis. 96 72, 81 V Nashville, 15 Lea (Teun.) 697 458 I) Ne vin, 19 Neva. 162 224, 296 V Newark, 27 N. J. L. 185 436 V Newark, 49 N. J. L. 170. ..366, 374,380, 398 V Nichol, 8 Lea (Tenn.) 657 238 V Nichols, 42 La. Ann. 209. .796, 798 V Nicholson, 102 N. C. 465 147 « Nodaway Co.Court, 80 Mo.500 805 V Noonan, 24 Minn. 124 808 D Norman, 82 N. C. 687 429 1) North, 42 Conn. 79 783 V Norton, 46 Wis. 332 332, 785 V Norwood, 12 Md. 177 230, 233 V O'Brien, 47 Ohio St. 464 397 V Odell, 8 Blackf. (Ind.) 396. .. . 860 D Odom, 86 N. C. 432 236 « O'Gorman, 75 Mo. 370 187 V Ormsby County Com'rs, 7 Neva.392 532 V Orr, 12 Lea (Tenn.) 5'25 204 V Palmer, 10 Nehr. 203 825 D Passaic, 25 N. J. L. 354 159 V Paterson, 34 N. J. L. 163..572, 573, 808 uPaterson, 39N. J. L.489..802, 808 V Paul, 5 Stew. & P. (Ala.) 40 . . 777 V Peacock, 15 Nehr. 442 156 D Pearcy, 44 Mo. 159 310 V Peck, 30 La. Ann. Part I, 280 173, 428, 579 « Peck, 53 Me. 284 263, 265 V Peelle, 124 Ind. 515. .. . 90, 298, 437 V Pepper, 31 Ind. 76. . . .196, 262, 263,265, 267 V Perkins, 10 Ired. L. (N. C.) 333 188 V Perkins, 24 N. J. L. 409. . .178, 630 I! Perry Co. Com'rs, 5 Ohio St. 497 816 V Pertsdorf , 33 La. Ann. 1411 . . 651 D Phillips, 79 Me. 506 89 « Phillips, 63 Tex. 390 143, 144 V Phillips Co. Com'rs, 26 Kan.. 419 815 Sec. State V Pierce, 35 Wis. 93 "86 V Plerpont, 29 Wis. 603 624 ijPierson, 47N. J, L. 247 649 V Piper, 17 Nehr. 614 138 V Police Com'rs, 88 Mo. 144 . 304, 363 V Police Com'rs, 14 Mo. App. 297 363 1) Police Com'rs, 16 Mo. App. 48 403 V Police Com'rs, 49 N. J. L. 170 366,374,380, 398 V Police Com'rs, 49 N. J. L. 175 347 V Police Jury, 29 La. Ann. 146 813, 818 V Polk, 1 4 Lea (Tenn.) 1 .... 199, 204 V Porter, 7 Ind. 204 173, 434 D Porter, 113 Ind. 79 106, 114 ■B Porter, 68 Iowa 19 782 D Potter, 63 Mo. 212 107, 263 V Powell, 40 La. Ann. 234 219 c PoweU, 40 La. Ann. 241 205 D Powell, 67 Mo. 395 225 D Prince, 45 Wis. 610 394 V Pritchard, 36 N. J. L. 101 . 75, 346 V Pritchard, 107 N. C. 921 524 13 Purdy, 36 Wis. 213 75, 76, 456 V Rahway, 33 N. J. L. 110 816 B Rails, County Court, 45 Mo. 58 439 V Ramos, 10 La. Ann. 420.. 843, 396 1) Ramsay, 8 Nebr. 286 156 V Randall, 35 Ohio St. 64 157 D Ranson, 73 Mo. 78 305 V Rayburn, 22 Mo. App. 303. .. . 242 D Read, 41 La. Ann. 73 822 « Rector, etc., 45 N. J. L. 230. . 810 V Register, 69 Md. 283 394 I! Rhoades, 6 Neva. 352 187, 288 « Rhodes, 3 Neva. 240 ,... 466 V Richmond, 29 La. Ann. 705. . 402 V Rightor, 32 La. Ann. 1805. ... 820 V Rightor, 40 La. Ann. 852. ... 822 K Ristine, 20 Ind. 345, 551 uRing, 29Minn. 78 91, 173 D Ringo, 42 Mo. App. 116 157 V Robh, 17 Ind. t36 153, 722, 748 u Roberts, 68 Mo. 234 273 V Roberts, 12 N. J. L. 114. 210 V Rodman, 43 Mo. 256. . ..156, 157, 825 clxv CASES CITED Sec. State I! Rollins, 29 Mo. 287 230, 253 V Rushing, 17 Fla. 226 286, 289 V Rust, 4 Ohio Cir. Ct. 329 69 V Rutherford, 62 N. J. L. 501. . . 804 V St. Louis, 90 Mo. 19 364 V St. Louis Court of Appeals, 87 Mo. 374 814, 820 V St. Louis Court of Appeals, 99 Mo. 216 835 V St. Paul, 34 Minn. 250 802 « Saline County Court, 51 Mo. 350 851, 852 V Sappington, 67 Mo. 529 215 11 Sappington, 68 Mo. 454 215 V Scates, 43 Kan. 330 367 V Schnierle, 5 Rich. L. (S. C.) 299 138,778,781, 782 V Schumaker, 27 La. Ann. 332 347 1) Scott, 18 Nebr. 597 823 u Seay, 64 Mo. 89 308, 320, 329 V Secretary of State, 33 Mo. 293 798 V Sellers, 7 Rich. L. (S. C.) 368 863 V Seward Co. Com'rs, 36 Kan. 236 149 V Shacklett, 37 Mo. 280 238 V Shaw, 23 La. Ann. 790 814 t) Shaw, 64 Me. 263 572 V Sheboygan Co. Sup'rs, 29 Wis. 79 818 1) Sheldon, 10 Nebr. 452 438 V Skinner, 32 La. Ann. 1093. . . . 836 V Skirving, 19 Nebr. 497 425 1) Sloane, 20 Ohio 387 242 V Smedes, 26 Miss. 47 19 V Smith, 2 Jones L. {N. C. ) 4. . 235 V Smith, 22 Minn. 218 106, 108 rSmith, 95N. C. 396 217 t) Smith, 48 Vt. 266 781 t) Smith, 11 Wis. 65 163 V Smith, 14 Wis. 497 72, 163 V Sneed, 9 Baxt. (Tenn.) 472 .. . 823 tiSneed, 84 N. 0. 816 860 V Somers, 96 N. C. 467 31 V Somerset, 44 Minn. 549 822 V Sommier, 33 La. Ann. 237 ..38 D Sooy, 39 N. J. L. 539 219 1) Spears,! Ind. 515 S'P V Spencer, 30 Mo. App. 407 758 V Stackhouse, U S. C. 417 837 Sec. State V Staley, 38 Ohio St. 259 818 V Stanley, 66 N. C. 59 8, 10, .178 V Starnes, 5 Lea (Tenn.) 545. . . . 220 D Startup, 39 N. J L. 423 855 V State Canvassers, 17 Fla. 29. . 156 V State Canvassers, 36 Wis. 498 156 V Staten, 6 Coldw. (Tenn.) 233 124,135,132, 135 V Stearns, 11 Nebr. 104 156 D Steele, 38 La. Ann. 569 836 V Steele, 57 Tex. 200 461 1) Steers, 44 Mo. 223 156, 333 u Stein, 13 Nebr. 529.. 778 V Stephens, 3 Ired. L, (N. C.) 92 235 u Stevens, 33 Kan. 456 157 u Stevens, 46 N. J. L. 344 361 B Stone, 40 Iowa 547 668 V Stone, 7 Jones L. (N. C.) 382. 217 V Stonestreet, 99 Mo. 361 318 1) Stumpf , 23 Wis. 630 135 V Sumter Co. Com'rs, 20 Fla. 859 138 V Supervisors, 29 Wi s. 79 818 V Swearingen, 12 Ga. 23 163 V Swift, 69 Ind. 505 139 D Swinney, 60 Miss. 39 273 V Symonds, 57 Me. 148 124, 125 V Tax Collector, 40 La. Ann. 234 219 V Taylor, 13 Ohio St. 130 23 V Taylor, 15 Ohio St. 137 313 1! Teasdale, 21 Fla. 652 309 V Texas County Court, 44 Mo. 230 173 V Thoman, 10 Kan. 191 19, 305 V Thomas, 88 Tenn. 491 236, 721 D Thompson, 36 Mo. 70 825 ■uThrasher, 77Ga. 671 820, 822 V Tierney , 23 Wis. 430 145, 162 V Tipton, 109 Ind. 73 781, 783 V Tissot, 40 La. Ann. 598 397 V Tolan, 33 N. J. L. 195..649,781, 782 1) ToUe, 71 Mo. 645 834 V Tool, 4 Ohio St. 553 183 V Toomer, 7 Rich. L. (S. C.) 216 173, 187 vTorinusi26 Minn, l.i 551 clxvi CASES CITED Sec State V Towns, 8 Ga. 360 795, 796 V Townsley, 56 Mo. 107 156 V Trenton, 35 N. J. L. 485 180 D Trenton, 50 N. J. L. 331 307 V Trenton, 50 N. J. L. 338 363 V Trenton B'd of Health, 49 N. J. L. 349 300 1) Trigg, 72 Mo. 365 156 V Trinity Church, 45 N. J. L. 230 810 ■u Trumpf, 50 Wis. 103 81 V Tudor, 5 Day (Conn.) 329. ,. . 782 » Tuttle, 53 Wis. 45 125 c Vail, 53 Mo. 97 163, 781 I! ValW, 41 Mo. 29 2,8, 10 V Vanarsdale, 42 N. J. L. 536. . 823 V Van Buskirk, 40'N. J. L. 463 435 ■B Van Pelt, 1 Ind. 304 208 11 Vickers, 51 N. J. L. 180 781 D Wade, 15 W. Va. 524 214 11 Wadkins, 1 Rich. L. (S. C.) 42 780 V Wailea, 3 Harr. & M. (Md.) 241 242 V Walker, 3 Ired. L. (N. C.) 95. 235 D Walker, 78 Mo. 139 502 1) Walker, 97 Mo. 162. 496 «Wall,8Ired.L. (N.C.)ll.... 235 vWall, 9Ired. L. (N. C.)20.... 208 1) Walsh, 7 Mo. App. 142 163 D Ward, 17 Ohio St. 543 782 D Warmoth, 22 La. Ann. 1 796 V Warmoth, 24 La. Ann. 351 .. . 796 D Washburn, 17 Wis. 658... 428, 432 V Washoe County, 14 Neva. 66 554 V Watkins, 21 La. Ann. 631 ... . 78 V Watson, 7 Ired. L. (N. C.) 289 249 1) Wear, 37 Mo. App. 325 814 D Webber, 38 Minn. 397; 37 Northwestern Rep'r 949 820, 822 V Wedge, 24 Minn. 150 8,')6 V Weed, 21 N. H. 263 567, 758 1) Weld, 39 Minn. 436 816 D Wells, 112 Ind. 237 10 V Wells, 8 Neva. 105 213, 325 V Wells, 61 Tex. 562 214 V West, 33 La. Ann 1261 31, 36 iiWeston, 6Nebr. 16 455 11 Whltcomh, 28 Minn. 50 798 V White, 10 Rich. L. (S. C.) 443 231 Sec. State V Whitford, 54 Wis. 150.. . . 802, 811 V Whittemore, 11 Nebr. 175. . .. 157 V Wiedenmayer, 42 N. J. L. 435 781 V Wilcox, 34 Minn. 143 836, 838 V WilkesviUe, 20 Ohio St. 288 106, 110 V Williams, 69 Ala. 311. .. .812, 820 « Williams, 48 Ark. 227 836 « Williams, 12 Ired. L. (N. C.) 172 856 V Williams, 95 Mo. 159 145, 158 V Williams, 5 Wis. 308 . .125, 643, 849 t) Wilmington, 3 Harr. (Del.) 294 12 D Wilson, 30 Kan. 661 780 D Wilson, 24 Nebr. 139 156, 157 « Wiltz, 11 La. Ann. 439. 20, 305, 341,346, 402 1) Windley, 99 N. C. 4 249 V Winterbottom, 123 U. S. 215. 285 1! Wolf, 17 Oreg. 119 143, 144 1) Wollem, 37 Iowa 131 148 D Wood, 51 Ark. 205 190, 245 V Woodside, 9 Ired. L. (N. C.) 496 289 V Wright, 50 Conn. 580 236 V Wrotnowski, 17 La. Ann. 156 798 V Young, 23 Minn. 551 220 I) Young, 44 Minn. 76 835 D Young, 84 Mo. 90 820, 823 « Zanesville T. Comp'y, 6 Ohio St. 308 833 State's Attorney v Branf ord Select- men, 59 Conn. 403 834 StateBankiiCurran, lOArk. 143... 36 State Lottery Comp'y v Pitzpatrick, 3 Wood (U. S.) 222 845 Stead V Course, 4 Cranch (U. S.) 403 560 Steams v Wright, 51 N. H. 600 556 Steele v Calhoun, 61 Miss. 556 144 V Dunham, 26 Wis. 393 713 Steeknan v Vickers, 51 N. J. L. 180. 781 Steffes V Moran, 68 Mich. 291 851 Stephens i) Crawford, 1 Ga. 574. .187, 188 1) Crawford, 3 Ga. 499 188 u People, 89 111. 337 146, 150 Stephenson u Walden, 24 Iowa 84... 45 Sterling v Peet, 14 Conn. 245 7 Stern v People, 96 lU. 475 204, 214 clxvii CASES CITED Sec. Stern v People, 102 111. 540. . .267, 286, 343, 346 Sterry v Clifton, 9 C. B. 110 ; 19 L. J. C.P. 237; 14Jur. 312 44 Stetson V Kempton, 13 Mass. 272. .. . 740 V Packer, 7 Gush. (Mass.) 582. . 767 V Supervisors, 36 Mich. 10 478 SteubenviUe v Gulp, 38 Ohio St. 18 443, 608 Stevens v Breatheven Wright (Ohio)733 235 D Colby, 46 N. H. 163 588 1) Donston, 1 B. & Aid. 280 336 1) Dudley, 58 Vt. 158 724 V Hay, 6 Gush. (Mass.) 229. .188, 189, 190 V Kent, 26 Vt. 503 542 V Treasurers, 2 McGord (S. C.) 107 187 « Wyatt, 16 B. Mon. (Ky.) 642.. 320 Stevenson v Bay City, 26 Mich. 44 283, 620 Stewart v Carter. 4 Nebr. 564 195 V Cooley, 23 Minn. 347 713, 722 i)Glentworth,lN.Y. Leg. Obs. 217 579 V Hawley, 21 Wend. (N. Y.) 552 758 V Magness, 2 Coldw. (Tenn.) 310 587 V Otoe County, 2 Nebr. 177 543 V Southard, 17 Ohio 402 722 u State, 4 Ind. 396 325 V Wallis, 30 Barb. (N. Y.) 344. . 108 Sthreshley v United States, 4 Crauch (U. S.) 169 205 Stilsing V Davis, 45 N. J. L. 390 330 Stimpson v Reynolds, 14 Barb. (N. Y.)506 786 Stinchfleld v Little, 1 Me. 231 774 Stinson v Sweeney, 17 Neva. 309 138 Stock I) Harris, 5 Burr. 2709 592 Stocking V State, 7 Ind. 326 431 Stockle V Sllsbee, 41 Mich. 615. . .624, 649 Stocksdale v United States, 39 Fed. R. (U.S.) 62 456 Stockton V Creanor, 4S Gala. 643 573 V Shasta County, 11 Gala. 113. 478 Stockwell I) Township Board, 22 Mich.341 379, 811 Stoddard v Williams, 65 Gala. 472. . . 523 Sec. Stone 1! Graves, 8 Mo. 148 .713, 722 V Hooker, 9 Cow. (N. Y.) 154. . . 682f V Lidderdale, 2 Anst. 533 46 V Mayor, etc., 25 Wend. (N.Y.) 157 802 1) Small, 54 Vt. 498 787 V United States, 3 Ct. of CL (U. S.) 260 3 1) Wetmore, 42 Ga. 601 650 V Wetmore, 44 Ga. 495 778, 781 Stoner v MiUiken, 85 lU. 218 267 Stotesbury v Smith, 2 Burr. 924 ; 1 W. Blackst. 204 477 Stoughton School Dist. v Atherton, 13 Met. (Mass.) 105. . . .325, 338 Stout u Ennis, 28 Kan. 706 54, 579 Strain v Babb, 30 S. G. 342 249 Strang, i;j;i)(M-fe,210hioSt. 610. .624, 637, 649 Stratton v Oulton, 28 Gala. 44. .325, 516 Street v County Com'rs, 1 111. 25. . . . 392 Stribling v Pettlt, 3 Met. (Ky.) 314 713, 720 Strong, Inre, 20 Pick. (Mass.) 484 827, 828 uCampbeU,llBarb.(N.Y.)135 708 V Tompkins, 8 Johns. (N. Y.) 98 676 Stropes V County Com'rs, 72 Ind. 43. 612 V County Com'rs, 84 Ind. 560. . 478 Stroud u Smith, 4 Houst. (Del.) 448. 55 Strunk v Ocheltree, 11 Iowa 158 241 Stuart V Mechs. & Farm. Bank, 19 Johns. (N. Y.) 496 609 V Tucker, 2 W. Blackst. 1137. . 46 Stubbs V Lee, 64 Me. 195 31, 34, 36 Stuhr t) Gurran, 44 N. J. L. 181 523 11 Hoboken, 47 N. J. L. 147 467 Sturbridge v Winslow, 21 Pick. (Mass.)83 758 Sturgeon v Korte, 34 Ohio St. 525. . . . 131 Sturges V Spofford, 52 Barb. (N. Y.) 436 84, 85 Sturgis 1) SpofEord, 45N.Y.446...84, 85 Stuttmeister v Superior Ct., 71 Gala. 322 805 SublettB Bedwell, 47 Miss. 268; 12 Am.R.338 183 Sudbury v Heard, 103 Mass. 543 . .624, 649 clxviii CASES CITED Sec. Sullivan, In re, 55 Hun (N. Y.) 285 96, 98 I! Alexander, 19 Johns. (N. Y.) 233 676 V Holyoke, 135 Mass. 2T3 593 V Jones, 2 Gray (Mass.) 570. ... 734 1) Speights, US. 0.358 604 u State, 121 Ind. 342 233, 249 Sumner v Beeler, 50 Ind. 341 730 Supervisors^ Alford,65Mis8.63..205, 219 V Auditor General, 27 Mich. 165 802, 810 V Birdsall, 4 Wend. (N. Y.) 453 282, 295 I! Briggs, 2 Denio (N. Y.) 26. . 552, 564 V Bristol, 99 N. Y. 316. .218, 244, 245 u Brush, 77 111. 59 573 V Catlett, 86 Va. 158 554 V Clark, 25 Hun (N. Y.) 282 278, 295 V Clark, 92 N. Y. 391 . . .269, 278, 295 V Coffenhury, 1 Mich. 355. .187, 188 D Dorr, 7 Hill (N. Y.) 583 226 V Dorr, 25 "Wend. (N. Y.) 440. . . 220 c Ehlers, 45 Wis. 281 220 I! Jones, 119 N. Y. 339 478 D Kalme, 39 Wis. 468 225, 436 u Knipfer, 37 Wis. 496 282 V Magoon, 109 HI. 143 803 u O'Malley, 46 Wis. 35 332 t) Otis, 62 N. Y. 88 263 1) Pabst, 70 Wis. 352 220 D Rees, 34 Mich. 481 561 V Stimson, 4 Hill (N. Y.) 136 544, 662 V United States, 4 WaU. (U. S.) 435 548 V Tan Campen, 3 Wend. (N. Y.) 48 192 V Wandel, 6 Lans. (N. Y.) 33 255,282, 283 Sutherland I! Carr, 85 N.Y. 105.. 190, 291 V Governor, 29 Mich. 320. . .795, 796 V Murray, 1 T. R. (D. & E.) 538 711 Sutro V Pettit, 74 Cala. 332 551 Suydam v Keys, 13 Johns. (N. Y.) 444 757 Swain v MoRae, 80 N. C. Ill 825 Swan V Chorpenning, 20 Cala. 182 . . 63 i; Gray, 44 Miss. 393 .814, 822 , Sao. Swan D State, 48 Tex. 120 290 Swann v Buck, 40 Miss. 268 19 Swayze d Hull, 8 N. J. L. 54 54 Sweeny v McLeod, 16 Oreg. 330 57 1) Stevens, 46 N. J. L. 344 361 Sweeney v Mayor, etc., 5 Daly (N. Y.)274 5 t) Mayor, etc., 58 N. Y. 625 5 Sweetser v Hay, 2 Gray (Mass.) 49 188, 190 Swepstou u Barton, 39 Ark. 549.147, 148 Swift V Poughkeepsie, 37 N. Y. 511 541,609, 738 Swigert v Hamilton Co., 130 111. 538. 815 Syme D Bunting, 91 N. C. 48 236 'paft V Adams, 3 Gray (Mass.) 126 19, 305 V Wood, 14 Pick. (Mass.) 862. . . 740 Talhot V Dent, 9 B. Mon. (Ky.) 526. . 139 «EastMachias,76Me.415..446, 478 Talcott'!)Buflfalo,57Hun (N.Y.)43. 853 V Buffalo, 125 N. Y. 280 853 Talkington t) Turner, 71 111. 234 .. 145, 777 Tamm v Lavalle, 92 111. 263 551 Tappan v Brown, 9 Wend. . (N. Y.) 175 579 V Gray, 9 Paige (N. Y.) 507. .392, 431, 433, 850 I! People, 67 111. 339 258 Tarbox v Sughrue, 36 Kan. 225. .777, 778 Tarlton v Fisher, 2 Dougl. 671 764 Tatnm v Rivers, 7 Baxter (Tenn.) 295 314 Tawney's Case, 16 Yin. Abr. 415 ... . 863 Taylor v Alexander, 6 Ohio 144 567 1! Comm., 3 J. J. Marsh. (Ky.) 401 36 V County Com'rs, 110 Ind. 462. 447 V Doremus, 16 N. J. L. 473. .713, 722, 729 V GiUette, 52 Conn. 216 814 V Mayor, etc., 67 N. Y. 87 464 V Moflatt, 2 Blackf. (Ind.) 305. 713 V Morton, 37 Iowa 550 224 V Skrine, 3 Brev. (S. C.) £16 ; 2 Brev. (S. C.) new. ed. 568 637 V Skrine, 2 Tread. (S. C.) 696 . . . 649 i; State, 51 Miss. 79 '. 288 clxix CASES CITED Sec. Taylor v Taylor, 10 Minn. 107. .. .139, 147,156, 649 Taylor County v King, 73 Iowa 153. 263 Teal V Felton, 13 How. (U. S.) 284. . . 751 Teall V Felton, 1 N. Y. 537 751 Telf ener v Dillard, 70 Tex. 139 560 Temple D Mead, 4 Vt. 535 143 1) Superior Court, 70 Gala. 211. 831 Ten Eick v Simpson, 11 Paige (N.Y.) 177 609 Tennessee & C. R. R. Comp'y ■» Moore, 36 Ala. 371 796 Tennessee & C. R. R. R. Comp'y v East Alabama R'y Com- p'y,81Ala.94 447 Terhune v Mayor, etc., 88 N.Y. 247 . . 514 Terrall v Tinney, 20 La. Ann. 444. . 713, 734 Terrell v Andrew Co., 44 Mo. 309. .. . 742 Territory v Carson, 7 Mont. 417 478 V Cox, 6 Dak. 501 846, 361 V Lockwood, 3 Wall. (U. S.) 236 779 B Norria, 1 Oreg. 107 448 D.Eyle, 1 Oreg. 149 19 1! Valdez, 1 New Mex. 533 805 Terry v Blelght, 3 T. B. Mon. (Ky.) 270 558 Tevis V Randall, 6 Cala. 632 190, 199 Tewksbury v Co. Com'rs, 117 Mass. 563 803 Thames Manuf 'g Comp'y v Lathrop, 7Conn.550 758 Tharsis Sulphur & C. Comp'y v Loftus, L. R. 8C. P.I.... 716 Thatcher, Ex parte, 7 111. 167 392 Thayer v Hunt, 2 Allen (Mass.) 449 699,701, 702 Thellusson v Rendlesham, 7 H. of L. Cas.429 609 Thetf ord d Hubbard, 22 Vt. 440 53 Third National Bank v Reilly, 81 Mieh.438 818 Third Turnpike Comp'y v Champney, 2 N. H. 199. . 723 Thomas, Inre, 2 N. Y. Supp. 38 367 u Blake, 126 Mass. 320 597 V Bleakie, 136 Mass. 568 597 u Browder^ 33 Tex. 783 232 Sec. Thomas v Burrus, 23 Miss. 550 ... .90, 350 V Caulkett, 57 Mich. 392 56 V Owens, 4 Md. 189 19, 175, 325 V Summey, 1 Jones L, (N. C.) 554 , 205 V Supervisors, 45 Hun (N. Y.) 588 818 1! Supervisors, 115 N. Y. 47 818 Thompson v Com'rs Canal Fund, 2 Abb. Pr. (N. Y.). .248, 843, 846 V Dickersou, 22 Iowa 360 204 V Ewing, 1 Brewst. (Pa.) 67. .147, 649 V Gotham, 9 Ohio 170 560 B Holt, 52 Ala. 491 729 V Mankin, 26 Ark. 688 6.S5 V Phillips, 13 Ohio St. 617 466 V Sohermerhorn, 6 N. Y. 93. . . . 673 V State, 37 Miss. 518 313 V United States, 103 U. S. 480. . 834 V Wharton, 7 Bush (Ky.) 563. . 59 Thomson v Boonville, 61 Mo. 282. . . 573 V Mac Gregor, 81 N. Y. 592. . . . 204 V State, 21 Ala. 48 646 1) Tracy, 60 N. Y. 31 835 Thornton v Hoge, 84 Cala. 231 814 V Mo. Pao. Ry. Comp'y, 42 Mo. Aj)p.58 485 V Thomas, 65 Mo. 272 460 Threadgill u Carolina Central Ry. Comp'y, 73 N. C. 178 632 Thurman v Cameron, 24 Wend. (N. Y.)87 558 Thurston v Fairman, 9 Hun (N. Y.) 584 44 Tilden v Mayor, etc., 56 Barb. (N. Y.)340 ; 484 Tillotson V Cheetham, 2 Johns. (N. Y.)63 539 Tilton V Larimer Co. A. & M. Ass'n, 6 Colo. 288 802, 805 Timothy v Wright, 8 Gray (Mass.) 622 59 Tindley v Salem, 137 Mass. 171 593 Tingue v Port Chester, 101 N. Y. 294 561 Tipperary Election Petitions, In re, 9Ir.R.C.L.217 160 Tippets V Walker, 4 Mass. 595 774 Titus I) Falrchild, 49 N. Y. Super. Ct. 211 187 clxx CASES CITED Sec. Tobey v Hakes, 54 Conn. 274 818, 833 Vodd V Birdsall, 1 Oow. (N. Y.) 260 543, 544 DCoweU,14I11.72 188 Toler V Adee, 9 Week. Dig. (N. Y.) 211 674 Toles V Adee, 84 N. Y. 222 674, 675 Tomlinson v Darnall, 2 Head (Tenn.) 538 624 Tompert i; Lithgow, 1 Bush. (Ky.) 176 343 Tompkins v Sands, 8 Wend. (N. Y.) 462 539,713,722,733, 734 Tompkins Co. Sup'rs v Bristol, 99 N.Y.316 218,244, 245 Toney v Harris, 85 Ky. 453; 3 S. W. Rep'r614 ...150, 151 Tool Company v Norris, 2 Wall. (U.S.) 45 55,60,61, 62 Torr D State, 115 Ind. 188 108 Townes v Nichols, 73 Me. 515, 815 Townsend v Copeland, 56 Cala. 613. 802 B Downer, 32 Vt. 183 560 V Newell, 14 Pick. (Mass.) 332. . 704 V Ross, 45 N. Y. Super. Ct. 447 . . 482 u Tudor, 41 Mich. 263 802 Townson v Wilson, 1 Campb. 396. .. . 857 Tozer v Child, 7 El. & Bl. 377 ; 26 L. J. Q. B. 151; 3 Jur. N. S. 409 Tracey v Corse, 58 N. Y. 143 Tracy v Cloyd, 10 W. Va. 19 1) Colby, 55 Cala. 67 V Corse, 45 How. Pr. (N. Y.) 316 V Goodwin, 5 Allen (Mass.) 409 uHombuckle, 8 Bush (Ky.) V Preble, 117 Mass. 4 V Williams, 4 Conn. 107 713, Train v Gold, 5 Pick. (Mass.) 380. .. . Treasurer v Mann, 34 Vt. 371 Treasurers V Bates, 2 Bailey (S. C.) 362 187, V Buckner, 2 McMull. (S. C.) 327 V HiUiard, 8 Rich. L. (S. C.) 412 V Stevens, 2 MoGord (S. C.) 107 V Taylor, 2 Bailey (S. C.) 534. . . 746 538 592 C15 538 241 48 700 734 682 213 198 252 259 187 208 Sec. Treasurers v Temple, 2 Spears (S. C.) 48 235 Treasury Com'rs v Muse, 3 Brev. (S.C.)150 388 Tremont School Dist. v Clark, 33 Me. 482 758 Trench v Nolan, 6 Ir. R. C. L. 464; 20 W. R. 833 ; 27 L. T. Rep. 69 160 Trenton Com'rs v McDaniel, 7 Jones L. (N. C.) 107 623, 649 Trenton W. P. Comp'y, In re, 20 N. J. L. 659 819 Trescott v Moan, 50 Me. 347 187, 684 Trigg V State, 49 Tex. 645 343 Trimmier v Bomar, 20 S. C. 351 147 D Winsmith, 33 S. C. 449 614 Triplett v Munter, 53 Cala. 644 537 Trist V Child, 21 Wall. (U. S.) 441. . . 58 Truesdell v Combs, 33 Ohio St.186.713, 734 Trumbull v Campbell, 8 111. 502 520 Trundle v Riley, 17 B. Mon. (Ky.) 396 493, 680 Trustees, etc., v Garvey, 80 Ky. 159.. 147 D Hills, 6 Cow. (N. Y.) 23 049 V School Directors, 88 111. 100 802,803, 804 B Sheik, 119 111. 579 195 Tucker u Aiken, 7 N. H. 113 633 V Harris, 13 Ga. 1 720 V Hart, 23 Miss. 548 189, 191 B Parker, 50 Mich. 5 805 V Rankin, 15 Barb. (N. Y.) 471.. 108 Tuley V State, 1 Ind. 500 212 TuUy, Ex parte, 4 Ark. 230 19 Turner D Blount, 49 Ark. 361 528 » Co. Com'rs, 10 Kan. 16 816 V Franklin, 29 Mo. 285 758 V Haddeu, 62 Barb. (N. Y.) 480 671 V KiUlan, 12 Nebr. 580 241 V Melony, 13 Cala. 621 82, 828 ■V Sisson, 137 Mass. 191 241 V State, 14 Tex. App. 168 676 Turnipseed v Hudson, 50 Miss. 429.. 419 Turnpike Company v Brown, 8 Baxter (Tenn.) 490 795 Turpen v Co. Com'rs, 7 Ind. 172. .19, 443 Tutt B Hobbs, 17 Mo. 486 774 Tuttle t! Wilson, 24 111. 553 768, 769 clxxi CASES CITED Sec. Twenty per cent, cases, 13 Wall. (U. S.)568 22 20 Wall. (U. S.) 179 U Twining v Foot, 5 Cash. (Mass.) 613. 700 Twitchell v Blodgett, 13 Mioli. 127. . 125 uShaw, 10 Cnsh. (Mass.) 46 758, 759 Twycross v Dreyfus, L. R. 5 Ch. Div. 605; 46L.J.Ch.510; 36 L. T. 752 774 Tyler u Alford, 38 Me. 530 733, 734 V Nelson, 11 Gratt. (Va.) 214. . . 205 D Taylor, 29 Gratt. (Va.) 765. . . 813 Tyng V Boston, 133 Mass. 372 501 Tyree v Wilson, 9 Gratt. (Va.) 59. . . . 210 TTnderwood v Robinson, 106 Mass. ^ 296 758 D Wylie, 5 Ark. 248 825 Union Churcli v Sanders, 1 Houst. (Del.) 100 9 Union Colony v Elliott, 5 Colo. 371 . . 820 Union Pacific R. R. Comp'y v Hall, 91U. S.343 816 V United States, 99 U. S. 700 532, 552 Union Township v Smith, 39 Iowa 9 221 United States ti Adams, 24 Fed. R. (U.S.)348 231 V Addison, 6 Wall. (U. S.) 291. . 522 D Allison, 91 U. S. 303 11 V Anderson, 1 Blatchf. (U. S.) 330 215 V Anthony, 11 Blatch. (U. S.) 200 124 BArredondo, Peters (U. S.) 691 553 « Austin, 2 Cliff. (U. S.) 325. . . . 491 IB AyeriU, 130 U. S. 335 478 wBayard, 127U. S. 251 824 V Beattie, Gilp. (U. S.) 92 286 V Bixby, 10 Biss. (D. S.) 520. .. . 67 D Black, 128 U. S. 40 797, 820 I) Bloomgart, 2 Ben. (U. S.) 356 10 V Boutwell, 3 Mao Arthur (D.C.)172 822 I! Boutwell, 17 Wall. (D. S.) 604 155 DBoyd, 5How. (U.S.)29 245 V Boyd, 15 Pet. (U. S.) 187. .219, 283 United States v Bradley, 10 Pet. (U. S.)343 187, V Brindle, 110 U. S. 688 V Brown, Gilp. (U. S.) 155 V Brown, 9 How. (U. S.) 487. . . . 1! Chassell, 6 Blatchf. (U.S.) 421 V Cochran, 2 Brock. (U. S.) 274 V Com'r (Jeneral Land Office; 5 Wall. (U.S.) 563... 711, 797, V Cranston, 3 Cranch C C. (U.S.) 289 V Cruikshank, 92 U. S. 542. .123, V Cutter, 2 Curtis (U. S.) 617..13, V Dashiel, 4 Wall. (U. S.) 182. , I) DeaVer, 14 Fed. Rep. (U. S.) 595 V Duval, Gilpin, (U. S.) 356. . . . V Eckford, 1 How. (U. S.) 250.. V Edwards, 1 McLean (U. S.) 467 V Ellis, 4 Sawyer C. C. (U. S.) 590 V Evans, 4 Mackey (D. C.) 281 D Fisher, 109 U. S. 143 i> Flanders, 112 U. S. 88 V Giles, 9 Cranch (U. S.) 212. . . V Hammond, 4 Biss. (U. S.) 283 V Hartwell, 6 Wall. (U. S.) 385 3, V Haynes, 9 Ben. (U. S.) 22. . . . V Haywood, 2 Gall. (U. S.) 485 V HiUegas, 3 Wash. C. C. (U. S.)70 V Hine, 3 MacArthur (D. C.) 27 V Hodson, 10 Wall. (U.S.) 395. . ■I! Hoffman, 4 WalL (U. S.) 158. V Hoyt, 1 Blatchf. (U. S.) 326. . V Humason, 6 Sawyer (U. S.) 199 188,223, V Jameson, 3 McCrary (U. S.) 620 V January, 7 Cranch (U. S.) 572 V Keehler, 9 Wall. (U. S.) 83. . . V Key, 3 Mac Arthur (D. C.) 337 V Kirkpatrick, 9 Wheat. (U. S.) 720 205,270,271,278, V Langston, 118 U. S. 389 Sec. 188 490 188 450 489 285 235 124 283 491 245 19 206 490 461 472 10 216 558 270 241 188 837 215 595 213 205 223 283 461 clxxii CASES CITED Sec. United States v Le Baron, 19 How. (U.S.)73 88,183, 298 DLinn, 15Pet. (U. S.)290 188 V Maurice, 2 Brook. (U. S.) 96 3,10, 664 D Meigs, 95 U.S. 748 11 w Mitchell, 109 U. S. 146 461 V Morgan, 28 Fed. R. (U. S.) 48 251 V Morgan, 11 How. (U. S.) 154. . 223 V Mynderse, 11 Blatchf . (U.S.) 1 595 V Nelson, 2 Brock. (U. S.) 64. . . 196 V Nicholl, 12 Wheat. (U. S.) 505 205, 283 V Oliver, 6 Mackey (D. C.) 47 . . 396 V One hundred Barrels of Dis- tilled Spirits, 1 Low. Dec. (U.S.)244 489 1) Prescott, 3 How. (U. S.) 578 222, 227 D Reese, 92 U. S. 214 123, 124 V Reyburn, 6 Pet. (U. S.) 352. . . 300 V Rogers, 28 Fed. R. (U. S.) 607 188 I! Saunders, 120 U. S. 126 496 V Schurz, 102 U. S. 378 797, 814 V Seaman, 17 How. (U. S.) 225 814, 822 V Slater, 4 Woods (U. S.) 356. . . 125 V Smith, 1 Bond (U. S.) 68..474, 480 a Snyder, 4 Wash. Cir. Ct. (U. S.)559 1S8 'J Spencer, 2 McLean (U.S.) 265 205 V Stowe, 19 Fed. Rep. (U. S.) 807 495 V Strobach, 4 Woods C. C. (U. S.)592 10 V Tingey, 5 Pet. (U. S.) 115. .188, 595 V Vanzandt, 11 Wheat. (U. S.) 184 283, 286 V Wann, 3 McLean (U. S.) 179. 298 D Watts, 1 New. Mex. 553 224 V White, 4 Wash. C. C. (U. S.) 414 231 n Windom, 137 U. S. 636 797 V Worrall, 3 DaU. (U. S.) 384. . . 864 V Wright, 1 McLean (U. S.) 509 211,410. 413 United States 111. Comp'y V Grant, 55 Hun (N. Y.) 222 849 UpdegrafC v Crans, 47 Pa. St. 103. . . 850 Sec. UphamuMarsh, 128 Mass. 546 736 Upton V Holden, 5 Met. (Mass. ) 360. . 758 V United States, 19 Ct. of CI. (U.S.)46 497 Urket 1) Coryell, 5 Watts &S. (Pa.) 60 10 Usher D MoBratney, 3 Dillon (U. S.) 385 57 ^T^ail V Owen, 19 Barb. (N. Y.) 22. . 541 Valparaiso v Gardner, 97 Ind. 1 852 Vandercook v Williams,106 Ind. 345 478 Vanderheyden v Young, 11 Johns. (N. Y.) 150 536, 713 Van Hook v Barnett, 4 Dev. L. (N. C.) 268 1C3 Van Orsdall v Hazard, 3 Hill (N.Y.) 243...350,407, 408, 409, 421, 425 Van Pelt v Littler, 14 Cala. 194 241 Van Rensselaer v Quackenboss, l? Wend. (N. Y.) 34 591 V Witbeok, 7 N. Y. 517 762 Van Schaick v Sigel, 60 How. Pr. (N.Y.)122 588 Van Sickel v Buffalo County, 13 Nebr.103 204 Van Slyke u Trempealeau Co. F. M. F. Ins. Comp'y, 39 Wis. 390 571 Van Steenbergh v Bigelow, 3 Wend. (N.Y.)42 736 Vanvabry v Staton, 88 Tenn. 334. .. . 814 Van Valkenburgh v Brown, 43 Cala. 43 123, 124 V Patterson, 47 N. J. L. 146. . . . 236 Varney v Justice, 86 Ky. 696 146, 148 Vaughan v Johnson, 77 Va. 300 1 73 Vaughn i) Biggers, 6 Ga. 188 558 V Congdon, 56 Vt. Ill 734 u English, 8 Cala. 39 2,8, 10 Vavasseur d Krupp, L. R. 9 Ch. D. 351;,39L. T.437;27W. R. 176 842 Veit w Graff, 37 Ind. 253 763 Venableu Curd, 2 Head (Tenn.) 582 649, 659 Vermont & Mass. R. R. Comp'y v Co. Com'rs, 10 Cush. (Mass.) 12 835 clxxiii CASES CITED Sec. Vernon Society v Hills, 6 Cow. (N.Y.)23 649 Vicksburg & M. R. R. Comp'y v Lowry, 61 Miss. 103 796 Vincennes v Windmau, 72 Ind. 218. 557 Virginia, Ex parte, lOO U. S. 339. . . . 635 !) Rives, 100 U. S. 313 822 Vivian I) Otis, 24 "Wis. 518 204 Vogel B State, 107 Ind. 374 38, 81 Voorhis, r» re, 90 N. Y. 668 562 Vose t) Deane, 7 Mass. 280 556 « Reed, 54 N. y. 657 10 TXTadswortli v Walllker, 61 Iowa '" 605 682, 690 Waiteu Woodward, 10 Gush. (Mass.) 143 750 Wake County Com'rs v Magnin, 86 N.C.285 187 Wakefield i) Stedman, 12 Pick. (Mass.) 562 697 Walbrldge v Walbrldge, 46 Vt. 617 . 803 Walcot V Pomeroy, Z Pick. (Mass.) 121 754 Waloott V Swampscott, 1 Allen (Mass.) 101 593 Walden v Dudley, 49 Mo. 419 758 Waldo V Martin, 6 D. & R. 364; 2 C. & P. 1 ; 4 Barn. & Or. 319 52 Waldron v Berry, 61 N. H. 136. .556, 713, 715 Evans, 1 Dak. 11 579 Walker v British Guardian Ass'u, 18 Q. B. (Ad. & El. N. S.) 277; 21 L. J. Q. B. 257 ; 16 Jur.855 226 V Chapman, 22 Ala. 116 271 V Cincinnati, 21 Ohio St. 14. . . . 19 1! Cook, 139 Mass. 677 44, 478 V Devereaux, 4 Paige (N.Y.) 229 535 V Dunham, 17 Ind. 483 10, 19 u Perrill, 58 Ga. 612 336, 323 D Floyd, 4 Bibb ( Ky.) 237. . . 713, 733 t)Hallook,32Ind.239...713,715, 722 D Peelle, 18 Ind. 264 19 D Rogan, 1 Wis. 697 113 V Sanford, 78 Ga. 165 147, 149 V Swartwout, 12 Johns. (N. Y.) 444.... 774 Seo Wall D Blasdel, 4 Neva. 2a 796 V TrumbuU, 16 Mich. 228. . .713, 715,758, 761 Wallace v Comm., 2 Va. Cas. 130 .. . 860 c Lawyer, 54 Ind. 501 48 Waller v Perkins, 52 Ga. 233. 634 Wallis V Johnson Sch. Tp., 75 Ind. 368 774 V Loubat, 2 Denio (N. Y.) 607.. . . 13 Walmesley v Booth, Barnard. Ch. 478 13 Walsh V People, 65 lU. 68 864 V People, 6 111. App. 204 241 Walter v Middleton, 68 N. Y. 605 . . . . 599 Walter Bro's, Ex parte, 89 Ala. 237.. 820 Walther v Rabolt, 30 Cala. 185 72 Walton V Torrey, Harr. Ch. (Mich.) 269 612 Wammaok v Holloway, 2 Ala. 31 . . , 18 Wapello County v Bigham, 10 Iowa 39 212,213, 632 Ward I) Churn, 18 Gratt. (Va.) 801. . 259, 263 V Freeman, 2 Ir. C. L. R. 460. . 713 V Hartford, 12 Conn. 404 48 I! School District, 10 Nebr. 293. 225 ti Stahl, 81 N. Y. 406 230, 231 V Staie, 2 Coldw. (Tenn.) 605. .. 636 Ware u Brown, 2 Bond (U.S.) 367... 707 Warner t) People, 3 Denio (N. Y.) 272 19, 20 I) Shed, 10 Johns. (N. Y.) 138 757, 758 Warren v Clement, 24 Hun (N. Y.) 472 737 V Philips, 30 Barb. (N. Y.) 646 190 u State, 11 Mo. 583 209 Warren Co. Ag'l J. S. Comp'y v Barr, 55 Ind. 30 853 Warren Co. Com'rs i) Gregory, 42 Ind. 32 662 Warrensburg v Miller, 77 Mo. 56 763 Warrlnu Baldwin, 36 Hun (N.Y.) 334 853 D Baldwin, 105 N. Y. 534 853 Washburn u Phillips, 2 Met. (Mass.) 296 835, 836 Washington uHosp, 43 Kan. 334.... 558 Washington County v Boyd, 64 Mo. 179 538 clxxiv CASES CITED Sec. 609 649 263 107 Washington Ins. Comp'y v Price, Hopk. (N. Y.)l Washington Park Com'rs, In re, 56 N. Y.144 Washington Probate Court d St. Olair, 52 Vt. 24 Water Commissioners u Lansing, 45 N. Y.19 106, Waterloo Woolen Man. Comp'y v Shanahau, 58 Hun (N. Y.) 50 Waters!) Carroll, 9 Yerg. (Tenn.)102 V State, 1 Gill (Md.) 302 V Whittemore, 22 Barb. (N. Y.) 593 13, Watkins v Inge, 24 Kan. 612 V Page, 2 Wis. 92 V Watkins, 2 Md. 341 Watson V Bodell, 14 M. & W. 57. . . . I) Edmonds, 4 Price 309 DSmith,26Pa. St. 395 V Watson, 9 Conn. 140. 758, 759, Waugh V Channcey, 13 Gala. 11.532, Waverly v Kemper, 88 111. 679. . .802, Way V Townsend, i Allen (Mass.) 114 Via, Waycross City Council v Youmans, 85 Ga. 708 151, Waymire v Powell, 105 Ind. 328 Weaver v Devendorf , 3 Denio (N . Y.) 117 541,713,722, V Whitney, Hopk. (N. Y.) 11... Webb V Albertson, i Barb. (N. Y.) 51 V Anspach, 3 Ohio St. 522 u Baird, 27 Ind. 368 V McCauley, 4 Bush (Ky.) 10... Webb County v Gonzales, 69 Tex. .455 Webber t; Gay, 24 Wend. (N. Y.) 485. V Shearman, 6 Hill (N. Y.) 20.. D Townley, 43 Mich. 534 744 Webbers v Blunt, 19 Wend. (N. Y.) 188 683 Weber v Henry, 16 Mich. 399 754 Webster v Byrnes, 34 Gala. 273 135 V Coffin, 14 Mass. 196 698, 706 V Washington County, 26 Minn.220 667 758 328 721 530 233 761 553 805 733 411 610 733 484 679 232 262 43 758 591 Beo. Webster County V Hutchinson, 60 Iowa 721 201,208, 214 Weokerly D Geyer, 11 S. & R. (Pa.) 35 722, 749 Weed V Ballston Spa, 76 N. Y. 329. . 737 V Black, 2 Mao Arthur (D. C.) 268 56, 57 V Tucker, 19 N. Y. 422 ' 563 Weeden v Richmond, 9 R. 1. 128. ... 814 V Town Council, 9 R. 1. 128. . . . 820 Weeks v Ellis, 2 Barb. (N. Y.) 320.630, 649 11 Gamble, 13 Fla. 9 798 V Texarkana, 50 Ark. 81 465 Weidman v Board of Education, 26 N. Y. St. Bep'r 765; 7 N. Y. Supp. 309 355, 361 WeU V CaUioun, 25 Fed. Rep. (U. S.) 865 134,137, 843 Weimer v Bunbury, 30 Mich. 201. . . 561 Weiner i! Van Rensselaer, 43 N. J. L. 547 758 Weiss V Jackson Co., 9 Greg. 470 846 Welch V Gleason, 28 S. C. 247 734 Weld V Chadbourne, 37 Me. 221 888 i; Lancaster, 56 Me. 453 63 Welddes v Edsell, 2 McLean (U. S.) 366 591 Welde I) Scotten, 59 Md. 72 848 Welles V Hutchinson, 2 Root (Conn.) 85 742 Wells 1) Foster, 8 M. & W. 149. . . .42, 46 t) Gant, 4 Yerg. (Tenn.) 491. ... 252 V Taylor, 5 Monta. 202 147 c Wells, 6 Ind. 447 130 Welsh V Joy, 13 Pick. (Mass.) 477. ... 336 Wendell v Brooklyn, 29 Barb. (N. Y.) 204 478 V Fleming, 8 Gray (Mass.) 613 182, 289 Wendlinger D Smith, 75 Va. 309 263 Wentworth v Gove, 45 N. H. 160. .. . 664 V Leonard, 4 Cush. (Mass.) 414 702, 708 Wertheimer v Howard, 30 Mo. 420 713, 734 West * St. Paul & N. P. R'y Comp'y, 40 Minn. 189 560 Westberg v Kansas City, 64 Mo. 493 351,607, 511 clxxv CASES CITED Sec. Westbrook y MiUer, 56 Mich. 148. . . 585 V Rosborough, U Gala. 180.150, 305, 311 V Wicks, 36 Iowa 382 813 Westerhaven v Cllve, 5 Ohio 136. .. . 185 Western B. R. Comp'y v De Graff, 27Minn. 1 796 DNolan,«N. Y. 613 641 Westervelt v Frost, 1 Abb. Pr. (N. Y.)74 687 Westf all V Preston, 49 N. Y. 349 763 Weston V Dane, 51 Me. 461 824 Wetherell v Newington, 54 Conn. 67 846 Wheat V Smith, 50 Ark. 266 131, 153 Wheatly v Covington, 11 Bush (Ky.) 18 516 Wheeler u Patterson, 1 N. H. 88 . .722, 749 V PhUadelphia, 77 Pa. St. 338. . 853 V State, 9 Heisk. (Tenn.) 393. . . 234 V Wilkins, 19 Mich. 78 585 Wheeling v Black, 25 W. Va. 366. . . . 335 Wheelock v McDowell, 20 Nebr. 160 . 487 i; Sears, 19 Vt. 659 527 Wheelwright v Sylvester, 4 Allen (Mass.) 59 66 Whipley v McKune, 13 Cala. 352. .. . 147 Whlpper V Read, 9 S. C. 5 320 Whipple D Kent, 2 Gray (Mass.) 410. 758 Whltaker v Crutoher, 6 Bush (Ky.) ,631 263 White, In re, 6 Mod. 18 13 V County Com'rs, 13 Greg. 317. . 132 V East Saginaw, 43 Mich. 567 320, 373 u Fox, 23 Me. 341 272, 278 V French, 15 Gray (Mass.) 339 . . 694 V Lester, 1 Keyes (N. Y.) 316 . . . 106 11 Levant, 78 Me. 568 446, 478 D Mayor, etc., 4 E. D. Smith (N. Y.)563 350, 474 V Miller, 3 Dev. & Bat. L. (N. C.) 55 187 V Morse, 139 Mass. 162 713, 733 V PhlUipston, 10 Met. (Mass.) 108 738 V Smith, 3 Jones L. (N. C.) 4. . . 208 t) State, 56 Ga. 385 526 I! Waggaman, 36 La. Ann. 984 682 Sec. White Sew. Mach. Comp'y v MuUins, 41 Mich. 339 ... . 378 Whitehurst v Hlckey, 3 Mart. N. S. (La.) 589 187 Whiteside u People, 26 Wend. (N. Y.) 634 106,107,113, 117 V United States, 93 U. S. 247. . . 556 Whltfleld V Greer, 3 Baxt. (Tenn.) 78 812 V Le Despencer (Lord), 2 Co wp. 754 226, 592, 751 Whitf ord v Lynch, 10 Kan. 180 584 liSoott,14How.Pr.(N. Y.)302 106 Whiting, Jn re, 2 Barb. (N.Y.)513.26, 789 Jnr6,lEdm.Sel.Cas.(N.Y.)498 10 Whitman v Hubbell, 20 Abb. N. C. (N. Y.)385 Whltmlre v Langston, 11 S. C. 381. . Whitmore v Mayor, etc., 5 Hun (N.Y.)195 V Mayor, etc., 67 N. Y. 21 Whitney v Coleman, 9 Daly (N. Y.) 338 V Delegates of S. F. Fire Dep't, 14 Cala. 479 V Farrar, 61 Me. 418 V Mayor, etc., 39 N. Y. Super. Ct.106 w Thomas, 33 N. Y. 281 V Van Busklrk, 40 N. J. L. 463 91, Whlttelseyi) United States, 5Ct. of CI. (U.S.) 453 Whittler t> Smith, 11 Mass. 311 Wlckware V Bryan, 11 Wend. (N. Y.) 546 732, Widener v State, 45 Ind. 344 Wiedenmayer v State, 44 N. J. L. 667 778, Wier V Bush, 4 Litt. (Ky.) 439 Wiggins V Hathaway, 6 Barb. (N. Y.) 632 693, Wigglnton v Markley, 53 Cala.411. . Wilbraham v Ludlow, 99 Mass. 587. Wilbur 1) How, 8 Johns. (N. Y.) 444. Wilcox 11 People, 90 111. 186 11 Rodman, 46 Mo. 322 19, t! Smith, 5 Wend. (N. Y.) 231 300, 624, 635, 649, 11 WUliamson, 61 Miss. 310 843 313 29 194 501 738 436 706 735 335 788 336 761 834 131 63 344 305 758 713 clxxvi CASES CITED Sec. Wild Cat Branch v Ball, 45 Ind. 213 263 Wlldey V Collier, 7 Md. 273 56, 57 Wildy V Washburn, 16 Johns. (N.Y.) 49 120 WUey, Ex parte, 54 Ala. 226 828 II Board of Com'rs, 51 Md. 401. 849 V Judge, etc., 29 Mich. 487 818 U Lineberry, 88 N. C. 68 805 "Wilkes V Dinsman, 7 How. (U. S.) 89 722 Wilkes-Barre v Meyers, 113 Pa. St. 395 503 Wniard I! Comstock, 58 Wis. 565. .. . 852 V Kimball, 10 Allen (Mass.) 211 766 V Superior Ct., 82 Cala. 456. .. . 822 WiUard's Appeal, 4 B. I. 595. . . .354, 388 Willett V Kipp, 12 Hun (N. Y.) 474. . 682 Williams v Boughner, 6 Coldw. (Tenn.) 486 304, 354 D Ehringhaus, 3 Dev. L. (N.C.) 297 189 V Gloucester, 148 Mass. 256. .. . 361 V Golden, 10 Nebr. 432 187 D Jones, 2 HiU (S. C.J 555 540 v Mercer, 139 Mass. 141 688 V Newport, 12 Bush (Ky.) 438. . 19 « People, 24 N. y. 405 547 V Powell, 101 Mass. 467 724 1) School District, 21 Pick. (Mass.) 75 106, 112 « Segur, 106 Ind. 368 478 D Smith, 6 Cala. 91 815 V State, 2 Sneed (Tenn.) 160. .. . 524 V State, 69 Tex. 368 144, 778 1) Supervisors, 65 Cala. 160 802 V United States, 23 Ct. of CI. (U.S.)46 472 I) Weaver, 75 N. Y. 30 739 V Weaver, 100 U. S. 547 739 Williamsburg v Lord, 51 Me. 599..106, 605 WilliamsburBh, In re, 1 Barb. (N. Y.)34 819 Williamsburgh Ins. Comp'y v Frothingham, 122 Mass. 391 245 WilUamsou v Boy kin, 99 N. C. 238. . 805 1) Woolf , Ala. Sei. Cas. (Shep- hard) 296 633 Williamson's Heirs i; Buchannan, a Tenn. COvert.) 278 , 558 Sec. WiUiamstown v Willis, 15 Gray (Mass.) 427 239,758, 769 Willis V Sproule, 13 Kan. 257 660 WiUs V Abbey, 27 Tex. 202 613, 616 Willson V Giflord, 42 Mich. 454 804 WUmarth v Burt, 7 Met. (Mass.) 257 758, 759 Wilson, In re, 32 Minn. 145 802 D Burks, 71 Ga. 862 805 D Cantrell, 19 Ala. 642 189 V Comm., 10 S. & R. (Pa.) 373, . 860 1) Glover, 3 Pa. St. 404 282 11 King, 3 Littell (Ky .) 457 36 V Marsh, 34 Vt. 352 722, 729, 741 V Mayor, etc., 1 Deuio (N. Y.) 595 534,709, 713 V Milner, 2 Campb. 452 688 V Peterson, 69 N. C. 113 147 V State, 51 Ark. 212 245 V United States, 1 Ct. of CI. (U.S.)206 480 V United States, 11 Ct. of CI. (U.S.)565 11 V Wichita County , 67 Tex. 647 . 225 Wimmer v Eaton, 72 Iowa 374 145 Wimpey i; Evans, 84 Mo. 144 187 Wines v Mayor, etc., 9 Hun (N. Y.) 659 5 Wing V Glick, 56 Iowa 473 774 Winkler d Winkler, 40 111. 179 848 Winneshiek County v Maynard, 44 lowalS 176 Winpenny v French, 18 Ohio St. 469 62 Winslow 1) Comm., 2 Hen. & Mun. (Va.)459 187 Winter v Kinney, 1 N. Y. 365. . . .674, 675 V Thistlewood, 101 111. 450 159 Winthrop v Dockendorff, 3 Me. 156. 675 Wise 1) Withers, 3 Cranch (U. S.) 331 757 Wiseman v Lynn, 39 Ind. 250 556 Withnell v Gartham, 6 T. R. (D. & E.)388 105 Witkowski v Hern, 82 Cala. 604 242 Woflenden, In re, 1 Arizona 237 814 Wolcott V Wolcott, 19 Vt. 37 109 Wolfe V McClure, 79 111. 564 687 V State, 90 Ind. 16 554 Wolfson V Rubicon, 63 Mich. 49 822 Wood, In re, 2 Cow. (N. Y.) 29 3, 14 clxxvii CASES CITED Sbo. Wood, In re, Hopk. Ch. (N.Y.) 7 . .3, 14 u Bangs, 1 Dak. 179 851 V Bartling, 16 Kan. 109. .81, 150, 151, 163 » Cook, 31 m. 271 601 c Co. Com'rs, 125 Ind. 370 447 ■oCutter, 138 Mass. 149 87 J) Farnell, 50 Ala. 546 250, 588 V McCann, 6 Dana (Ky.) 366. . . 57 V Mayor, etc., 44 N. Y. Super. Ct.321 389 V Mayor, etc., 55 N. Y. Super. Ct. 230 510 c Peaks, 8Jolms. (N.Y.) 69.... 120 V Rice, 6 Hill (N. Y.) 58 609 rRuland, 10 Mo. 143 707 V Stoddard, 2 Jolins. (N. Y.) 194 609 V Thomas, 38 Mich. 686 758 V Washburn, 2 Pick. (Mass.) 24 266 Woodall D Oden, 62 Ala. 125 220 Wooddell V Bruffy . 25 W. Va. 465 . . . 210 Woodruff V Berry, 40 Ark. 251 63 ^) State, 3. Ark. 285 19 D Stewart, 63 Ala. 206 713 Woodsi) Gilson, 17 III. 218 587 V Varnnm, 85 Cala. 639 346, 367 . Woodslde v Wagg, 71 Me. 307. 36, 631, 649 WooUey v Baldwin, 101 N. Y. 688 246, 724 Woolaey v Dodge, 6 McLean (U. S.) 142 730 D Morris, 96 N.Y. 311 761, 767 II Tompkins, 23 Wend. (N. Y.) 324.. 106, 112,'564 Woodward v Hopkins, 2 Gray '(Mass.)310 , 767 V Sarsons, 44 L. J. C. P. 293 ; L. R. lOC.P. 733;32L.T. Eep. 867 147 Woodworth v Bennett, 43 N. Y. 273 63, 66 Worley V Smith, 81 N. C. 304. . . .339, 333 Worth D Cox, 89 N. C. 44 373 V Newton, 10 Exoh. 247 ; 23 L. J.Exch. 338 30 Wortham v Grayson Co. Court, 13 Bush (Ky.) 53 446,449, 478 Worthing «) Webster, 45 Me. 270.... 560 Sec. Worthy v Barrett, 63 N. C. 199 78 Wortman, In re, 33 Abb. N. C. (N. Y.) 137 95 Wreden v Superior Ct., 55 Cala. 504. 836 Wright V Adams, 45 Tex. 134". 308 V Boon, 2 Greene (Iowa) 458 571 V Dawson, 147 Mass. 384. 698 V Eldred, 46 Hun (N. Y.) 12. . . . 576 D Harris, 31 Iowa 272 232 V Hartford, 50 Conn. 546. ... IB, 470 V Leath, 24 Tex. 24 184 B Nelson, 6 Ind. 496 795 r NoeU, 16 Kan. 601 70 V Kouss, 18 Nebr. 234 734 WulfC V Aldrioh, 124 HI. 591 455 Wyandotte v Drennan, 46 Mich. 478 19 Wyoough u State, 50 Ark. 102 345 Wyman v Lemon, 51 Cala. 273. .143, 144 Vale, Ex parte, 24 Cala. 241 15 Yancey v Hopkins, 1 Munf. (Va.)419 556 Yarbrongh, Ex parte, 110 U, S. 651.. 124 Yates V Lansing, 5 Johns. (N. Y.) 282 714,860, 862 V Lansing, 9 Johns. (N. Y.) 395 714 J) Robertson, 80 Va. 475 56 Yeakle v Winters, 60 Ind. 554 187 Yearsley B Heane, 14 M. & W. 332; 3D.&L. 365 764 Yoakley v King, 10 Lea (Tenn.) 67 305, 308 Yonkey v State, 37 Ind. 236 425 York County u Watson, 15 S.C.I... 336 York County M. F. Ins. Comp'y v Brooks, 51 Me. 506 .„. 263, 267 Yorty V Paine, 62 Wis. 154 639, 649 Young V Blackhawk County, 66 Iowa 460 573 i; Comm., 6 Binn. (Pa.) 88 184 V State, 7 Gill & J. (Md.) 253 182,185, 187 yeiler v Chapman, 54 Mo. 502. .137, 138 ^ Ziegler v Chapin, 126 N. Y. 342. 619, 853 «Comm.,12Pa.St.227. .248,707, 744 Zylstra v Charleston, 1 Bay (S. C.) 382 835 clxxviii CASES CITED People ex rel. Nichols v Board of Canvassers of Onondaga Co.; People ex rd. Sherwood v Board of State Canvassers ; Court of Appeals of N. Y., Deo. 29, 1891 ; see Postscript, ante, p. 172. In all, 68Jf2 cases cited. clxxix: THE LAW RELATING TO PUBLIC OFFICERS AND SURETIES IN OFFICIAL BONDS BOOK I PUBLIC OFFICERS GENERALLY CHAPTER I WHO IS A PUBLIC OFFICER CONTENTS Sec. 1. How this question arises. 3. English general definitions of " office " and " officer.'' 3. American definitions of those words. 4. The same subject. 5. The same subject; whether an attendant upon a court is a public officer. 6. The same subject ; landscape architect in department of pubUo works. 7. The same subject ; assistant clerk of board of aldermen ; messenger of president of board; officer of school dis- trict. § 2. PUBLIC OFFICERS [Book I. Sec. 8. How the question is affected by extent of territorial limit? of jurisdiction ; or emoluments ; or official oath ; or per- manent or transient character of duties. 9. Clergyman administering marriage a public oflScer pro hoe vice; person empowered to certify facts upon which payment of public money to be made not a public officer ; firemen of city not public officers. 10. Miscellaneous rulings that certain persons having public functions are public officers. 11. RuKngs by U. S. Courts under joint resolution giving increased compensation to civil officers of the U. S. 13. Miscellaneous rulings that certain persons having public functions are not public officers. 13. Whether attorneys, solicitors, and counsellors are public officers. 14. The same subject. 15. The same subject. § 1. How this question arises. — The question, who is a public oflScer, and its correlative, what is a public office, become often important, and sometimes difficult of solu- tion, chiefly in cases involving the construction of stat- utes or constitutional provisions, relating to public officers generally. With respect to the great majority of public functionaries, there is no difficulty in determining them to be officers under the national or a state government, as the case may be; but the precise line of demarkation be- tween an officer and governmental agent, employee or contractor, is difficult to draw, so that with respect to many persons connected with the administration of pub- lic affairs, it is difficult to determine upon which side of it they are properly ranged. §3. English general definitions of "office" and "offi- cer." — The following are the principal definitions of the words "office" and "officer," which have been given in England: "It is said that the word officium princi- pally implies a duty, and in the next place the charge of such duty, and that it is a rule that where one man hath Chap, I.] WHO IS A PUBLIC OFFICER § 3. to do with another's affairs, against his will and without his leave, that this is an oflBce, and he who is in it is an officer. OflBcers . . . are public or private; . . . and it is said that every man is a public officer who hath any duty concerning the public ; and he is not the less a public officer, where his authority is confined to narrow limits, because it is the duty of his office, and the nature of that duty which makes him a public officer, and not the extent of his authority." ' " In my opinion," said Lord Chief Justice Best, "every one who is appointed to discharge a public duty, and re- ceives compensation, in whatever shape, from the crown or otherwise, is a public officer. " ' Blackstone includes offi- ces among incorporeal hereditaments, and defines an office to be "a right to exercise a public or private em- ployment, and to take the fees and emoluments thereunto belonging." ' § 3. American definitions of those words. — The follow- ing definitions have been given in the United States: Chief Justice Marshall, holding that an agent of fortifica- tions of the United States is a public officer, whose bond for the faithful discharge of his duties is an official bond, said: "An office is defined to be a public charge or em- ployment, and he who performs the duties of the office is an officer. . . Although an office is an ' employment ' it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act, or to perform a service, without ' Bac. Abr. tit. Offices and Officers, A. ' Blackst. Commen. Book 2, ch. 3, p. 36. See also Vaughn v English, 8 Gala. 39 ; See also Finch's Law, 162 ; Shelby v Alcorn, 36 Miss. 273 ; 3 Kent's Commen. 454 ; State V Valie, 41 Mo. 29, at p. 31 ; Miller v Supervisors, 25 Gala. 93, at p. 98 ; People V Hayes, T How. Pr. (N. Y.) 248. People v Stratton, 28 Gala. 382 ; People i; Nostrand, 46 N. Y. 375, per 2 Best, Gh. J., in Henly ti Mayor of Church, Ch. J., p. 381 ; Lyme, 5 Bing. 91. Olmstead v Mayor, etc., 43 N.Y. Super. Ct. 481. § 3. PUBLIC OPPICEKS [Book I. becoming an officer. But if the duty be a continuing one, which is defined by the rules prescribed by the govern- ment, and not by contract, which an individual is appointed by government to perform, who enters upon the duties appertaining to his station, without any con- tract defining them, if those duties continue, though the person be changed, it seems very difficult to distinguish such a charge or employment from an office, or the per- son who performs the duties from an officer."' "An office is a public station or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties ... A government office is different from a government con- tract. The latter, from its nature, is necessarily limited in its duration, and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other."' " A public office is an agency for the state, and the per- son whose duty it is to perform this agency is a public officer. . . . The oath, the salary or fees are mere incidents and constitute no part of the office. Where no salary or fees are annexed to the office, it is a naked office — honorary — and is supposed to be accepted merely for the public good. This definition also excludes the idea that a public office must have continuance. It can make no difference whether there be but one act or a series of ' United States v Maurice, 2 Brook. (U.S.) » United States v Hartwell, 6 Wall. (U.S. ' B6, per Marshall, Ch. J., pp. 102, 103 ; 385, per Swayne, J., p. 393. Followed in Shelby v Alcorn, 36 Miss. See also, Bunn v People, 45 111. 397, at 2T3; p. 403; Bunn V People, 45 111. 397. Opinion of the Just., 3 Me. 481 ; See also In re Wood, 2 Cow. (N. Y.) 29, People v Nostrand, 46 N. Y. 375, per note ; Hopk. Ch. (N. Y.) 7 ; Church, Ch. J., p. 381 ; Stone V United States, 3 Ct. of 01. (U. S.) Brown v Turner, 70 N. C. 93 ; 260. Sanford v Boyd, 2. Cranch (U. S. Cir. Ct.)78; Hall V Wisconsin, 103 U. S. 5. Chap. I.] WHO IS A PUBLIC OFFICER § 4. acts to be done ; whether the oflBce expires as soon as the one act is done, or is to be held for years, or during good behavior." ' § 4. The same subject, — In a case involving the ques- tion whether an attorney is a public officer/ Piatt, J., said : " Lexicographers generally define office to mean public employment; and I apprehend its legal meaning to be an employment on behalf of the government in any station or public trust, not merely transient, occasional or incidental. In common parlance, the term ' office ' has a more general signification. Thus we say the office of executor or guardian, or the office of a friend." ' This definition was approved in a case, involving the question, whether the constitutional provision of 1846, prohibiting the judges of the court of appeals and the justices of the supreme court of New York from exercis- ing " any power of appointment to public office," pre- vented the appointment by the supreme court of a per- son to act as surrogate in the matter of a particular estate, wherein the surrogate was interested, pursuant to a statute enacted before the constitutional provision was' adopted. The court held that the appointment was valid. AUen, J., delivering the pi-evailing opinion, quoted Judge Piatt's definition with approval, and added: "The term ' office ' has a very general signification, and is defined to be that function by virtue whereof a person has some em- ployment in the affairs of another; and it may be public or private, or quasi public, as exercised under public authority, but yet affecting only the affairs of particular individuals. The presidency of a bank is spoken of as an office, and a trustee of a private trust is, in ordinary par- " Clark V Stanley, 66 N. C. 59. As to the ' Inre the oaths, etc., 20 Johns. (N. Y.) concluding sentence of this extract, 492, 493. Approved, People V Nos- see In re Hathaway, 71 N.Y. 238, cited trand, 46 N. Y. 375, per Church, Ch. J., post, 8 4. P. 381. ' See post, 9 14. § 5. PUBLIC OFFICERS [Book 1. lance, said to hold the olSBce of trustee; and the term otfice is applied to an executor or guardian, etc. A referee, for the trial and decision of actions, is an officer exercising judicial powers under public authority. So receivers, appointed by the courts, and commissioners for the appraisal of damages for lands taken for public use, are officers, and strictly and technically exercise the functions of an office. But they are not ' public officers,' within the inhibition of the constitution. If they were, they could not have derived authority from the supreine court, or any justice thereof, while article 6, as adopted in 1846, was in force. . . ., They owed no duty to the public, and could perform no service for the public. The trust they exercise, and the duties they perform, are 'transient and occasional.' They are not called upon to take the constitutional oath of office, and are not entitled to the emoluments of the office, except such as grow out of and pertain to the duties actually performed." ' § 5. The same subject. Attendant upon a court. — It was settled in the State of New York, after some conflict of opinion, that an "attendant" upon a court of record in the city of 'New York is a " public officer," within the pro- visions of a statute forbidding the increase of the salaries of public officers by the local authorities. In delivering the opinion which settled this controversy, Danforth, J., said: "He not only owes a duty to it," (the court) "and is to perform such duties as are by it required to be per- formed, but, as we have already said, those duties are in aid of the proper business of the court . . . and his employment is one in which the public are interested; its proper exercise requires capacity, diligence, and at- tendance. Whether we look into the dictionary of our language, the terms of politics, or the diction of common life, we find that whoever has a public charge or employ- > In re HathawKy, 71 N. Y. 238 : afl'g 9 Hun (N. Y.) 79. Chap. 1.] WHO IS A PUBLIC OFFICER § 7. ment, or even a particular employment affecting the pub- lic, is said to hold or be in oflSce. However, therefore, the signification of the word used is ascertained, it will com- prehend the position of the plaintiff as stated in the record, for although his functions may he those of service, his employment is by the public, and the duties intrusted to him are official and a public charge." ' § 6. The same subject. Landscape architect, depart- ment public works. — It was held by the superior court of New York city, that a landscape architect in the depart- ment of public works, appointed during pleasure by, and responsible only to, the commissioners, was a servant of the commissioners, and not a public officer. The court, after quoting Blackstone's definition,'' added: " Every office under the constitution implies an authority to exer- cise some portion of the sovereign power of the state, either in making, executing, or administering the laws."' § 7. The same subject. Assistant clerk; messenger; officer of school district. — Upon a question respecting an assistant clerk of the board of aldermen of the city of New York, appointed by the clerk of the common council of the city, pursuant to a resolution of that body, Davis, P. J., delivering the opinion of the general term of the supreme court, said: " We see no reason to doubt that the plaintiff was an officer. His duties were those pertaining to an office. He was required by ordinance to take, and did take the official oath; and he was amenable to all the penalties of statute for neglect or violation of official duties. Probably the true test to distinguish officers from simple servants or employees, is the obligation to take the oath 'Rowland v Mayor, etc., 83 N. Y. 373, Brennan u Mayor, etc., 62 N. Y. 365 ; aff'g 44 N. Y. Super. Ct. 559. Wines v Mayor, etc., 9 Hun (N.Y.) 659. See also, Sweeney v Mayor, etc., 5 Daly , Ante, % 2, note 3. (N. Y.) 274 ; afE'd (no op'n) 58 N. Y. 625. „. ^ ™ IT (XTviiRQ. ' Olmsteeid 1) The Mayor, etc., 42 N.Y. MoseruMaj'or, etc.,21Hun (N.Y.) Ibd; ^ ^^ ^^^ HoUey v Mayor, etc., i ) N.Y. 166; Super. Ct. 481. § 8. PUBLIC OPFICEKS [Book I. prescribed by law." ' But it was held that the messenger of the president of the board of aldermen was not an offi- cer, on the ground that his duties were not official, the court distinguishing this case from the one last cited, on the ground that in the latter, the plaintiff performed some of the official functions of his principal." The supreme court of Connecticut, holding that a trustee of a school district is a public officer, expressed the opinion, that every one deriving public functions from an election by the people of a particular district is a public officer.' And it has been said that one appointed or elected in a manner prescribed by law, having a designation or title given to him by law, and exercising functions concerning the public assigned to him by law, is a public officer." § 8. Territorial limits ; emoluments ; official oath ; per- manent or transient character of duties. — In considering the question whether a particular officer is a public officer, the extent of the territorial limits within which his functions are exercised is immaterial. If the office is one in which the public have an interest, it is a public office, however narrow may be such territorial limits.' Nor is the existence or absence of any emoluments, or of the requirement of an official oath, or the permanent or transient character of the duties, a certain test to deter- mine whether a person is or is not a public officer." It 1 Collins t) Mayor, etc., 3 Hun (N. Y.) 680. Comm. v Morrisey, 86 Pa. St. 416. See also. Oakley v Mayor, etc., 4 Hun , Bradford v Justices, etc., 33 Ga. 332. (N. Y.) 72; s. i;. 6 T. & 0. (N. Y.) 221. = Reg. V St. Martin's, 17 Q. B. (Ad. & 2 Smith ti Mayor, etc., 67 Barb. (N.Y.) 223. j,j NS)149- ' Ogden V Raymond, 22 Conn. 379 ; citing People v Bedell, 2 Hill (N. Y.) 196. Adams v Whittlesey, 3 Conn. 560 ; See also, Vaughan v English, 8 Gala. 39 ; Perry v Hyde, 10 Conn. 329, at p. 338 ; Shelby D Alcorn, 36 Miss. 273 ; Sterling ti Peet, 14 Conn. 245. State t) Vall6, 41 Mo. 29, at p. 31. See also, as to school officers, Sanboi-n , g^^^.^ ^ gta^igy^ 66 N. C. 69. V Neal, 4 Minn. 126 : g^^ ^j^^ p^^p^^ ^ Langdon, 40 Mich. 673; McCoy V Curtice, 9 Wend. (N. Y.) 17 ; g^^jg Kennon, 7 Ohio St. 546. Chap. I.] WHO IS A PUBLIC OPFICEK § 9. was held in Pennsylvania, that a person appointed and commissioned by the governor, pursuant to a joint reso- lution of the legislature, a special agent of the state to collect certain claims of the state against the United States, and who was not required to take, and did not take, an official oath, was a public officer, and there- fore liable, under a clause in the non-imprisonment act of the state, excepting actions against public officers, to arrest in an action to recover the money received by him. The court held that " all persons, who, by authority of law, are intrusted with the receipt of public moneys, through whose hands money, due to the public or belong- ing to it, passes on its way to the public treasury, must be so considered, by whatever name or title they may be designated in the law authorizing their appointment, and whether the service be general or special, transient or permanent." ' § 9. Clergyman ; certifying officer ; fireman of city ; when public officers. — And it would seem that in certain cases a man may be a public officer, without appointment or election by any public authority, and without an oath of office, legal emoluments, or permanency of tenure or of duties. For it was held by the supreme court of errors of Connecticut that a " clergyman, in the administration of marriage, is a public civil officer, and, in relation to this subject, is not at all distinguished from a judge of the superior or county court or a justice of the peace, in the performance of the same duty ;" so that his acts in that capacity are admissible as prima facie evidence of his official character.'' But where a judge of the court of ap- peals of the State of New York was designated by a statute of that state, as one of three persons to examine ' Comm. D Evans, 1i Pa. St. 124, per also, post, § 863. Sharswood, J., p. 139. See, however. Union Churoli V Sand- ^ Goshen v Stonington, 4 Conn. 209. See ^"^^ 1 ^oust. (Del.) 100. § 10. PUBLIC OFFICERS [Book I. and report upon the genuineness and value of certain relics, which the state proposed to purchase, and upon whose certificate the purchase price was directed to be paid, it was held that this was not an "office or public trust," which a judge was prohibited to hold by the constitution. ' In a case decided in the court of appeals of the state of New York, upon the question whether the firemen of the city of New York, under the old system, were public officers, Finch, J., said: " The precise relation of these firemen to the municipality and the state it is not easy to describe. They were not civil or public officers within the constitu- tional meaning, and yet must be regarded as the agents of the municipal corporation. Their duties were public duties ; the service they rendered was a public service; their appointment came from the common council and was evidenced by the certificate of the city officers ; they were liable to removal by the authority which appointed them; and were intrusted with the care and management of the apparatus owned by the city. They were, at least, a public body, and, perhaps, are best described as a sub- ordinate government agency." " § 10. Certain persons having public functions held public officers. — In the following cases, it has been held that the person, whose status was in question in each case, was a public officer, to wit:' A notary public;* a swamp land agent or commissioner;" a clerk in the state department;" a judge or a justice of the peace;' the sur- veyor-general and comptroller of the state;* a trustee of the J People V Nichols, 53 N. Y. m. ' Kirkaey v Bates, 7 Port. (Ala.) 529 ; orr. . „*„ ..v> ^ oQXTir wo „„ Governor u Gordou, 15 Ala. 72. 2 Trustees, etc., v Roome, 93 N.Y. 313, per Finch, J., pp. 319, 330; aft'g 29 Hun ° Rice v Harrell, 24 Ark. 402 ; (N. Y.) 391. Baugh v Lamb, 40 Miss. 493. See also Baker v U. S., 4 Ct. of 01. a Vaughan v English, 8 Cala. 39. (U. S.) 227, per Nott, J., pp. 233-237 ; ^ee also, U. S. v Hartwell, 6 WaU (U. S.) Comm. V Evans, 74 Pa. St. 124, per ggj Sharswood, J., pp. 139, 140. ' People V Ransom, 58 Cala. 558 ; 3 See also the cases cited post, S § 88, 39. Comm. v Gamble, 63 Pa. St. 343. 8 People V Whitman, KTCala. 38. io Chap. I. J WHO IS A PUBLIC OFFICER §10. of the state library;' the state librarian;" the school superintendent of a county;" a policeman or a ladder- man of the fire department of a city;" a director of the state deaf and dumb institution;' a police oflBcer;" a county drainage commissioner;' the state printer;* a postmaster;" a trustee of the jury fund;'" a levee com- missioner;" a member of the board of water commis- sioners of a city;'" a representative in the state legisla- ture;" a deputy county clerk;'" a representative in the congress of the United States;" the health officer of the city of New York;'" an assistant clerk to the board of aldermen, required by law to take an official oath;" loan commissioners of a county;'* commissioners for internal improvements in another state;'" commissioners to lay out a public road;"" commissioners to erect a public building;" the superintendent of a county penitentiary;"" an inter- preter for a municipal court, not of record;"* a city attor- ney;"* the tax collector of a village;"" an assessor of taxes;"" a person authorized by statute to appoint to an office, although he receives no compensation, and takes no oath;"' ' People V Sanderson, 30 Gala. 160. ' People V Stratton, 28 Gala. 382. » Crawford v Dunbar, 52 Gala. 36. * FarreU v Bridgeport, 45 Gonn. 191 ; Wright V Hartford, 50 Conn. 5«. = Dickson v People, 17 HI. 191. "Jacksonville v Allen, 25 111. App. 54. ' State V Wells, 112 Ind. 237. 8EllisDState,4Ind:l. Walker v Dunham, 17 Ind. 483. » Foltz V KerUn, 105 Ind. 231. i» Comm. V Jackson, 10 Bush (Ky.) 424. " Shelhy v Alcorn, 36 Miss. 273. " State V Valle, 41 Mo. 29. " MorriU V Haines, 2 N. H. 246. » Gibbs V Morgan, 39 N. J. Eq. 126 ; Miller V Lewis, 4 N. Y. 554. " People V Common ConncU, 77 N. Y. 503. i« In re Whiting, 1 Edm. Sel. Gas. (N. Y.) 498. " Collins V Mayor, etc., 3 Hun (N. Y.) 680. '8 In re Carpenter, 7 Barb. (N. Y.) 30. 19 Vose V Reed, 54 N. Y. 657. 20 People V Hayes, 7 How. Pr. (N.Y.) 248 ; People V Nostrand, 46 N. Y. 375. 2iPeopleDGomptroller,20Wend. (N.Y.) 595. " Porter v PiUsbury, 11 How. Pr. (N. Y.) 240. " Goettman v Mayor, etc., 6 Hun (N. Y.J 132. »« People V Lee, 28 Hun (N. Y.) 469. " People V Bedell, 2 HiU (N. Y.) 196. " Lorillard v Monroe, U N. Y. 392. " State V Stanley, 66 N. C. 59. 11 § 12. PUBLIC OFFICEKS [Book I. a county treasurer;' a commissioner of the United States centennial commission;" a clerk in a local department of the United States treasury;' an agent of fortifications of the United States;* a marshal of the United States, and a district court of the United States;' commissioners appointed to make a geological survey of a state." The land oflSce in Pennsylvania is a public office.' § 11. Rulings of U. S. Courts as to certain civil offi- cers. — Numerous rulings have also been made by the courts of the United States, upon the question, whether particular persons employed in the public offices, or by goverment officers, or otherwise acting with respect to the public business, were entitled under a joint resolution adopted by congress in 1867, to an increase of twenty per centum upon the amount of their compensation, given by the joint resolution to " civil officers " and certain eniuner- ated clerks and employees.' § 12. Certain persons with public functions held not public officers. — In the following cases, it has been held that the particular person, whose status was in question in each case, was not a public officer, either gener- ally, or within the nieaning of particular statutory or constitutional provisions, to wit : a sheriff's special deputy;" a member of a board of commissioners to fund the floating debt of a city;'" a deputy clerk of the > Riddle, v Bedford County, 7 S. & R. Clapp v U. S., 7 Ct. of CI. 351 ; (Pa.) 386. Huntington v U. S., id., 495 ; ^ In re Corliss, U R. I. 638. Pearson D U. S., 9 Ct. of 01. 152 ; BellvU. S., id.303; » United States v Bloomgart, 2 Ben. (U. Park vV B id 315 • ®"' ^^" Allison V U. S., 10 Ct. of CI. 449 ; b. u. * United States v Maurice, 2 Brock. (U. p. r., 91 U. S. 303 ; S.) 96. Wilson 1) U. S., 11 Ct. of Cl. 565 ; 5 United States v. Strobach, 4 Woods C. Phillips ii U. S., id. 570 ; C (U S)593 Twentypercent. cases, 20 Wall, (U.S.) 179; = Hall V State, 39 Wis. 79. U. S. v Meigs, 95 U. S. 748. ' Urket V Coryell, 5 Watts & S. (Pa.) 60. » Xavanaugh v State, 41 Ala. 399. 8 Mallory u U. S., 3 Ct. of Cl. 257 ; , » p^^^^ ^ Middleton, 28 Gala. 603. Baker v U. S., 4 Ct. of Cl. 227 ; 13 Chap. I.J WHO IS A PUBLIC OFFICER § 12. county courts;' the treasurer of a city;' a licensed pilot;' a commissioner to superintend the erection of a building for the state;' a conunissioner to superintend the erection of a county building;" a commissioner for the liquidation of an insolvent bank, appointed by the president and stockholders of the bank under a statute;" a police jury- man;' a special deputy sheriff ;° firemen in cities and villages, and their various grades of officials;" examiners of buildings appointed by the fire department of a city;" a police patrolman;" a public or state printer;" a night watchman of a post-office building, appointed by the United States treasury department;" the members of a water committee, designated by name in a statute, and empowered thereby to purchase water works for a city, and issue the city's bonds therefor;" one appointed to print in his newspaper the United States statutes;" a deputy collector of the United States internal rev- enue;" a pension agent of the United States;" a carrier of the mail, employed by a contractor with the United States, to carry the mail over a mail route;" a pro- fessor in the state university." Only a few of the Eng- ' Jeffries v Harrington, 11 Colo. 191. See also, Mangam v Brooklyn, 98 N. Y = State V Wilmington, 3 Harr. (Del.) 294. ' Dean v Healey, 66 Ga. 503. * Bunn V People, 45 111. 397. ' McArtiiur v Nelson, 81 Ky. 67. ' Conrey V Copland, i La. Ann. 307. ' State V Montgomery, 25 La. Ann. 138. « Meyer v Bishop, 87 N. J. Eq. 141. 585. >2 Brown v Turner, 70 N. C. 93. '3 Doyle V Raleigh, 89 N. C. 133. " David V Portland, 14 Oreg. 98. " Comm. V Binns, 17 S. & R, (Pa.) 219. " Landrami) United States, 16 Ct. of CI. (U. S.) 74. " United States v Cutter, 2 Curtis (U. S.) » People V Pinckney, 32 N. Y. 377 ; gj^ Exempt Firemen's Fund t) Roome, 93 ggg ^^^^^ Lindsey v Att'y Gen'l, 33 N. Y. 313, afl'g 29 Hun (N. Y.) 391. jjjgg^ g(jg_ '» N. Y. Fire Department D Atlas Steam- ,s gawyer v Corse, 17 Gratt. (Va.) 230. ship Comp'y, 106 N. Y. 566. ,^ Butler. Board of Regents, 32 Wis. 124. " ShanleyuBrooklyn,30Hun(N.Y.)396. 13 § 14. PUBLIC OFFICERS [Book I. lish cases on the same subject are applicable otherwise than remotely in this country. ' § 13. Whether attorneys, solicitors, and counsellors are public officers. — With respect to counsellors, barristers, solicitors and attorneys at law, or "public attorneys," as they are sometimes called, to distinguish them from attorneys in fact or private attorneys," Lord Chief Justice Holt said: " The office of an attorney concerns the publick, for it is for the administration of justice;" ' and Lord Hardwicke said that they " are to be considered as public officers and ministers of justice." * Accordingly they are styled, expressly or by implication, public officers, in several cases. ^ But this ruling has been subjected in practice to so many qualifications, that a more correct expression is. that they are "in a certain sense "public officers. ' § 14. The same subject. — Thus in the State of New York, although the statute, enumerating and classifying the " civil officers " of the state, places " counsellors, solic- itors and attornies" in the class of judicial officers,' it was held that an attorney was not within the provision vacating a public office, where the incumbent ceases to reside within the state. ' And in another case, the court refused to grant an attorney double costs, on his succeed- ing in an action for directing a sheriff to levy under an > See cases cited ante §8 2, 8 ; Hall D Sawyer, 47 Bart. (N. Y.) 116 ; Also Att'y Gen'l 1) Matthias, i Kay & J. Jii re Cooper, 22 N. Y. 67, per Selden, J., 579 ; 27 L. J., Ch., 761 ; i Jur., N. S., 628 ; pp. 92-95 ; HUl V Reg., 8 Moore P. C. C. 138. In re Austin, 5 Rawle (Pa.) 191. " Hall V Sawyer, 47 Barb. (N. Y.) 116, per ^^^ Blackst. Commen. Book 3, p. 26. Potter, J. ' Richardson v Brooklyn, etc., R. R. 3 In re White, 6 Mod. 18. 23 How. Pr. (N. Y.) 368, per Emott, J. ^ Walmesley v Booth, Bam. Ch. 478. '^^■^- °* N. Y., p. 96 ; 1 R. S., 8 ed., p. » Merritt v Lamhert, 10 Paige (N. Y.) 352, afld. 2 Denio (N. Y.) 607 ; ° Richardson v Brooklyn, etc. R. R., 22 Waters v Whlttemore, 22 Barh. (N. Y.) ^°'"- ^'- In re Dorsey, 16 Ala. (7 Porter) 293 ; Ex parte Faulkner, 1 W. Va. 269; Ex parte Law, 35 Ga. 285 ; In re Mosness, 39 Wis. 509. Byrne t) Stewart, 3 Desau. (S. C.) 466; , j„ ^^ Robinson, 131 Mass. 376, per Ingersoll u Howard,! Heisk. (Tenn.)247; Gray J. In re Leigh, 1 Munf. (Va.) 468; 16 Chap. II.] NATURE, ETC.,- OF A PUBLIC OFFICE § 16. CHAPTER II NATURE AND GENERAL INCIDENTS OF A PUBLIC OFFICE CONTEISTTS Sec. 16. What offices in England are inheritable and assignable, and regarded as incorporeal hereditaments. 17. In the United States no office is a hereditament; general principles relating to this subject. 18. Examination of some American cases where an office is said to be property. 19. Settled doctrine in the United States that an office is not held under a grant or contract, and where the constitu- tion does not otherwise provide, the legislature may change the duties, term, compensation, etc., or abolish it; but if these incidents fixed by constitution, legis^ lature cannot change them. So an office does not cre- ate a contract by the officer to serve. Same rule applies to a municipal officer and the municipal legislature. 20. But legislature cannot remove an officer, directly or indi- rectly; and some cases hold that term cannot be abbrevi- ated, etc. Various rulings respecting the constitution- ality of statutes tending indirectly to affect offices regu- lated by the constitution. 31, An office is a public agency; and so the act of public officers bind the state, etc., but not when power exceeded; govermnent not chargeable for officer's default. § 16. Certain offices inheritable and assignable in Eng- land. — Many ancient oflfices were, in England, inherit- able and assignable, and were treated as incorporeal hereditaments.' But these were common law offices, depending chiefly upon usage ; and the doctrine did not extend to judicial offices, or other offices pertaining to the ' See ante, i 2. 17 § 18. ■ PUBLIC OFFICERS [Book 1. administration of justice. ' Offices created by statute con- fer no life estate, or irrevocable tenure, unless the statute expressly so provides." § 17. But in U. S. no office is a hereditament. — But in this country, no public office can properly be termed a hereditament, or a thing capable of being inherited.' Here public offices are not the subject of grant or livery. " An appointment to an office is only the execution of a power given by statute, and does not operate in any sense as a transfer of property or franchise from the person who makes the appointment to him who receives it." * " All public offices emanate from the people, and are gov- erned by the constitutions and the laws. " ' § 18. In certain American cases office styled prop- erty. — But in some American cases, an office, or the right to exercise an office is styled property, in an absolute and unqualified sense; and it has been said that the right to exercise an office is "as much a species of property as any other thing capable of possession." ° "With respect to this remark, a learned judge says that it "was rather a figure of speech, than a judgment, determining an office to be, property. It was a strong mode of expressing the right, which one elected to an office has to hold and enjoy it, as against all intruders and unfounded claims, which 1 Blaokst. Commen., Book 2, cli. 3, p. 36 ; 355, per Saudford, J., p. 368 ; s. c. on 9 Coke, 47, 48 ; appeal, 5 N. Y. 285, per Ruggles, Ch. Reynel's Case, 9 Goke, 95 a, 97, et seq. J., p. 295 ; > Smyth I) Latham, 9 Bing. 693 ; People V Murray, 70 N. Y. 621, per Veale v Priour, Hardres, 351, per Hale, ■*-^^"' "'•' P' ^^• Ch. B. pp. 356, 357. 4 People v Murray, 5 Hun (N. Y.) 42. For a learned and able statement of See also, Donovan v Will County, 100 the nature, etc. of offices, see per 111. 94. Sandf ord, J., in Conner v Mayor, etc., a Conner v Mayor, etc., 2 Sand. fN. Y.) 2 Sandf. (N. Y.) 355, at pp. 367, et seq. 355, per Sandf ord, J., p. 388. ' 3 Kent Commen., 454 State V Davis, 44 Mo. Conner v Mayor, etc., 2 Sand. (N. Y.) c.) 1, see pp. 17-19, " Wammack v HoUoway. 2 Ala. 31. State t, Davis, 44 Mo. 129 ; ^^^^^.^^ jj^^g „ Henderson, 4 Dev. (N. 18 Chap. II.] NATURE, ETC., OF A PUBLIC OFFICE §19. is as perfect a right, beyond doubt, as the title of any in- dividual to his property, real or personal. But the nature of that right, and its liability to control by legislative action, is quite a different thing." ' And in a recent case in the New York court of appeals, Andrews, J. , approv- ing the remarks last cited, adds: "It is true that in this country offices are not hereditaments, nor are they held by grant. The right to hold an office, and to receive the emoluments belonging thereto, does not grow out of any contract with the state, nor is an office property, in the same sense that cattle or land are the property of the owners. . . . An office has a pecuniary value, although primarily it is an agency for public purposes." ' § 19. The doctrine in the United States. — It is there- fore well settled in the United States, that an office is not regarded as held under a grant or a contract, within the general constitutional provision protecting contracts ; but, unless the constitution otherwise expressly provides, the legislature has power to increase or vary the duties, or diminish the salary or other compensation appurtenant to the office, or abolish any of its rights or privileges, before the end of the term, or to alter or abridge the term, or to abolish the office itself.' But if either of > Conner v Mayor, etc., 2 Sand. (N. Y.) 355, per Sandford, J., p. 370. ' Nichols V MaeLean, 101 N. Y. 526, per Andrews, J., p. 533. See also Fitzsimmous v Brooklyn, 103 N. i'. 536. s Benf ord v Gibson, 15 Ala. 521 ; Ex parte Lfimbert, 52 Ala. 79 ; Beebe v Robinson, 52 Ala. 66 ; Ex parte Lusk, 82 Ala. 519 ; Woodruff V State, 3 Ark. 285 ; Robinson « White, 26 Ark. 139 ; People V Haskell, 5 Gala. 357,;^ People V Banvard, 27 Gala. 470 ; In re Bulger, 45 Gala. .5.53; State V Dews, R. M. Charlt. (Ga.) 397 ; Augusta V Sweeney, 44 Ga. 463 ; People V Auditor, 2 111. 537 ; People V Lippincott, 67 111. 333 ; Crook V People, 106 111. 237 ; Coffin V State, 7 Ind. 157 ; Turpen v Com'rs, 7 Ind. 172 ; Walker v Dunham, 17 Ind. 483 ; Walker v Peelle, 18 Ind. 264 ; Miami v Blake, 21 Ind. 32 ; State u Bell, 116 Ind. 1; Iowa Gity V Foster, 10 Iowa 189 ; Bryan v Catell, 15 Iowa 538 ; Williams v Newport, 12 Bush (Ky.) 438 ; Mandell v New Orleans, 21 La. Ann. 9 ; Hire v New Orleans, 21 La. Ann. 428 ; Evans v Populus, 22 La. Ann. 121 ; 19 §19. PUBLIC OFFICERS [Book I. those incidents of the office is fixed by the constitution, the legislature has no power to alter them, unless the power so to do is expressly reserved to it in the constitu- tion itself.' On the other hand the acceptance of the office does not create a contract on the part of the officer to serve during the term fixed by law, and he may deter- Farwell v Rockland, 62 Maine, 296 ; Prince V Skillin, 71 Maine 361 ; Mayor v State, 15 Md. 376; Taft V Adams, 3 Gray, (Mass.) 126; Op'n of the Just., 117 Mass. 603; Knappen B Sup'rs, 46 Mich. 22 ; Wyandotte v Drennan, 46 Mich. 478 ; Co. Com'rs v Jones, 18 Minn. 199 • State V Smedes, 26 Miss. 47 ; 'Swann « Buck, 40 Miss. 268 ; Kendall v Canton, 53 Miss. 526; Hyde v State, 52 Miss. 665 ; Wilcox V Rodman, 46 Mo. 322; People V Van Gaskin, 5 Monta. 352 ; Denver ^ Hohart 10 Neva. 28 ; Marden v Portsmouth, 59 N. H. 18 ; Hoboken v Gear, 27 N. J. L. 265 ; Love V Jersey City, 40 N. J. L. 456 ; Warner v People, 2 Denio, (N. Y.) 272 ; Phillips V Mayor, etc., 1 Hilt. (N.Y.) 483; People V Green, 58 N. Y. 295 ; People V White, 54 Barb. (N. Y.) 632 ; Palmer v Mayor, etc., 3 Sand. (N. Y.) 318; Conner v Mayor, etc., 2 Sand. (N. Y.) a55,ard5>I.Y.285; People V Devlin, 33 N. Y. 269 ; People V Whitlock, 92 N. Y. 191 ; Nichols V MacLean, 101 N. Y. 526 ; State V Gales, 77 N. C. 283; State V Howe, 25 Ohio St. 588 ; State V Hawkins, 44 Ohio St. 98 ; Territory v Pyle, 1 Oreg. 149 ; Comm. D Bacon, 6 S. & R. (Pa.) 323; Comm. V Mann, 5 W. & S. (Pa.) 403 ; Smith V Philadelphia Co. 2 Pars. Eq. Cases (Pa.) 293 ; Koontz V Franklin County, 76 Pa. St. 154; Kilgore v Magee, 85 Pa. St. 401 ; French v Comm., 78 Pa. St. 339 ; Alexander v McKenzie, 2 S.C. 81 ; Haynes v State, 3 Humph. (Tenn.) 480; Jones V Shaw, 15 Tex. 577 ; Butler V Pennsylvania, 10 How. (U. S.) 402; Newton v Com'rs, 100 U. S. 548, at p. 559; Andrews v United States, 2 Story (U.S.) 202; Fisher v United States, 15 Ct. of CI. (U. S.) 323 ; State V Douglass, 26 Wis. 428; Hall V State, 39 Wis. 79 ; State V Kalb, 50 Wis. 178 ; Castle V Co. Com'rs, 2 Wyo. 128. See also post, ch. 19. ' Ex parte TuUy, 4 Ark. 220; Robinson v Dunn, 77 Cala. 473 ; Howard v State, 10 Ind. 99; State V Thoman, 10 Kan. 191 ; Lowe V Comm., 3 Met. (Ky.) 237 ; Thomas v Owens, 4 Md. 189 ; Fant V Gibbs, 54 Miss. 396 ; State D Kelsey, 44 N. J. L. 1 ; People V Garey, 6 Cow. (N. Y.) 642 ; aS'd9Cow.(N. Y.)640; King V Hunter, 65 N. C. 603; State V Choate, 11 Ohio, 511 ; Walker v Cincinnati, 21 Ohio St. 14 ; Comm. V Mann, 5 Watts & S. (Pa.) 408 ; Comm. V Gamble, 62 Pa. St. 343; Brewer v Davis, 9 Humph. (Tenn.) 208 ; Foster v Jones, 79 Va. 642 ; Att'y Gen'l v Marye, 80 Va. 485 ; State V Brunst, 26 Wis. 412. 20 Chap. II.] NATURE, ETC., OF A PUBLIC OFFICE § 20. mine the relation at any time.' The same rules apply- to a city, county, or other municipal officer, and the com- mon council or other legislative body of the municipality, where that body has power by statute to create and regu- late the office, without restriction upon its powers or to particular incidents of the office.' So, where the board of supervisors of a county have power to fix the salary of a county officer, its action in so doing does not create a con- tract between the officer and the county, and the legisla- ture may authorize the board to reduce the salary, as far as it has not already been earned." § 20. Power of legislature to remove ofificer or abridge term. — But these principles are subject to the qualifica- tion that the legislature cannot remove an officer, where the tenure of his office is fixed by the constitution;* and it has also been said that the same result cannot be effected indirectly by transferring the office to another,' or by abbreviating the term ; in such a case, the legislature can only abolish the office." It has also been held, that where the office is created by the constitution, the tenure and compensation being left to be regulated by statute, the legislature cannot virtually abolish the office by a color- able reduction of the compensation, or by taking it away ' Hoboken Gear, 27 N. J. L. 265; See also post, ch. 19. United States v Edwards, 1 McLean, , Knappen v SupTs, 4S Mich. 23 ; ^- ^■' ^''- S. P. Wyandotte v Drennan, 46 Mich. See also post, ch. 17. ^yg . » Augusta V Sweeney, 44 Ga. 463 ; Castle v Co. Com'rs. 3 Wyo. 126. Chicago V Edwards, .58 111. 252 ; < Gotten v Ellis, 7 Jones L. (N. C.) 545. Brazil V McBride, 69 Ind. 244 ; gee, however, Comm. v Southerland, 3 Iowa City v Foster, 10 Iowa, 189 ; S & R (Pa ) 145 Hiestand v New Orleans, 14 La. Ann. Compare' State v Davis, 44 Mo. 129 ; ^^' People V Van Gaskin, 5 Monta, 353 . Farwell v Rockland, 63 Me. 296 ; , ^^^^ ^ Henderson, 4 Dev. (N. C.) 1. Marden v Portsmouth, .59 N. H. 18 ; ^^^^^^^^ ^^^^^^^ ^^^.^ ^^^,^ ^ g^^.^^^_ ^^ Palmer»Mayor,etc.,aSand.(N.Y.)31S; „ j^ „ Comm. V Bacon, 6 S. & R, (Pa.) 322 ; Barker v Pittsburg, 4 Pa. St. 49. ° ^^^^ " ^'l'^' " ^^- ^»''- ^^^ 21 § 21. PUBLIC OFFICERS [Book I. altogether. ' And where the constitution of a state requires certain officers to be elected by the people, and authorizes the legislature to fix the term of office, and the manner and time of election, if the legislature has prescribed the duration of the office, and the office has been filled accordingly, a statute extending the term of the incum- bent is unconstitutional ; for if the legislature thinks proper to extend the term, it must direct an election by the people for the increased time. But a statute chang- ing the time of the election, or extending the term of an officer thereafter to be elected is constitutional." Nor can the legislature take from the officer the substance of the office and transfer it to another, to be appointed in a different manner, and to hold by a different tenure;' although the name of the office is changed, or the office divided, and the duties assigned to two or more officers under different names.* Nor can the constitutional term of office of a justice of the peace be indirectly shortened by the legislature, by altering the bounds of the town or county. " But this rule extends only to those who are in office when the new statute takes effect ; and if the legis- lature merges a town into an adjoining city, a person who has been elected a justice of the peace of the town, but whose term of office has not begun when the merging statute takes effect, is remediless." § 31. What official acts bind the state. — As an office is a public agency, it follows that, in the absence of fraud or ' Conner v Mayor, etc., 3 Sand. (N. Y.) ' People v Albertson, 35 N. Y. 50. 355, per Sanford. J., per 369. . ^^ ^^^ McCoUnm, 1 Cow. (N. Y.) 550 ; See s. c, aff'd on appeal, 5 N. Y. 285. People V Garey, 6 Cow. (N. Y.) 642, aff'd. 2 People V Bull, 46 N. Y. 57 ; p. r. 9 Cow. 640. People V MoKinney, 52 N. Y. 374. See also, People v Morrell, 21 Wend. (N. See, however. People uBatchelor, 22 N. Y.)563; Y. 128, per Selden, J. pp. 135-137. People V Hayt, 7 Hun (N. Y.) 39, rev'd 8 Warner v People, 2 Denio (N. Y.) 272. ™ another point, 66 N. Y. 606. See, however, Att'y Gen'l v Squires, 14 » Gertum v Supervisors, 109 N. Y. 170. Gala. 12. Chap. II.] NATURE, ETC., OF A PUBLIC OFFICE § 21. collusion, the acts of public officers acting in behalf of the state, within the limits of the authority conferred on them, and in the performance of their duties, are the acts of the state, and cannot be repudiated by it.' Such acts can be reviewed only by the courts, not by the legisla- ture.'' But where an officer acts beyond his authority no legal claim is created, and an auditing officer is not authorized to audit such a claim.' And the failure of an officer to discharge a duty imposed on him by law does not charge the government with any loss caused by his default.* > People V Stephens, 71 N. Y. 52T. = State v Hastings, 13 Wis. 596. See, further, upon this subject, post, % See also post, § 551. ^1- ' Sehmalz v United States, i Ct. of CI. ' Boyers v Crane, 1 W. Va. 176. (U. S.) 142. 23 § 22. PUBLIC OFFICERS [Book I. CHAPTER III CLASSIFICATION OF PUBLIC OFFICERS CONTENTS Sec. 22. Gieneral classification by Bacon ; by Judge Cliflford. 23. General classification by Judge Ctooley. 24. Criticism upon those classifications; town tax collector; state auditor; county solicitor. 25. These classification are of minor importance; question gen- erally is as to the nature of the power exercised in each case; that question considered in ch. 23. 26. Classification into general and local officers, with reference to constitutional and statutory provisions affecting gen- erally such officers; rulings thereupon. 27. Whether a justice of the peace in New York is a town officer or a county officer. 28. Constitutionalty of statutes creating districts, consisting of several cities, towns, etc., with reference to same question. 29. Miscellaneous rulings as to whether particular officers are general or local officers. § 22. General classification by Bacon ; by Judge Clif- ford. — Officers are classified by Bacon into (1) civil and military; (2) public and private; (3) ancient and those of a new creation; (4) judicial and ministerial.^ This classification is only partially applicable in this country. The third class depends upon rules and cus- toms which have never been recognized here;' and the fourth class requires the addition of at least two more kinds, — the legislative and the political or executive, although the author intended the latter to be included in ' Bacon's Abr., tit. Offices and Officers, See also Tomlin's L. Diet., tit. Office, A. and cases cited. ' Ante, 8 16. 24 Chap. III.] CLASSIFICATION § 23, the word ministerial, which was not used in the narrow sense attributed to it by some American jurists. One of the justices of the supreme court of the United States has classified officers as follows:' "Offices may be and usually are divided into two classes— civil and military. Civil offices are also usually divided into three classes— political, judicial and ministerial. Political offices are such as are not immediately connected with the administration of justice, or with the execution of the mandates of a superior, as the president or head of a department. Judi- cial offices are those which relate to the administration of justice, and which must be exercised by the persons appointed for that purpose, and not by deputies. Minis- terial offices are those which give the officer no power to judge of the matter to be done, and which reqiiire him to obey some superior." ' § 23. General classification by Judge Cooley. — An emi- nent judge and legal author has thus written concerning the classification of public offices. " A public office is a public trust. The incumbent has a property right in it, but the office is conferred, not for his benefit, but for the benefit of the political society. The duties imposed upon the officer are supposed to be capable of classification under one of these heads: the legislative, executive, or judicial; and to pertain accordingly to one of the three departments of the government designated by those names. But the classification cannot be very exact, and there are numerous officers who cannot be classified at all under these heads. The reason will be apparent, if we name one class as an illustration. Taxing officers per- form duties which in strictness are neither executive nor judicial, though in some particulars they merely execute the orders of superiors, and in others they judge for them- ' Twenty per cent, cases, 13 Wall. (U. S.) ' See also Fitzpatrick v United States, 7 6B8, per Clifeord, J., p. 575. Ct. of CI. (U. S.) 290 ; State V Taylor, 12 Ohio St., 130. 35 § 34. PUBLIC OFFICERS [Book 1. selves what is to be done. But sometimes, also their duties partake of the legislative. All such officers are usually called administrative, while inferior executive officers are designated ministerial." ' § 24. Criticism upon foregoing ; town tax collector ; auditor, etc.— The foregoing attempts at classification it will be seen, are far from being uniform and harmoni- ous. A learned judge of the court of appeals of New York has said: " The collector of a town is an executive officer. He is clothed with a subordinate, though important agency in the execution of the laws. He can seize and sell the property of the citizen, as a means of enforcing the payment of taxes which he is authorized to collect. He exercises a ministerial, as distinguished from a judi- cial power; but his duties are executive." ' So it was held by the supreme court of North Carolina that the auditor of the state is not a mere ministerial officer, as he is to pass upon the correctness of claims presented, to deter- mine whether there is sufficient provision of law for the payment thereof, and if he determines that there is none, to report the facts to the general assembly, with his opinion, neither of which duties is ministerial, although his gen- eral duties are ministerial. ' On the other hand, it was held by the supreme court of Alabama, that a county solicitor is within a statute punishing a "ministerial officer" for receiving a bribe. The court said: " If a county solicitor is not a ministerial officer, it would be difficult, if not im- possible, to define his character: all the duties with which • Hon. Tlios. M. Cooley, in The Southern officers; and enumerate those officers La/w Review, vol. 3, N. S., p. 531. In which belong to each class respect- some states a classification of offl- ively. So many changes have since cers has been made by statute. The been made in the offices of that state, R. S. of New York, which took efifect that the classification is now in many January 1, 1830, classify the officers respects inapplicable, within the state as follows : (1) legis- ' People v McKinney, 53, N. Y. 374, per lative officers ; (3) executive officers ; Andrews, J., p. 380. (3) judicial officers; (4) administrative '^ Boner v Adams, 65 N. C. 639. 26 Chap. III.] CLASSIFICATION § 25. he is charged pertain to the protection of the state and the general administration of the criminal laws. He attends on the grand jury, as their legal adviser; draws the indictments they may find; prosecutes all indictable offences ; and prosecutes or defends any civil action to which the state is a party, pending in the circuit court. No one of these duties involves executive or judicial functions. They are purely ministerial." ' § 25. General classifications of minor importance. — Except for the purpose of construing some constitutional or statutory provision, relating generally to officers of a particular description, the classification of officers, in accordance with the general character of their functions, is of little practical importance, inasmuch as whenever any other question arises, in which it becomes material to determine the character of an officer's functions, its solution depends, not upon the general character of his functions, but upon the character of the particular func- tion which was or was not exercised in the particular case. Judicial or quasi judicial powers are often conferred upon officers, whose general functions are executive or ministerial, and merely executive or ministerial functions are often conferred upon those whose general functions are judicial. So executive, ministerial, or even judicial powers are often conferred upon a body of officers, whose general functions are legislative. The important point to be determined is, therefore, what is the character of particular powers exercised by officers in particular cases. This question is often difficult of solution; but we will give, in a subsequent chapter," such general principles, and such rulings in particular cases, as may be found in the books, for the purpose of determining that question, when it arises. ' Diggs V state, 49 Ala. 311, per Brickell, » Post, ch. 23. J., pp. 330, 321. 37 § 26. PUBLIC OFFICERS [Book I. § 26. Classification into general and local ofificers. — Another kind of classification often becomes important in construing constitutional and statutory provisions, relat- ing to local, as distinguished from general officers. The ^constitutions of many of the states contain provisions regulating the mode of election or appointment of, and the exercise of official functions by, county, town, city, or village officers; so that the question is sometimes pre- sented whether a particular officer comes within either of those designations. And similar questions have arisen with respect to the application of statutes containing similar general expressions. Thus, upon the question whether the health officer of the port of New York was a city or a county officer, within the provisions of the state constitution, regulating the filling of vacancies in offices of those descriptions — a question which was complicated by the fact that the city of New York and the county of New York are co-extensive — it was held that he was neither a city nor a county officer, because he was not required " to reside in this city and county, but the due per- formance of his duties in fact requires his residence out of the county; and his functions are" to be exercised out of, as well as within, the city and county. . . . ' County officers,' within the meaning of the constitution, would comprehend all those who are appointed or elected for a county, and must reside, and perform the duties of their offices, within their counties, such as sheriffs, coro- ners, county clerks, etc. ' City, town, or village officers,' are such as unite the same requisites in respect to their localities, as mayor, recorder, aldermen and the like." ' These definitions were adopted in a subsequent case, where the question was, whether the commissioners, for the several counties in the state, to loan the United States deposit fund, were county officers ; and it was held that ' In re WMting, 3 Barb. (N. Y.) 513. The to in the opinion is the quarantine place "out of the county " referred station. 28 Chap. III. J CLASSIFICATION §37. they were such officers, and consequently that the consti- tution of 1846 took away the power of appointment of loan commissioners from the governor and senate, and transferred it to the county authorities. The court re- marked: " They have been required to keep their office in the county, to loan moneys only to inhabitants of the county, to be themselves freeholders and residents of the county, in order to be eligible to the office, and to forfeit their office on removing from the county." ' § 27. Is a justice of the peace in New York a town or county officer. — The question also arose in New York, whether a justice of the peace is a town or a county officer, within the provisions of the state constitution referring to such officers. Under the first constitution of the state, adopted in 1777, justices of the peace were appointed by a state council of appointment. Under the second constitu- tion, adopted in 1831, they were appointed, in each county, by the board of supervisors of the county and the judges of the county courts.. By an amendment to the second constitution, adopted in 1826, it was provided that there- after justices of the pe^ce for each town should be elected by the electors of the town; and the same mode of choos- ing them was prescribed by the third constitution, adopted in 1846, which also directed the election to be held at the annual town meeting. This provision has continued in force till the present time. Before 1826, justices of the peace were regarded as county officers, but after that year the question arose whether they were county officers or town officers, and this question led to a difference of opinion in the courts. In a case where it was held that they were county officers, the court said: ' In re Carpenter, 7 Barb. fN. Y.) 30. and township officers to be elected, See also People v Bennett, 54 Barb. (N. did not extend to city and village Y.)480. oiHcers. State 1) Covington, 29 Ohio It was held in Ohio that a constitu- St. 102. tional provision, requiring county 29 § 28. PUBLIC OFFICERS [Book I. " A justice of the peace is in no proper sense a town offi- cer. True, he is elected by the electors of the town, and by removing therefrom his office becomes vacant. He cannot try civil causes beyond the limits of his town. But his jurisdiction is co-extensive with the county in which he resides; and he can transact criminal business in any town of the county. As in the case of other offi- cers, strictly town officers, a vacancy in the office cannot be supplied at a special town meeting. Town officers may take the oath of office before a commissioner of deeds, or a justice of the peace, or a town clerk in their own town. A justice of the peace is to take the oath of office before a clerk of the county." ' But it has since been settled by the decision of the court of last resort, that justices of the peace are town officers." § 38. Constitutionality of statutes creating districts. — The same constitutional provisions formed the principal ground of the controversy, respecting the constitutionality of certain acts of the New York legislature, establishing districts, consisting of several cities, towns, etc., for police purposes, whereby the powers of the local author- ities, as to police, fire, or sanitary regulations, were trans- ferred to boards of commissioners appointed by the governor and senate, or otherwise than by the local authorities or by popular elections. And it was held by the court of last resort that such acts were constitutional, if the territory embraced in the district consisted of con- tiguous towns, cities, etc. ; and nothing appeared upon the face of the statute to show that the creation of the new district was unnecessary, or an evasion of the constitu- ' People V Keeler, 25 Barb. (N. Y.) 421, per V Garey, 6 Cow. 643, aff'd 9 Cow. 640, Wright, P. J., p. 426; reversed, s. o. as Garey v People, etc.: 17 N. Y. 370, but without expressly Gurnsey v Lovell, 9 Wend. 319; deciding this question. Ex parte MoCollum, 1 Cow. 550 ; ■> iGertum^ Supervisors, 109 N. Y. 170. Sohroepel v Taylor, 10 Wend. 196 ; For other New York cases in which P«°Pl« " Tl'°'-ston, 2 Park. Cr. 49 ; the same question arose, see People P«°Pl^ " Crawford, 7 Alb. L. J. 201 30 Chap. III.] CLASSIFICATION § 29. tional requirement.' But where the new district con- sisted of a city, and some fragments of adjoining territory, of little extent or population, it was held that the act creating it was an evasion of the constitution, and so unconstitutional, and that if such fragments of territory were to be brought within a municipal police system, the boundaries of the city ought to have been extended so as to take them in.' These provisions of the constitution were not violated by a statute, authorizing the laying out of parks for the city of New York in the adjacent district of "Westchester county, and extending the jurisdiction of the department of public parks over the territory so acquired. ° § 29. Miscellaneous rulings. — The commissioners of a police district, created as stated in the last section, although appointed by the governor and senate, are not state officers. The expression " state officers " designates those only who are connected with the government of the state, and whom it is the duty of the attorney -general to appear for and defend.' So an officer elected under a municipal charter is not a state officer. ' And an officer of a municipal court is not a city officer, but a judicial officer,, embraced within the judicial system of the state. ° > People V Draper, 15 N. Y. 533 ; aff 'g 25 34 Hun (N. Y.) 441. Bart). (N. Y.) 344 ; , j^ y. & Harlem R.R. Co. v Mayor, etc., People V Shepard, 36 N. Y. 285, as ex- ^ g^^ ,j^t. y.) 562, per Hilton, J., 584. plained, and disapproved, in People s Britton v Steter, 62 Mo. 370. Accord, Mohan v Jackson, 52 Ind. i V Albertson, 55 N. Y. 50. See also Peoplei) Pinckney, 32 N. Y. 377 ; Metropolitan Board of Health v Hels- ^^^P^^ " C"""™^' l^ N- Y. 64. ter, 37 N. Y. 661. ' Whitmore v Mayor, etc., 67 N. Y., 21, But a provision authorizing the hoard aff'g 5 Hun (N. Y.) 195 ; so created to appoint officers, whose Goettman v Mayor, etc., 6 Hun (N. Y.) duties are strictly local, is unconsti- 132 ; tutional. Devoy v Mayor, etc., 36 Quinn d Mayor, etc., 44 How. Pr.(N.Y.) N. Y. m ; aff'g 39 Barh. (N. Y.) 169. 286, aflf'd 53 N. Y. 627 ; Aoc, Harheck v Mayor, etc., 10 Bos. LandonuMayor, etc., 39 N.Y. Super Ct. (N. Y.)366. 467; o Ti 1 «-i. i r^r-KT tT ^n Contra, People t! Henry, 62 Gala. 657. » People « Aibertson, 55 N. Y. 50. ' ^ cu ,, u« v/mc. <«.. ' In re the Mayor, etc., 99 N. Y. 569, afl'g 31 § 39. "PUBLIC OFFICERS [Book 1. On the other hand, the tax officers of a city are city- officers, and the legislature cannot, by changing the names and modes of performing their duties, vest the appointment of such officers in the governor and senate, where the constitution requires city officers to be elected by the people, or appointed by the local authorities.* ' People V Raymond, 37 N. Y. 428. ■ See People ex rel Brown v Woodruff, 33 N. Y. 355. 33 Ohap. IV.J TWO OR MORE OFFICES § SO, CHAPTER IV TWO OR MORE OFFICES HELD BY ONE PERSON CONTENTS Sec. 30. Common law fixes no limit to offices held by one person, if compatible; but if not compatible the first is relin- quished, although the superior; what exceptions to the rule are admitted. 31. Where not otherwise provided by constitution or statute, the same general rule obtains in this county; rule as to the exceptions. The acceptance of, not the election or appointment to the second office, determines the first. Various illustrations. 32. Exceptions where a penalty is incurred by failure to accept the second office; and where the appointment to the second office is void. 33. General rules to determine whether two offices are or are not compatible. 34. The same subject; case where one held offices of memher of legislature and deputy clerk of a court. 35. Various English rulings as to the compatibility or incom- patibility of particular offices. 36. Various American rulings that particular offices are incom- patible. 37. Various American rulings that particular offices are note incompatible. 38. Rulings upon constitutional or statutory prohibitions against holding two or more offices, etc. 39. Rulings upon constitutional or statutory prohibitions. against simultaneously holding an office under the state ■ and one under the United States. 40. The same subject. § 30. The common law rule.— At common law, there is- no limit to the number of offices which may be held simultaneously by the same person, provided that neither of them is incompatible with any other; and this rule ex- 33 § 31. PUBLIC OFFICERS [Book 1. tends to offices o£ the highest grade, and which involve, for their adequate performance, the greatest expenditure of time and labor. Thus "Knevit was chief justice and chancellor together in the time of Edward III, and Lord Hardwicke in the time of George II." ' Formerly it was held that where a man had two incompatible offices, he retained the superior and vacated the inferior; but now the rule is well settled that " if two offices are incompati- ble, by the acceptance of the latter, the first is relin- quished or vacant, even though it should be a superior office."" And it has been said that "the grant of an office to one, who has another office incompatible, is not good, for the first office will thereby be void." ' But this proposition is not sustained by the authorities. There are two exceptions to the rule that the acceptance of a second office, incompatible with the first, vacates the latter. The first is, where a custom has legalized the holding of both; as in a case where the court refused to oust the party from the first office, because it appeared that both had been held together for one hundred years." The second is that an officer cannot vacate his office by accepting an incompatible office, unless he might have determined the first office by his own act, or unless the authority which could accept his surrender of, or remove him from, the first office, concurred.' § 31. The rule in this country, and illustrations.— In many of the states of the Union, it is expressly forbidden by the constitution or by statute, that one person should ' Com. Dig., tit. Officer, B 6, note. See, also. Rex v Patteson, 4 B. & Ad. 9 = Milward v Tliaoher, 2 T. R. (D. & E.) ^^^ " Hughes, 5 B. & C. 886. 81 i ' Com. Dig. tit. Officer, B. 6. Rex V Pateman, 2 T. R. (D. & E.) 777 : ,^ „, , „ „ ■,„-,„ „ ^ ' „ >x.ij./iii, < Rex D Trelawney, 3 Burr. 1616. JnreDyer.Dy. 158,6; „ , . .,' T^ T , „ — See also, post, § 35. Rex u Jones,' IB. & Ad. 677 ; Rex V Tizzard, 9 B. & C. 418 ; ° ^^^ " Patteson, 1 N. & M. 612 ; 4 B. & .Com. Dij;., tit. Officer, K 5. Ad. 9 ; Worth V Newton, 10 Exoh. 247 ; 23 L. J. Exch. 338, 34 Chap. IV.] TWO OR MORE OFFICES § 31, hold two public offices under the state government, and that an officer under the state government should hold office under the United States government. But where- ever no such prohibition exists, or in cases to which it does not apply, the courts within the United States uni- formly recognize and apply the common law rule, but without the first exception, which is inconsistent with our political institutions.' The existence of the second excep- tion depends upon the question whether an officer has or has not an absolute right to resign, which is considered in a subsequent chapter." As far as it has been presented, that exception seems to be recognized here also.' It is, however, the acceptance of, not the election or appoint- ment to, an incompatible office, which vacates the first office; and that result follows from such acceptance, without any legal proceedings to oust the party from his first office.* Where a person is elected at a town meet- ing to two incompatible offices, an acceptance of either is a declension of the other. ' Where a person was elected by the people to a municipal office on the 5th of the month, and qualified on the 13th, and on the 13th was > state V Cmran, 10 Ark. 142 ; State v West, 33 La. Ann. 1261 ; Magie v Stoddard, 25 Conn. .565 ; Stubbs v Lee, 64 Me. 195 ; People V Hanifan, 96 lU. 420 ; Pooler v Reed, T3 Me. 129 ; Foltz V Kevlin, 105 Ind. 221 ; State v Draper, 45 Mo. 355 ; State V West, 33 I^a. Ann. 1261 ; People v Carrique, 2 Hill (N. Y.) 93 ; Stubbs V Lee, 64 Me. 195 ; State v Buttz, 9 S. C. 158. But it was Pooler I! Reed, 73 Me. 129 ; held in Pennsylvania, upon quo.war- Kenney v Goergen, 36 Minn. 190 ; ranto to oust a person from a state Cotton V Phillips, 56 N. H. 220 ; office, on the ground that he also held People V Carrique, 2 Hill (N. Y.) 93 ; an office under the United States, People uNostrand, 46 N. Y. 375; contrary to a constitutional pro's'i- State D Goff, 15 R. I., 505 ; sion, that his resignation and surren- BiencourtuPasker, 27Tex.658, andthe der of the federal office, before numerous cases hereinafter cited. answer, rendered him competent to 2 Pnfit 8S 4iyM.T? hold the state office, and thus pre- vented an ouster. DeTurk v Comm., ' State V Brinkerhoff, 66 Tex. 45. j2g p^^ gj. jgj » People V Hanifan, 96 ni. 420 ; , Cotton D PhilUps, 56 N. H. 220. State II DeUwood, 33 La. Ann. 1229 35 § 33. PUBLIC OFFICERS [Book I, elected by the common council to an incompatible office, and qualified for that office on the 14th, it was held that he vacated the first office by qualifying for the second; and that it made no difference that the appointment for the second was made before he qualified for the first, and that he was chosen to one office by the people, and to the other by the common council.' But where the constitu- tion or a statute of a state provides that an officer shall holdover until his successor is chosen, or imposes certain duties upon an officer, to be performed after the expir- ation of his term, his performance of official duties does not constitute such a continued holding of the first office, as will suffice to oust him from the second." So a coroner does not vacate his office by acting in place of a sheriff, where the latter is disqualified. " Where the person elected or appointed to the second office continues to perform the duties of the first office, after qualifying for the second, such performance does not affect the conclusive character of his qualification, as an acceptance of the second.* § 33. Exceptions when penalty is incurred or second appointment void. — Another exception to the rule has been stated, to wit: that where an officer, appointed by a board, is bound to accept the appointment under a penalty, his doing so does not vacate an office previously held by him; as in the case of an inspector of election in the city of New York, appointed by the board of police of that city; because, if such was the effect of his accept- ance, "it would, in effect, authorize the board of police to vacate the office held by the person selected." "' An exception also occurs where the second office is conferred by an appointment in violation of a statute. Thus where ' state V Brinkerhofl, 66 Tex. 45. * People v Carrlque, 2 Hill (N. Y.) 93. 2 State V Somers, 96 N. C. 467. » Goettman v Mayor, etc., 6 Hun (N. Y.) » Powell 1) Wilson, 16 Tex. 59. ^^' P^'" Brady, J. See also Dukes v State, U Ind. 557. ^™' liowever, post, 6 167. 36 Chap. IV.] TWO OR MORE OFFICES § 33. a statute rendered tlie members of a city council ineligible to certain offices, it was held that the appointment by the council of one of its members to such an office, and his acceptance thereof, did not effect an abandonment or forfeiture of the office of councilman, because the appoint- ment was absolutely void.' § 33. General rule for determining compatibility. — The question, whether two offices are or are not incompatible, is often difficult of solution, and the principles upon which its solution depends, cannot always be stated with perfect exactness. "The general questions concerning incompatibility of offices are a large field indeed;" " and in many instances each case must be judged by its own peculiar circumstances.^ A learned American judge, dis- cussing this question, has forcibly said, that it has been erroneously supposed from the remarks of Lord Tenter- den in Bex v Jones (1 B. & Adol. 677), that in order to render two offices incompatible, there must be some such relation between them as that of master and servant — that one must have " controlment" of the other; or that one must be charged with the duty of auditing or super- vising the accounts of the other; or that one must be chosen by, or have the power of removal of the other. But these are only instances of incompatible offices, not definitions; and therefore it does not follow that these are all the instances in which offices are incompatible. Thus a judicial office and a ministerial office are incompatible. And in Bex v Tizzard (9 B. & C, 418), Bayley, J., gave another instance of incompatibility, when he said "I think that the two offices are incompatible, when the holder cannot in every instance discharge the duties of each." In 5th Bacon's Abridgment, {Title Offices, Y^.) we > state D Reams, 47 Ohio St. 566. » Rex v Jones, 1 B. & Ad. 677, per Taun- ' Per Lord Mansfield, Cai. J. in Rex » *°°' '^•' P- *^- Gayer, 1 Burr. 246. 37 § 34. PUBETC OFFICEKS [Book I. find the rule laid down, upon, the authority of Lord Coke, in these words: "Offices are said to be incompatible and inconsistent, so as not to be executed by the same person, when from the multiplicity of business in them they can- not be executed with care and ability, or when, their being subordinate and interfering with each other, it induces a presumption that they cannot be executed with impar- tiality and honesty." And in Dillon on Municipal Cor- porations (§ 166, note), it is said, that " incompatibility in offices exists, where the nature and duty of the two offices are such as to render it improper, from consider- ations of public policy, for one incumbent to retain both." ' § 34. Same subject ; case of member legislature and deputy clerk. — In a case in New York, wherein the ques- tion, was whether the office of member of assembly is incompatible with that of deputy clerk of the court of special sessions, the principles, upon which the doctrine of incompatibility depends, were discussed at length, and the cases were fully examined, in the court of common pleas of the city and county of New York." The judgment of that court was reversed upon appeal, but upon a point not involving this question. The following is an extract from the opinion of the appellate court: "Nor is the office of a member of assembly in the legal sense of the word, incompatible with that of deputy clerk of the court of special sessions of the city and county of New York. After the exhaustive opinions delivered in the court below upon this point, it would be an unwarrantable use of time to go over the ground again, so well explored in them. It may be granted that it was physically impos- sible for the relator to be present in his seat in the assem- bly chamber, in the performance of his duty as a member ' Abridged from the opinion of Molver, " People i) Green, 5 Daly (N. Y.) 254 ; 46 A. J. in state v Buttz, 9 S. C. 156. See How. Pr. (N. Y.) 169. pp. 183-184. 38 Chap. IV. j TWO OB MORE OFFICES § 34. of that body, and at the same time at his desk in the court, doing his duty as deputy clerk thereof. But it is clearly shown in those opinions, that physical impossi- bility is not the incompatibility of the common law, which existing, one oflSce is ipso facto vacated by accept- ing another. Incompatibility between two offices is an inconsistency between the functions of the two; as judge and clerk of the same court; officer who presents his per- sonal account subject to audit, and officer whose duty it is to audit it. The case of Bryant (4 T. E. 715 and 5 id. 509), cited by the appellant, does not conflict with this view. It was decided upon the meaning of the particular statute, which required the personal presence of the officer at the prison. Where one office is not subordinate to the other, nor the relations of the one to the other such as are inconsistent and repugnant, there is not that incompatibility from which the law declares that the acceptance of the one is the vacation of the other. The force of the word in its application to this matter, is that, from the nature and relations to each other of the two places, they ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by one person to faithfully and inipartially discharge the duties of one, toward the incumbent of the other. Thus a man may not be landlord and tenant of the same premises. He may be landlord of one farm and tenant of another, though he may not at the same hour be able to do the duty of each relation. The offices must subordinate, one the other, and they must, per se, have thef right to interfere, one with the other, before they are incompatible at common law."' ' People V Green, 58 N. Y. 295, per Folger, Stubbs v Lee, 64 Me. 195 ; C!h. J. pp., 304, 305. State v Brown, 5 R. 1., 1 ; See further on thla subject, Bryan v State v Goff, 15 R. 1. 505. Cattell, 15Iowa,538; 39 § 35. PUBLIC OFFICERS [Book I. § 35. Various English rulings as to compatibility. — ^We will now consider some of the rulings of the English and American courts on the subject of the compatibility or incompatibility of particular offices. In England it has been held that a justice of the 0. B. cannot be also a jus- tice of the B. R. , because the B. E. corrects the errors of the C. B. ; but if the chief justice of the C. B. is made keeper of the great seal, he continues to be chief justice; and so a justice of the C. B. may be chief baron of the exchequer. ' So the offices of alderman and chaniberlain of a municipal corporation are incompatible because the aldermen audit the chamberlain's accounts." So "if a forester by patent for life be made justice in eyre of the same forest pro hac vice, the office of forester will be void, for it is incompatible, being subject to correction by the justices in eyre; so if the warden of a forest be made jus- tice in eyre; or the steward or justice of the forest be made justice in eyre.° If the remembrancer of the exchequer be made a baron of the exchequer, the first office becomes void; so if a town clerk be made alderman or mayor; or if a jurat be elected town clerk; or if a forester, keeper of a walk, or other inferior officer in a forest, accept of being verderor; so a justice of B. R. or C. B. cannot take another office or fee except of the king; so the chief justice of C. B. cannot be prothonotary or clerk of the papers in the same court; so a bishop cannot have a benefice by commendam in his own diocese, for he cannot visit himself. By a custom, the same person may be a judge and an officer to execute process, for he acts in different respects, as when bailiffs, or mayor and bailiffs, are judges in the court of a borough, they may also be officers to execute the process of the same court; and a mayor who is a judge of the court may also be the gaoler ^ Com. Dig., tit. Officer, B 6, and cases ' In re Bllssell, note to Dougl. 398. cited- « Com. Dig., tit. Officer, B 6 ; 4 Inst. 310. See also ante, i 30. 40 Chap. IV.] TWO OR MORE OFFICES § 36. ■who has the custody of the prisoners committed by the same court." And the offices of town clerk and conmaon councilman in a borough, v/here the common councilmen enact by-laws, but do not hold any judicial office, nor do they audit the town clerk's accounts, are not incom|)ati- ble.° But in a borough where the town clerk is appointed and removed at pleasure by the mayor, aldermen, and bailiffs, who also fix and may alter his salary, and whose meetings he must attend, and prepare minutes thereof, the offices of alderman and town clerk are incompatible.' § 36. Various American rulings as to incompatibility. — Turning to the cases in this country, we cite the following, in addition to those hereinbefore given in detail, where it was held that two or more offices were so incompatible, that they could not be held simultaneously by the same person, to wit: justice of the peace, and treasurer of the state;* sheriff or deputy sheriff, and justice of the peace;' constable, and justice of the peace;" county recorder, and county commissioner;' reporter of the supreme court or county auditor, and colonel of volunteers;' postmaster, and township trustee;" paymaster in the army, and clerk of the county court;'" postmaster and judge of the county court;" jury commissioner, and member of the parish school board, or tax assessor for the parish, or member of the police jury;" sheriff or deputy sheriff, or coroner, and justice of the peace;'" judge and member of the legisla- ' Com. Dig., tit. Officer, B 6, and c£ises ' Kerr v Jones, 19 Ind. 351 ; cited. Mehringer v State, 20 Ind. 103. ' Rex V Jones, 1 B. & Ad. 677. ' Foltz v Kerlin, 105 Ind. 221. ' Rex V Tizzard, 9 B. & C. 418. '° Taylor v Comm., 3 J.J. Marsh (Ky.)401. * state V Hutt, 2 Ark. 282, " Hoglan v Carpenter, i Bush (Ky.) 89. » State Bank v Curran, 10 Ark. 142 ; " State v Dellwood, 33 La. Ann. 1229 ; Wilson V King, S-Littell (Ky.) 457. State v. West, 33 La. Ann. 1261. ' Magie v Stoddard, 25 Conn. 565 ; " Answer of the Just., 3 Me. 484, at p. 486 Pooler V Reed, 73 Me. 129. Stubbs V Lee, 64 Me. IflS. ' DaUey v State, 8 Blackf. (Ind.) 329 41 § 37. PUBLIC OFFICERS [Book I. ture;" prudential commiitee, and auditor of a school dis- trict;' councilman, and marshal of a city;' justice of the district court, and deputy sheriff;* solicitor of a judicial district, and representative in congress;' city secretary, and city recorder;" deputy county clerk, and justice of the peace. ' § 37. Various American rulings as to compatibility.— On the other hand, it has been held that the following offices are compatible with each other, so that both may be held simultaneously by the same person, to wit: state senator, and secretary of state;' supervisor, and circuit court clerk;° town marshal, and bailiff;'" justice of the peace, and city clerk;" district attorney, and captain of volunteers during a war;" register of deeds, and trial jus- tice, or justice of the quorum;" justice of the peace, and constable;" county clerk, and clerk of the circuit court;" clerk and collector of a school district;'" member of the legislature, and deputy clerk of a municipal court;" inspector of election, and interpreter of a municipal court;" one appointed to print the United States laws in his newspaper, and alderman of Philadelphia;" school director, and judge of election. °° So the same person may 1 Woodside v Wagg, 71 Me. 207. " Answer of the Justices, 68 Maine 594. ' Cotton V Phillips, 56 N. H. 220. " Gomm. v Kirby, 2 Cush. (Mass.) 577. = State V Hoyt, 2 Oreg. 246. " State v Moore, 48 Mo. 242. * State V Goff, 15 R. I. 505. " Howland v Luce, 16 Johns. (N. Y.) 135. » State 1) Bnttz, 9 S. 0. 156. " People v Green, 58 N. Y. 295, reT'g 5 ' State V BrinkerhofE, 66 Tex. 45. ^^^l^' (N. Y.) 254 ; 46 How. Pr. (N. Y.) 169; I Amory v Justices, etc., 2 Va. Cas. 523. p^^pj^ „ Mmtt^y, 73 N. Y. 535, rev'g 8 « State V Clendenin, 24 Ark. 78. Daly, (N. Y.) 347. » State V Feibleman, 28 Ark. 424. " Goettma,n v Mayor, etc., 6 Hun (N. Y.) See also Kenney v Goergen, 36 Minn. 132. 190. " Gomm. V Binns, 17 Serg. & R. (Pa.) 219. "» In re District Attorney, 11 Phll'a (Pa.) " Mohan v Jackson, 52 Ind. 599. 645. " Lewis V Wall, 70 Ga. 646. ' Mohan v Jackson, 52 Ind. ' Bryan v Cattell, 15 Iowa, 538, at p. 550. 42 Chap. IV.] TWO OR MORE OFFICES § 38. hold the offices of crier and messenger of the United States circuit or district court, and receive the salaries of both offices.' And an officer on the retired list of the United States army may hold an office in an executive department of the United States, and receive the salary in addition to his pay." § 38. Rulings upon constitutional and statutory inhibi- tions. — The cases decided under constitutional or statutory provisions that a person shall not hold more than one office, or that an officer under the state government shall not hold any office under the United States government, chiefly turn upon the question whether a particular charge or agency is an "office," or "a public trust," where the latter expression is also used in the prohibitory provision. Many of the authorities cited in the first chapter are of that character.' In the absence of any express or implied limitation in the constitution, the legislature has power to enact such a prohibitory provis- ion." It has been held that a provision prohibiting the " appointment " of the same person to two or more offices, does not forbid his holding them, where one or both were conferred by popular election." Where the constitution forbids one person from holding two or more offices of trust at the same time, the legislature cannot constitu- tionally enact, that the clerks of one class of courts shall be ex officiis clerks of courts of another grade ; describing the clerkship as ex officio does not make it less an office of trust." It has been held that the provision of the con- ' Preston v United States, 37 Fed. R. what offices are incompatiWe, a pror (U. S.) 417. hibition in the same constitution to ' Collins V United States, 15 Ct. of CI. hold another office takes effect what- (U. S.) 33. ever legislature declares. De Turk See also People v Duane, 121 N. Y. 367, v Comm,, 129 Pa. St. 151. cited post, § 39. « State v McCollister, 11 Ohio 46. ' See ante, ch. 1. ' Bouanchaud v D'Herhert, 21 La. Ann. * People uClute, 13 Abb. N.S.(N:Y.) 400. 138. See, however, State i) Sommier, Where the constitution provides that 33 La. Ann. 237. the general assembly may declare 43 § 39. PUBLIC OFFICERS [Book I. stitution of Texas, to the effect that no person shall hold "more than one civil office of emolument, except that of justice of the peace " and others enumerated, meai^s that a man may simultaneously hold either of the offices enum- erated, and any other office/ Under a provision of a state constitution, rendering a judicial officer ineligible to a political office, the term of which begins before the expiration of his judicial term, where the term of a jus- tice of the peace expired at midnight of the 16th of the month, it was held that he was ineligible to the office of township trustee at an election held on the 6th, where the term of that office began at the expiration of ten days from the election." The provision of the constitution of Maine, prohibiting justices of courts from holding legisla- tive offices, does not apply to "a trial justice, or justice of the peace and quorum. " ' Where a judge is sitting tem- porarily for a judge of another court, that is not holding two offices, within a constitutional or statutory prohibi- tion.' § 39. The same subject as to state and federal offices. — A provision in a state constitution, that one hold- ing an office under the United States or any other power shall not be " eligible " to a state office, excludes one so holding at the time of the election, and a subsequent resignation of the former office will not suffice." But one who, at the time of election, was acting as inspector of United States customs under an appointment from the collector of the port, which had not been legal- ized by the approval of the secretary of the treasury, is > Gaal V Townsend, It Tex. 464. State v Clarke, 3 Nev. 566. " Vogel V State, 107 lad. 374. See also People v Clute, 50 N. Y. 451. Contra, semble, De Turk v Comm., 129 » Answer of the Justices, 68 Me. 594. p^_ ^ ig^^ j^^j^j^g ^^^^ ^ resignation * Dukes V State, 11 Ind. 557. of the federal ofBlce, before answer in > Searcy v Grow, 15 Gala. 117 ; 1"° warranto, prevents judgment of ouster. 44 Chap. IV. J TWO OR MORE OFFICES § 40. not excluded by this provision.' Aliter, if the appoint- ment has been so approved/ Where the constitution of a state provides that no person holding oflBce under the United States " shall hold or exercise any office " under the state, if a postmaster is elected a justice of the peace, the state courts, inasmuch as they have no power to declare the ofiice of postmaster vacant, will declare the office of justice of the peace to be vacant, and the person liable in trespass for attempting to exercise it.' If the office under the United States is accepted after the office under the state, the acceptance vacates the latter, within the rule stated, in the foregoing sections of this chap- ter.* But one, holding office under the United States, cannot be declared by a state court to have forfeited his office by the acceptance of a state office.' An officer on the retired list of the United States army is not within a statutory provision that certain municipal officers shall not hold any other federal, state, or municipal office.' § 40. The same subject. — It has been held that the prohibition against holding, by a state officer, another office under the authority of the United States, does not extend to a case where the state officer is a pension agent of the United States within the state, on the ground that " he is not required to take an oath of office, or to perform any other services, than such as may be confided to him by the war department, of which he is, merely for this special business, an agent." ' Where a city charter pro- vided that the acceptance, holding, or retention of an 1 People V Turner, 20 Cala. 143. ' People v Duane, 121 N. Y. 367, aff'g 55 ' Crawford v Dunbar, 52 Cala. 36. ^""^ '■^- "^•' ^^°- See alao Collins V United States, 15 Ct. ' Rodman v Harcourt, i B. Mon. (Ky.) 224. of CI. (U. S.) 22, cited ante, § 27. See also Justices v Harcourt, i B. Mon. g^^ ^■^^^ contrary was held in State v (Ky.) 499. DeGress, 58 Tex. 387. < Dickson v People, 17 111. 191. , Unisey v Att'y Gen'l, 33 Miss. 508, per ' De Turk v Comm., 129 Pa. St. 151. Fisher, J., p. 529. See also ante, ch. 1. 45 § 40. PUBLIC OFFICERS [Book I. oflRce under the United States government, with the exception of that of commissioner to take bail, by the incumbent of a city office, should vacate the latter office, it was held that a city office, held by a circuit court com- missioner, was vacated by his selection as chief super- visor of elections, under the act of congress of 1871, and his acceptance of such selection, although the act of con- gress required the chief supervisor to be selected by the court from the commissioners, and continued the person so selected in his office as such commissioner.' ' Davenport v Mayor, etc., 67 N. Y. 156. iQ Chap, v.] ASSIGNMENT § 41. CHAPTER V ASSIGNMENT OP AN OFFICE, OK OF THE EMOLUMENTS THEREOF CONTENTS Sec. 41. English rule that certain offices are assignable; such rule does not exist here. 43. English cases, holding that an assignment of future emolu- ments of an office is void; reason for the rule. 43. American cases to the same effect. 44. Certain cases holding the other way; and apparent excep- tions to the rule. 45. Salary or fees already earned may be lawfully assigned; so if payable on a contingency. 46. English ruling as to tlie validity of the assignment of a pension. 47. American rulings on the same subject. 48. Rulings that unearned emoluments cannot be reached by attachment, garnishee process, etc. § 41. English rule that certain offices are assignable. — As we have shown in a former chapter,' many offices in England are regarded as property, and as capable of being inherited. Such offices may be assigned by the holder thereof, but by deed only, because an office is a thing which lies in grant." But where the office is one of trust, it cannot be assigned without the consent of the person who granted it." The rule extends to offices granted by the crown. Thus it was held that the office of warden of a forest, or woodward, or forester of the crown, being an office of trust, cannot be assigned with- out a license from the crown ; that such a license must ' Ante, ch-Z. 'Id. See also Com. Dig., tit. Officer, C a. ' Bao. Abr. tit. Offices and Officers, E. 47 § 43. PUBLIC OFFICERS [Book I. be founded on a return to a writ of ad quod damnum; and that this is the rule, although the office was granted to A, his heirs and assigns. ' It goes without saying, that questions of this kind can never arise in the United States, in which there are no inheritable or assignable offices." § 43. English rule that assignment of future emolu- ments is void. — The English cases hold uniformly that an assignment of the emoluments of a public office, there- after to accrue, is void, whether such emoluments consist of a salary, or fees, or other official profits; and the application of the rule is not affected by the fact that the assignor has power to appoint a deputy to perform his official duties, and that the assignment provides for the compensation of such a deputy. Thus it was held,, that an assignment by deed to trustees, of all the income, emoluments, and profits, which, during the life of the assignor, and his continuing to hold the office of clerk of the peace for Westminster, should arise, etc., after deducting the salary or allowance of his deputy, in trust to pay certain debts, etc., was not valid in law. Dallas, Lord Ch. J., said: "What is the nature of the office of clerk of the peace in the eye of the law? He is to receive a salary commensurate with his duty. If his deputy becomes ill, the principal must perform the duties of the office himself; but how can he do so, if there be nothing to sustain him ? So if the deputy were to die, how could the duties of the office be performed? " " And in another case, it was held that the profits of an ecclesiastical benefice did not pass to the assignees under an insolvent act, although included in the schedule of the insolvent, the • Att'y Gen. v Matthias, 4 Kay & J. 579 ; Seo also Barwick v Reade, 1 H. Blaokst. 27 L. J., Oh. 761 ; 4 Jur., N. S., 63. 627 : = See Ellis v State, 4 Ind. 1. ^la^'-'y ^ Odium, 3 T. R. (D. & E.) 681 ; Davis V Marlborough (Duke of), 1 3 Palmer v Bate, 6 Moore, 28 ; 2 Brod. & g^^^^^ ^ , ^ord Eldon, p. 79. Bing. 673. 48 Chap. V.J ASSIGNMENT § 43. court saying, " Unquestionably any salary paid for the performance of a public duty ought not to be pierverted to other uses, than those for which it is intended. ' This rule rests upon the ground of public policy, which forbids any thing tending to weaken the efficiency of the public service, inasmuch as an officer, who thus anticipates his compensation, has less inducement to faithfulness in the discharge of his duties; and also because the law pre- sumes that the officer requires the payment of the emolu- ments of his office, to enable him to uphold its dignity, and properly to perform its duties." '' § 43. American cases, to same effect. — In a leading American case upon this subject, the complaint alleged that the defendant was a clerk in the United States treasury department in New York city, and that he sold and assigned to the plaintiff a month's salary in advance, at a discount of ten per centum; and that the defendant, when the salary became due, collected the same and con- verted it to his own use. A judgment dismissing the ) complaint was affirmed upon appeal. Johnson, J. , deliver- ing the opinion of the court, cited and discussed all the English and American cases decided upon this question to the time of rendering the decision; and thereupon said: ' ' The public service is protected by protecting those engaged in performing public duties; and this, not upon the ground of their private interest, but upon that of the necessity of securing the efficiency of the public service, by seeing to it, that the funds provided for its mainten- ance should be received by those who are to perform the • Arbuckle v Cowtan, 3 Bos. & P. 321, Hunter v Gardner, 5 Wilson & Shaw, per Lord Alvanley, Ch. J., p. 328. 616i per Lord Brougham, Ch'r ; ■'la. See, also Palmer « Vaughan, 3 Aston D Gwinell, 3 Younge & J., 136, per Swanst 173 • Alexander, Ch. B. pp. 148, 149 ; Liverpool » Wright, 1 .Johns. Ch. 359 ; 28 hooper v ReiUy, 2 Sim. 560 ; L. J., Ch. 868; 5Jur. N. S. 1158; cited LMderdalet, Montrose, 4 T.R.(D.&E.) 248- post S 52; ' Hill « Paul, 8 Clark & Finn.Parl. R. 295; "'^ells v Foster, 8 M. & W. 149. 49 § 44. PUBLIC OFFICERS [Book I. work, at such periods as the law has appointed for their payment. " ' The opinion refers to the only American case in which a contrary decision had been made/ wherein the assignment of an officer's salary in advance was upheld, and the doctrine of the English cases was declared to be not applicable "to the condition of society or to the ■ principles of law or of public policy in this country. " With respect to that case the learned judge said: "We do not understand that the English decisions really rest on any grounds peculiar to that country, although sometimes expressed in terms which we might not select to express our views of the true foundation of the doctrine in ques- tion. The substance of it all is, the necessity of maintain- ing the efficiency of the public service, by seeing to it that public salaries really go to those who perform the public service. To this extent, we think, the public policy of every country must go, to secure the end in view." ' In a very recent case in the same court, it was held that fees thereafter to be received by an officer cannot be assigned.' Rulings in other states, establishing the same doctrine, are cited in the note.' § 44. Certain cases to contrary; and apparent excep- tions.^In some cases in Massachusetts, assignments of officers' salaries in advance have been sustained, without considering the question of public policy.' But ' Bliss i)_Lawrence, 58 N. Y. 442, per John- fees ; s. c. 3 Weekly Dig. (N. Y.) 341. son J., p. 445. c. "Weblj v McCauley, 4 Bush (Ky.) 10 ; ' state V Hastings, 15 Wis. 75. Field v Chipley, 79 Ky. 260 ; » Bliss ^ Lawrence, 58N. Y. 442, per John- ^eal v MoVicker, 8 Mo. App. 202. T AKn ARt See also Schloss v Hewlett, 81 Ala. 266 ; son, J., pp. 450,4151. See also Billings v O'Brien, 14 Ahh. Pr. ^^"^8 ^ D"°"' "« ^ala. 72. N. S. (N. Y.) 238 ; 45 How. Pr. (N. Y.) ' Brackett v Blake, 7 Met. (Mass.) 335 ; 392. Mulhall v Quinn, 1 Gray (Mass.) 105; • Bowery Nat'l Bk. v Wilson, 122 N. Y. Macomher v Doane, 2 Allen (Mass.) 541. 478, overruling People v Dayton, 50 ^^^ ^'^° ^'^^"^ ^ '^^^''' ^^^ ^^^- ^' How. Pr. (N. Y.) 143, wherein it was ^^^^^"^ " ^""^^ ^^ ^^- ^"^ ' said that the rule did not extend to ^^^^^ ^ ^'^''^^y- ^^ ^ass. 86. 60 Chap, v.] ASSIGNMENT § 45. the preponderance of the American • authorities is in sup- port of the rule laid down in the cases in England, and the case in New York, cited in the last preceding section.' However, where an officer entered into a partnership agreement, one clause of which provided that the salaries, etc., received by either of the partners from any oflSce or employment should be the property of the firm, it was held, that it was valid, as respects the salary of the defendant as a public officer. The court said: "The case in hand is not that of an assignment of an unearned salary, where all control over the expected funds, even to their reception in the first instance, is passed over to another. It is but an agreement as to the manner in which the salary shall be employed or disposed of, when earned and paid. . . . The agreement did not take away from the parties the right to receive their salaries, at such periods as the law appointed for their payments. Its effect was not to impair their obligations as public officers, or to present inducements to inefficiency or un- faithfulness in the performance of their public duties." " § 45. Salary or fees already earned may be assigned. — So there is no legal objection to the assignment by an officer of salary or fees already earned, as the grounds of objection to an assignment of prospective emoluments do not apply.' And it was held that a sum payable to the representative of an Indian judge, upon the contingency of his death within six months after his arrival in India, might be assigned by him, for the same reason.* ' Bangs V Dunn, 66 Gala. 73 ; ' Bliss e Lawrence, 58 N. Y. 443, per John- Beal V McVicker, 8 Mo. App. 202; son, J., p. 446 ; 2 Story's Eq. Jur. fl2th Ed.) g 1040 e ; Birkbeck v Stafford, 14 Abb.Pr. (N. Y.) 1 Story Contr. (oth Ed.) § 709. 285 ; 23 How. Pr. (N. Y.) 236 ; See also post, § 48. Piatt v Stout, 14 Abb. Pr. (N. Y.) 178 ; ' Thurston v Fairman, 9 Hun (N. Y.) 584. Stephenson v Walden, 24 Iowa, 84. Accord, Sterryt! Clifton, 9 0. B. 110; 19 < Arbuthnot V Norton, 5 Moore P. C. L. J. C. P., 237 ; 14 Jur. 313. Gas. 219. 51 § 47. PUBLIC OFFICERS [Book I. § 46. English ruliqgs as to assignment of a pension. — With respect to a pension, the opinions in the cases here- inbefore cited indicate the rule to be, that where it is given as a compensation for past services, it is assignable; but where it is wholly or partly a compensation for future services, absolutely or contingently to be performed, it is ngt assignable. The half pay of a retired officer of the army is regarded in England as belonging to the latter class, inasmuch as the crown may at any time require his services; and so the authorities agree that such half pay is not assignable.' And in one case it was held that a pension to a retired civil officer was not assignable." But in another case it was held that although an officer's pay is not assignable at law, yet the use of it may be assigned in equity, and when so assigned, the assignor cannot maintain at law, the action for money had and received, which is of an equitable nature.^ But in this case, the question of public policy, although suggested by counsel, was not noticed by the court, and, on that ground, the case is regarded as overruled.' The rule that emoluments are not assignable is confined to those proceeding from a public office; and so it was held that there was no valid objection to the assignment of the profits, to be received by a clerk to the deputy register of the prerogative court of Canterbury, on the ground that he was not an officer, but a mere clerk. " § 47. American rulings as to assignment of a pension. — In the United States," in the absence of legislation on the subject, the authorities have followed the English rule ' Flarty i) Odium, 3 T. R. (D. & E.) 681 ; = Stuart v Tucker, 2 W. Bl. 1137. Lidderdale I! Montrose (Duke of) 4 T.R. , gj^ne „ Lidderdale, 2 Anst. 533, per (D. & E.) 248 ; Maodonald, Ch. B., at p. 541. Stone V Lidderdale, Z Anst. 533 ; Wells V Foster, 8 Meeson & W. 149; ' ^*<"^ '^ •^^^°«^' ^ Y°^'^« ^ J" ^^■ Aston V Gwinell, 3 Younge & J. 138, per « 2 Story Eg. Jur. (12tli Ed.) 88 1040 e to Alexander, Ch. B., pp. 148, 149. 1040 g ; ^ WellB V Foster, 8 M. & W. 149. ^^""^^"^ " ^°°^^'^' ^^ ^^"^^^ '^- ^'^ ^■ 53 Chap, v.] ASSIGNMENT §48. as to the non-assignability of military and naval pensions. But nftw the acts of congress regulate all questions relat- ing to the payment of such pensions, and even the com- pensation of the attorneys or agents to procure them. And in the very few cases, where pensions are allowed in this country to retired civil officers, no question, respect- ing the assignability thereof, has arisen in any adjudica- tion, as far as the author has been able to discover. § 48. Unearned emoluments cannot be reached by attachment, etc. — The foregoing rules as to the assigna- bility of an officer's compensation involve also the con- clusion that it cannot be reached, before it is payable, by attachment, garnishment, or other legal proceeding. As additional reasons for the same conclusion, it has been said in some cases, that public policy requires that the disbursing officers, intrusted with payments out of the public revenue, should not be embarrassed in the dis- charge of their duties by such litigations, and also that the efficiency of the public service should not be hazarded by any uncertainty respecting the payment of the ofiicers charged with performance thereof.' ' Boone County v Keck, 31 Ark. 387 ; Com'rs V Bond, 3 Coloi 411 ; Ward V Hartford, 13 Conn. 404; Hightower v Slaton, 54 Ga. 103 ; Merwin v Chicago, 45 111. 133 ; Wallace v Lawyer, 54 lud. 501 ; Jenks 1) Osceola Townsliip, 45 Iowa, 554 ; Tra6y v Hornbuckle, 8 Bush (Ky.) 336; Baltimore v Root, 8 Md. 95 ; School Dist. V Gage, 39 Mich. 484 ; McDougal V Hennepin County, 4 Minn. 184; Hawthorn v St. Louis, 11 Mo. 59 ; Erie v Knapp, 29 Pa. St. 173 ; Buchanan v Alexander, 4 How. (U. S. 30; Bradley v Richmond, 6 Vt. 131 ; Merrell v Campbell, 49 Wis. 535. The cases in Massachusetts, cited in 8 44, note 1, ante, arose upon process of garnishment. 53 PUBLIC OFFICERS [Book L CHAPTER VI TRAFFICKING IN OFFICES; AND OTHER CONTRACTS RESPECT- ING OFFICES, OFFICERS, OR OFFICIAL CONDUCT CONTENTS Sec. 49. English statutes against trafficking in offices ; the offence is punishable at common law. 50. All contracts for procuring an office through the prom- isee's influence with a third person, or otherwise influencing an appointment, are void under the statutes and at common law ; and equity will also annul them. 51. The same rule applied to offices of the East India Com- pany, as a branch of the government. 53. Corruption or guilty intent not essential ; case where the borough of Liverpool appointed an officer under a con- tract, which was avoided in equity ; other English cases; rule as to sale of military commissions. 53. English statutes have been re-enacted in this country, and our courts follow the English rulings thereupon ; instances and authorities. 54. Contract void where one of two applicants for appoint- ment withdraws on a contract to divide fees; so where candidate for election agrees to pay for efforts to elect him ; and other similar cases. 55. So where members of appointing board contract inter sese as to their votes ; so as to contracts relating to resign- ing or exchanging offices ; American cases on the gen- eral doctrine. , 56. All "lobby contracts,'' so called, are void ; what contracts for services before congress or a state legislature are within this rule, and what contracts are valid. 57. The same subject. 58. Certain cases, where contracts relating to private legis- lation only were sustained. 59. Contracts to procure particular official action, from an executive or administrative officer, such as a pardon, a pubUc improvement, etc. , when valid and when void. 54 Chap. VI.] TKAPPICKING IN OFFICES § 50. Sec. 60. The same subject; contracts to furnish supplies, etc., for public use. 61. The same subject; contract for supplies, etc. 62. The same ; also contract for discharge of men drafted for the army; contract for sale to government. 63. Contracts between persons bidding or intending to bid upon proposals to furnish articles, etc., for public use; when void. 64. The same subject; cases where such agreements are valid. 65. Contracts to induce an officer to violate his duty, unlawful. 66. Contracts where a reward to the officer is stipulated equiv- alent to corruj)tion; otherwise, senible, where reward enures to public benefit. § 49. English statutes against trafficking; the com- mon law.— The first English statute, with respect to traf- ficking in otHces, 12 Richard II, ch. 2, forbade the grant- ing of offices " for any gift, favour, or affection;" ' and this statute was followed by others against the same offence and other similar offences, the principal of which were 5 and 6 Edward VI, ch. 16, and 49 Geo. Ill, ch. 126.' But "the taking or giving of a reward for offices of a public nature is said to be bribery; it is said to be malum in se, and indictable at common law." ' And the sale of a pub- lic office, or of a deputation to a public office, although not within the enactments, is void at common law.' § 50. Contracts to procure an office void; equity will annul them. — Not only is actual corruption, that is, the receipt by and the giving to, the appointing power, of a reward for making the appointment, punishable at com- mon law and under the statutes; but all contracts for a ■ Com. Dig., tit. Officer, A 2. Rex v Vaughan, 4 Burr. 2494 ; » For the substance of each of those Rex u Pollman, 2 Campb. 289. statutes, see Cbitty on Contr., 9th ^ee also Comm. v Callagan, 2 Va. Gas. English ed.; Uth American ed., pp. ^' "^^^^ Pmit, § 55. 1013, 1014 ; and Bac. Abr., tit. Offices • Chitty on Contr., 9th English ed.; 11th and Officers, F. American ed., 990, 1016. » Bac. Abr., tit. Offices and OflScers, F. Hanington v DuChatel, 1 Bro. Ch. R. 124. 55 § 50. PUBLIC OFFICERS [Book I. reward for procuring an appointment by the influence of a third person, or for the appointment of a deputy by the principal, or otherwise for influencing such an appointment or deputation, are void at law and in equity; and that without reference to the question of actual cor- ruption or other guilty intent. ' ' Contracts for the buying, selling, or procuring of public offices . . . are justly deemed contracts of moral turpitude, and are calculated to betray the public interests into the administration of the weak, the profligate, the selfish, and the cunning. They are therefore held utterly void, as contrary to the soundest public policy, and indeed as a constructive fraud upon the government." ' " There is no rule better estab- lished, respecting the disposition of any office in which the public are concerned, than this, detur digniori: on principles of public policy, no money consideration ought to influence the appointment to such offices. . . . Up to a certain point the legislature have interfered, and prohibited by the statute, 5 and 6 Edw. VI, the sale of some offices; but whether or not that act of parliament were necessary for the purpose, I will now inquire." ' These remarks were made in 1799, before the enactment of the statute, 49 Geo. III. As the statute of 5 and 6 Edw. VI did not extend to all the mischiefs which arose in this connection, the aid not only of the courts of com- mon law, but also of equity, was successfully invoked to reach abuses which the statute did not cover; for although the statute was penal in its general scope, yet its object was to prevent a public mischief, in which equity will aid." Thus the court of chancery decreed the repayment of a ' 1 story Eq. Juris. ^Zth. ed. § 295 ; Hopkins v Preseott, 4 C. B. 578 ; 1 Story Contr. 5th ed. 8 709. Outon v Rodes. 3 A. K. Marsh.(Ky.) 433 ; " BlacMord v Preston, 8 T. R. 89, per Groton v Waldoborough, U Me. 306 ; LordKenyon,Cli. J. Accord, Eddy u Meredith d Ladd, 2 N. H. 517 ; Capron, i R. I. 394, per Ames, Ch. J. Carleton v Whioher, 5 N. H. 196. See also Parsons v Thompson, 1 H. , ^^ ^^^_ ^It. Offices and Officers, F. Blackst. 323; 56 Chap. VI. J TRAFFICKING IN OFFICES § 6l. sum paid for the influence of a person with the appoint- ing power, to procure for the plaintiff an office, from which he was afterwards discharged. The lord chancellor said: "I have not the least doubt on this case; and if there is no precedent of such a determination as I shall make, I have no scruples to make one, and shall glory in doing it. . . If a man sells his interest to procure a person an oflSce of trust or service under the government, it is a contract of turpitude; it is acting against the constitution, by which the government ought to be served by fit and able persons, recommended by the proper ofiicers of the crown for their abilities, and with purity. The case is within the reason of the determinations upon marriage brocage and post obit bonds. It is one of the most useful jurisdictions of the court, and ought to be exercised on aU occasions." ' § 51. Rule applied to East India Company. — The doc- trine has been applied to contracts which related to appointments by the East India Company. Thus, where an action was brought on an agreement, to the effect that the defendant, in consideration of £5,000, paid for the command of a ship in the East India Company's service, promised to repay the amount, in case another was appointed to the command, it appearing that the plain- tiff's testator was appointed upon the recommendation of the defendant, who was ship's husband or managing owner, and that he was afterwards discharged, a rule nisi for a nonsuit was made absolute. Lord Kenyon, Ch. J. , after the remarks quoted in the last section, continued: " The East India Company is a limb of the government of the country; and on the ground that this contract was ' Morris v McCullock, Ambl. 432: 2 Eden, Lee u ColehlU, Cro. Ellz. 529 190. SeealsoLawDLaw, Cas. temp. Rex D Vaughan, 4 Burr. 2494 Talbot, 140 ; s. M. 3 P. Wms. 391 ; Purdy v Stacey, 5 Burr. 2698 Hanington.B DuChatel, 1 Bro. Ch. R. Rex i! Pollman, 2 Campb. 229. 124. m § 53. PUBLIC OFFICERS [Book I. a fraud on the East India Company, from which much mischief to the public may ensue, I am of opinion that it cannot be made the basis of an action." ' But in another case, where the facts were very similar, except that it appeared that the whole transaction was with the knowl- edge and consent of the East India Company, it was held that this circumstance purged the contract from illegality." § 53. Corruption or guilty intent not essential. — The principle, that the absence of actual corruption or other guilty intent does not validate a contract of this character, was forcibly stated and applied by Vice Chancellor Sir W. Page Wood, in a suit in equity for an accounting brought by the appointing power, the corporation of Liver- pool, upon an agreement with the defendant, whereby, upon his appointment to the office of clerk of the peace, he agreed to accept a fixed salary in lieu of his fees, and that any surplus of fees above the salary should be paid into the borough fund. The defendant demurred to the bill, and his demurrer was allowed. The vice-chancellor said: "There are two clear grounds of public policy, which render such an agreement illegal. The first is this. There is a series of statutes — agreeing in principle to a great extent with the common law, but supporting its prohibitions by the addition of penalties — which say that an office of trust is a subject for which no bargain at all shall be made Every person, who is appointed to any office of this kind, is forbidden to make, and the persons who make the appointment are forbidden to receive, any payment in respect of the appointment. When such bargains are termed corrupt, the word is not aimed at a distinction between the obtaining of public and private benefits; but within the meaning of these statutes, 1 Blaohford v Preston, 8 T. R. (D. & E.) Accord, Card v Hope, 8 Barn. & Cr. 661. 89. ' Richardsou v MeUish, Z Bing. 229. 68 Chap. VI.] TBAFFICKING IN OFFICES §53. every illegal payment for an appointment must be con- sidered corrupt, whatever may be the purpose to which the money is applied. Thus if trustees of a charity, hav- ing the right to appoint a steward of a manor, do so in consideration of a sum to be paid by the officer for the benefit of the charity, that would be within the prohibition of the statutes In the second place, quite independently of any corrupt bargain, a person appointed to an office of this description, is disabled, on grounds of public policy, from dealing with his fees, because he is considered to require them to enable him to uphold the dignity and perform the duties of his office. Public policy prohibits any alienation or incumbrance of such fees." ' Other cases in the English courts establish the same general principle. ^ The practice, which formerly prevailed, of selling military commissions, is recognized, not as an exception to the rule, but as lacking the foundation of principle upon which the rule rests. For such sales were made by the license of the crown, and the person to succeed was examined by or under the direction of the secretary at war, and approved as a proper person.' § 53. English statutes and rule fullowed.— The Ameri- can authorities follow closely the rule laid down in the English cases, applying it to statutes similar to those of > Liverpool (Corporation of) v Wright, 1 Johns. Ch. 359 ; 28 L. J. Ch. 868 ; 5 Jur. N. s. use. Followed in Dublin (Mayor of) v Hayes, 10 Irish R., C. L., 226. See this case and American cases in pari materia, cited post, §§ 453, 453. ' GrevilleD Atkins, 9 Barn.&Cressw. 462; Clarke v Harvey, 1 Stark. 92; Graeme v Wroughton, 11 Exch. 146 ; 24 L. J., Exch. 265 ; Reg. V Charretle. 13 Q. B. 447; 13 Jur. 450; Parsons v Thompaon, 1 H. Blackst. 322 ; Methwold v Walbank, 2 Ves. 238; Hartwell v Hartwell, 4 Ves. Jr. 811 Stackpole v Earle, 2 Wils. 133 ; Waldo V Martin, 6 D. & R. 364 ; 2 C. & P. 1 ; 4 Barn. & Cressw. 319 ; Hopkins v Prescott, 4 C. B. 578; Garforth v Fearon, 1 H. Blackst. 327 ; Hughes V Statham, 6 D. & R. 219, 4 B. &G. 187; BellamyrBnrrow,Cas.temp.Talbot,97; Money v MacLeod, 2 Sim. & St., 301. ' Morris V McCuUook, Ambler, 432, per Lord Henley, Ch'r ; s. u. 2 Eden, 190 : Hartwell v Hartwell, 4 Ves. Jr. 8U at p. 815. Joe V Ash, Prec. in Ch. 99. 59 § 54. PUBLIC OFFICERS [Book I. 5 and 6 Edw. IV and 49 Geo. Ill, which are in force in all the states of the Union, and supplying the cases omitted in the statutes, by resort to the common law and the general principles of equity. From the nature of our institutions, the cases, in which the question of illegality arises, present a great variety of circumstances.". Some cases, where candidates have secured offices at popular elections, by promises to individuals or to the body of electors, which presented the question whether the election law of the state was so violated, that the candidate was rendered ineligible, are collected in the next succeeding chapter; and others, wherein an officer contracted to accept less than his lawful compensation, will be considered in connection with the other rules relating to an officer's compensation." Some cases, presenting peculiar features, which recognize and apply the general principle, that contracts to procure offices are void, whether the office is to be bestowed by appointment or by popular election, will now be cited. § 54. Certain contracts held void. — Thus it was held in New York, that where two persons are applicants for appointment to an office by the governor, and one with- draws, upon an agreement between them to divide the fees of the office, if the other shall be appointed, and to aid the latter in procuring the appointment, the agreement is void; and, the appointment having been thus procured, an action will no t lie upon the agreement, although it was under seal: and the general rule was declared to be that all agreements by which one engages to pay another for his aid or influence in procuring an office, are void at ' In some of the New England states, the collection of the taxes to the certain town offices may lawfully be lowest bidder whom the town will sold at auction by the town. accept, is valid ; but the sale of the Thetford v Hubbard, 33 Vt. MO; right to the lowest bidder, without Alvord V Collin, 20 Pick. (Mass.) 418. regard to his qualiflcationa, is not. It has been held, in Massachusetts, Howard v Proctor, 7 Gray (Mass.) 128. that a vote of the town to let out " Post, §6 452, 453. 60 Chap. VI.] TRAFFICKING IN OFFICES § 55. common law; so that an action would not lie upon the agreement in question, or any new agreement made to carry out its unexecuted provisions, although it was not within the statute relating to the sale, etc., of offices." It was also held, in the same state, that an agreement by a candidate for an elective office to pay money to the executive committee of a political organization, to be used for expenses in efforts to promote the candidate's election, incurred for purposes other than those for which the statute expressly allows money to be expended, was void, not only under the statute, but also upon grounds of public policy.^ And in another state, it was held that a contract to pay the promisee for his services as a canvasser at a primary election to procure the promisor's nomination to an elective office, was void.' And, generally, all con- tracts to vote for, or otherwise support a person, for election, appointment or nomination to a public office are void.' § 55. Certain other contracts held void. — So an agree- ment between A and B, two justices of the peace, and members of a court empowered to appoint to certain offices, ' Gray v Hook, 4 N. Y. 449, rev'g s. c. 6 to compensate the promisee, for Barb. (N. Y.) 3CS. speaking in public in another state^ S. P., applied to a contract between in support of the promisor's candi- candidates at an election by the peo- dacy for an office, was not a viola- pie, Robinson v Kalbfleisch, 5 N. Y. tion of public policy, or of the New Sup. Ct. (T. & C.) 312 ; York election law. Murphy v Eng- Glover v Taylor, 38 La. Ann. 634 ; lish, 64 How. Pr. (N. Y.) 362. Gaston v Drake, 14 Neva. 175; * Liness v Hesslng, 44 111. 113; Hunter v Nolf , 71 Pa. St. 282 ; Stout v Ennis, 28 Kan. 706 ; See also Martin v Wade, 37 Gala. 168 ; Swayze v Hull, 8 N. J. L. 54; Haas V Fenlon, B Kan. 601 ; Ham v Smith, 87 Pa. St. C3; Meguire v Corwine, 101 U. S. 108; s. c. NichoUs i) Mudgett, 32 Vt. 546. 3 MacArthur (D. C.) 81. See also Robertson v Robinson, 65 Ala. 610; 2 Foley V Speir, 100 N. Y. 552, ail'g 11 Groton v Waldoborough, 11 Me. 306; Daly, (N. Y.) 254. Sailing v McKinney, 1 Leigh (Va.) 43. S. P., Martin v Wade, 37 Cala..lC3. ' Keating v Hyde, 23 Mo. App. 555. In one case it was held that a contract 61 § 56, PUBLIC OFFICEES [Book I. that A shall vote for to fill one of such oflBlces, in con- sideration that B shall vote for D to fill another, and the actual voting by them, pursuant to such agreement, do not constitute an offence under the statute against buying and selling offices, but constitute a misdemeanor at com- mon law.' So an agreement to resign an office held by the promisor, and to use his influence for the appointment of a particular person in his place, is void." So is an agreement to pay money to a person, in consideration of an exchange of offices between him and the promisor.' Other American cases, illustrating and applying the gen- eral rule, that contracts of this description are void, are contained in the note.* The exception, if so it may prop- erly be styled, where an officer takes a contract from his deputy to share the emoluments of the latter's office, will be considered, together with other rules relating to con- tracts between an officer and his deputy, in a subsequent chapter. " § 56. Lobby contracts. — Another class of contracts, which are deemed invalid as contrary to public policy, consists of those known as "lobby contracts," being con- tracts for services in "lobbying" to procure the passage ' Comm. V Callaghan, 2 Va. Gas. 460. State v Johnson, 53 Ind. 197; ' Meaoham v Dow, 32 Vt. 721. ^aas v Fenlon, 8 Kan. 601; Accord, under statutes of Edward VI O"^*"" * Roies, 3 A. K. Marsh, (Ky.) 432 ; and Geo. Ill, Hopkins v Prescott, i Faurie v Morin's Syndics, 4 Martin C. B. 578. (^*-) 3®' See also Hutton v Lewis, 5 T. R. (D. & '^'■°*™ " "Waldohorongh, 11 Me. 306; j;_) 539 . Gaston v Drake, 14 Neva. 175 ; Forhes ^McDonald, 54 Gala. 98. Meredith v Ladd, 2 N. H. 517 ; ,„.,,„ , T^,>,,„ CarletouD Whicher, 5N. H. 196; s Stroud D Smith, 4 Houst. (Del.) 448. _. „ ... ,„ ' „-,,,' Hager t) Gatlm, 18 Hun (N. Y.) 448; 4 Robertson v Robinson, 65 Ala. 610 ; Filson v Himes, 5 Pa. St. 452; Martin v Wade, 37 Gala. 168 ; Eddy i) Capron, 4 R. I. 894 ; Liness.D Hessing, 44 111. 113; Tool Comp'y v Norris,3Wall (U.S.) 45; Co. Com'rs v MuUiken, 7 Blackf. Megtiire vGorwine, lOlU. S. 108; (Ind,) 301 ; Oscanyou v Winchester Rep. Arms Comp'y, 15 Blatohford C. C. (U. S.) 79, afl'd 103 U. S. 261. " Post, oh. 24. 63 Chap. VI.] LOBBY CONTRACTS § 56. of laws by the legislature. Obviously there is nothing objectionable in a contract by an attorney or counsel to render open and honorable professional services in sup- porting a measure pending in the legislature. And such contracts are recognized as lawful." Thus it was held that a statute, making it a misdemeanor to pay compen- sation for securing the passage of any law, did not apply to an attorney's professional services." Within certain limits, depending principally upon the open and public character of the services rendered, as distinguished from individual or secret solicitations, similar contracts are deemed to be valid, although the person rendering the services is not an attorney or counsellor at law.' But where the contract contemplates efforts to procure the desired legislation, by personal influence upon, or private solicitations of, individual, members of the legislature, or the like, and a fortiori, by corruption, it is unlawful, and- neither party can maintain an action upon it. Thus a contract providing that a party should "give all the aid in his power, spend such reasonable time as may be neces- sary, and generally use his utmost influence and exer- tions " to procure the enactment of a particular bill pend- ing .in the legislature, was declared to be unlawful and void upon its face. The court said: "This contract is void as against public policy. It is a contract leading to secret, improper, and corrupt tampering with legislative action. It is not necessary to adjudge that the parties stipulated for corrupt action, or that they intended that secret and improper resorts should be had. It is enough ' Weed D Black, 2 MacArthur (D.C.) 268 ; Lyon v Mitchell, 36 N. Y. 235, 682 ; Russell 1) Burton, 66 Barb. (N. Y.) 539; Hendrickson v Bender, 5 Week. Dig. Bryan B Reynolds, 5 Wis. 200. (N.Y.)46i; This general proposition is also recog- Sedgwick -e Stanton, 14 N. Y. 289 ; nized in most of the cases herein- Bryan d Reynolds, 5 Wis. 200. after cited. See also Miles u Thorne, 38 Gala. 335 ; ' Yates -0 Robertson, 80 Va. 475. Coquillard i) Bearss, 21 Ind. 479; „ „, „ , ,„„,™. Wildey V Collier, 7 Md. 273. 3 Brown V Brown, 84 Barb. (N. Y.) 533; 63 § 56. PUBLIC OFFICERS [Book I. that the contract leads directly to those results. It furnishes a temptation to the plaintiff, to resort to cor- rupt means or improper devices to influence legislative action. It tends to subject the legislature to influences destructive of its character, and fatal to public confidence in its action." ' So the supreme court of the United States adjudged to be void a contract to take care of a claim before congress, and prosecute it, as attorney and agent for the claimants, where it appeared that part of the means, contemplated and actually adopted, consisted of the personal solicitation of members of congress by the agent, and others supposed to have influence with them, to induce them to pass an act providing for the payment of the claim. Swayne, J., delivering the opinion of the court, said: "We entertain no doubt that in such cases, as under all other circumstances, an agreement, express or implied, for purely professional services is valid. Within this category are included drafting the petition to set forth the claim, attending to the taking of testi- mony, collecting facts, preparing arguments, and sub- mitting them, orally or in writing, to a committee or other proper authority, and other services of like char- acter. All these are intended to reach only the reason of those sought to be influenced. They rest on the same principle of ethics, as professional services rendered in a court of justice, and are no more exceptionable. But such services are separated by a broad line of demarca- tion from personal solicitation, and the other means and appliances which the correspondence shows were resorted to in this case. There is no reason to suppose that they involved anything corrupt, or different from what is usually practiced by all paid lobbyists in the prosecution ' Mills V Mills, 40 N. Y. 513, aff'g 36 Bart. Thomas V Caulkett, i57 Mich, 392 ; (N. y.) 474. Atcheson v Mallon, 43 N. Y. 147 ; See also Spence v Harvey, 22 Cala.3o7 ; Powers 1) Skinner, 34 Vt. 274. Gil V Williams, 12 La. Ann. 219; G4 Chap. VI.] LOBBY CONTRACTS 5?. of their business." ' In the concluding portion of the opinion, the learned judge also remarked: "We have said that for professional services in this connection, a just compensation may be recovered. But where they are blended and confused with those which are forbidden, the whole is a unit and indivisible. That which is bad destroys that which is good, and they perish together. Services of the latter character, gratuitously rendered, are not unlawful. The absence of motive to wrong is the foundation of the sanction. The tendency to mischief, if not wanting, is greatly lessened. The taint lies in the stipulation for pay. Where that exists, it affects fatally, in all its parts, the entire body of the contract." " § 57. The same subject. — In other cases, the courts within the United States have laid down with great uni- formity the general rule, that such contracts are unlaw- ful." And the remark, at the conclusion of the opinion in the case last cited, that where part of the services con- tracted for or rendered are of such a character that com- pensation therefor may lawfully be awarded, but they are blended and confused with those that are forbidden, > Trist V Child, 21 Wall. (U. S.) Ul. ' Id. p. 452. " Weed V Black, 2 MacArthnr (D. C.) 268 ; Elkhart Co. Lodge v Crary, 98 Ind. 238 ; Kansas Pacific Ry. Comp'y v McCoy, 8 Kan. 538 ; McBratney v Chandler, 22 Kan. 692; Wood V McCann, 6 Dana (Ky.) 366 ; Gil V Davis, 12 La. Ann. 219 ; Wildey v Collier, 7 Md. 273; Fuller V Dame, 18 Pick. (Mass.) 473; Frost V Belmont, 6 Allen (Mass.) 152 ; Reed v Paper Tobacco W. Comp'y, 2 Mo. App. 82; Harris v Roof, 10 Barb. (N. Y.) 489 ; Rose V Truax, 21 Barb. (N. Y.) 361 ; Brown V Brown, 34 Barb. (N. Y.) 533 ; McKee v Cheney, 52 How. Pr. (N.Y.) 144; Cary v West. Union Tel. Comp'y, 47 Hun (N. Y.) 610 ; 20 Abb. N. C. (N. Y.) 333; Bank of Monroe v State, 26 Hun (N.Y.) 581; Sedgwick v Stanton, 14 N. Y. 289 ; Lyon V Mitchell, 36 N. Y. 235, 682; Harris v Simonson, 28 Hun (N. Y.) 318 ; Sweeney v MoLeod, 15 Oreg. 330 ; Clippinger y Hepbaugh, 5 Watts & S. (Pa.) 315; Usher v McBratney, 3 Dillon (U. S.) 385 ; Marshall v Baltimore, etc., B. R. Comp'y, 16 How. (U. S.) 314; Oscanyon v Winchester, etc.. Arms Comp'y, 103 U. S. 261 ; Plngey v Washburn, 1 Aik. (Vt. ) 264; Powers V Skinner, 34 Vt. 274; Bryan v Reynolds, 5 Wis. 200. 65 § 58. PUBLIC OFFICERS [Book I. the whole transaction is unlawful, and no compensation can be awarded for any of the services, is also sustained, not only by the general rules of law applicable to illegal contracts, but by decisions upon this particular class of contracts. ' And if the agreement does not show, upon its face, that the services contemplated or rendered were of an unlawful character, that fact may be shown by parol or other extrinsic evidence." § 58. Certain contracts as to private legislation sus- tained. — It has been held, however, that a contract between a railway company and a landowner, who is also a member of parliament, fixing the compensation to be paid to him for damages to his land, and providing that he shall support, or withdraw his opposition to, the company's bill is lawful, if there is no proof of a corrupt influence upon his vote.' And it has been held that a contract to withdraw opposition to legislation of a purely private character is valid, if it does not contemplate a resort to secret means,. or a fraud upon the public." ' McBratney v Chancller, 23 Kan. 693 ; that the plaintiff was not bound to Brown v Brown, 34 Barb. (N. Y.) 533 ; communicate to the legislature the Kose D Truax, 31 Barb. (N. Y.) 361 ; bargain he had made with the com- Foley V Speir, 100 N. Y. 562 ; pauy, seems finally to have prevailed, Powers D Skinner, 34 Vt. 274 ; as most common sense decisions do, See also Clippinger v Harbaugh, 5 when opposed to merely technical Watts & S. (Pa.) 315; views." 3 Story Eq. Jur., 12th ed. a Brown v Brown, 34 Barb. (N. Y.) 533; 8 393 c. 2 Parsons Contracts, 554. < Shrewsbury & B. B'y Comp'y d London > Simpson V Howden (Lord), 10 A. & E. * ^^ "^- ^'y Co'^P'y, 3 Mac. & Gor- 798 ; 9 CI. & Finn. 61 ; 3 Rallw. Gas. "^0"' 334 ; 6 H. L. Cap. 113 ; 3 Mac. & gg^. Gordon, 70; 21 L. J. Q. B., 89; 17 A. Shrewsbury (Earl o'f) v North Stafford- ^ ^- '■'^- ^•' Q- B., 652 ; shire Railway Comp'y, 1 L. R., Eq., Stanley v Chester & B. R'y Comp'y, 1 593; 35 L. J., Ch. 156; 12 Jur.,N. S., K^"^" ^^^- SS'ST; 3 Myl. & Cr. 773; 63 : 13 L. T. 648 ; 14 W. R. 230. ® ^™- ^* ' Of the ruling in Simpson v Lord How- EdwardsvGrand JuuctiouR'yComp'y, den, 10 A. & E. 793, it has been said : ^ I^^''!^- Cas. 173 ; 1 Myl. & Cr. 650 ; 7 "This case, although in fact reversed Sim., 337; in the Exchequer Chamber; and that Eastern Counties R'y Comp'y V judgment affirmed in the House of Hawkes, 5 H. L. Cas. 331 ; 1 DeG. M. Lords, and chiefly upon the ground & G. 737 ; 24 L. J., Oh., 601. 66 Chap. VI. J CONTRACTS FOR OFFICIAL ACTION § 59. § 59. Contracts to procure particular official action. — Another class of cases, governed by the same general rule, consists of those contemplating services for the pur- pose of procuring a particular official action from an executive or administrative officer. It was said, in one case that " a contract to procure a pardon from the gov- ernor would now be held illegal, whether improper means were used or not." ' But in a case in the New York superior court, it was held that a contract for the services of an attorney at law, in procuring a pardon for a con- vict, was legal. The court said: "It must be assumed that the parties had in mind, when this consultation took place, only such proper and legal acts, as the law. allows an attorney to agree to perform. The employment is capable of that construction, and we cannot assume that the defendant intended to employ the plaintiff, or that the plaintiff intended to agree, to do any act in respect to obtaining the pardon, which was illegal, unless it was expressly so stated. ... I think that a distinction should be made between an employment of this kind, and a contract to procure a pardon, made by a person who is not an attorney. Such a contract would be objectionable, because it would appear, on its face, that the means to be employed were influence or personal solicitation, or some others equally objectionable; while in this case the employment is to perform services in the line of the employee's profession, which, for any other object would be unobjectionable." ' This ruling has been followed in other cases;' in some of which the distinction between an attorney and one who is not an attorney has been disre- > Bowman i) Coffroth, 59 Pa. St. 19, per McGrill v Burnett, 7 J. J. Marsh (Ky.) Read, J., p. 23. 640; Timothy t) Wright, 8 Gray (Mass.) 522 ; ■^ Bremsen v Engler, 49 N. Y. Super. Ct., Kribben v Haycraf t, 26 Mo. 396. 172. See also Thompson « Wharton, 7 Bush ' Formby v Pryor, 15 Ga. 258; (Ky.) 563; Moyer v Cantieny, 41 Minn. 242. 67 § 60. PUBLIC OFFICERS [Book I. garded. ' . But a contract to obtain signatures to a petition to the governor for the pardon of a convict is illegal." Upon the same principle, it has been held that a contract to obtain signatures to a petition for a public improve- ment is illegal.^ So is a contract to abandon proceedings for opening a highway;* or proceedings to unseat a mem- ber of the house of commons." § 60. Contracts to furnish supplies for public use. — With respect to contracts to compensate a person, for efforts to procure favorable official action upon a propo- sition to furnish supplies to, or to do work for the govern- ment, there has been a conflict of authority upon the question whether such contracts are, in any case, lawful, and if so, what is the test of legality or illegality. The United States supreme court has determined that they are, under all circumstances, unlawful. The case was one, where an action was brought upon an agreement by the defendant below, to compensate the plaintiff below, for his services in procuring for the former a contract to furnish to the government a quantity of arms during the civil war. The court below ruled that the contract was lawful, and its judgment was reversed by the supreme court. Field, J., delivering the opinion of the supreme court, said: " The question then is this: can an agreement for compen- sation to procure a contract from the government to furnish its supplies be enforced by the courts? We have no hesitation in answering the question in the negative. All contracts for supplies should be made with those, and with those only, who will execute them most faithfully and at the least expense to the government. Considera- tions as to the most efficient and economical mode of meeting the public wants should alone control, in this 1 Bird « Breedlove, 21 Ga. 623; ' Maguire v Smock, 43 Ind. 1. Bird t) Meadows, 25 Ga. 251; , Jacobs vTobiason, 65 Iowa, 245; 54 Am. Cbadwick v Knox, 31 N. H. 226. j^ g » Hatzfleld v Gulden, 7 Watts (Pa.) 152. » Coppock v Bower, 4 M. & W. 361. 68 Chap. VI.] CONTRACTS FOR OFFICIAL ACTION § 61. respect, the action of every department of the govern- ment. . . . Such is the rule of public policy; and whatever tends to introduce any other elements into the transaction is against public policy. That agreements, like the one under consideration, have this tendency, is manifest. They tend to introduce personal solicitation, and personal influence, as elements in the procurement of contracts, and thus directly lead to inefficiency in the public service, and unnecessary expenditures of the public funds. " The learned judge considered then the cases, where agreements for compensation to procure legislation and appointments to offices have heen declared to be void, and concluded that the same principle avoids the contract in question. " It is suificient," he said, " to observe, gener- ally, that all agreements for pecuniary considerations to control the business operations of the government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question whether improper means are contemplated or used in their execution. The law looks to the general tendency of such agreements; and it closes the door to temptation, by refusing them recognition in any of the courts of the country." ' § 61. The same subject; contracts for supplies, etc. — But, in a later case, the court of appeals of the state of New York refused to follow this ruling. In an action upon an agreement, appointing the plaintiff's testator the defendant's agent to dispose of four steamers, and agree- ing to pay him a fixed proportion of the price, it appeared that the parties contemplated an effort to sell the steamers to the United States government, for use during the civil war; and that during the negotiations between them, the > Tool company 1) Norris, 2 Wallace (U. Arms Company, 103 U. S. 261. S.) 45 ; See also Beal v Polhemus, 67 Mich. 130. S. P. Oscanyan v Winchester, etc., 69 § 61. PUBLIC OFFICERS [Book I. defendant asked the plaintiff if he was "acquainted with the republican members of the administration," and received an assurance in the affirmative. A judgment in favor of the plaintiff was affirmed by the court of appeals. Hunt, J., after saying that there was no proof of any intention to resort to corrupt means, in order to effect the sale, and examining the preceding decisions, added: "A distinction may also well be made upon those cases, which I think will dispose of the present question. Per- sonal solicitation of legislators or judges is not a lawful subject of contract. Personal solicitation of the presi- dent, the governor, or the heads -of departments, for favors or for clemency, is not the lawful subject of a con- tract. The apprehension that considerations, other than those of a high sense of duty, and of the public interest, may thus be brought to influence their determination, forbids this employment. But a different principle pre- vails, where property is offered for sale to the govern- ment, and where a bargain is sought to be made with them, and where there is no concealment of the agency. It then becomes a matter of traffic. . . . The seller desires to obtain a high price, while the buyer desires to purchase at a low one. This element is known and appre- ciated by each party in making a bargain. I know of no principle upon which a seller should be compelled to employ an agent, who would be looked upon with sus- picion and distrust by the party to whom he wished to sell. . . . An agent of the same political party with the executive, or the heads of departments, having ac- quaintances and a reputation which would enable him to make an advantageous presentation of his merchandise, may, in my opinion, be lawfully employed to make such sale, and with reference to those qualifications. The decision in Norris v. The Tool Co., (2 Wallace 45,) con- founds a sale or traffic, openly made by an avowed agent, to a party wishing to purchase, with the forbidden 70 Chap. "VI. J CONTRACTS BETWEEN BIDDERS § 63. case of an interference with legislative action, or execu- tive clemency, where the party does not profess to act upon commercial principles. There is a manifest differ- ence in the principle governing the cases. I think that case was not well considered, and cannot adopt it as an authority for the present." ' § 62. The same, and contracts for discharge of drafted men, etc. — In an earlier case, the supreme court of New York had made substantially the same decision as in the case last cited, without referring to Tool Com- pany v. Norris.'' And the supreme court of Pennsylvania, in a case decided still earlier, held that a contract for compensation for procuring the discharge by the war department of a man drafted as a soldier was unlawful, without refereiice to the character of the means to be employed or actually employed." In Ohio, the case of Tool Company v. Norris was approved in principle, but a contract to compensate a person for his services in selling property to the government was sustained as lawful, on the ground that the agent's compensation, and the amount of the bid to be made by him for the principal, were fixed •by the terms of the contract, which, the court thought, distinguished the two cases.* § 63. Contracts between bidders, when void. — Closely analogous to this class of cases are those where an agree- ment is made between persons bidding or intending to bid, upon proposals invited by the government to furnish 1 services or property for the public use, for the purpose of awarding the contract to the lowest bidder. The general rule respecting such agreements has been stated thus: that any agreement between such bidders or intending bidders, which has a tendency directly or indirectly to ' Lyon V Mitchell, 36 N. Y. 235, 683. ^ Bowman u Coffroth, 59 Pa. St. 19. ■> Uowland v Coffin, it Barb. (N. Y.) 653 ; « Winpanny v French, 18 Ohio St. 469. 33How.Pr. {N.Y.)300. 71 § G4. PUBLIC OFFICERS [Book I. restrain competition between them, is void as against public policy, even although it may not appear that such agreement actually produced a result detrimental to the public interest.' Thus an agreement to pay the promisee a certain sum, for forbearing to propose to the postmaster- general to carry the mail on a certain route, is void.'' So is an agreement to pay the promisee for withdrawing a proposal to carry the mail." And a promise to a mail con- tractor, in consideration of repudiating his contract is void, although the government holds security, which will protect it against any loss.* So an agreement between intending bidders for a public employment, that one shall bid in his own name, and all shall share the profits, is void." So an agreement not to bid, or to influence any other person to bid, for the labor of the inmates of a house of correction, is void." The same general rule has been declared and applied in several other cases.' § 64. The same subject; certain contracts held valid.— But this general rule is subject to some exceptions, which, although they are well established, it is difficult to define with precision. It has been said that contracts of this nature depend, for their validity, upon the same rules which determine the lawfulness of agreements between bidders, or intending bidders, at auction sales.' And " agreements" (at auction sales) "between two or more persons, that all but one shall refrain from bidding, and ' Atohesoni; Mallon, 43 N. Y. 147. See also Hannah u Fife, 27 Mich. 172. In Breslin D Brown, 24 Ohio St. 565, it „ r^.r.v, o .4., „-,, . , ^, ^ ^, . , . ' Gibbs V Smith, 115 Mags. 592. was said that this rule is too broad, and that such agreements are not ' KennedyuMurdiok,5Harr.(Del.) 458: void, unless the public interests are ^^^ " Mackin, 100 111. 246. injuriously affected thereby. Engelman v Skrainka, 14 Mo. App., 438 ; , „ ,. , „. , ,„^^ T T o» WilburDHow,8Johns..(N.Y.)444; 2 Gulick V Ward, 10 N. J. L. 87. „, ,„ . , ^ „^ „ ^ ,^, „ , ' Sharp V Wright, 35 Barb. (N. Y.) 236 ; ' Swan V Chorpenning, 20 Cala. 182. Woodworth v Bennett, 43 N. Y. 273. ■■ Weld V Lancaster, 56 Me. 453. » People v Stephens, 71 N. Y. 527, per « Woodruff V Berry, 40 Ark. 251 ; -^-l'^"' •'■< PP- 545, 546. Hunter v Pf eiffer, 108 Ind. 197. 73 Chap. VI.] CONTRACTS TO VIOLATE DUTY §65. permit that one to become the purchaser, are not, how- ever, necessarily, and under all circumstances, vicious. They may be entered into for a lawful purpose and from honest motives, and in such cases may be upheld, and will not vitiate the purchase." ' Thus it was held that an agreement between one who had filed his bid for a public improvement, and another who was about to file his bid, to do the work in partnership, if the contract was awarded to either, was valid, no intent being apparent to influence either bid or to stifle competition. ' § 65. Contracts .to induce officer to violate duty. — Upon the same principles, any contract with an officer or a third person, for the purpose of inducing the officer to violate his duty, is unlawful.' Thus an agreement between an oflScer of the customs and a merchant, whereby the latter agrees to pay the former a compensation for labor- ing to obtain a reduction of the duties upon his imported goods, is void.* So a note, given by a contractor for a public improvement, to one professing to have influence with the street commissioner, in order that he should use his influence with the street commissioner to enable the contractor to get his money, before it was due by the terms of the contract, is void.° Other instances of the same kind will be given in the chapter relating to in- demnity to an officer, being cases where he was indemni- fied against the consequences of a violation of his duty. " ' People V Stephens, 71 N. Y. 527, per tion sales, see Story on Contracts, Allen, J., p. 546. 5tli ed., § 677. See also Mari6 v Garrison, 83 N. Y. 14, = Breslin v Brown, 24 Ohio St. 565. rev'g 45N. Y. Super. Ct. 157; See also Atcheson v MaUon, 43 N. Y. Fire Ins. Comp'y v Loomis, 11 Paige (N. 147, per Folger, J., p. 1-51 ; Y.) 431; Dutchi!Harrison,37N.Y.Super.Ct.306. Huntington v Bardwell, 46 N. H. 492 ; 3 Moher v O'Grady, 4 L. R. Ir. 54 ; Bellows V Russell, 20 N. H. 427 ; q^^ ^ Shipman, 51 111. 316. Story's Eq. Juris. (12th Ed.) S§ 293- 293 c ; and, in England, Jones v North, * Satterlee v Jones, 3 Duer (N. Y.) 102. L. R., 19 Eq. 426.- ^ Devlin v Brady, 36 N. Y. 531, aff'g 32 For a resume of the exceptions to the Barh. (N. Y.) 518. rule forbidding combinations at auo- * Poat, ch. 28. 73 § G6. PUBLIC OFFICERS [Book I. § 6G. Contracts stipulating reward to officer. — The rule avoiding contracts to influence official conduct applies with increased force, where the contract is for a reward to the officer himself. Such a transaction is equivalent to corruption in office. Thus, where a bond was given to a member of the common council of a city, who was chairman of a committee having charge of the subject of certain wharfing privileges, and establishing and altering dock lines, to take effect when the lines, etc., were estab- lished as desired by the obligor so as to benefit his prop- erty, the court held that the bond was utterly void, and declared that the transaction amounted to bribery.' The illegality of transactions of this kind is so gross and palpable that it will be unnecessary to discuss the subject at length." In one case, a contract to reward a board of officers for doing an official act was sustained, on the ground that it appeared that the reward would enure to the benefit of the public interest • which they had in charge." But it may be safeh' stated, as a general rule, that any contract, having for its object the use of a public office for private benefit, or tending to accomplish that result, although not expressly so providing, is void.* ? Cook V Shipman, 24 111. 614 ; s. c. 51 111. 1 Johns. Ch. 359, quoted ante, § 52. ^^''- ' Munsell v Temple, 3 Gilm. (lU.) 93 ; = See Woodworth v Bennett, 43 N. Y. 273 ; Berry v Hamby, 1 Scam. (111.) 468 ; People V Lord, 6 Hun (N. Y.) 390 ; Irish v Webster, 5 Me. 171 ; Bank of Monroe B State, 26 Hun (N.Y.) Wheelwright v Sylvester, i Alien 581. (Mass.) 59 ; » Odineal v Barry, 24 Miss. 9. hunter v Field, 20 Ohio 340 ; See,oontra,theremarksof Sir W.Page McCartle i; Bates, 29 Ohio St. 419. Wood,V. Oh'r, in Liverpool v Wright, u Cliap. VII.] WHO MAY HOLD PUBLIC OFFICE BOOK II FILLING AN OFFICE CHAPTER VII WHO MAY OR MAY NOT HOLD A PUBLIC OFFICE CONTENTS Sec. 67. What ofllces an infant may hold, in the absence of any express prohibition. 68. What offices, in the absence of such a prohibition, a woman may hold; English authorities. 69. The same subject; American authorities. 70. The same subject continued. 71. To what extent unfitness to discharge the duties of an office disqualifies one from holding it. 73. Qualifications and disqualifications under the United States constitution; general principles as to disquaUfica- tion, established by the "common pohtical law." 73. Qualifications and disqualifications under state constitu- tions; power of the legislature to add other reasonable and consistent qualifications; whether a statute requir- ing the members of a public board to belong to different political parties is constitutional. 74. Legislature has power to exclude from office those con- victed of crime, and require a period of citizenship, ability to read and write, and payment of taxes. 75. Various rulings upon the question whether bribery dis- qualifies, and upon particular provisions as applicable to bribery. 76. Cases where candidates have procured votes by public promises to accept less than the official salary, etc. 77. Rulings upon provisions disqualifying for crime. 75 § 68. PUBLIC OFFICERS [Book II. Sec. 78. Eulings upon the 14th amendment of the U. S. constitu- tion, disqualifying certain persons who participated in the civil war, and similar provisions in the constitu- tions of some of the states. 79. Validity and effect of statutes requiring proof that public money has been accounted for. 80. Provisions relating to citizenship, residence, and the like; construction thereof. 81. Provisions forbidding one to hold tvsro or more offices; val- idity and construction thereof. 83. Mode of determining questions relating to qualifications for office. 83, Effect of a provision forbidding a member of the legislature from holding an office created, etc., during his term. § 67. What offices an infant may hold. — At common law, a ministerial office may be granted to an infant, exercend. per se, velper deputat. suum;' or to two or more; but a judicial office, or one which is of a judicial nature, cannot be thus granted." Thus an infant cannot be steward of a court, for he cannot execute the office, but he may take a ministerial office, for he can execute it by deputy.' The same rule has been declared in the Ameri- can cases, which are few in number, because the consti- tutions or statutes of most of the states provide expressly against holding office by an infant. It has been held, however, that in the absence of any such prohibition an infant may hold the office of notary public; and in making this ruling, the United States circuit court cited an in- stance when the office of governor of a territory was held and very ably filled by an infant." § 68. What offices a woman may hold. English authorities. — So it has been said that the grant of an ' Com. Dig. tit. Officer, B 3. See also Claridge v Evelyn, 5 B. & Aid. « Com. Dig. tit. Officer, Bi; «1 ! ^'^^' "P°° ^^^ general question, Bac. Abr. tit. Offices and Officers, I. ^^ ™ folding, 57 N. H. 1« ; Lynch v Livingston, 6 N. Y. 422 ; s Bac. Abr. tit. Offices and Officers, I. Lambert v People, 76 N. Y. m. 4 United States I! Blxby, 10 BIss.(U.S.) 520. 76 Chap. VII.] WHO MAY HOLD PUBLIC OFFICE § 69. office of government, which may be exercised by a sub- stitute or deputy, to a woman, will be good, as a woman may be made regent of the kingdom. So an office of inheritance may descend to a woman, and by consequence may be granted to her, as the office of marshal of Eng- land. So a woman may be a gaoler, or a commissioner of the sewers; so she may have custody of a castle; so she may be a forester, who shall make a deputy to attend the eyre, and he shall there be sworn.' A woman may be sexton of a parish, and may vote in the election of one. " So a woman may be overseer of the poor.' Ann, countess of Pembroke, held the office of hereditary sheriff of Westmoreland, and exercised it in person; at the assizes she sat with the judges on the bench." The question as to the right of a woman to hold office in England was dis- cussed at length in a very celebrated case, recently decided by the court of Queen's Bench, wherein it was held that a woman was incapable of being elected a mem- ber of a county council.' § 69. The same subject. American authorities.— In some of the states of the Union, the right of suffrage, and the power to hold office generally, or to hold particu- lar offices, have been conferred expressly upon women; but in those where the constitution does not confer that power, the question whether a woman is competent to hold a public office, has arisen in several cases. In ' Com. Dig. tit. Officer, B 2, and cases of the office, and that she could not (.jteii. have done so without violating the a nv T 2 9t 1114 well settled law. ' ' ' See a full collection of cases as to offl- ' Rex V Stubbs, 3 T. R. (D. & E.) 395. ^gg which women have filled, in the * 2 T. R. (D. & E.) 397, note. See a very arguments of counsel in Rex v Interesting discussion upon this Stubbs, 2 T. R. (D. & E.) 395. statement by Gray, J., delivering s geresford Hope v Sandhurst (Lady) 23 the opinion In re Robinson, 131 Q. B. D. 79; 58 L. J., Q. B., 316; 61 L. Mass. 376. He concludes that she did T. 150 ; 37 W. R. 548 : 53 J. P. 805 ; afl'g not habitually discharge the duties 37 W. R. 525 ; 63 J. P. 549. 77 § 70. PUBLIC OFFicEKS [Book IL accordance with the English decisions it has been ruled that a woman cannot hold a judicial office, ex. gr., that of justice of the peace. ' But where a statute provides that no person shall be debarred from any '' occupation, profess- ion, or employment" on account of sex, and the constitu- tion contains nothing to the contrary, a woman may hold an office pertaining to the administration of justice, as that of master in chancery.' In the absence of any con- stitutional prohibition, a statute authorizing a woman to be a member of a school committee is valid. "The common law of England, which was our law upon this subject, permitted a woman to fill any local office of an administrative character, the duties attached to which were such, that a woman was competent to perform them. " ' A statute, conferring upon a woman the right to hold an office, is valid, although enacted after a judg- ment that she was ineligible." In the absence of any express constitutional or statutory provision on the sub- ject, a woman cannot hold the office of jailer;' or of director of a workhouse." The constitution and statutes of the United States contain no provision, expressly or impliedly prohibiting a woman from holding office under the authority of the United States; and appoint- ments of women to national offices of a minor character are frequently made. § 70. The same subject continued. — The English and American authorities on the subject of the right of a woman to hold office were very fully stated and discussed by the supreme judicial court of Massachusetts, in a case which presented the question whether a woman might be examined for admission as an attorney and coun- " Opinion of the Justices, 107 Mass. 604. ' Opinion of tlie Justices, U5 Mass. 602. 2 Sehuchardt v People, 99 111. BOl. * Huff u Coolc, 44 Iowa 639. See, tn re Hall, 50 Conn. 131 ; , Atchinson -o Lucas, 83 Ky. 451. Atchinson v Lucas, 83 Ky. 451 ; In re GoodeU, 48 Wis. 693. '' State v Rust, 4 Ohio Cir. Ct. 389, 78 Chap. VII.] WHO MAY HOLD PUBLIC OFFICE § 71. seller at law, under a statute authorizing "a citizen of the state," having certain qualifications, to be so examined and admitted. The court, while conceding that the word "citizen" included a woman, nevertheless concluded, upon an interpretation of the statute, " in con- nection with the whole system of which it forms part, and in the light of the common law and of previous statutes on the same subject," that it was the intent of the statute to give the right to male citizens only. In the voluminous and exhaustive opinion delivered by the court, it was said that there is no instance in England where a woman "could take part in the government of the state," except in the case of a queen; or hold " any public office the duties of which must be discharged by the incumbent in person," except that of overseer of the poor, " a local office of an administrative character, in no way connected with judical proceedings." ' § 71. To what extent unfitness disqualifies one from holding an office. — The common law declares that unfit- ness, if gross and palpable, is a disqualification for hold- ing an office. Thus it has been said: " If an office, either of the grant of the king or subject, which concerns the administration, proceeding, or execution of justice, or the king's revenue, or the common wealth, or the interest, benefit, or safety of the subject, or the like; if these or any of them be granted to a man that is unexpert, and hath no skill and science to exercise or execute the same, the grant is merely void, and the party disabled by law, and incap- able to take the same, pro commodo regis et populi; for only men of skill, knowledge, and ability to exercise the same, are capable to serve the king and his people." ° It is needless to say that the practical application of this ' In re Robinson, 131 Mass. 376. In re Goodell, 39 Wis. 233. Accord, In re Lockwood, 9 Ct. of 01. See also Wright v Noell, 16 Kan. 601. (U. S.) 346; J gg^_ ^jjj.^ (.ij_ Offices and Officers, I, In re Bradwell, 55 111. 535 ; ^^^g severs,! cases. 79 § 73. PUBLIC OFFICERS [Book II. doctrine is generally very difficult, and, as far as our examination has extended, there is but one case in the United States, where it has been applied. That case arose in the court of coriinion pleas for the city and county of New York. A person, who was ignorant of any foreign language, had been appointed interpreter for one of the district courts of New York city, and brought an action against the city to recover his salary. It was held that he could not recover. The court said: " In' a case of a person duly appointed to an office or public employment, the rule undoubtedly is that the fitness of the appointment cannot be questioned, if he satisfies the appointing authority, in an action for the compensation attached to the office or employment, if such person performs or is ready to perform the duties required of him in his position. But the present is the case of one alleged to be wholly incompetent. There is no attempt to prove that the plaintiff is unsuited or unfit for the position he held, except in the sense of being at all times unable to perform its duties. By accepting the position of interpreter, when, if he understood no foreign lan- guage, he could not interpret at all, he stands convicted of a fraud, either upon the officer who appointed him, and upon the public from whom he was to receive compensa- tion, or upon the latter alone." ' § 72. Qualifications and disqualifications under U. S. constitution and "common political law." — In the United States, the qualifications for holding office are prescribed by either constitutional provisions or legislative enact- ments, relating to offices generally, or to particular offi- ces. Thus the constitution of the United States requires that the person holding the office of president of the United States shall be a natural born citizen, of the age of thirty -five years, who has been a resident within the ' Conroy D Mayor, etc., 6 Daly {N. Y.) 400, aff'd (no op'n), 67 N. Y. 610. 80 Chap. VII. J WHO MAY HOLD PUBLIC OFFICE § 72. United States fourteen years;' that a senator shall have attained the age of thirty years, shall have been nine years a citizen of the United States, and shall be, when elected, an inhabitant of that state from which he shall be chosen;" that a representative shall have attained the age of twenty-five years, shall have been seven years a citizen of the United States, and shall be an inhabitant of that state from which he shall be chosen;' and that no person shall hold any office under the United States, or under any state, who, having previously taken an official oath to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof; unless the congress shall, by a vote of two thirds, of each house, remove such disability.'' Similarly each state has regulated for itself, and according to its own ideas of public policy, the general qualifications for holding office, or the qualifications for holding partic- ular offices, under the authority of the state. Certain general principles are common to all, and these are styled by a learned writer "the common political law" of this country. We quote a few sentences from his work, in this connection: "The same descriptions of persons, namely minors, idiots, and lunatics, women, and aliens, who have already been mentioned as excluded from the right of suffrage by the common political law, are also prohibited and for the same reasons, from being elected to any political office whatever." , . . "It may also be laid down as a general principle, founded in the nature of representative government, which presupposes the elect- ors, except in particular instances, to elect from among themselves, that no person can be elected to any office ' U. S. Const., Art. II, Sec. 1, Subd. 6. * Id. Art. U (commonly called the four- ' Id., Art. I, Sec. 3, Subd. 3. *«™*^ amendment) Sec. 3 ; adopted in 1868. ' Id., Art. I, Sec. 8, Sutd. a ggg po^^ j ^^ 81 § 73. PUBLIC OFFICERS Book EL who is not himself possessed of the requisite qualifications for an elector; and . . . whatever other and diflEerent qualifications or disqualifications may be specified, every person who is voted for . . . must, at all events, possess the qualifications, and be free from the disqualifi- cations which attach to the character of an elector." ' § 73. Under state constitutions; power to add qualifi- cations; differing political parties. — It is clear that where the constitution prescribes the qualifications for hold- ing oflfice, any act of the legislature, contravening directly or indirectly the mandates of the constitution in that respect, is unconstitutional. This doctrine, and the extent to which the legislature may require an exam- ination and certificate by a civil service commission, as a requisite to eligibility to office, will be fully considered in a subsequent chapter.' The general rule is that the legis- ture has full power to prescribe qualifications for holding office, in addition to those prescribed by the constitution, if any, provided that they are reasonable, and not opposed to the constitutional provisions, or to the spirit of the constitution. Thus it is believed that there can be no valid constitutional objection to the statutes, which are now very common, prescribing special qualifications for particular offices, as that the person filling the same shall be a lawyer, a physician, an architect, or otherwise skilled in the particular duties devolved upon him by the office. ° In some instances, where a board of officers has been created by statute, provision has been made that they ' Cushing's Legislative Assemtilies, removes the disqualification. Arts. 56, 57. It has been said that at Walthert)Rabolt, SOCala. 185; common law, an alien-born person, State v Smith, U Wis. 49T ; although naturalized, is not entitled State v Murray, 38 Wis. 96. to hold office. , Ppjj^ ^^ g Rex V DeMierre, 5 Burr. 2787 ; lBlackst.Commen.,374. Thesamerule ' ^ee People v May, 3 Mich. 698, and has been declared in the United '*"'^' * '^^' States, except that naturalization 82 Chap. VII. J WHO MAY HOLD PUBLIC OFFICE § 74. shall be taken in certain proportions from the different political parties. It was held by the supreme judicial court of Massachusetts, that a statute creating a board of police for a city, of which the members should be thus appointed, was constitutional.' And the court of appeals of the state of New York has also affirmed the constitu- tionality of a similar statute." But the supreme court of Michigan has ruled that a similar statute was uncon- stitutional, as being in contravention of the doctine that political opinions cannot be made the test of the right to hold office.' § 74. Power of legislature to exclude from office cer- tain persons. — A statute, providing that a person, con- victed of having fought a duel, shall be incapable of holding or being elected to office under the state, is constitutional." " I conceive it," said the chancellor, delivering the opinion of the court of errors, " to be entirely clear, that the legis- lature cannot establish arbitrary exclusions from office, or any general regulation requiring qualifications, which the constitution has not required. If, for example, it should be enacted by law, that all physicians, or all per- sons of a particular religious sect, should be ineligible to public trusts; or that all persons not possessed of a cer- tain amount of property should be excluded ; or that a member of assembly must be a freeholder; any such regulation would be an infringement of the constitution: and it would be so, because, if it should prevail, it would be, in effect, an alteration of the constitution itself. . . . but, as a right not expressly secured by the constitution, it" (the right of eligibility to office) " may be taken from convicted criminals, when the legis- 1 Coram. I) Plaisted, 148 Mass. 375. See also E vansTlUe t) State, 118 Ind. 426 ; Baltimore v State, 15 Md. 376 ; ' Rogers v Buffalo, 123 N. Y. 173. = Att'yGen'lv Detroit Common Council, 58 Mich. 213. Brown v Haywood, 4 Heisk. (Tenn.) 357. * People V Barker, 20 Johns. (N. Y.) 457 ; aft'd, p. r., 3 Cow. (N. Y.) 686. 83 § 75. BLIC OFFICERS [Book II. lature, in their plenary power over crimes, deem such a privation a necessary punishment." ' And where a consti- tutional provision declares that no person shall be elected to any office, unless he possesses the qualifications of an elector, that does not by implication forbid the legislature to require other reasonable qualifications for office, as that the person elected shall have been a citizen for three years, and able to read and write in the English language, or shall have paid taxes." § 75. Various rulings regarding bribery. — The statute 5 and 6 Edward VI, ch. 16, disqualifies a person from hold- ing office, who has resorted to bribery to procure it. It has been said also that at common law the same rule holds.' But this doctrine, although it appears to be sup- ported by one decision,' is not generally recognized in the courts of this country. The weight of authority sustains the doctrine that in the absence of any constitutional or statutory provision, disqualifying from holding office, a person guilty or convicted of crime, such a person is not so disqualified.* This is the rule, although the crime con- sisted of bribery or other unlawful act, relating to his election or appointment; and although the statute or the constitution not only punishes as a crime the giving or receiving of a bribe to influence the vote of an elector, but excludes such elector from the right to vote; and the constitution requires the officer to qualify by taking an oath that he has not thus influenced any person for giving or withholding his vote." "Wrong-doing or criminal ' Barker v People, 3 Cow. (N. Y.) 686, per * State i) Purdy, 36 Wia. 213. Sanford, Chancellor, pp. 7(B, 701, 706. « State v Pritchard, 36 N. J. L., 101 ; ' State V Covington, 29 Ohio St. 102. ^^oPl^ " Goddard, 8 Colo. 432 ; Accord, narrow v People, 8 Colo. 417. P«°Pl« '<' Thornton. 25 Hun (N. Y.) 456 ; See also post. g9 77, 79, 81. . '"^^'S «' H°^- ^- (N- Y.) 457 ; State V Dustin, 5 Oreg. 375. ■ Per Lord Glenbervie, 2 Douglas Elec- . p^„^^^ ^ Thornton, 25 Hun (N. Y.) 456 ; tion Cases, 403. He says that the rev'g 60 How. Pr. (N. Y.) 457 ; House of Lords has so determined. g^^ ^-^^ p^^y^ ^ Goddard, 8 Colo. 432 ; See, further, as to bribery, post, ch. 32. g^^^^ ^ Pritchard, 36 N. J. L., 101. 84 Chap. Vil.] WHO MAY HOLD PUBLIC OFFICE § 76. conduct," said the court, "which will constitute or work ineligibility or disability to hold office, to be enforced through the judicial power of the state, must be expressly defined and declared by the constitution or laws. Grant- ing, then, that the promises and pledges, made by the defendant to the electors of the county, constituted an offer of a bribe to them to cast their votes for him, where in the constitution or the law is such offer declared to create ineligibility to office? . . . The offer of a bribe to an elector is unquestionably a grave offence, and is punishable as such; but it is punishable only in the manner and to the extent prescribed by the constitution and the laws. . . . The law requires that a person elected to office shall take and subscribe the requisite oath of office, and that if he shall omit to do so within the prescribed period, the office shall become vacant. But it does not further declare that the office shall also be deemed vacant, if the officer shall not swear to the truth in taking such oath, or that he shall in that case be dis- qualified from holding the office." ' § 76. Public promises to accept less than official salary, etc.— In most of the cases, wherein the doctrine just stated was established, the successful candidate for a county office, had, during the contest for votes, issued public and general appeals to the voters of the county for support, promising, in case he should be elected, to accept from the county treasury a smaller sum than the salary attached by law to the office, or to devote a speci- fied portion of his salary to the benefit of the county. It is,conceded, in' all the cases, that such offers are legally not to be distinguished from direct offers of pecuniary reward for a vote; and in some of the cases, the trans- ' People V Thornton, 25 Hun (N. Y.) 456, the party had not been convicted; per Bootes, J., pp. 463, 464, 468. These for the statute disqualified a person remarks, and the decision in the convicted of hribery, etc. cause, are based upon the fact that .85 § 78. PUBLIC OFFICERS [Book II. action is also likened to a sale of the oflSce. But, owing to the general character of the offer, it is necessary, where the question arises whether the successful candi- date can hold the office, to prove affirmatively, that of those who voted for him, a number at least equal to the majority certified in his favor, were induced by such promises so to vote;' and in one case it was held, that it must also be shown that they were taxpayers, ox would in some other mode be benefited by performance of the promise. ' § 77. Rulings upon provisions disqualifying for crime. — Under a provision of the constitution of Pennsylvania, disqualifying a person from holding an office, who had been convicted of " misbehavior in office or of any infam- ous crime," it was held that a conviction for bribing a voter did not disqualify, on the ground that such an offence was not within the legal definition of "infamous crime." ^ But, in the same state, it was held, that in a suggestion for a quo warranto, an allegation that money was paid by the party for other than the election expenses expressly authorized by statute, "but for corrupt and illegal purposes in procuring his election," is sufficient to bring the case within a constitutional provision disqualify- ing from holding office any one guilty of wilful violation of any election law." In the same state it was also held that the word "guilty," as used in the same constitu- tional provision, did not render it necessary that the offender should have been convicted of the offence, before proceedings to oust him were begun.' § 78. Rulings upon the 14th amendment and similar state provisions. — The provision of the fourteenth amend- ' state V Purdy, 36 Wis. 213. ' State v Dustln, 5 Oreg. 375. Accord, Carrothers v RuaseU, 53 Iowa , comm. v Sharer, 3 Watts & S. (Pa.) 338. 346; People V Thornton, 25 Hun (N. Y.) m. " Comm. v Walter, 86 Pa. St. 15. » Comm. D Walter, 83 Pa. St. 105. 86 Chap. VII.] WHO MAY HOLD PUBLIC OFFICE § 79. ment to the constitution of the United States, excluding from office all persons, who after having taken an oath of office to support the constitution of the United States, participated in the insurrection against the government, ' and similar provisions in the constitutions and laws of some of the states, have been construed and applied in the adjudicated cases collected in the note." § 79. Validity and effect of statutes requiring proof that public money has been accounted for. — It has been held that a statute requiring a sheriff elect, who has formerly been sheriff, to produce his tax receipts before being inducted into office, is not unconstitutional, as imposing qualifications for the office additional to those required by the constitution.' A constitutional provision, excluding from office any holder of -public moneys, who shall not have accounted for them and paid them over according to law, presupposes a default ascertained and fixed by legal authority. * Such a provision applies to a private person, as well as to one who has been an officer. ' "Where a constitu- tional provision excludes from office one who has failed to obtain a discharge from the proper authority from liabil- ity incurred from handling public moneys, a discharge granted by competent authority cannot be attacked. In a proceeding to test the party's eligibility, the only issue is upon the fact of his discharge." Where a statute prov vides that a person is not eligible to an office until he has >.4.nfe,§72. (N. C.)112; «T IT, 4. m Comm. 1) Douglas, 1 Binn. (Pa.) 77. I?ireWortman,23Atb.N.C.(N.Y.)13r. 2 People V Reld, 11 Colo. 141. 3 Rogers v Buffalo, 123 N. Y. 173 ; „ ., ,^ ^ , 1J-1 See also Peck D Rochester, 3 N.Y.Supp. 2 People V Raid, 11 Colo. 141. . ' " o7A 101 § 96. PUBLIC OFFICERS [Book II. sion into the civil service of a city shall be established by the mayor, but shall be approved by the state civil ser- vice commission, before they shall go into effect, does not violate a constitutional provision, requiring that all muni- cipal offices, not elective, shall be appointed by certain local authorities. ' But it has been held, that the provis- ion of the constitution of New York, conferring upon the superintendent of public works of the state, the power to select and appoint his subordinates, gives him exclusive power and discretion in the matter of all such appoint- ments, and that the civil service statute of the state, as far as it attempts to encroach upon such power, is unconstitutional." Also that the provision of the consti- tution of the same state, which confers upon the superin- tendent of prisons the power to appoint an agent for each of the prisons of the state, and upon each agent the power to appoint the subordinate officers of the prison, subject to the approval of the superintendent, renders unconstitutional the statutes giving preferences to dis- charged soldiers and sailors, as far as they apply to officers of the prisons.' § 96. When not unconstitutional, how enforced. — In cases which are not obnoxious to any constitutional pro- hibition, the courts will enforce such statutes, as the necessity arises, and in the mode prescribed by law for other similar cases. Thus it has been held, that under the statute of New York, giving preference to discharged soldiers and sailors, the mayor of a city has no discretion to refuse to appoint one having the requisite qualifica- tions, if he is competent, and has complied with the law; and a mandamus will issue' to compel him to make the ' Rogers u Buffalo, 123 N. Y. 173. with these statutes has been enforced ' People V Angle, 109 N. Y. 564, aS'g 47 by mandamus, see People v Knapp, Hun (N. y.) 183. 4 N . Y. Supp. 825; 23 N. Y. State Re- » People V Durston, 3 N. Y. Supp. 523. porter, 468 ; ■> People V Bardin, 7 N. Y. Supp. 123. People v Adams, 53 Hun (N. Y.) 141 ; For other cases, where compliance In re Sullivan, 55 Hun (N. Y.) 285. 102 Chap. VIII. J APPOINTMENTS § 97. appointment. And where a clerk in a city assessor's office was appointed without a civil service examination, in violation of the statutes relating thereto, it was held that payment of his salary could not be enforced, although the assessors were officers acting under official bonds.' Where the common council of a city refuses to make the appropriation necessary to pay an officer appointed by the mayor, pursuant to the statute, for the purpose of carrying out the provisions respecting the civil service examination, the officer may maintain an action against the city to recover a reasonable compensation for his services.' § 97. Preferences to veterans. — Under the New York statute of 1884, it was held that a veteran soldier or sailor has not an absolute right of preference, although he is qualified, but only a preference over others of equal standing.' And an indictment for failing to comply with the statute will not lie, unless the prosecutor furnished evidence to the defendant that he was a veteran and other- wise within the statute." Under the Massachusetts stat- ute of 1887, veteran soldiers or sailors cannot be preferred for appointments, without having applied to the civil ser- vice commissioners, and obtained their certificates, as prescribed by the civil service statute of 1884.° Under the New York statute of 1886, providing that a veteran soldier or sailor shall not be disqualified from holding any office, on account of age or physical disability, if he remains competent to perform the duties, a veteran, who is a policeman, cannot be retired because he has reached the age of sixty, under a former statute providing for retiring a policeman who has reached that age." 1 In re Gafifney, 20 N. Y. State Reporter People V Saratoga Springs, 54 Hun (N. 165 ; 3 N. Y. Supp. 664. Y.) 16. ' Kip V Buffalo, 123 N. Y. 152. 3 People 1) Moore, 39 Hun (N. Y.) 478. People!) PoUlon,16 Abb. N.C.(N.Y.) 119; « People v French, 52 Hun (N. Y.) 464, « People V Wallace, 55 Hun (N. Y.) 149. ^ Op'n of the Justices, 145 Mass. 587. 103 §99. PUBLIC OFFICERS [Book II. § 98. Construction of preferential statutes and rulings thereunder. — The statutes of New York, giving prefer- ences to discharged soldiers and sailors with respect to fill- ing public offices are confined to original appointments, as distinguished from promotions, and consequently do not apply to promotions of members of the police force.' And where a discharged soldier applied for a mandamus to compel his appointment to an office which had been filled by the appointment of a civilian, the mandamus was refused, partly because the relator had no better right than other discharged soldiers, and partly because, as the office was already filled, the defendant had no longer the power to appoint the relator." Where an office is abolished for reasons of economy, and the duties thereof are transferred to another officer, a discharged veteran who holds the abolished office, is not entitled to insist, under those statutes, that he shall not be discharged, and that the other office shall be transferred to him.' III. Cases where an appointment to a public office is made upon the nomination of one officer, and the confirmation or consent of other officers. § 99. Most common instances where governor appoints and senate confirms. — Some cases of this description have been incidentally cited in the foregoing portion of this ' Inre McGuire, 50 Hua (N. Y.) 203. ' People V Wendell, 57 Hun (N. Y.) 362. s People V Adams, 51 Hun (N. Y.) 583. For other rulings as to the application of the New York statutes relating to the civil service commission, and to discharged veterans, to particular offices or in particular cases, see the following cases, all of which were decided in the courts of New York : People V Ci%'il Service Com'rs, 17 Ahb. N. C. 64; 3 How. Pr. N. S. 40; aff'd 41 Hun 287; People V French, 51 Hun 345; 20 N. Y. St. Rep. 928; 4 N. Y. Supp. 330; People V French, 11 N. Y. St. Rep. 520 ; Rogers v Buffalo, 2 N. Y. Supp. 326 ; 22 Abb. N. C. 144; People V Knapp, 22 N. Y. St. Rep. 468 4N.Y. Supp. 825; Gaffney v Becker, 20 N. Y. St. Rep. 165 3N.Y. Supp. 664; Peck V Rochester, 18 N. Y. St. Rep. 244 3N.Y. Supp. 872; Peck V Belknap, 55 Hun 91 ; In re Sullivan, 55 Hun 285 ; People V Wallace, 55 Hun 149. 104 Chap. VIII.] APPOINTMENTS § 100. chapter.' The most common instances of this mode of appointment are where the constitution or a statute pro- vides for the appointment of an officer, upon the nomina- tion of the executive, by and with the advice and consent of the senate, or upon the nomination of the mayor of a city, and the consent of one or both branches of the municipal legislature." § 100. The Governor and the Senate. — The constitu- tion of the State of New York authorizes the governor to fill temporarily a vacancy in the office of justice of the supreme court, by the advice and consent of the senate, "if the senate shall be in session, or, if not in session," by his own appointment. In 1873, upon the final adjourn- ment of the regular annual legislative session, the gov- ernor convened the senate in extraordinary session. The extraordinary session, after sitting several days, adjourned from July 2 to September 10, and on the latter day met and adjourned to November 20. On the 13th of Sep- tember, a vacancy occurred in the office of justice of the supreme court, which the gqvernor filled on the 21st of September. The court of appeals held that the appoint- ment was valid; that the words "in session," as used in the constitution, " indicate a present acting or being of the senate as a body; " that the question, whether "while the session substantially continues, adjourned from day to day, or over holidays, or with brief and usual recesses, so that the session is practically continuous, the body might possibly be regarded as practically in session dur- ing such recesses," did not arise; but that " when the sit- tings are terminated by an adjournment for months," it cannot be said that the body is in session. The court also suggested, but declined to pass upon, the question whether the provision extends to any but the regular ' Ante, 69 86, 88, 92. methodof appointment, arecollected » Many authorities, relating to this *" ''^- ^^' ^''''" 105 § 101. . PUBLIC OFFICERS [Book 11. annual sessions of the senate, as a branch of the legisla- ture.' Where it is provided by statute or the constitution that an officer holds over until his successor is chosen and qualifies, and that a person appointed to fill a vacancy holds until the senate confirms his appointment, the gov- ernor, after appointing a person to fill a vacancy cannot revoke the appointment, but must submit it to the senate for confirmation." The governor, where the constitution authorizes him to fill a vacancy during the recess of the senate, may then fill a vacancy which occurred during the session." Where the constitution of a state provides that all "civil officers, appointed by the governor and senate, shall be nominated to the senate within fifty days from the commencement of each regular session of the legislature," this provision applies only where the office was created before the commencement of the session, not where it was created by a statute passed during the session. * One appointed to an office by the president of the United States, when the senate was not in session, who entered upon the duties of his office, and served until notified that the senate had rejected his nomination, must be deemed to have been legally appointed, and entitled to the office while he served.' § 101. The mayor and common council. — In a case decided by the New York court of appeals, the chartier of a city empowered the mayor, in case of a vacancy in the office of chamberlain, to nominate, and, upon the con- firmation of the common council to appoint, a person for the full term of three years; and also to appoint in like manner, a person to act temporarily during the absence of the incumbent. The chamberlain, having yet eight months to serve, became a defaulter, and fled from the » People V Fanoher, 50 N. Y. 288. « Co. Com'rs V Hellen, 73 Md. 603. " People V Cazneau, 20 Gala. 504. » Gould v United States, 19 Ct. of CI. (U. 8 State V Kuhl, 51 N. J. L. 191. 3.)! 106 Chap. VIII.] APPOINTMENTS § 103. city, without intention to return, whereupon the mayor nominated a person to discharge the duties of the office during the chamberlain's absence. It was contended, in behalf of the person so appointed, that by the chamber- lain's flight, without any intention to return, the office became vacant, under a provision of the statute vacating a city office when the incumbent ceased to be a resident of the city; and consequently that the mayor had power only to fill the vacancy for a full term, so that the appoint- ment must be deemed to have that effect. But the court held, that as the mayor had not attempted to fill the vacancy, but only to make a temporary appointment, the effect of the appointment could not be changed against his intention in making it; so that if he had no power to make the appointment which was in fact made, the result was that it was a nullity." But where, by the correct construction of a city charter, the term of a city officer was fixed at two years, and the common council was empowered to appoint him; and the common council passed a resolution appointing a person to the office, and specifying that the appointment was for one year (that being supposed to be the lawful term), it was held that the appointment was valid for the full statutory period, and that the action of the common council in appointing another person to the office at the expiration of a year, was a nujlity.' § 102. Person nominated must have majority vote of confirming body.— Where a statute provides that in the appointment of city officers, "the mayor shall have the exclusive power of nomination, subject however to confirmation or rejection by the board of aldermen," a person nominated can be confirmed only by actually receiving the votes of a majority of the aldermen voting ' People V Hall, 104 N. Y. 170. " Stadler v Detroit, 13 Mich. 346. See also People v Lord, 9 Micli. 227. 107 § 103. PUBLIC OFFICERS [Book IL upon the question; and if a person, nominated to oflSce by the mayor, is not thus confirmed, the appointment is not duly made, and the appointee will be ousted upon quo warranto, although the mayor announced, at the time, without objection by any of the aldermen, that the nom- inee was confirmed, and the aldermen approved his bond, after he had taken the oath of office.' § 103. Rule in case district is not specified. — Where a city had been divided into two inspection districts, so that there were but two inspectors to be appointed, one for the first and one for the second district, and the mayor nomi- nated to the board of aldermen four persons to be inspect- ors, without designating any districts, it was held that the nomination was valid. And, each nomination having been considered separately by the board of aldermen, and confirmed, it was held that the relator, whose nomination was first acted upon, was duly appointed inspector of the first district; and a subsequent nomination of another for inspector of that district, and his confirmation by the board of aldermen, were a nullity." So, also, where the three commissioners of highways of a town had been class- ified according to their terms of office, and the commis- sioners of the first and third classes failed to qualify, and the vacancies were filled by the justices of the peace of the town, by the appointment of " J. S. S. and J. M. to the office of commissioners of highways," without any designa- tion of classes, it was held that J. S. S. was duly appointed to fill the vacancy in the first class.' > Comm. V Allen, 128 Mass. 308. three in the negative, declared the In this case the mayor, after the npm- nomination not rejected, and the ination of one person had been re- nominee appointed, jeoted ten times, again nominated See also Baker v Com'rs, 62 Mich. 327. the same person, and pnt the ques- , p^^^^ ^ Kneissel, 58 How. Pr. (N. Y.) tion in this form : "Shall the uomi- ^^ nation be rejected?" and, the vote being three in the affirmative, and " People v Supervisors, 20 N. Y. 252. 108 Chap. VIII.] APPOINTMENTS § 104, IV. Appointment made by one or more boards of offi- cers, or by the concurrent action of three or more separate officers. § 104, . The questions considered in this division. — Many of the questions relating to this subject are diffi- cult of solution, and the decisions of the courts thereupon are not always harmonious. Those which relate to an appointment by one or more boards of officers can be sat- isfactorily considered only by examining the authorities relating to the official action of such a board or boards, in other matters within their jurisdiction, as well as the specific matter of the appointment to public office; and our consideration of this subject will therefore extend to the general official action of such a board or boards. But the rulings relating to the action of boards of directors or trustees of private corporations, although to a considerable extent dependent upon the same principles, nevertheless are often governed by considerations inapplicable to the action of public bodies, and will therefore be excluded from our examination, except so far as it may be neces- sary to consider them incidentally, to eludicate the princi- ples governing the action of public bodies. With respect to the concurrent action of separate public officers, we will confine ourselves to cases where three or more are required to act, as the cases where one officer is em- powered to act have been considered in the first division of this chapter ; and those where the power is vested in two officers often present special questions, which will be considered in a subsequent chapter. ' "We have found it necessary to cite some of the cases, relating to the par- ticular subject now to be examined, in preceding pages of this chapter, and to avoid repetition we will merely refer to them here,' Post, ch, 25. ' AnU, i% 83, 87, 89 to 94. 109 105. PUBLIC OFFICERS [Book 11. § 105. The English rule as to when act of majority concludes minority. — It has been settled, by a long series of adjudications, that where a power to act, in a matter of merely private trust, is given to two or more persons, the concurrence of all the persons empowered is requisite to the valid execution of the power, in the absence of any directions in the instrument, authorizing a less number to act. But the common law recognizes a distinction, which has been embodied in the statutes of most of the states of the Union, between the execution of such a power, and of a power pertaining to the administration of public affairs. Where six persons had been appointed pursuant to an act of parliament, as "searchers" to determine as to the quality of certain tanned hides, and four condemned the hides, and the other two refused to do so, it was held, by the opinions of all the judges, that this was in legal effect the condemnation of the six. "I think it is now pretty well established," said Eyre, Ch. J., "that where a number of persons are intrusted with powers, not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole." ' And in England the same prin- ciple has been applied in other similar cases, where the matter was one of public concern. ° > Grindley v Barker, 1 Bos. & Pul. 229. 2 Rex V Beeston, 3 T. R. (D. & E.) 592; Withuell V Gartham, 6 T. R. (D. & E.) 388; Oortis V Kent Waterworks Comp'y, 1 B. & C. 314; Res V Whitaker, 9 B. & C. 848. The English courts have applied a rule of " singular strictness " to corporate acts, including those of municipal corporations, with respect to the separate concurrent action of each branch of the corporation, as essen- tial to the validity of a corporate act. See Ex parte Rogers 7 Cow. (N.Y.) 528, note pp. 531, 534, citing and comment- ing upon the English authorities. The American courts have not fol- lowed these rulings, at least with respect to municipal corporations, which are regarded here as part of our system of government, and the validity of the acts of which depend upon the same principles which gov- ern those of other puhlic bodies. On the other hand, the English rule, with respect to the number of mem- 110 Chap. VIII.] APPOINTMENTS §106. § 106. American cases following English rule. — These rulings in the English courts have been followed, and the principle thereof extended, in the United States. The general rule, that where a statute confers upon three or more persons a power to act in a matter of public con- cern, requiring the exercise of discretion and judgment, and contains no directions respecting the number of those who may exercise the power, such exercise will not be valid, unless all act, or unless all meet for consul- tation and a majority act, has been established by many adjudications of the American courts.' And if there are bers of eacli branch of a corporation, who can act, and the circumstances under which some of the members can act, in the absence of others, has been adopted here, and applied to all cases where a public body, consisting of three or more members, acts with respect to a matter of public concern. See post, §g HI et seq. ' Caldwell v Harrison, 11 Ala. 755 ; Pulaski County v Lincoln, 9 Ark. 320 ; Louk V Woods, 15 lU. 256 ; Paola, etc., R. R. Comp'y v Anderson Co., 16 Kan. 302; Merrill V Berkshire, 11 Pick. (Mass.) 268; Williams v School Dist., 21 Pick. (Mass.) 75 ; Gteorge ■» School District, 6 Met. (Mass.) 497; fringsbury 1) School Dist., 12 Met. (Mass.) 99; Reed v Scituate, 5 Allen (Mass.) 120 ; Plymouth V Plymouth County, 16 Gray (Mass.) 341 ; State V Porter, 113 Ind. 79 ; Scott -c Detroit Y. M. Soc, 1 Dougl. (Mich.) 119; State V Smith, 22 Minn. 818 ; State V Guiney, 26 Minn. 313; Jewett V Alton, 7 N. H. 253 ; Dispatch Line V Bellamy Man. Comp'y. 12N. H. 205; GUdden v Towle, 31 N. H., 147 ; Charles v Hoboken, 27 N. J. L. 203 ; Green v Miller, 6 Johns. (N. Y.) 39 ; Spicer v Slade, 9 Johns. (N. Y.) 359; Palmer v Doney, 2 Johns. Cas. (N. Y.) 346; Babcock v Lamb, 1 Cow. (N. Y.) 238; Ex parte Rogers, 7 Cow. (N. Y.) 526 ; McCoy V Curtice, 9 Wend. (N. Y.) 17 ; Field V Field, 9 Wend. (N. Y.) 394 ; Crocker v Crane, 21 Wend. (N. Y.) 211 ; Downing v Rugar, 21 Wend. (N. Y.) 178 ; Woolsey v Tompkins, 23 Wend. (N. Y.) 324; Whiteside v People, 26 Wend. (N. Y.) 635; People V Supervisors, 1 Hill (N. Y.) 195 ; Lee V Parry, 4 Denio (N. Y.) 125 ; Harris v Whitney, 6 How. Pr. (N. Y.) 175; Whitford v Scott, 14 How. Pr. (N. Y.) 302; In re Beekman's petition, 31 How. Pr. (N. Y.) 16 ; 1 Abb. Pr. N. S. (N. Y.) 449 ; People V Sup'rs, 10 Abb. Pr. (N. Y.) 233 ; 18 How. Pr. (N. Y.) 152 ; aff'd 21 How. Pr. (N. Y.) 288. Gildersleeve v Board of Education, 17 Abb. Pr. (N. Y.)201; Parrott v Knickerbocker lee Comp'y, 8 Abb. Pr. N. S. (N. Y.)234; Perry V Tynen, 23 Barb. (N. Y.) 137 ; 111 107, PUBLIC OFFIOEES [Book II. any vacancies in the board, it has been said that the members in office cannot act, although they would consti- tute a majority of the full board. ' § 107. When minority cannot prevent action of major- ity; subsequent ratification. — Where all have been duly convened, the dissent of the minority, and even their withdrawal and refusal to be considered members of the board, will not affect the validity of the act of the major- ity." But if two of three act, without the presence of or notice to the third, his subsequent assent to their act, and affixing his signature to the instrument executed by them, does not cure the defect, for the law of principal and agent does not apply to this subject." And it has been Keeler v Frost, 22 Barb. (N. Y.) 400 ; Horton v Garrison, 23 Barb. (N. Y.) 176 ; People 1! Walker, 23 Barb. (N. Y.) 304 ; 2 Abb. Pr. (N. Y.) 421 ; Schuyler v Marsh, 37 Barb. (N. Y.) 350 ; White V Lester, 1 Keyes (N. Y.) 316 ; Lamoureaux v O'Kourke, 8 Keyes (N.Y.)499; Doughty D Hope, 1 N. Y. 79, afE'g 3 Denio (N. Y.) 249, 594; Powell 1) Tuttle, 3 N. Y. 396 ; Olmsted v Elder, 5 N. Y. 144 ; People V Sup'rs, 11 N. Y. 563 ; Cruger v Hudson River R. R. Co., 1^ N. Y.190; Pell V CJlmar, 18 N. Y. 139 ; People V Batohelor, 22 N. Y. 128, aff'g 28 Barb. (N.Y.) 310; Board of Excise v Sackrider, 35 N. Y. 154, at p. 158; People 1) Williams, 36 N. Y. 441 ; Water Com'rs i; Lansing, 45 N. Y. 19 ; People V Nichols, 52 M. Y. 478 ; Johnson v Dodd, £3 N. Y. 76 ; Austin V Helms, 65 N. C. 580 ; State V Wilkesville, 20 Ohio St. 288; In re Baltimore Turnpike, 5 Binn. (Pa.) 481; Cooper V Lampeter, 8 Watts (Pa.) 125; Comm. V Canal Com'rs, 9 Watte (Pa.) 466; County Com'rs v Lecky, 6 S. & R. (Pa.) 166; In re Paradise Road, 29 Pa. St. 20 ; Jefferson County i) Slagle, 66 Pa. St. 202; Nason v Poor Directors, 126 Pa. St. 445 ;■ Cassin v Zavalla, 70 Tex. 419; Sohenck v Peay, IWoolw. (U. S.) 175; Curtis V Butler, 24 How. (U. S.) 435 ; Cooley V O'Connor, 12 Wall. (U. S.) 391 ; First Nat'l Bank v Mount Tabor, 52 Vt. 87; Soens i> Racine, 10 Wis. 271. ' Cassin v Zavalla, 70 Tex. 419. See also Williamsburg v Lord, 61 Me. 599; Scheuok v Peay, 1 Woolw. (U. S.) 175. » Cases cited in note (Dp. Ill; especially Palmer v Doney , 2 Johns. Cas. (N. Y.) 346; Whiteside v People, 26 Wend. (N.Y.) 634; Ex parte Rogers, 7 Cow. (N. Y.) 526 ; People 1) Supervisors, 1 Hill (N. Y.) 195 ; Water Com'rs v Lansing, 45 N. Y. 19 ; People V Nichols, 52 N. Y. 478. ' See also Billings v Stark, 15 Fla. 297. s iSeeler v Frost, 22 Barb. (N. Y.) 400. m Chap. VIII,] APPOINTMENTS «, § 108. held that the approval by the full board of the minutes of the meeting where the two only acted, will not cure the defect.' But if, at a subsequent full meeting, the invalid act is ratified and adopted, that renders the act valid, for the powers of the board were not exhausted by the invalid action." § 108. Presumption of validity.— However, the pre- sumption is always in favor of the validity of the act; so that if the instrument executed, or other official act, is executed by a majority only, it will be presumed that all met for consultation, unless the contrary expressly appears upon the face thereof: and where nothing to impeach it appears upon the face thereof, the fact that the minority did not participate in the proceedings must be affirmatively shown by a party seeking to impeach it.' But under a statute allowing two of three officers to act, provided that the order shows upon its face that all "met and deliberated upon the subject embraced in such order, or were notified to attend a meeting of the commissioners for the purpose of deliberating thereon," an order signed by two will not be valid, which recites that the third, " being duly notified did not attend," because it does not state the purpose of the notice; and the same result will follow when the order recites that "all the commission- ers were notified and in attendance." And where the order thus fails to conform fully to the provisions of the statute, its defects cannot be cured by reference to the general statute regulating the power of a majority to act, • In re Palmer, 1 Abb. Pr. N. S. (N. Y.) 30. McCoy V Curtice, 9 Wend. (N. Y.) 17 ; « 7r»rePear6aU,9 Abb. Pr. N. 8.(N. Y.) ""^^^^^^if^^"^'!?;!;!''^' 2(jg Keeler v Frost, 22 Barb. (N. Y.) 400 ; Doughty V Hope, 3 Denlo (S. Y.) 249; ' Louk V Woods, 15 ni. 256 ; aWd 1 N. Y. 79 ; Torr V State, 115 Ind. 188 ; People v Bradley, 64 Barb. (N. Y.) 228 ; Scott V Detroit Y. M. Soc, 1 Dougl. j-^ ^^ Merriam, 84 N, Y. 596. (Mich.) 119; State V Smith, 22 Minn. 218 ; 113 § 110. ^ PUBLIC OFFICERS [Book II. or by oral evidence that the third commissioner did in fact meet with his colleagues. ' § 109. Rule has been extended to private trans- actions. — As the rule has been stated in the preceding sections, it seems to be confined to matters of public con- cern, requiring the exercise of discretion and judgment; '.but the distinction has been disregarded in some cases.'' In. other cases it has been said generally that the major- ity may act, without a meeting of all, or notice to the minority to meet.' But these cases seem to be opposed to the weight of authority. § 110. Rulings as to whether particular statutes affect the rule.— ^However, in order to enable a majority to act, without a meeting of all, or notice of such a meet- ing to the minority, it is not necessary that the statute should expressly confer, such a power; it suffices that the power may be reasonably inferred from the provisions of the statute or the nature of the power conferred. And the same rule applies, e converso, to prevent the majority from acting without the concurrence of all." Where a statute expressly provides that a majority may act, they may act without consultation with the minority.' Where apprais- ers are appointed by statute to act between individuals and the state, it is matter of " public concern," and the majority may act, when all have met; and the contrary direction will not be inferred from the repetition of the conjunction ' Fitoli V Com'rs, etc., 22 Wend. (N. Y.) Austin v Helms, 65 N. C. 660 : 132 ; Wolcott V Wolcott, 19 Vt. 37. Stewart v Wallis. 30 Barb. (N. Y.) 344 : , p^j^^^j ^o., v Lincoln, 9 Ark. 320 ; People V Hynds, 30 N. Y. 470; s. c, 27 g^^^^ ^ WilkesviUe, 20 Ohio St. 288 ; Barb. (N. Y.) 94 ; People v Nichols, 52 N. Y. 478 ; People V Williams, 36 N. Y. 441, over- feeler v Frost, 22 Barb. (N. Y.) 400 ; mline Tucker v Rankin, 15 Barb. (N. g^j^^^j^^ ^ j^^^^,^_ 3^ ^^^^ ^^^ y_j 3^^ . = See People v Walker, 23 Barb^. (N. Y.) People ij- Williams, 36 N. Y. 441. 304, and cases cited. " Joli»son v Dodd,. 66 N. Y. 76. I T« n, Qi 1 floTi c* ono See.also,Peqpl6D.Batcbelflr,22N.Y.128. ' Jefierson Co., V Slagle, 66 Pa. St. 202 ; 114 Chap. VIII.] APPOINTMENTS § 111. "and" between each of the names after the first, or from the name of the dissenting appraiser being first stated, or from the use of the word " their " in describing the opinion of the appraisers, or the certificate to be given.' Where the statute, expressly or by necessary imphcation, requires all or a certain number to act, the act of a smaller number is of no more legal validity than the act of the same number of private individuals ; " and in such a case the act is not valid, if it is begun when the requisite number is present, and the minority departs, although wrongfully, before its consummation. § 111. Requirement that all shall meet; substitution of notice for presence. — Obviously a rule, which requires aU the members of a body exercising powers of. a public nature, to meet, before the majority can perform any valid official act, must often lead to delay and ineffi- ciency in the transaction of the public business. This inconvenience is often obviated by a statutory provision enabling a majority to act; and with reference to corpor- ations, including municipal corporations, the English authorities relax the strictness of the rule, by allowing a quorum or a majority of the whole number of the gov- erning body, to act at the stated meeting of the body, where all are bound to attend, or at a special meeting of which all have had notice. In the case formerly cited, wherein the general rule was laid down, that all the persons empowered must meet, the lord chief justice added, that the cases of corporations go further; there it is not necessary that all should meet; it suffices if notice to all be given; and thereupon a majority, or a lesser number, according as the charter may be, may meet; and when they have met, they become just as competent to decide as if all had met." In a previous case, it had been said : " It cannot ' People V Nichols, 52 N. Y. 478. ' Ex parte Rogers, 7 Cow. (N. T.) 586. ' Parsons v Pettlngell, 11 AUen (Mass.) • Grindlay v Barker, 1 Bos. & Pul. 229, 507. per Eyre, Ch. J., p. 236. 115 § 112. PUBLIC OFFICERS [Book II. be disputed that wherever a certain number are incor- porated, a major part of them may do any corporate act; so if all are summoned and part appear, a major part of those that appear may do a corporate act, though nothing be mentioned in the charter of the major part." ' § 112. American authorities relating to non-attend- ance after notice. — This principle has been applied by some of the American authorities, particularly in the state of New York, to the acts of public officers, and other persons exercising powers of a public nature, where there is no statutory, provision in the way of such application, and even where the common law rule, as declared by the English courts, has been substantially embodied into a statute. In the earliest case where this modification of the common law rule was suggested, the court, referring to the three trustees of a school district, said: " There can be no doubt that . . . two could contract against the will of the third, if he was duly notified or consulted, and refused to act." ' And in a subsequent case in the same state, referring to the same officers, it was said: "The rule of the common law, which is now declared by stat- ute, that where an authority is to be exercised by more than one officer, they must all concur in its exercise, or all meet and consult and a majority agree to the act, is subject to the necessary qualification, that if one is noti- fied to attend and refuses, it is the same as if he had attended and dissented from the act." ° And this rule is now well recognized by the courts of New York,' ■ Att'y Gen. v Davy, 3 Atk. 212. ' Horton v Garrison, 23 Barb. (N. Y.) 176, See also Rex v Miller, 6 T. R. (D. & E.) per Emott, J., p. 179. ^^ ' ' Woolsey v Tompkins, 23 Wend. (N. Y.) Blacket i> Blizard, 9 B. & C, 851 : g^^ . Rex V Langhorne, 6 N. & M. 203 : 4 A. p^^^ ^ ^ynan, 22 Barb. (N. Y.) 137 ; ■^ ^- ^^' People V Walker, 33 Barb. (N. Y.) 304 ; » McCoy V Curtice, 9 Wend. (N. Y.) 17, 2 Abb. Pr. (N. Y.) 421; per Sutherland, J., p. 19. In re Church Street, 49 Barb. (N. Y.) 4S5; 116 Chap. VIII] APPOINTMENTS. § 114. and by some of the courts elsewhere;' and it commends itself for universal adoption, by its reasonableness, and its tendency to avoid impediments to the transaction of pub- lic business. § 113. Sufficiency of notice; effect of participation.— As to the suflBciency of the notice required, in order to enable the majority to act in the absence of the minority, it seems that a reasonable notice suffices; and whether a notice is or is not reasonable, will depend upon the cir- cumstances of each particular case." Where a member of a county board objected to the validity of a special meet- ing, on the ground of a defective notice thereof, it was held that by attending at and participating in the meet- ing, he waived all defects in the notice." § 114. Stated and statutory meetings. — Where a body has established rules or by-laws, fixing the times and places of its stated meetings, all the members are deemed to have notice of such stated meetings, and an appoint- ment may be made at such a meeting, without special notice to the absentees.' But where the board of alder- men of a city appointed a day for the choosing of a city officer, and at an intervening stated meeting rescinded the People V Supervisors, 10 Abb. Pr. (N. Schenck v Peay, 1 Woolw. (U. S.) 175, Y.) 233; 18 How. Pr. (N. Y.) 152; afiE'd per MUler, J. p. 187. 21 How. Pr. (N. Y.) 288: See also P'plei; Harrington, 63 Gala. 257; GUdersleeve v Board of Education, 17 Walker v Rogan, 1 Wis. 597. Abb. Pr.(N.y.)201, per Daly, F.J.p.211; ^ Whiteside v People, 26 Wend. (Sn.) People D Batcbelor, 22 N. Y., 128 : afC'g gg^^ ^^^-.^^ p ^.^ 23 Wend. (N. Y.) 9. 28 Barb. (N. Y.) 310; ggg_ ajgo people u Walker, 23 Barb. People i! Nicliols, 52 N. Y., 478. (jj_ y.) 304 ; The New York statute on this subject People v Batchelor, 28 Barb. (N. Y.) was amended in 1874, so as to incor- gjQ . g^g,^ gg jj y. 128 ; porate this rule into it, and to aUow a j^^g Church Street, 49 Barb. (N. Y.) 455. majority to act, where one or more ,.„„.. ^= t o^i , „i J. J i <:• i XT -c- t> s Mitchell D Horton, 75 Iowa 271. shall have died, etc. See 4 N. Y. R. S. (8th ed.) 2726. * Gildersleeve v Board of Education, 17 ■ WiUlams D School District, 21 Pick. (Mass.) 75, per Shaw, Ch. J. j. 82 ; State V Gulney, 26 Minn. 313 ; Abb. Pr. (N. Y.) 201, at p. 208 ; People V Batchelor, 22 N. Y. 128, aff'g 28 Barb. (N. Y.) 310. 117 § 115. PUBLIC OFFICERS [Book II. resolution, and determined to proceed immediately to the selection, some of the aldermen being absent and having had no notice of the change; it was held that the appoint- ment -was void.' Where the day of the meeting of the mayor, aldermen, and city council for the election of city officers is fixed by statute, one half of the aldermen can- not defeat an election by absenting themselves, so as to leave that board without a quorum. They are bound to be present at all times when the board is in session, till the election is made, and if a recess or adjournment is takeh', they are bound to take notice of the time of meet- ing.' But where a statute empowered and directed the township trustees of a county to meet on a day specified, and appoint a county superintendent, but gave no direc- tion as to the number requisite to form a quorum or the manner of election; and the township trustees, ten in nmriber, met at the appointed day, and, after balloting unsuccessfully until noon, adjourned to a fixed hour of the next day; and only five attended at the adjourned meeting, who appointed a person county superintendent; it was held that the common law rule requires the pres- ence of a majority to render an appointment valid, and that therefore the appointment was void.' Where town officers, on the day fixed by statute, met and appointed A town treasurer, and then adjourned to a day certain to enable him to accept or decline the appointment; and on that day he appeared and declined, whereupon they adjourned to another day certain, and on that day appointed B; it was held that B was lawfully appointed, and that the former incumbent did not hold over.' § 115. Doctrine extended to jury to appraise damages. — The constitution of New Xork provides that "when private property shall be taken for any public use, the > People V Batchelor, 33 N. Y. 128. s Rtatp v Porter, 113 Ind. 79. ' Kimball v Marshall, 44 N. H. m. * Carter v McFarland, 75 Iowa 196 118 Chap. "VIII, ] APPOINTMENTS § 117. compensation to be made therefor, when such compensa- tion is not made by the state, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law." It has been held that the appraisal of property thus taken, by two of three commissioners, at a meeting of all, the third dissenting, is valid, and not prohibited by the con- stitutional provision;' and that where a jury of twelve men has been appointed, the same rule applies, so that a majority may decide under the same circumstances." § 116. Rules relating to appointments made by two or more separate bodies. — Where the power of appointment to an oflSce is conferred by statute upon two or more bod- ies, and no provision for a quorum is made, nor is it pro- vided that they shall act separately, the rule is that, all the members of all the bodies must meet together for consultation, or all must be notified so to meet; and there- upon if the majority of those present constitute a majority of all the members of all the bodies, they may proceed to make the appointment." But even where the law requires a joint ballot, an appointment by the separate ballot of each body is at least sufficient to give color of title to the office.' § 117. The same subject. — Where a power to appoint is given by statute to two bodies, with a provis- ion that if they disagree in their nominations, they shall meet, and the appointment shall be made by joint ballot, if one body nominates, and the other refuses to nominate, ■ In re Broadway widening, 63 Barb. (N. Abb. Pr. (N. Y.) 201 ; Y.) 572. Comm. v Hargest, 7 Pa. County Court, See also, In re Churcli Street, 49 Barb. 333. (N. Y.) 455. ' See also, Davenport v HuU, 18 Wend. » Cruger « Hudson R.R. Co. 12 N.Y. 190. (N.Y.)510; Canniff v Mayor, etc. i E. D. Smith, s People V Walker, 23 Barb. (N. Y.) 304 ; jjj y.) 430. GUtosieeveTB^rfof Education, 17 ' Belfast v Morrill, 65 Me. 580. 119 § 118. PUBLIC OFFICERS [Book II. the effect is the same as if the nominations did not agree, and the appointment must be made by joint ballot. ' And, under the same statute, where the two bodies met, pursu- ant to an invitation from one body to meet for the pur- pose of making a particular appointment; and, one body being much more numerous than the other, it was resolved by a majority of the whole number to proceed to make the appointment, whereupon the smaller body refused to act upon the question of the appointment, and all the members thereof left the room; and a majority of the members of the other body, who constituted a major- ity of the joint meeting, proceeded to make the appoint- ment; it was held that the appointment was valid." § 118. Rule when majority or officer refuses to obey statute. — Where a statute authorizes a county board to appoint a county treasurer, if at least eleven of the twenty members are present; and a majority of those so present either refuse to vote, or vote in a manner different from that prescribed by law, (as by voting vivd voce where the law requires them to vote by ballot) ; a minority, com- posed even of a single member, is sufficient to make an appointment. The presence of a quorum of the members is not required to be proved by the legal votes actually given, but may be established by other proof, like any other fact in the case.' Where a statute provides that the justices of the peace of a county shall meet on a spec- ified day on the call of the county judge, and elect associ- ate judges of the court of quarter sessions; that the county judge shall preside at, and the county clerk be clerk of, the meeting; and that the county judge and the county clerk shall execute the certificate of the election; the ' Ex parte Humphrey, 10 Wend. (N. Y.) 634, rev'g p. r. 23 Wend. (N. Y.) 9. 613. See, also, Cannifl v Mayor, etc.. See also, Kimball v Marshall, 44 N. H. 4 E. D. Smith (N. Y.) 430. 465. ' Whiteside v People, 26 Wend. (N. Y.) ' Comm. v Read, 8 Ashm. (Pa.) 261. 120 Chap. VIII. J APPOINTMENTS § 120. presence of the county judge and of the county clerk is not essential to the validity of the proceedings; and if the county judge refuses to call the meeting, and the county clerk refuses to attend, the justices may meet on actual notice to all, and then, or at an adjourned day, may make a valid appointment.' § 119. Construction of votes where two separate bodies act. — Where the ordinances of a city provided. for the appointment of an officer, by the concurrent vote of both branches of the city government; and the board of alder- men refused to concur with the common council in the appointment of A; but at an adjourned meeting declared A elected to the office on its part; and notice of both votes was given to the common council, which non-concurred with A's appointment, and appointed B on its part, and notified the board of aldermen of both votes; whereupon that body concurred in B's appointment; it was held that A had not been appointed by a concurrent vote, and that the record of the clerk of the board of aldermen, stating that the vote of that body in its favor was in concurrence with the vote of the common council appointing him, was controlled by the whole record, which showed that the vote at the second meeting was independent." § 120. Whether power is judicial; when member of appointing body may not be appointed. — It was said in one case in New York, that "the exercise of the power of appointment to office is a purely executive act;" ' but the learned judge who made that remark was arguing that it was not a legislative act. In other cases in the same state, it has been held that an appointment to office is a judicial act, and that if jurisdiction appears, it cannot be > People V Campbell, 2 Gala. 135. ' /" re Achley, 4 Abb. Pr. (N. Y.) 35, per » Savinders v Lawrence, 141 Mass. 380. Daviea, J. 121 § 121, PUBLIC OFFICERS [Book II. questioned collaterally." And the principle, which pre- vents a person exercising judicial powers from having an interest in a question before him, has been extended to an appointment to an oiiice by a body. Thus where a statute conferred upon any three of the justices of the peace of a town the power to appoint a town officer, and, the four justices of the town having met, three of them concurred in appointing one of their own number, the fourth refusing to concur and to sign the warrant; it was held that the appointment was not lawful, and that the former oflBcer held over under the statute." § 131. Validity of action previously settled by " cau- cus" of majority. — It was held that an agreement by certain members of a board of education, to purchase cer- tain books for the schools, and to ratify the contract at a meeting of the board, was unlawful, on the ground that it was contrary to public policy for members of a board of officers, who ought to meet and discuss with their asso- ciates the questions upon which they are to vote, to agree beforehand how they will vote at a future meeting.' But in another case, it was held that a preliminary meeting or "caucus" of the members of the common council of a city, constituting a majority of the body, at which a per- son was selected as the candidate for a city office, who was subsequently appointed at a regular meeting, did not invalidate the appointment, the case being distinguished from the one last cited, on the ground that the latter was an action on an executory agreement, whereas in this case the transaction was executed." > Wood V Peake, 8 Johns. (N. Y.) 69 ; Comm. i) Douglass, 1 Binn. (Pa.) 77 ; Wildy V Washburn, 16 Johns. (N.Y.) 49 ; State v Hoyt, 2 Oreg. 246. People V Seaman, 5 Denio (N. Y.) 409. See also post, §g 610-613. " People V Thomas, 33 Barh. (N. Y.) 287, = MoCortle v Bates, 29 OhioSt. 419. Accord, Klnyon v DuchSne, 21 Mich. , p^^pj^ „ gj^^^n^ g ^^^_ jj_ ^ ^_ Y.) *88i 456. 122 Chap. IX.] ELECTION BY THE PEOPLE CHAPTER IX ELECTION BY THE PEOPLE CONTENTS Sec. 133. Popular elections regulated by special provisions in each state; general rules only to be considered here. I. Nature of and right to the elective franchise; and how it is conferred and regulated. 133. Right to vote is a franchise, and is granted or denied as state deems expedient; the people, as a political body, are those entitled to vote. 134. Congress has power to declare who is a citizen; otherwise states have exclusive power to regulate franchise; effect of the 14th and 15th amendments to the U. S. constitu- tion. 135. State exercises its power through its constitution, and a statute making a different provision is unconstitutional; instances. 136. But a statute superadding requirements, not inconsistent with the constitutional requirements, is vaUd; instances. 127. Legislature has power to regulate political caucuses and conventions, and to ratify imlawful elections. 11. Who is, and who is not, entitled to vote at an election. 138. Generally, only citizens can vote. Each state determines who are citizens thereof, subject to the 14th amend- ment of U. S. constitution; children of citizens sojourn- ing abroad are citizens; presumptive evidence of ahen's naturalization. 129. Women not entitled to vote, unless so expressly prescribed; this question not affected by 14th amendment to U. S. constitution; effect of provision giving suffrage to males. 123 PUBLIC OFFICERS [Book IL Sec. 130. Voter must have attained majority; when a man is deemed of age; provision excluding lunatics, etc., does not apply to one enfeebled through age, etc., or subject to haUucinations, etc. 131. Residence, provisions as to; domicil deemed residence; when residence not lost or gained by absence, attend- ance at college, etc., and vice versa; rule as to an inmate of an almshouse, asylum, etc. III. Validity and effect of registration laws. 133. Power of legislature to enact registration law, where consti- tution of state is silent upon that subject;, regulations must be reasonable, etc. 133. Various ruUngs, as to whether particular regulations in registration acts are constitutional. 134. The same subject. 135. Legislature has power to exclude from voting, those who fail to be registered; when those who applied in season are entitled to be registered after expiration of time. 136. Whether powers of board are judicial, and whether mem- bers are liable to private actions. 137. Effect upon the election of the unconstitutionality of the registration law; or the misconduct of the registration officers. 138. Proceedings of registration boards not invalidated by for- mal errors, etc. ; instances. JV. Generai principles respecting elections and voting thereat; ballots; defective ballots. 139. Where majority of aU. the votes not expressly required, a pluraUty wlU elect; absentees deemed to assent to result; rule where two or more officers of the same designation are to be chosen. 140. Whether a statute, prescribing the mode of voting to secure " minority representation," or for "cumidative voting," is constitutional. 141. Voting by proxy not allowed; when voting not deemed to be thus made; voting in instalments at different times not allowed, although the first voting was unlawful. 124 Chap. IX.] ELECTION BY THE PEOPLE Sec. 142. "Australian" or other "reformed" "system of voting;" rules respecting its constitutionality; also provisions con- fining the voting to formally nominated candidates. 143. Voting by ballot; printed ballot equivalent to written ; con- stitutionality and construction of statutes, forbidding distinguishing marks, etc. ; and providing for number- ing ballots, so as to correspond to the poll lists. 144. Various rulings as to whether statutes prohibiting distin- guishing marks, etc. , apply to particular cases. 145. Ballot having too many names for one office void; but only as to that office; rules where a name is defectively given; or an erasure, etc. , or the substitution of another name is imperfectly made. V. Rules of construction of statutes regulating the time, place, and manner of holding elections, and the notice thereof. 146. General rule that election is not valid, unless held as pre- scribed by statute; but statutory regulations deemed directory as to matters of form and detail, etc. 147. The same subject; instances where directory provisions disregarded. 148. Generally, statutory directions as to time of holding elec- tion are deemed mandatory; but slight variations, which do not aflEect the result, will be disregarded. 149. So statutory directions as to place of holding election, are generally mandatory; but under special circumstances election may be held at another place; instances. 150. Notice required by statute is essential, where time and place are not fixed by statute; where so fixed, not essen- tial; reason for rule. 151. Instances where elections invalid for want of notice. 153. Instances where elections valid or invalid when notices are not given. VI. General powers and duties of inspectors or judges of election, and of canvassers. 153. The "duties of inspectors or judges of election are merely ministerial, although they are bound to decide as to voters' qualifications. 154 Instances where inspectors have or have not power to decide as to qualifications. 125 § 122 PUBLIC OFFICERS [Book II. Sec. 155. After board has counted votes and made statement, it is functus offleio, and members cannot reassemble and make new count, or subsequent statement, which will be valid. 156. So canvassers' duties are ministerial, and they must act upon inspectors' returns; but they must decide whether returns are regular on their face Mandamus to com- pel action. 157. Further rulings as to mandamus; canvassers must accept returns of majority of inspectors; cannot reassemble and act anew, after having once completed the canvass and made certificate. 158. When canvassers may, and when they cannot, aUow a candidate defective ballots, or ballots wherein his name is inaperfectly given. 159. Where ballots are rejected by canvassers as defective, remedy is by a judicial proceeding to test the title to the office. In such a proceeding, the canvassers' certificate is prima facie evidence only. VII. Rule where the successful candidate cannot lawfully hold the office. 160. English rule that validity of a vote depends upon voter's knowledge of disqualification; that votes thus cast are rejected; and if majority is overcome thereby, next highest candidate is chosen. 161. American cases following this rule. 163. The same. 163. But the weight of the American authorities establishes the rule, that in such a case the election fails, and a new election must be held, unless votes expressly declared to be void. So if successful candidate had died before election. § 133. General rules regulating popular elections. — Popular elections, including those which are general, as relating to the entire state, and those which relate to particular political subdivisions of the state, are regu- lated in the constitution and statutes of each of the states of the Union, with a comprehensiveness of subjects, and a minuteness of details, proportioned to their vast import- 136 Chap. IX.] ELECTION BY THE PEOPLE § 123. ance in our system of government. With a few excep- tions, embodied in the constitution of the United States, the right of suffrage, the mode in which it is exercised, the eligibility of persons to office, and all other matters connected with elections, are regulated by each state, in accordance with its own ideas of convenience and public policy. The questions, which have arisen upon the consti- tutional and statutory provisions of the different states, relating to elections, are numerous, and have often proved to be difficult. To attempt to discuss them in detail is foreign to the plan of this work. We shall accordingly confine our remarks, in this chapter, to the consideration of a few general principles governing the subject. I. Nature of and right to the elective franchise; and how it is conferred and regulated. § 133. Right to vote a franchise; the people, as a polit- ical body. — Participation in the choice of public officers by the people is not a right, but a franchise; and it is granted or denied at the pleasure of the state, on grounds of general policy, the prevailing rule being, in this coun- try, that it should be as general as possible, consistently with the public safety and the public benefit.' Accord- ingly the right to vote may be granted or withheld at the pleasure of the state.' And in speaking of the people, as a body politic, as when we say that the sovereignty of the state is vested in the people, we speak only of those of the inhabitants, who are invested with political power; so that, for political purposes, the expressions ' ' the people " and ' ' the qualified voters " are synonymous. ' 1 Cooley Const. Lim., 5 ed., 752 (* 599.) Minor i) Happersett, 31 Wall. (U. S.) 162 * 2 Van Valkenburg v Brown, 43 Cala. 43 ; Anderson c Baker, 23 Md. 531 ; Blair v Ridgely, 41 Mo. 63 ; People V Barber, 48 Hun (N. Y.) 198 ; Huber v Rfiily, 53 Pa. St. 113 ; ' Blair v Ridgely, 41 Mo. 03 ; Cooley Const. Lim., 5 ed., 37 (* 28, * 39.) 137 United States v Reese, 92 U. S. 214 ; United States v Cruikshank, 92 U. S. 543; § 134. PUBLIC OFFICERS [Book II. § 134. Powers of congress and the states ; effect of 14th and 15th amendments. — Before the fifteenth amend- ment to the constitution of the United States, the power to regulate the elective franchise was under the exclusive control of the state in which it was to be exercised, sub- ject to the exception, that under the constitution of the United States, a state could not prevent a person, who was qualified to vote for members of the lower house of the state legislature, from voting for representatives in congress: and congress had no power to legislate directly concerning the qualifications of voters, or otherwise to give or take away the right of suffrage. ' But some com- paratively recent cases have held that congress has an indirect power to affect the qualifications of voters; for since the state constitutions generally require that a voter should be a citizen of the United States, and con- gress has the power to regulate such citizenship, it has been ruled that an act of congress, enacted during the late civil war, declaring that any person deserting from the military or naval forces of the United States should forfeit his citizenship, has the effect to take away from such a deserter the right to vote under the state laws.^ It has been decided by the supreme court of the United States, that the fourteenth amendment to the constitution of the United States, which prohibits any state from depriving any person of life, liberty, or property, without due process of law, or from denying to any person within its jurisdiction the equal protection of the laws, adds nothing to the right of one citizen against another, and » Huber v Relly, 53 Pa. St. US. See also United States v Anthony, 11 Blatch. Anderson v Baker, 23 Md. 531 ; (U. S.) 200. Kinneen V Wells, 144 Mass. 497 ; , g^^^^ ^ Symonds, 57 Me. 148 ; Austin B State, 10 Mo. 591: Huber « Reily, 53 Pa. St. 118. See also Blair 1) Ridgely, 41 Mo. 63; Gotcheus v Matheson, 68 Barb. (N. Ridley V Sherbrook, 3 Goldw. (Tenn.) y.) 152 ; 5 Lans. (N. Y.) 214, rev'd, on State V Staten, 6 Coldw. (Tenn.) 283 ; 128 another ground, 61 N. Y. 420. Chap. IX.] ELECTION BY THE PEOPLE 135. does not confer the right of suffrage upon any one. Nor does the fifteenth amendment, providing that the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state, on account of race, color, or previous condition of servitude, confer the right of suffrage upon any one; it merely pre- vents the states, or the United States, from giving a preference, with respect to that right, in favor of one citizen over another, on account of race, color, or pre- vious condition of servitude; so that if the citizens of one race, having certain qualifications, are permitted by law to vote, those of another race, having the same quali- fications, must also be allowed to vote.' § 125. The state executes its power through its con- stitution; unconstitutional statutes.— The power of the state to regulate the elective franchise is exercised uni- versally by means of provisions in the constitution of each state; and, under a familar rule of constitutional law, any act of the legislature, which has the effect to withhold the elective franchise from any person to whom the constitution grants it, or to grant it to any person who does not possess the qualifications which the consti- tution requires, or to prescribe a mode for its exercise different from the mode prescribed in the constitution, is unconstitutional and void, and will be declared so to be by the courts." That a person hereafter naturalized shall ' United States v Reese, 92 IT. S. 214; ' State u Adams, 3 Stew. (Ala.) 231 ; United States v Cruikshank, 92 U. S. Risen v Farr, 2i Ark. 161 ; 542. See also Minor v Happersett, 21 Bourland v Hildreth, 26 Gala. 161 ; WaU. (U. S.) 162 ; Quinn v State, 35 Ind. .485 ; Ex parte Yarbrough, 110 U. S. 651. Morris v Powell, 125 Ind. 281 ; Accord, Van Valkenburgh v Brown, 43 State t! Symonds, 57 Me. 148 ; Gala. 43. Kinneen « WeUs, 144 Mass. 497 ; A state lias jurisdiction to punish ille- Twitchell v Blodgett, 13 Mich. 127 ; gal voting at an election for electors St. Joseph, etc,. R. R. Comp'y v Buc- of president and vice-president of hanan County Court, 39 Mo. 485 ; the United States. In re Green, 134 U. S. 377. 129 § 126. PUBLIC OFFICERS [Book 11. not be entitled to vote within thirty days after his naturalization, is unconstitutional, as it imposes a condi- tion not recognized in the constitution. ' So is a statute requiring that a voter should have been a resident of the town, city or ward, for a certain length of time before the election, where the constitution does not contain such a restriction;" or prescribing a longer period for such residence than the constitution prescribes;' or imposing a test oath which the constitution does not recognize.* Other illustrations of this principle will be found in the cases cited in the first note to this section. § 126. The same subject ; instances of valid statutes. — But a statute superadding certain requirements, which are not inconsistent with the constitutional provisions, is valid. A striking illustration of this rule is found in the doctrine relating to the registration laws, presently to be considered.' Thus a statute providing that each voter shall vote only in the district of his residence, is not inconsistent with a constitutional provision that a person, who has resided a certain length of time in the state and county, is entitled to vote, as the statute only fixes the place where he shall exercise his constitutional right." states Corner, 22 Nebr. 265; ^^ ^^ „f congress may forfeit a Davies v McKeeby, 5Neva. 369 ; ^^^,g eitizenship as a punishment Clayton v Harris, 7 Neva. 64 ; ^ ^^ desertion during the war, an act Barker v People, 3 Cow. (N. Y.) 686 ; ^^ ^ ^^^^^ legislature, to the same People V Canaday, 73 N. 0. 198; ^g^^^^ Is unconstitutional, where the Monroe v Collins, 17 Ohio St. 665 ; constitution prescribes the qualifloa- State V Constantine, 42 Ohio St. 437 ; tions of voters. McCaflerty v Guyer, Daggett V Hudson, 43 Ohio St. 548 ; 59 Pa St 109 Chase 1! Miller, 41 Pa. St. 403; State V Staten, 6 Coldw. (Tenn.) 233 ; ' Kinneen v Wells, 144 Mass. 497. United States v Slater, 4 Woods (U. S.) " Quinn v State, 35 Ind. 485. ^^ ' ' People D Canaday, 73 N. C. 198. Randolph v Good, 3 W. Va. 551 ; State V Williams, 5 Wis. 308; ' ^i«°^ ^ ^^"' "'^ ^''^- l^l- See also State V Lean, 9 Wis. 279 ; O''™^ v McKeeby, 5 Neva. 369. State V Baker, 38 Wis. 71 ; « Post, §§ 132 to 138. State V Tuttle, 53 Wis. 45. . Dygon v Pope, 71 Ga. 205. Although, as was shown in 9 124, cmte, 130 Chap. IX. J ELECTION BY THE PEOPLE § 128. So is a statute providing that one holding a certain office shall not vote, as the acceptance of the office is a waiver of his constitutional right;' and the same rule applies to a statute declaring certain persons ineligible to office, or to certain offices.'' And a statute is not unconsti- tutional, which requires a person offering his vote to answer questions relating to his qualifications.' And it has been held in Kentucky, that a statute, rendering the payment of taxes essential to the right to vote for town officers, is valid, although the constitution contains general provisions respecting the right to vote, which do not specify such a condition, on the ground that the constitu- tional provisions apply to general and not municipal elections." § 127. Power of legislature as to conventions, caucuses, and unlawful elections. — The power of the legislature extends to the regulation of political conventions, and political primary meetings or caucuses;' and to the ratification of an illegal election, and the recognition of the title of a person to an office; so that a statute thus providing prevents the state from questioning the latter's right to the office upon quo warranto, or otherwise." II. Who is, and who is not, entitled to vote at an election. § 128. Generally only citizens may vote ; who are citi- zens. — In considering this question, we shall. confine our- selves to such provisions of the constitutions and statutes of the states on this subject, as are of general application, omitting those which are only locally applicable, or relate merely to matters of detail. In most of the states, the right to vote is confined to citizens, although, in some of 1 state V Adams, 2 Stew. (Ala.) 231. * Buckner v Gordon, 81 Ky. 665. ■■ People V Clute, 50 N. Y. 451, rev'g 63 « In re House Bill, 9 Colo. 631; Barb. (N. Y.) 356, and afTg 12 Abb. Leonard u Comm., 112 Pa. St. 607. Pr. N. S. (N. Y.) 399. . People v Flanagan, 66 N. Y. 237, afl'g 5 » State 1) Lean, 9 Wis. 279. Hun (N. Y.) 187. 131 § 139. PUBLIC OFFICERS [Book II. the western states, an alien, who has declared his inten- tion to become a citizen, is allowed to vote under certain specified restrictions. As a general rule, each state determines for itself who are its citizens, subject to the United States naturalization laws ; but now the constitu- tion of the United States declares that all persons born or naturalized in the United States, and subject to the juris- diction thereof, are citizens of the United States, and of the states wherein they respectively reside.' This provi- sion supersedes several previous rulings of the courts relating to citizenship. It has been held in several cases, and doubtless the provision referred to does not affect the principle, that the child of an American citizen, born in a foreign country, during the temporary sojourn of the father there, is a native citizen." In an action in the nature of a quo warranto to test the title to an office, where the evidence as to a particular voter was only that he was alien born, it was held that the presumption was that he had been duly naturalized ; but that, if there was prima facie evidence that he had not become' a citizen, the burden of proving that he had been naturalized was cast upon the party desiring to retain his vote.' § 129. Right of women to vote. — The question whether, in the absence of an express constitutional or statutory provision, confining the right of suffrage to male citizens, a woman is entitled to vote, is analogous to the question arising upon the right of a woman to hold office, which has already been considered." And the fourteenth amendment to the constitution of the United States, not- withstanding its general language, does not operate to ' U. S. Const., Amendment XIV. (S. C.) 38 ; Altter, if only the mother is a citizen. ' State V Adams, 45 Iowa, 99 ; Oldtown V Bangor, 58 Me. 353 ; CampbeUDWallace, 12N. H 362,' ,„ , „ „„ xr , T ji T ji _, oi T3 1, /XT TTijui!. Pcople V Peaso, 27 N. \. 4d, aff'g 30 Lndlam v Ludlam, 31 BarD. (N. Y.) 486 ; . t. ,. -..t -.- > ,„ Davis V Hall, 1 Nott and Mc 0. (S. C.) 292. Sasportas v De la Motta, 10 Rich. Eq. 132 Barb. (N. V.) DS8. * Ante, §§ 68-70. Chap. IX.] ELECTION BY THE PEOPLE § 131. confer the right of suffrage upon women.' Where the constitution of a state declares that every male citizen, possessing certain qualifications, is entitled to vote, this excludes females; and a woman, possessing the other qualifications, who attempts to vote at an election, is punishable under a statute against attempting to vote illegally.' § 130. When a man is deemed of age ; application of provision excluding lunatics, etc. — The requirement is universal that the person offering his vote shall have attained his majority. The rule in this case, as in others where the question arises, is that fractions of a day are disregarded, and a person is deemed to have attained his majority, at the beginning of the last day of his twenty- first year. ' Most of the states also exclude idiots, luna- tics, and persons of unsound mind. This provision does not apply to a person whose mind has become greatly enfeebled by illness or old age;' and with respect to actual lunatics or idiots, probably they would be excluded without an express provision to that effect." A person laboring under hallucinations or delusions, not relating to political matters, and not to such an extent as to pre- vent his transacting ordinary business, is not excluded by such a provision." § 131. Provisions as to residence ; domicil deemed residence; absence, etc.— Residence for a specified period in the state is also a universal requirement, and in nearly 1 Minor v Happersett, 21 Wall. (U. S.) C. P., 397 ; 1 Hopw. & C, 42. 162. See also ante, 1 124. a State v Clarke, 3 Harr. (Del.) 557 ; » People V Barber, 48 Hun (N. Y.) 198. Wells D Wells, fi Ind. 447 ; Accord, under an English statute, Hamlin d Stevenson, 4 Dana (Ky.) 597; allowing '• a man ' ' to vote, Chorlton Danvers v Boston, 10 Pick. (Mass.) 512. V Lings, 4 L. R.. C. P. 374 : 38 L. J. 4 sinks v Reese. 19 Ohio St. 3(16. C. P., 25: 19 L. T. Rep., rOi: 17 W. ^ R. 284 : 1 Hopw. & C. 1. See also Chorlton v Kessler, i L. R., » CUrk v Robinson, 88 HI. 498. 133 § 131, PUBLIC OFFICERS [Book II. all the states residence in the county, town, and elec- tion district, for specified periods is also required. The questions, whether under particular circumstances a per- son is deemed or not deemed a resident, and those relat- ing to the loss or retention of a residence once gained, are substantially the same in cases involving the right to vote, as in the numerous other branches of the law where the same questions arise; and do not call for an extended examination here. The general rules are, that for the purpose of voting, a person's domicil is deemed his residence;' and that he does not lose his residence by absences, however long and frequent, as long as he has an animus revertendif even although he may have unlawfully voted in the place where he was sojourning.' So, although it is provided in the constitution or by statute, that a person shall not gain or lose a residence by his attendance at a college or other institution of learning, that does not prevent one from gaining a resi- dence in the place where the college which he attends is established, if he actually manifests an intent to make that place his permanent home, irrespectively^ of the collegiate course." An interesting and instructive deci- sion, arising upon a constitutional provision, to the effect that a person shall not be deemed to have gained or lost a residence, while an inmate of any almshouse or other ' Preston v Culbertson, 58 Cala. 198; Sturgeon v Korte, 34 Ohio St. 525 ; Fry's case, 71 Pa. St. 303, and oases Fry's case, 71 Pa. St. 302 ; there cited. State v Aldrich, 14 R, 1. 171. In a case of doubt, the question of For rulings on the question of resi- residence is for the jury. People dence, with respect to the right to V Teague, 106 N. 0. 576. hold office, see ante, § 80. Residence once acquired continues , -^^^g^j „ g^j^j^^ ^ ^^.^ ^ . until a new one is acquired, or clear p^^^.^ ^ g^^^.^^ j^ j,j^_ ggg . evidence of abandonment of the for- jj^g^^j ^ jj^^ ^ jjj ^ . mer residence is produced. p^^.^^ ^ ^^j^^^^ ^3 j^^ j^ . Kreitz V Behrensmeyer, 125 111. 141 ; Wilbraham v Ludlow, 99 Mass. 587. Moffett D Hill, 131 111. 239 ; Harbaugh v Cicott, 33 Mich. 241 ; ' ^'^^^'' ^ "^^^'"^' ^ ^ll' ^^■ * Sanders .1) Getchell, 76 Me. 158. 134 Chap. IX.] ELECTION BY THE PEOPLE § 132. asylum, at public expense, is cited at length in a subse- quent portion of this chapter. ' III. Validity and effect of registration laws. § 132. Power of legislature to enact registration laws when constitution is silent. — The constitutions of some of the states allow or require, while those of others expressly forbid, the passage of registration acts. Where the constitution is silent upon the subject, it is settled by preponderating authority that the legislature has power to pass a registration act, and to exclude from the right to vote those who fail to comply with its provisions, pro- vided that the regulations are "subordinate to the enjoy- ment of the right to be regulated. The right must not be impaired by the regulation; it must be regulation purely, not destruction." ' It was said by Shaw, Ch. J., in a case decided in 1832, that the registration law does not add to the constitutional qualifications; that the constitutional provisions, respecting the qualifications of voters, neces- sarily require an examination of the voter^s claim to vote ; and consequently that if the constitution " has made no provision in regard to the time, place, and man- ner, in which such examination shall be had, and yet such an examination is necessarily incident to the actual enjoyment and exercise of the right of voting, it consti- tutes one of tho"Se subjects, respecting the mode of exer- cising the right, in relation to which it is competent to the legislature to make suitable and reasonable regula- tionSj not calculated to defeat or impair the right of voting, but rather to facilitate and secure the exercise of that right." " The same principles have been recognized > Silvey v Lindsay, 107 N. Y.56, cited ' Page B Allen, 58 Pa. St. 338, per Thomp- ■poO,, § 154. son, Ch. J., p. 347. ^ Capen v Foster, 12 Pick. (Mass.) 485, per Shaw, Ch. J., p. 492. 135 § 133. PUBLIC OFFICERS [Book II. in numerous other cases." But it was held in Oregon, that where the constitution prescribes the qualifications of voters, a statute imposing the additional requirement of registration is unconstitutional." § 133. Various rulings as to particular regulations in registration acts. — Whether a particular regulation is or is not " reasonable," and is or is not calculated to impair the constitutional right to vote, must obviously depend, in most instances, upon the peculiar character of the regu- lation itself; for it is impossible, in such cases, to lay down any but the most general rules. Where a person is required, by the registration act, as a condition of being registered so as to vote, to take an oath, embracing a qualification different from that prescribed in the con- stitution the condition is void.° So where he is required to take an oath that he has not been guilty of certain acts, which will forfeit his right of suffrage." But it is proper and lawful to require him to take an oath as to his residence, citizenship, or the like;'' but not to require him to prove his qualifications by the oaths of others." A provision in a registration law, requiring a person, who has been absent for a certain length of time from the state, to produce, when he offers to vote, a certificate Byler v Asher, 47 111. 101 ; Edmonds V Banbury, 28 Iowa 267 ; state V Butts, 31 Kan. 537 ; Comm. V McClelland, 83 Ky. 686; Kinneen v Wells, 144 Mass. 497 ; State V Baker, 38 Wis. 71. See also Hyde v Brush, 34 Conn. 4.54 ; McMahon v Mayor, 66 Ga. 217 ; People V Hoffman, 116 111. 587 ; Morris v Powell, 125 Ind. 281 ; Auld V Walton, 12 La. Ann. 129; People V Kopplekom, 16 Micli. 343 ; Perkins v Carraway, 59 Miss. 222 ; State V Corner, 23 Nebr. 265 ; People V Canaday, 73 N. C. 198; Monroe v Collins, 17 Ohio St. 665; Daggett V Hudson, 43 Ohio St. 548 ; Comni. V Maxwell, 27 Pa. St. 444 ; Patterson v Barlow, 60 Pa. St. 54; Cusick's Election, 136 Pa. St. 459; In re Polling Lists, 13 R. I. 729 ; State V Stateu, 6 Coldw. (Tenn.) 233. " White V County Com'rs. 13 Oreg. 317. s Page V Allen, 58 Pa. St. 338; Davies v McKeeby, 5 Neva. 369 ; Clayton v Harris, 7 Nev.a. 64. < Burkett v McCarty, 10 Bush (Ky.) 758. ' People V Hoffman, 116 111. 587. • People V Canaday, 73 N. C. 198. 136 Chap. IX.] ELECTION BY THE PEOPLE § 134. that he has been continuously on the tax list, and is a tax payer, is unconstitutional, as it in effect requires a prop- erty qualification, which the constitution does not require] and a provision that a resident, who has been absent for six months, or a person who has not resided in the county for six months, shall be registered at least ninety days before the election, is unconstitutional, because it in effect requires a residence of ninety days within the precinct, whereas the constitution requires a residence of only thirty days.' § 134. The same subject. — A registration law, which deprives an elector of his right to vote, unless he is regis- teredon one of four days, the last of which is ten days before the election, is unconstitutional, because the con- dition is unreasonable." So where seven days are allowed for registry, the last of which is five days before the elec- tion." Whether the legislature can constitutionally pro- vide that the registry shall be closed before the elec- tion, without making any provision to add the name of one, Avho, for some sufficient reason, was not seasonably registered, is a question upon which the authorities are in conflict. It has been held that such a statute was unconstitutional by the courts in Nebraska, Ohio, and Wisconsin;' and that it was constitutional by the supreme court of Illinois, the supreme court of Rhode Island, and in Georgia, by a United States court." A registration law is not unconstitutional, because it pre- > Morris D Powell, 125 lud. 281. if a voter knows his name is not on o r... X /-I ooxt^t™ okk the Teglstry, aud he Is Hot undcr any « State « Corner, 22 Nebr. 265. = y .x ^ . disability to procure it to be season- ' Daggett V Hudson, 43 Ohio St. 548. j^^y p^t q„^ j^g jg j^ voluntary party • State 1) Corner, 22 Nebr. 265. to his own disfranchisement, and Daggett V Hudson, 43 Ohio St. 548 ; cannot complain thereof. Dells V Kennedy, 49 Wis. 555. But in « People v Hoffman, 116 111. 587 ; the latter case It was also held, fol- j„ ^g Polling Lists, 13 R. I. 729 ; lowing State v Baker, 38 Wis. 71, that -w^eil v Calhoun, 25 Fed. Rep. (U. S.) 865. 137 136. PUBLIC OFFICERS [Book IL scribes different regulations for different parts of the state;' as where the rules are more stringent in cities than in the rural districts. '■' § 135. Power of legislature to exclude for not regis- tering; right to register after time. — Subject to the requirement that the regulations must be reasonable, the power of the legislature to provide for registration includes the power to exclude from voting those who fail to be registered.^ The effect of registration, or of an omission to be registered, as evidence of the right or want of right to vote, or whether a person must be registered more than once, depends upon the peculiar provisions of the statute.* Under the registration law for New York city, which provided for the closing of the registration at 9 o'clock p. m., it was held that vot- ers, who were waiting at that hour in their proper dis- trict, were entitled to be registered after the hour, but not those who applied after the hour. ' § 136. Is board judicial ; liability of members to private actions. — It has been held that a board of regis- tration, having power to decide upon the qualifications of voters, exercises judicial powers, and that the members thereof are not liable to a private action, if they act in good faith, and within their jurisdiction. ° But in another case it has been said that a qualified voter, who is not permitted to register, may have a remedy by mandamus against the members of the board.' ■ People V Hoffman, 116 111. 587 ; Patterson v Barlow, 00 Pa. St. 54. " Comm. V McClelland, 83 Ky. 686. ' People V Laine, 33 Cala. 55 ; Webster v Byrne, 34 Cala. 273 ; Byler v Asher, 47 lU. 101 ; Edmonds v Banbnry, 38 Iowa, 267 ; People V Wilson, 62 N. Y. 186 ; Cusick's Election, 136 Pa. St. 459. « Cohen v Harvey, 56 Cala. 70; Hyde v Brush, 34 Conn. 454 ; Auld V Walton, 12 La. Ann. 129 ; People V Koppelkom, 16 Mich. 342; Perkins v Carraway, 59 Miss. 222 ; State V Staten, 6 Cold. (Tenn.) 238; State V Stumpf , 23 Wis. 630. ' People V Hosmer, 3 How. Pr. N. S. (N. Y.) 472. « Perry v Reynolds, 53 Conn. 527. ' Da vies v McKeehy, 5 Neva. 369. 138 Chap. IX.] ELECTION BY THE PEOPLE § 138. § 137. Unconstitutionality of registration law ; mis- conduct of registration officers, effect of. — Where a regis- tration law is unconstitutional, as where it directs the division of the wards of a city into precincts, and a large portion of one ward is not included in any precinct, so that the voters therein cannot be registered, an elec- tion under such an act is void. ' But it seems, that if an election is held under an unconstitutional registration law, proof must be made, in order to invalidate it, that voters sufficient in number to have changed the result were prevented from voting.' So, also, if the members of the board of registration, by absenting themselves from the place of registration, or by resigning, or otherwise, prevent a registration, whereby voters, in sufficient num- ber to have changed the result, were prevented from voting, the election is void; and probably the rule is the same, without proof that the result was thus affected. ' § 138. Effect of formal errors, etc., and instances. — But the courts will regard indulgently the proceedings of a board of registration, if their duties were discharged in good faith, and will not suffer the registration, or the election thereunder, to be defeated, by a failure to follow strictly the directions of the statute, where they can be regarded as merely directory; or by any mistake or slip, which does not substantially affect the fullness or fair- ness of the registry; ' as where the registry did not con- tain the voters' names in alphabetical order, and omitted to state their residences, as the statute required; and the ' People V Canaday, 73 N. C. 198. ' Barnes v Pike County, 51 Miss. 305 ; ' Weil V Calhoun, 25 Fed. Rep. (U. S.) 865. People v Cook, 8 N. Y. 67, aff 'g 14 Barb. (N Y ) ''59 • » Zeiler 1) Chapman, 54 Mo. 502. ^ " ' " ' ™ xt -i- io« i n , o. r A,v /J ■>! ^jfi. People r Wilson, 62 N. \ . 186, rev'g 3 See also State v Albm, 44 Mo. 346 ; ^^^_ ^^ ^^ ^ ^^_' People V Canaday, 73 N. C. 198; McDowell V Mass., etc., Construction Company, 96 N. C. 514. Hun (N. Y.) 437 : Stinson V Sweeney, 17 Neva. 309; Newsom v Earnhart, 86 N. C. 391. See also State i' Com'rs, 20 Fla. 859. 139 § 138. PUBLIC OFFICEES [Book II. lists were not certified, etc., as the statute required; but the registry lists were used at the election, and there was no proof that any illegal votes were cast, or any qualified voter was excluded.' So an election is not vitiated because some of the voters were registered on a Sunday, the statute having fixed a period for registration which included that day." Where the statute provides for an election, under such circumstances that the registration cannot be made, as at an earlier time than that fixed for the registration; or where no board has been appointed, or the members have refused to act ; or for any reason, no list can be made; in such a case the election is valid without any registration. ' And where, at a meeting of the common council of a city, held for the purpose of complying with the registration act, a motion to adjourn, without transacting the business, was made, and the presiding officer, without taking the vote, declared the meeting to be adjourned, and left the chair . and the mem- bers thereupon voted one of their number into the chair, whereupon eleven of the members present left the room, and the fifteen who remained, they being in number one less than a quorum, proceeded to make assignments of aldermen, and appointments of registration officers, as required by the statute; it was held that the voters would not be disfranchised by such unlawful proceedings, that the registration was valid, and the officers so appointed were de facto officers as far as they had acted; but that they could not act thereafter, and a mandamus was granted to compel the common council to meet again and appoint new officers. > state D Baker, 3S Wis. 71. NefzgerDDavenport.etc.R.R.Comp'y, = state V Schnierle, 5 Rich. L. (S. C.) 299. ■ ^ ^°^* "^ = People V Koppelkom, 16 Mich. 342 ; = Campbell i) Braden, 31 Kan. 754 : g^j^^g ^ Albin, 44 Mo. 346 ; State 13 Piper, 17 Nebr. 614. teller b Chapman, 54 Mo. 502. See, however. People v Laine, 83 Gala. • Dingwall v Detroit, 82 Mich. 568. 140 Chap. IX.] ELECTION BY THE PEOPLE § 1.39. IV. General principles respecting elections, and voting thereat; ballots; defective ballots. § 139. Majority and plurality ; absentees ; rule where two or more officers of same designation are to be chosen. — The general object of an election is to ascertain the will of the majority of the voters, with respect to the person to fill a particular office. But this expression is subject to some qualifications. Where there is no special constitutional or- statutory provision, requiring that a candidate shall receive an actual majority over all his competitors, and the votes of the electors are divided between three or more candidates for one office, the rule is that a plurality suffices to elect.' Where the constitu- tional or statutory provision requires that the officer should be chosen by a majority of the voters, either of a particular district or of the entire state, this does not mean that a majority of all those, who are entitled to vote, in the district or in the state, shall vote for him, or shall vote at the election, but that he shall be chosen by a majority of the votes actually cast. " All qualified voters, who absent theniselves from an election duly called, are presumed to assent to the expressed will of the majority of those voting, unless the law providing for the election otherwise declares. Any other rule would be productive of the greatest inconvenience, and ought not to be adopted, unless the legislative will to that effect is clearly expressed." ' Where two or more ' Paine on Elections, 88 173, 174 ; People V Wiant, 48 111. 263 ; Naar on Elections, 147 ; State v Swift, 69 Ind. 505 ; Cooley Const. Lim., 5th ed., 779 (*G30) Talbot V Dent, 9 B. Mon. (Ky.) 526 ; People V Clute, 50 X. Y. 451, per Foiger, Taylor V Taylor, 10 Minn. 107 ; J., pp. 461 et seq. , Everett v Smith, 22 Minn. 53 ; ' Cass County t. Johnston, 95 U. S. 360, State v Mayor, etc., 37 Mo. 270 ; per Waite, Ch. J., p. 369. State v Lancaster County, 6 Nebr. 4,4 ; See also. People DWarfleld, 20 III. 159; People y Clute, 50 N. Y. 451 ; Louisville, etc., R. R. Compy v David- People V Garner, 47 111. 346 ; son County Court, 1 Sneed (Tenn.) 637; St. Joseph V Rogers, 16 Wall. (U. S.) 644. 141 § 140. PUBLIC OFFICERS [Book II. officers of the same designation are to be chosen, that number of the persons voted for who stand highest on the voting Usts, -will be elected. ' § 140. Constitutionality of statutes relating to " min- ority representation," or "cumulative voting."— The su- preme court of Ohio has adjudged that a statute, provid- ing that each elector shall vote for a portion only of several officers to be elected, or in other words establish- ing " minority representation," is repugnant to the general grant of the right of each elector to vote, con- tained in the constitution of the state. Upon that point the court said : " No such thing as ' minority representa- tion ' or ' cumulative voting ' was known in the policy of this state, at the time of the adoption of this constitu- tion in 1851. The right of each elector to vote for a candidate, for each office to be filled at an election, had never been doubted. No effort was made by the f ramers of the constitution to modify this right; and we think it was intended to continue and guaranty such right, by the provision that 'each elector shall be entitled to vote at all elections.' Such right is denied by this statute, which provides for the election of four members of the board of police commissioners, but denies to any elector the right to vote for more than two persons for such commissioners." " The same question has been twice presented to thei court of appeals of the state of New York, but under such circumstances that the court refused to pass upon it. In each of the cases referred to, an action in the nature of a quo warranto was brought, to oust municipal officers, who had been elected under a statute allowing each elector to vote for a part only of the officers to be chosen; and the court held that in such a form of action the question of the constitutionality of ' Cooler Const. Lim., 5tli ed., 779 (*620.) " State v Constantine, 42 Ohio St. 437. Chap. IX.] ELECTION BY THE PEOPLE § 140. the statute did not properly arise.' In the latter case, the court, after holding that the provision which was said to be unconstitutional was separable from the remainder, so that, if it should be stricken out of the statute, the statute would still be complete, continued as follows : " Therefore, whether we regard these restric- tions contained in section 4 as authorized or unauthorized by the constitution, the defendants could have been elected under that act; and we must hold that they were legally elected thereunder. So far as the case discloses, every voter in the city voted for as many candidates for aldermen at large, as he wished to. It does not appear that any voter claimed the right to vote for all the six aldermen; and was denied that right. If he chose volun- tarily to waive his constitutional right to vote for six, and to vote for but four, that he could do, and his ballot would be a valid ballot. So in the senatorial districts, it does not appear that any voter was denied the right to vote for the three aldermen; and if the voter chose to vote for but two, his ballot would be legal, and no one could complain. If a voter had offered to vote for the six aldermen at large, or for the three aldermen of a senatorial district, and had been refused, he could, by mandamus, or by some other form of action, have pre- sented to the courts the question of his constitutional right to vote for as many candidates as there were alder- men to be elected. So if- six of these plaintiffs had been candidates for aldermen at large, and had all been voted for upon a single ticket by the same persons, and had received more votes in that way than any other candi- dates, they could have claimed to be legally elected, and by proper proceedings could have brought before the courts the question of the constitutionality of the restrictions ' People V Perley, 80 N. Y. 634; See also People v Crlssey, 91 N. Y. 616. People V Kenney, 96 N. Y. 294. 143 § 143. PUBLIC OFFICERS [Book 11. contained in the act of 1873. There are ways enough in which to test the constitutionality of those restrictions, but they are not involved in this case." ' And the supreme court of Michigan has held, that a statute, allow- ing "cumulative voting" for representatives to the state legislature, in districts where two or more are to be chosen, by permitting each elector to cast as many votes for one person, as there are representatives to be elected, is unconstitutional. ^ § 141. Voting by proxy ; voting in instalments ; voting twice. — In some states it has been provided,, that a voter, absent in the military or naval service of the United States, may authorize another to cast his vote at an elec- tion : but except where such a special provision exists, a voter must always cast his vote in person, and voting by proxy is not recognized. But where an infirm voter selects his ballot, and, at the polls, authorizes another to deposit it in his presence, this is not deemed -to be voting by proxy, and is lawful.' A voter may vote for a part only of the officers to be elected; but he cannot vote by instalments, that is, for one or more officers at one time and for others at a different time; if he fails to exercise his full right, when he casts his vote, ho cannot cast another for the omitted officers, at a subsequent time during the polling." And if he has once voted, although in a precinct where he was not entitled to vote, he can- not lawfully vote again in his own precinct." § 143. Australian and reformed systems ; voting for formally nominated candidates ; constitutionality. — With respect to the statutes prescribing the "Australian" or ' People V Kenney, 86 N. Y. 394, per Earl, See, however, People v Blodgett, 13 J., pp. 303, 3M. Mich. 127. " Maynard v District Canvassers, 84 * Simpson v Brown, 2 N. Y. Supp. 671 ; 18 Mich. 228. N. Y. St. Rep. 781. = Clark V Robinson, 88 111. 498. » Harbaugh V Cicott, 33 Mich. 241. 144 Chap. IX.] ELECTION BY THE PEOPLE § 143. other "reformed" "system of voting," they are of such recent introduction into this country, that but few adjudi- cations thereupon have appeared; but the tendency of those is to establish the rule, which is doubtless the cor- rect one, that the constitutionality of such statutes depends upon the same general principles as the constitutionality of the registry laws. Such a statute must not deprive an illiterate voter of such aid, as may be necessary to enable him to cast his ballot intelligently, and with a clear understanding of its effect; and a statute which requires " each voter to retire to a compartment and there, alone and unaided, indicate, by a mark on his ballot," the candidate for whom he wishes to vote for numerous offices, is unconstitutional, because it accomplishes that result. ' An extended discussion upon the proposition that such a statute must not deprive illiterate voters of the nec- essary aid, and upon other features of a "ballot reform law," will be found in a recent decision of the supreme court of Michigan holding such a statute of that state to be constitutional.' In many of the states, the voting is restricted to such candidates, as have been previously formally nominated, in a moie indicated by the statute. The constitutionality of such a provision, has not, as far as the author has been able to ascertain, been directly passed upon by the courts; but in some adjudications construing the provision, its constitutionality has' been impliedly assumed.' § 143. Constitutionality of statutes as to marks, etc., and numbering ballots. — It rests entirely with the state to prescribe, whether the vote shall be taken orally or by ballot. In fact, voting at general elections is universally required to be by ballot; but the practice varies with respect to town meetings, and other local elections. 1 Rogers v Jacob, 88 Ky. 503. ' In re Cowle, 25 Abb. N. C. (N. Y.) «5 ; ., „ ,„„,,.,,„„ People u Rice, 25 Abb. N.C.CN.Y.) 460. = Detroit V Bush, 82 Mich. 532. i- < > 145 I 143. PUBLIC OFFICERS [Book II. Where the constitution provides for a written ballot, it is satisfied by a printed ballot.' In many of the states it is forbidden to use ballots having any distinctive mark, device, or sign ; and ballots of a uniform size, color and style of paper are provided for; and in some states only Qfla.cial ballots, that is, ballots furnished by the public authorities, can be used. Where marked ballots are for- bidden, it has been held that if the marks cannot be seen until the ballots are opened, the inspectors must never- theless reject them." But it has also been held that where such ballots have been received without question, they cannot afterwards be rejected.'' Statutes of this charac- ter are deemed constitutional, although not expressly authorized by the constitution; inasmuch as the object of requiring the voting to be by ballot is to secure secrecy as to the persons voted for by each elector, and thus protect him from intimidation, or other influences calculated to prevent the full and free expression of his wishes. Such statutes are deemed to have this object in view;* and they will be construed with reference to this object, and will not receive either an extended or restricted interpre- tation, which is calculated to defeat it, or unnecessarily to interfere with the voter's exercise of his right of suf- frage. ' And, on the other hand, it has been held that in the absence of a constitutional provision, allowing ballots to be distinctively marked, a statute requiring the inspec- tors to mark each ballot so as to correspond to the voter's number on the poll list was unconstitutional, as tending to ' Henshaw v Foster, 9 Pick. (Mass.) 312 ; s Kirk v Rhoads, 46 Gala. 398 ; Temple v Mead, i Vt. 535. Wyman v Lemon, 51 Gala. 873; » Oglesby V Sigman, 58 Miss. 502. ^Ddge V Linn, 100 111. 397 ; O'Hair u Wilson, 121 111. 351 ; « Opinion of the Justices, 70 Me. 566. . Di-uliner v State, 29 Ind. 308 ; < Cooley Const. Lim., 6th ed., 760. (♦604, State d Well, 17 Oreg. 119 ; 605.) Stats 1) Phillips, .63 Tex. 390. 146 Chap. IX. J ELECTION BY THE PEOPLE § 144. impair the secrecy of the ballot.* But where such a statute is constitutionally passed, the failure to number a ballot is not such an irregularity as will justify the rejection of the vote.' § 144. Application'of such statutes to particular cases. — Where a statute provides that all ballots shall be pre- pared " on plain white paper " to be furnished by the secretary of the state, and without any mark or desfgna- tion, it was held that ballots printed on tinted paper, furnished by the secretary of state, were lawful." Under a similar statute, it was held a printed heading, "City Union ticket," on the inside of a ballot, was not " a distin- guishing mark or embellishment " within a state prohibit- ing such marks, etc.* A diamond shaped ballot is not within a statutory prohibition of " devices;" ' nor do the erasing of a name, so that the discoloration shows through the paper, and writing another name in its place," or covering a candidate's printed name with a " paster," ' come within a statutory prohibition of a dis- tinguishing " device " or " mark." But it has been held that " printers' dashes or ornamentation," and a dotted line across the face of the ballot, constitute such a for- bidden " device " or "mark;" ° that a figure of an eagle, used as a mark to distinguish the tickets of a particular party, is a prohibited distinguishing mark ;° and that ballots printed upon paper of a different size than that which the statute prescribes," or upon colored paper, > Williams v Stein, 38 Ind. 89. = State v Phillips, 63 Tex. 390. 2 O'Halr u Wilson, 124 111. 351. ' Wyman v Lemon, 51 Cala. 273. ' State V Wolf, 17 Oreg. 119. ' Quinn v Markoe, 37 Minn. 439. See also People v Kilduflf, 15 111. 492. a Oglesby v Sigman, 58 Miss. 502 ; * Druliner v State, 29 Ind. 308. Steele V Calhoun, 61 Miss. 556 ; See also MillhoUand v Bryant, 39 Ind. » Comm. v Woelper, 3 S. & R. (Pa.) 29. r^,.- ij T..^ ,-. m KT euj '" Reynolds D Snow, 67 Gala. 497. Shields V McGregor, 91 Mo. 534 ; •" Williams v State, 69 Tex. 308. 147 § 145. PUBLIC OFFICERS [Book II. where the statute requires white paper,' must be rejected. But where a statute requires the ballots for judicial officers to be placed in a separate box, the word " Judi- ciary," printed upon the back of such a ballot, is not a distinguishing mark or device, within the statutory pro- hibition.'' § 145. General rules as to ballots ; defects, imperfec- tions, erasures, and irregularities therein. — Where a bal- lot, cast at an election, has upon it the names of two or more persons for an office to which one person is to be elected, or, if two or more officers of the same designation are to be elected, the names of more persons than there are officers to be elected, it is ineffectual; and not only must it be rejected upon the canvassing of the votes, but proof will not be admitted, upon the trial of an action to determine the title to the office, to show for whom the elector intended to vote.' But it is immaterial how many names a ballot contains for other offices, provided it contains only one name for the particular office in question; for in that case it shall be counted for the office in question, as if it was in all respects regular.' We shall consider hereafter' the powers and duties of canvassers, with respect to the allowance to a candidate of ballots, upon which his name is imperfectly given. Such ballots may, in many cases, be allowed to the candidate by a jury in an information in the nature of a quo warranto, or other proceeding to test the title to the office. To what extent, and upon what evidence, they may be so allowed, are questions upon which the adjudications are not harmoni- > state V McKinnon, 8 Oreg. 493. People D Loomis, 8 Wend. (N. Y.) 396. « .State V Barden, 77 Wis. 601. * MoCrary on Election's, 8 497 ; ' People V Seaman, 5 Denlo (N. Y.) 409 ; P^^-^^ °^ Elections, 8 553. People V Ames, 19 How. Pr. (N. Y.) 551 ; ^ee also, Perkins v Carraway, 59 Miss. State D Tierney, 23 Wis. 430. ^^'' , „, Seealso, Kreitz i>Behrensmeyer,125Ill. ^tt'y Gen'l v Ely, 4 Wis. 420. 141 i » Post, 86 158, 159. 148 Chap. IX.] ELECTION BY THE PEOPLE § 145, ous. It is clear that a perfect ballot is conclusive evidence of the voter's intention, and that proof cannot be received of his intention to vote for a person, whose name is not given therein, even imperfectly.' But the weight of the American authorities supports the doctrine, that where a ballot contains only the candidate's surname, or his other names are designated only by initials; or where there is an omission of or a mistake in his middle name, or in an initial which was intended to stand for it; or in any Other case of similar imperfections in a ballot, which have led to its rejection by the canvassers; it may, in a proceeding to test the title to the oifice, be allowed to the candidate for whom it was intended, upon satisfactory evidence of the voter's intention to cast it for him.'' In some cases it has been held, that the voter's own testi- mony is competent and satisfactory evidence of such an intent;' but the weight of the authorities is against the right to examine the voter himself as to his intent,* and indicates that this must be inferred from the surround- ing circumstances, as that there was no other candidate for the office whose name was the same as, or resembled, that used in the ballot, and other similar circumstances." ' Wimmer v Katon, 72 Iowa 374 ; justice in it." But, even in Michigan, People V McNeal, 63 Mich. 294 ; it has been held that in an inf ormar- People II Seaman, 5 Denio (N. Y.) 409 ; tion in the nature of a quo warranto. People D Saxton, 22 N. Y. 309. a vote for " John Jochim " should be ' See cases hereinafter cited. The prin- cipal dissent to this rule comes from Michigan, where it has been held that " McKinnon v People, 110 111. 305; a ballot containing only the initials of People « Pease, 27 N. Y. 15. a candidate's name, cannot he ^x -v.. T, 1 ri^i J ,„ 1 4 Wimmer D Eaton, 72 Iowa 374. allowed to him. People v Tisdale, 1 Dougl. (Mich.) 59 ; People v Higgins, 3 ' In a case where printed votes, cast for Mich. 233; People v Cicott, 16 Mich. "F. Wimmer" were allowed to Ed- 283 ; followed in the recent case of ward Wimmer, the printer testified People V McNeal, 63 Mich. 294, that he knew the contestant was a wherein Morse, J., dissenting from candidate, and supposed his name this ruling, said : " It is at variance was P. Wimmer, and those who voted with the rule in almost all the states testified that such was also their of the Union, and there is no sense or supposition. Wimmer v Eaton, 72 149 allowed to John W. Jochim. People V Kennedy, 37 Mich. 67. § 145. PUBLIC OFFICERS [Book II. In New York, it has been held, upon an information in the nature of a quo warranto, that where a voter writes, upon a printed ballot, the name of a person in connection with the title of the office, and fails to erase the printed name of another person for the same office, his vote for the former must be allowed. The court said: "Tlie intention of the voter is to be inferred, not from evidence given by him of the mental purpose with which he deposited his ballot, or his notions of the legal effect of what it contained or omitted, but by a reasonable con- struction of his acts; " and added that the judge at the trial ought to have charged the jury, that, as matter of law, they were bound to find the fact accordingly from the face of the ballot. ' And in Texas, upon a similar information, where a ballot contained two names for the same office, of which one was distinctly and the other faintly erased with a pencil, the testimony of the voter, that the latter erasure was unintentional, was held to be competent.' If a "paster "is detached by the inspector, while can- lowa 374. In another case, where It allowed, upon a, jury trial, to Mat- appeared that most of the voters thew H. Carpenter. Att'y Gen'l v were Germans by birth, it was held Ely, i Wis. 420. In all these oases, that rotes for " J. D. Hnba," " J. D. the surrounding circumstances and Hubba," " Huber," " J. D. Hub," and in many the intrinsic probabUi- "D. Huber" should be allowed to ties, appear to have chiefly deter- Joel D. Hubbard. Gummti Hubbard, mined the question of fact. For 97 Mo. 311. Votes for Benjamin Welch additional cases of this -character, were allowed to Benjamin Welch, see State v Judge, 13 Ala. 805 ; State Junior, upon a finding that they were v Gates, 43 Conn. 533; Clark v Rob- intended for him. People v Cook, 8 inson, 88 111. 498 ; Brown u McCollum, N. Y. 67, aff'g 14 Barb. (N. Y.) 259. So 76 Iowa 479 : Clark v Co. Exaii'rs, 126 where the voter omitted entirely the Mass. 282 ; People v Tisdale, 1 Dougl. candidate's first name. Talkington v (Mich.) r,9 ; State v Williams, 95 Mo. Turner, 71 111. 234 ; Kreitz v Behrens- 159 ; People v Ferguson, 3 Cow. (N. Y.) meyer, 125 111. 141 ; or the surname 102 ; People v Vail, 20 Wend. (N. Y.) was misspelled, bat idem snnans. 12; Peoples Seaman, 5 Denio (N.Y.) Newton v Newell, 26 Minn. 529. 409 ; State v Foster, 38 Ohio St. 599. In another case, votes for " D. M. Car- See also cases cited in note to g 159. penter," "M. D. Carpenter," "M. T. Carpenter," and "Carpenter" were ' People V Saxton, 22 N. Y. 309. ' Davis V State, 75 Tex. 420. 150 Chap. IX.] ELECTION BY THE PEOPLE 147. vassing the votes, that fact may be proved upon a similar information. ' V. Rules of construction of statulfes regulating the time, place, and manner of holding elections, and the notice thereof. § 146. Election statutes directory as to matters of form, detail, etc. — While the general proposition is unquestionable, that an election is not valid, unless it is held at a time and place, in a manner, and by officers, specified in the constitution or statutes of the state, or at a time and place and before officers, designated and appointed, pursuant to a constitutional or statutory direc- tion, by some public authority;" yet the courts incline to regard the various statutory regulations respecting the proceedings before and during an election, the canvass- ing of the votes, the declaration of the result, and the granting of a certificate to the successful candidate, as mandatory, only with respect to their essential charac- teristics, and as directory with respect to all matters of form or of detail, where no substantial right has been violated, and the statute itself does render essential a strict conformity to its provisions in such matters." § 147. Instances where directory provisions were dis- regarded.— Thus it is'not a valid objection to an election that the officers who conducted it were disqualified;* or ■ People V McNeal, 63 Mich. 294. See also post, § 158. ' Dickey i; Hurlburt, 5 Cala. 343; Franklin v Kaufman, 65 Ga. 260; Stephens v People, 89 111. 337 ; Varney v Justice, 86 Ky. 596; In -re Melvin, 68 Pa. St. 333 ; Brewer v Davis, 9 Humph. (Tenn.) ) Gerarty V Reid, 78 N. Y. 64 ; People V Schiellein, 95 N. Y. 124; Pratt V Swanton, 15 Vt. 147 ; Brodhead v Milwaukee, 19 Wis. 624. ' Cooley Const. Lim., 5th ed., 88-93 (*74- *78); McCrary on Elections, §§ 190-192; Paine on Elections, S§ 312, 358, 373, 381, 502,600. ' Collins V Huff, 63 Gp. 207 ; Wilson V Peterson, 69 N. C. 113. See also S wepston v Barton, S9 Ark. 549; Keller v Chajpman, 34 Cala. 635. 151 § 147. PUBLIC OFFICERS [Book II. had not been sworn;' or were not appointed until after the expiration of the time prescribed by the statute/ or that their appointment was otherwise irregular/ or that they did not follow the statute in all particulars with respect to the reception of the votes, and making their returns, where it does not appear that the result was affected thereby.' With respect to the proceedings during the election, a learned judge has forcibly said: " It is probably impracticable to prescribe a rule which will enable us to determine, in all cases, what irregulari- ties of the inspectors will vitiate an election. It may be safely aflfirmed, that if the irregularity does not deprive a legal voter of his right, nor admit a disqualified person to vote, if it casts no uncertainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it; it may be overlooked in an action of this kind" (quo warranto) "when the issue is as to which candidate received the greater number of votes for a particular office, at a given election." " And it has even been held that an election is not vitiated because the election officers permitted other persons to count the votes, it not appearing that the count was incorrect, and the election officers having certified to the result." Without multiplying detailed statements of the particular irregularities which have been disregarded by 1 Whipley ti McKune, 12 Cala. 352 ; ' People v Cook, 8 N. Y. 67, per Rounds V Smart, 71 Me. 380 ; Willard, J., p. 93. The opinions In Wells V Taylor. 5 Mouta. 202 ; this cas6, on the appeal, and also in Trimmier v Bomar, 20 S. C. 354. the supreme court (14 Barb. (N. Y.) So where the voters were sworn in a 259), contain a, large collection of book other than the Bible. People v authorities, and an extended discus- Cook, 8 N. Y. 67. sion, as to what provisions of the ' People V Police Board, 46 Hun (N. Y.) ^t^t"*^ ^"^^ regarded as merely dlreo- 298. *°''y- See also Dows v Irvington, 13 Abb. N. ' Keller v Chapman, 34 Cala. 635 ; q /jj_ y.) 162. Rounds V Smart, 71 Me. .380, Whipley v McCune, 12 Cala People V Nordheim, 99 111. 553. • State V Calvert, 98 N. C. 580. Whipley V McCune, 12 Cala. 352 ; ggg ^^^^ People v Nordheim, 99 lU. 553, 152 Chap. IX.] ELECTION BY THE PEOPLE § 148. the courts, in determining whether an election was or was not valid, we append in the note a collection of authorities upon the proposition, that mere omissions or irregularities in following the directions of the statute, will not affect the validity of an election, if they did not affect the result; but in such cases the directions of the statute will be construed as being directory, not manda- tory." § 148. What directions are deemed mandatory. — As a general rule, a constitutional or statutory provision respecting the time of holding an election, or the period of time during which the polls must be kept open, is regarded as mandatory and not directory, so that a failure to observe it will vitiate the election." But it has been held that where the polls were closed a short time before the hour fixed, and it did not appear that any one offered to vote afterwards, and before the lawful time for closing them, the election was not vitiated;" and that where the polls were held open after the hour fixed, the election was not invalidated, unless the votes ' Woodward v Sarsons, 44 L. J., C. P.; 393 People v Wilson, 62 N. Y. 186 ; rev'g 3 10 L. R., C. P., 733 ; 33 L. T. Rep. 867 ; Hun (N. Y.) 437 ; Whipley v McKune, 13 Gala. 352 : Wilson v Peterson, 69 N. C. 113 ; Satterlee « San Francisco, 23 Gala. 314 ; State v Nicholson, 103 N. C. 465 ; Sprague v Norway, 31 Gala. 173 ; Thompson v Ewing, 1 Brewst. (Pa.) 67 ; Keller v Chapman, 34 Gala. 635 ; Juker v Comm., 30 Pa. St. 484 ; Gollins V Huff, 63 Ga. 307 ; Trimmier v Bomar, 20 S. C. 354 ; Hardin v Golquitt, 63 Ga. 588 ; Fowler r State, 68 Tex. 30 ; Franklin v Kaufman, 65 Ga. 360 ; State V Goowin, 69 Tex. 55. Walker v Sanf ord, 78 Ga. 165 ; ■> Varney v Justice, 86 Ky. 596 ; Dobyns v Weadon, 50 Ind. 398 ; Pratt V Swanton, 15 Vt. 147. Morris v Vanlaningham, 11 Kan. 269 ; ggg ^Iso, Dickey v Hurlburt, 5 Gala. 343; Russell V State, 11 Kan. 308 ; j^re Melvin, 68 Pa. St. 333. Jones V Caldwell, 21 Kan 186 ; , ^^^^^^^ ^ ^ ^^ ^^ ^g_ Trustees, etc. v Garvey, 80 Ky. 159; Taylor v Taylor, 10 Minn. 107 ; Quinn v Markoe, 37 Minn. 439 ; Wells V Taylor, 5 Monta. 202 ; 153 § 149 PUBLIC OFFICERS [Book II. afterwards received might have changed the result. ' In New York it has been held that a provision of the statute that the polls shall close at 4 o'clock p. m. is constitu- tional; that if voters are at that hour in the line, and attempting to reach the polls, their votes are lost; and that a mandamus to extend the time will not he granted.' The designation in the constitution of New York of the " annual town meeting," as the time when justices of the peace are to be elected, is equivalent to a prohibition against electing them at any other time; and while the legislature has the power to change the time for holding the town meeting, it cannot prohibit the election of justices of the peace at the town meeting, nor provide for their election at any other time. Therefore a statute, providing that justices of the peace shall be elected at the general election, next succeeding the town meeting, is unconstitutional; and a repealing clause in such a statute does not affect the former statutes for the election of justices; and as far as it purports so to do, it is void.' § 149. The same subject ; instances of exceptions under special circumstances. — So, as a general rule, an election is not valid, unless it was held at the place or places designated by statute, or by public authorities acting in pursuance of a statute.* But it has been held that where the electors and the election officers are ' Piatt V People, 39 III. 5i. But where " In re Smith, 3 N. Y. Supp. lOT ; 18 the polls were closed before the des- N. Y. St. Rep. 785. ignated time, and a sufficient num- 3 people v Sohiellein, 95 N. Y.124. Accord, her of votes to have changed the j^ principle. Ex parte Quaokenbush, result, were offered afterwards, and 3 jjqj , jj y ) 3B9 • before the expiration of the desig- (jerarty v Reid, 78 N. Y. 64. nated time, it was held that the g^^ ^^ p^^^j^ ^ I^-^^j^^^ ^^ jj_ Y. 370 ; election was void. State v Wollem, p^^pj^ ^ g^jj^ ^ jj_ y_ g^^ 37 Iowa 131. It has been also held, , j^ ,.^ Melvin, 68 Pa. St. 333. that a statutory direction to close j^^^^^^ pj^^^y ^ Hurlburt, 5 Gala. 343 ; the polls at sunset is only directory. gnowles v Yeates, 31 Gala. 83 ; Swepston v Barton, 39 Ark. 549, citing Walker v Sanf ord, 78 Ga. 165 ; Holland V Davies, 36 Ark. 446. g^.^^^ ^ ^.^l^^^^^ yjj j^_ ^ ^g^^ ^^ ^ ^_ 154 Chap. IX.] ELECTION BY THE PEOPLE § 149. assembled at the place thus designated, the electors, by a majority vote, may adjourn to some other place, if a sufficient reason exists, making public announcement thereof, and causing the voters to be notified; and that the election held at such adjourned place will be valid. Among the reasons which have been deemed sufficient for making such an adjournment, are the small size of and difficulty of access to the room at which the election has been called;' or the destruction of the building in which the election was appointed to be held.' So where a body of men, on the night before the election, took possession of the polling place, and, in the morning, pre- vented their political opponents from participating in the choice of the officers of the election; it was held that this was "a fraudulent organization of the poll," and that the voters generally were justified in selecting as the polling place, a wagon drawn up near the original polling place. ' So an adjournment to accommodate a larger number of voters;' or because the proprietor of the building, origi- ■ nally designated as the polling place, refused to allow the election to beheld therein; has been deemed to have been made for sufficient cause. ' So where the election officers had designated only one polling place, although the town had been divided into two districts." Where the parti- sans of a particular candidate drove voters away from the polling place; but the votes of the latter were received at the back door, and counted; it was held, upon informa- tion in the nature of a quo warranto, that such votes were properly counted.' It has been held that in case of an adjournment, the adjournment must be to some place ' Brodhead u Milwaukee, 19 V7is. 034. ' State v County Com'rs, 36 Kan. g3B. » In re Melvin, 68 Pa. St..E33, per Thomp- ■• Farrineion v Turner, 53 Mich. 27. son, Ch. J., p. 338. But it is said, that 6 Dale v Irwin, 78 111. 170. in such a case the election must be „ , ,,„t,i oi» , , , . ^, i. ' Simons v People, 119 111. 617. held "on the same or contiguous "'"'""=" i- i ground." ' Soucy j People, 113 111. 109. 155 § 150. PUBLIC OFFICERS [Book II. within reasonable distance of the polling place orginally designated. Whether the place of adjournment answers that requirement, depends, in each case, upon the par- ticular circumstances thereof. ' § 150. When notice of time and place essential. — In each of the states, the statutes regulating elections pre- scribe a certain notice to be given by a particular officer, where the election is general, and in most cases, also where it is special or local. If the statutory notice has not been given, or has not been given as prescribed by the statute, or the notice was substantially defective, and the election was held at a time and place fixed by law, it is nevertheless lawful; but if the time or place is not pre- scribed by statute, but is to be fixed by the notice, the notice required is essential to the validity of the election. "Time and place are generally essential; but many of the details as to the conduct of elections are usually regarded as directory." ' The reason for this rule has ' Where the place of adjournment was ^^od v Bartling, 16 Kan. 109 ; several miles distant from the origi- Jq^^s v Gridley, 20 Kan. 584 ; nal place, It seems that the adjourn- ^oney v Harris, 3 S. W. (Ky.) 6U ; ment will vitiate the election. Comm. t) Smith, 133 Mass. 289 ; Knowles v Yeates, 31 Gala. 82. But in p^^pi^ ^ Hartwell, 12 Mich. 508 ; one case an adjournment to a place p^^pie ^ Knight, 13 Mich. 424 ; eight miles distant was sustained. p^^^^ „ Witherell, 14 Mich. 48 ; Farrington D Turner, 53 Mich. 27. g^^^^^ ^ Foutch, 44 Mich. 89 ; » Dillon on Mun. Corp., 4th ed., § 197 Morgan v Gloucester, 44 N. J. L. 137 ; (*13()) ; State v Goetze, 22 Wis. 363. Cooley Const. Lim., 5th ed., 758, 759 With respect to the necessity and (*603) ; regularity of notice, where the elec- People V Brenham, 3 Cala. 477 ; tion is special, or is to be held only Dickey v Hurlburt, 5 Cala. 343 ; upon a contingency, see Kenfield u Erwiu, 52 Cala. 164 ; People v Porter, 6 Cala. 26 ; Page V Sup'rs, 85 Cala. 50 ; People v Weller, 11 Cala. 49 ; People V Gunn, 85 Cala. 238 ; People v Martin, 12 Cala. 409 ; People V Fairbnry, 51 HI. 149 ; People v Rosborough, 14 Cala. 180 ; Stephens ti People. 89 111. 337 ; Kenfield v Irwin, 52 Cala. 164 ; Carson v McPhetridge. 15 Ind. 327 ; Jones v State, 1 Kan. 273 ; State V Jones, 19 Ind. 3')0 ; Gossard n Vaught, 10 Kan. 162 ; Gass V State, 34 Ind. ^'> \ Secord v Foutch, 44 Mich. 89 ; La Fayette v State, t9 Ind. 218 ; State V Good, 41 N. J. L. 396 ; Dlshon V Smith, 10 Iowa 212; Jones t) State, 1 Kan. 273 ; jgg Chap. IX. ] ELECTION BY THE PEOPLE § 151. been thus stated : " Where the object of the election, and the time and place for holding the same, are all fixed by law, there the election is valid, although a notice required by law may not be given. In such a case the electors are presumed to know the law. They are presumed to know what is to be done at the election, and the time and place of holding the same, because these are all fixed by law. Where the time and place of holding the election are to be designated by some board or person, as in this case, and are not fixed by law, then the notice required by law must be given; and if the time designated be so near in the future that legal notice cannot be given, then the election must be held to be void.'" § 151. Instances of invalid elections for want of notice. — It was held in Ohio, that when a vacancy is about to occur in the office of probate judge, by reason of the expiration of the incumbent's term of office, and the sheriff, in publishing the notice required by statute for a general annual election, enumerating the officers to be chosen, omits all mention of the office of probate judge; by reason whereof, the great body of the electors are misled, and have no notice, official or in fact, of an elec- tion to fill that office; but nevertheless a small number of the electors, less than one fourth of the whole number of voters at that election, cast their votes for a single candidate, and no votes are cast for any other; such attempted election is irregular and invalid." But in Georgia, where a statute gave the municipal council power to order an election for mayor, "by giving at least ten days notice in any one or more of the city Morgan v Gloucester, 44 N. J. L. 137 ; " Foster v ScarfiE, 15 Ohio St. 533. People V Crissey, 91 N. Y. 616 ; Accord, Wood v Bartling, 16 Kan. 109 ; Haddox v Clarke County, 79 Va. 677 ; State v Goetze, 22 Wis. 363, per Paine, Hubbard v Williamstown, 61 Wis. 397. J., pp. 368, 389. See also State V Good, 41 N. J. L. 296 ; Toney v Harris, 3 S. W. Rep. (Ky.) 614. ' George v Oxford, 16 Kan. 72, per Valen- tine, J., p. 80. 157 § 153. PUBLIC OFFICERS [Book II. papers;" and the council ordered the publication of the notice in two specified papers, in one of which it was cor- rectly and regularly published, but in the other the notice was published for eight days only, and with the year stated as 1809 instead of 1890; for which reason, on the day before the election, the council revoked the order for the election, but the election was nevertheless held at the appointed time; it was determined that the election was valid, and the person chosen thereat was entitled to the office.' § 153. Instances of valid and invalid elections when notice was not given. — The constitution of New York provided that where the office of a justice of the supreme court became vacant, before the expiration of his term of office, the vacancy should be filled by the electors of the judicial district at the next general elec- tion of judges. A justice of the supreme court, whose term of office would not have expired for several years, died, thirteen days before a general election of judges was to be held, and after the publication of the official notice of the election. No notice of an election to fill the vacancy was consequently given. But the different political parties nominated candidates for the office, who received a large proportion of the total number of votes cast at the elec- tion; and the court of appeals held that the election was valid, and the candidate having the majority of votes was duly elected." In a subsequent case in the same court, this case was considered, and the court commented upon it as follows: "There an authority stood behind the election and commanded it, and no less an authority than the constitution itself. And there, too, the existence of the vacancy was publicly known; conventions made their nominations; and fifty thousand votes were cast. ' WaycrosB V Youmans, 85 Ga. 708. adversely in People v Weller, 11 Cala. ' People V Cowles, 13 N.Y. 350 ; criticized 158 Chap. IX.] ELECTION BY THE PEOPLE § 153. There was no trace of artifice or fraud, and no defect, except the formal one of no notice by the secretary of state, which, in that instance, it was impossible to give according to law. " And in the case before the court, where a person claiming to have been elected alderman of a city at a previous election, resigned on the day before the election, and fifty-five votes were cast for him as alderman "to fill vacancy," and no votes were cast for any other person, the court held that it was " a misnomer to call such a proceeding an election; it was a nullity." ' In Indiana, where a statute provided that certain vacan- cies should be filled at the annual general election, and the same statute prescribed the notice to be given of the general election, it was held that if a vacancy occurred within so short a time before the annual general election, that the notice could not be given as required, the vacancy could not lawfully be filled at such election." And in Arkansas, it has been held, that the failure of the sheriff to publish, as required by the statute, notice of a special election, did not invalidate the election, where a notice was posted, and it was generally known that the election was to be held, and the only newspaper in the county was issued irregularly.' VI. General powers and duties of inspectors or judges of election, and of canvassers. § 153. Duties of judges and inspectors of election are ministerial.— It is well settled, by numerous decisions, that inspectors or judges of election perform merely ministerial duties; that they have no power to reject a vote offered, except as the statute expressly empowers them so to do; and even where their decision is > People V Crissey, 91 N. Y. 616, per Finch, the note to the last section. J., p. 835, citing Foster V ScarfE, 15 j ggg^j „ jj^y, 17 Ind. 554. Ohio St. 532, and other cases cited In , „„ . „ -j.,, «, i.v 9™ » Wheat V Smith, 50 Ark. 366. 159 § 154. PUBLIC OFFICERS [Book IL final, for the purposes of the polling, as to whether a vote shall be received or rejected, it is not final for the purpose of an action to test the validity of the claim, or of an action by a qualified voter to recover damages against them for rejecting his vote. ' It is not inconsistent with this doctrine, that inspectors have power, and it is their duty, to decide in each instance, whether the voter, if he is challenged, possesses the requisite qualifications, because, as we shall show when we come to the exami- nation of the nature and extent of official powers, a merely ministerial officer is often required to pass upon similar questions.' But they have no power to decide whether the person offering a vote falsely personates a registered voter." § 154. When inspectors have or have not power to decide as to qualifications, — In the state of New York, the courts have construed the statutes relating to the powers and duties of inspectors of election, where a vote is challenged, as meaning, that where the inspectors have administered " the preliminary oath," so called, under which the person challenged is required to answer specifically questions put to him respecting his qualifica- tions, the inspectors must decide, upon his answers whether he possesses the requisite qualifications; and if they reject his vote, he may take the general oath; whereupon his vote must be accepted, whatever the • state V Robb, 17 Ind. 536 ; Huter v Reily, 53 Pa. St. 112 ; ,Tenklns«Waldron,ll Johns. (N.Y.)114; Gillespie v Palmer, 20 Wis. 54A. GottoheuB V Mathewson, 61 N. Y. 420, See also, Ashby « White, 2 Ld. Ray. rev'g 5 Lans. (N. Y.) 2U ; 58 Barb. 938 ; 1 Bro. Pari. Gas. 45, 1st ed.; and (N. Y.) 152 ; parallel rulings, respecting canvas- Peoples Pease, 27 N. Y. 45, aff'g 30 Barb. sers. post, 8§ 156-159. (N. Y.) 588 ; j pggj^ §§ s:S-541. People V Bell, 54 Hun (N. Y.) 667 ; afl'd i,Dw V 17K. ' People V Bell, 119 N. Y. 175, afiE'g 54 119N.Y.175, Hun(N.Y.)567. 160 Chap. IX. J ELECTION BY THE PEOPLE § 154. inspectors may know respecting the truth thereof.' A recent adjudication of the court of appeals of that state will illustrate the power of the inspectors, to pass upon the facts disclosed by the preliminary oath, and the effect of their decision thereupon. In an action brought against the inspectors of election at a town meeting, held in the town of B., to recover damages for rejecting the plaintiff's vote, the question arose whether the plaintiff was a resident of that town. The constitution of the state provides that, for the purpose of voting, " no person shall be deemed to have gained or lost a residence, while kept in any almshouse or other asylum at public expense." The plaintiff, having offered his vote, and the vote having been challenged, made oath that he was a resident of the town; that he had been admitted as an inmate of the New York Soldiers' and Sailors' Home in the town, and intended to make that his residence, as long as he was permitted to remain an inmate of such Home; that when he was admitted he was a resident of the city of New York; and on becoming an inmate of the institution he intended to change his residence to the town. The court of appeals held that the Home was an asylum, within the provision of the constitution, wherein the plaintiff was maintained at the public expense; that the plaintiff's statements, respecting his residence in the town, could be accepted only as conclusions from the circumstances detailed in connection therewith; and added: " They were his conclusions; and defendants, in view of his whole statement, were not bound by them. They were bound by the facts stated, and were required to say, upon those facts, whether the plaintiff was qualified in the necessary particular; and undoubtedly they were to determine the question at their peril The decision ' Peoples Pease, 27 N.Y. 45, afe'g 30 Bart. See also People v Bell, 119 N. Y. 175, (N. Y.) 538. See per Davies, J., pp. 53, aff'g 54 Hun (N. Y.) 5(i7. 54; per Selden, J., pp. C5 to 67. 161 § 156. PUBLIC OFFICERS Book II. of the inspectors of election was, that, in their opinion, the intending voter was in B. as a mere inmate of the insti- tution, and for a temporary purpose; and no* as a resi- dent of the voting district, or with intent to make the town a fixed or permanent place of residence; and so it would seem." The court therefore held that the action could not be maintained. ' Where a voter has given in his ballot, and the same has been deposited in the ballot box, it has passed beyond the control of the inspectors and the voter, and cannot be withdrawn by consent of all.^ § 155. After board has made count and statement it is functus officio. — After the board of inspectors or of judges of election has counted the votes, and certified to the count, it is functus officio, and the members cannot reassemble and recount the votes, unless the statute expressly empowers them so to do." So, after their return has been filed, a mandamus will not lie to compel them to make a corrected or amended return, or to recan- vass the ballots." Nor can they affect their return by a subsequent statement to the board of canvassers. ' And inspectors of election cannot consider the constitution- ality of the statute providing for ithe election, or the legality of the election thereunder, as a reason for not performing their duty." § 156. Powers of canvassers, and remedy to compel action. — In like manner the canvassers, whose duty it is > Silvey v Lindsay, 107 N. Y. 55, rev'g 42 People v Supervisors, 13 Barb. (N. Y.) Hun (N. Y.) 116. 217 ; 15 Barb. (N. Y.) 607 : = Harbaugh v Cioott, 33 Mich. 241 ; Hadley v Mayor, etc., 33 N. Y. 603 : Hartt V Harvey, 33 Barb. (N. Y.) 55. Secretary v McGarrahan, 9 Wall. (U. » State V Donnewirtb, 21 Ohio St. 216. u^j^^^ g^^^^^ ^ Boutwell, 17 Wall. (U. See also, Ramsay u Callaway, 15 La. g •. gg. Ann. 464. People u County Canvassers, 46 Hun ' People V Reardon, 49 Hun (N. Y.) 425. ^^ Y.) 390 ; 20 Abb. N. C. {N. Y.) 19. • Franklin Co. r State, 34 Fla. 55. 163 Chap. IX.] ELECTION BY THE PEOPLE §156. to canvass the votes upon the inspectors' returns, and thereupon to declare the result, exercise ministerial, not judicial duties, and they cannot go back of the returns to sift out unlawful votes, or to decide upon questions of fraud, intimidation, corruption, or the like; but they are bound to act upon the returns of the inspectors, certified and transmitted to them according to law.' The same rule applies to a justice of the peace, making a recount of votes under a statute, who has no power to take evi- dence as to whether the ballot boxes have been tampered with.* But the canvassers have the power, and are required, as matter of duty, to determine whether the ' Leigh V state, 69 Ala. 261 : Howard d McDiarmid, 26 Ark. 100, Patton V Coates, il Ark. Ill . Pacheco v Beck, 52 Gala. 3 , State I) state Canvassers, 17 Fla. 29 ; People r Kilduft. 15 111. 492 ■ People I' Warfield, 20 111. 159: People V Hilliard, 2!) 111. 413 ; BroT/er i- O'Brien, 2 Ind. 423. Kisler v Cameron, 39 Ind. 488; Moore v Kessler, 69 Ind. 152 ; State V Marshall Co. Judge, T Iowa 186 : Dishon i' Smith, 10 Iowa 212; State V Cavers, 22 Iowa 343 ; State V Lawrence, 3 Kan. 95 ; Rice V Stevens, 25 Kan. 302; Clark V MoKenzie. 7 Bush (Ky.) 523 : Bacon v County Canvassers, 26 Me. 491 ; Op'n of the Just., 64 Me. 596; Prince v Skillin, 71 Me. 361 ; Clark V County Exam'rs, 126 Mass. 282 ; People V Tisdale, 1 Dougl. (Mich.) 59 ; People V Van Cleve, 1 Mich. 362; People V Cicott, 16 Mich. 283; O'Ferrall v Colby. 2 Minn. 180; Taylor v Taylor, 10 Minn. 107; State V Harrison, 38 Mo. 540; State V Rodman, 43 Mo. 256 ; State V Steers, 44 Mo. 223; State V Townsley, 56 Mo. 107 ; State V Trigg, 72 Mo. 365 ; Chumasero v Potts, 2 Monta. 242; State 1) Ramsay, 8 Nehr. 286 ; State V Hill, 10 Nebr. 58 ; State V Stearns, U Nehr. 104; State V Peacock, 15 Nebr. 442 ; State V Hill, 20 Nehr. 119 ; State V Wilson, 24 Nebr. 139 ; Op'n of the Justices, 58 N. H. 621 ; Osgood V Jones, 60 N. H. 282 ; State V Governor, 25 N. J. L. 331 ; People V Van Slyck, 4 Cow. (N. Y.) 297 ; Ex parte Heath, 3 Hill (N. Y.) 42; Morgan i' Quackenbush, 22 Barb. (N. Y.)72; Kortz V County Canvassers, 12 Abb. N. C. (N.Y.)84; People i> County Canvassers, 12 Abb. N. C. (N. Y.) 77; 64 How. Pr. (N. Y.) 334; People V Cook, 8 N. Y. 67 ; People V County Canvassers, 54 Hun (N.Y.)595; Peebles i) County Com'rs, 82 N. C. 385; State V Boone, 98 N. C. 573 ; State Calvert, 98 N. C. 580 : Dalton V State, 43 Ohio St. 652 ; Comm. V Emminger. 74 Pa. St. 479; State V Charleston, 1 S. C. 30 ; State V Hayne, 8 S. C. 367 ; Maxwell v Tolly, 26 S. C. 77 ; Ex parte Elliott, 33 S. C. 602; Att'y Genl. v Barstow, 4 AVis. 567, at p 749. t State V Frambach, 47 N. J. L. 85. 163 § 157 PUBLIC OFFICERS [Book II. returns are regular upon the face thereof; and they may reject any returns for a substantial irregularity thus appearing." But matter, appearing upon the face of the returns, for which the statute does not provide, must be disregarded as surplusage.' § 157. The same subject. — Where a majority only of the inspectors have signed the returns, the canvassers must canvass the vote according to the returns so signed; leaving the question, whether the person who receives their certificate is duly elected, to be determined by the courts in a subsequent litigation; and they may be com^ pelled by mandamus to canvass the votes accordingly; and this duty cannot be evaded by them by refusing to meet, or by adjourning, or otherwise failing to act, for all such breaches of duty will lay the foundation of a manda- mus;' subject of course to the rule that a mandamus is discretionary, and will not be granted where it would be nugatory, and the other rules which regulate that writ." A board of canvassers may act through a committee of its own members, the report of the committee being rati- ' Hudmon V Slaughter, 70 Ala. 546 ; sers, 17 Kan. 365 ; State v County Patton w Coates, 41 Ark. Ill; Com'rs, 33 Kan. 264; Lindsey v Brown v County Com'rs, 38 Kan. 436 ; Auditor, 3 Bush (Ky.) 231 ; Clark v O'Ferrall v Colby,-2 Minn. 180; McKenzie, 7 Bush (Ky.) 523; Luce v Peebles v County Com'rs, 83 N. C. 385 ; Mayhew, 13 Gray (Mass.) 83 ; State v State V State Canvassers, 36 Wis. 498. Hill, 10 Nebr. 58; People v County See also Lawrence County Schmaul- Canvassers, 54 Hun (N.Y.) 595; Comm. hausen, 123 111. 321. v Emminger. 74 Pa. St. 479 ; Ex parte ' Ex parte Heath, 3 Hill (N. Y.) 43. E"'°"' ^3 S. C. 602 ; Burke v Sup'rs, 4 W. Va. 371. ' Att'y Genl. u Board of Canvassers, 64 Mich 607 • ' State V Stevens, 23 Kan. 456 ; People 'v Re'ardon, 49 Hun (N. Y.) 425. ^^"1'.!'^"^=^'^°*°; L^*L°".^ ' See further, as to the remedy by man. damns in election cases, Magee v State « Rodman, 43 Mo. 256 ; State V AVhittemore, 11 Nebr. 175 ; Sup'rs, 10 Cala. 376 ; State v Gibbs, 13 ^^"^^^ " ^^P'"^^' ^"~ ^^'■^- (^- ^'^ ^^'' ' Fla. 55 ; Kisler v Cameron, 39 Ind. ^tate v RandaU, 35 Ohio St. 64. 488 ; State V Marshall County Judge, 7 Iowa 186; Lewis v County Com'rs, 1.6 Kan. 102 ; Peters V State Canvas- 164 Chap. IX.] ELECTION BY THE PEOPLE § 158. fied by the full board;' but having once met and com- pleted the canvass, and certified to the result, the mem- bers cannot again, without express authority of law, meet as a board to recanvass the votes, and make another decision." Where a statute requires the county clerk to "cast up the vote" at a "local option" election, within five days after the close of the election, if he fails so to do within the time specified, that will not relieve him of his duty, or render his action unauthorized, and a man- damus will go to compel him to cast up the vote after the expiration of the time.' § 158. The same subject ; allowance of imperfect or defective ballots. — It follows, from the rules already stated, that canvassers cannot allow a ballot to a person, whose name is insufficiently given therein, upon their own judgment, and still less upon extrinsic proof, that the voter intended to vote for the person thus insuffi- ciently designated. For instance, they cannot allow Andrew H. Getty votes cast for Andrew C. Getty;' nor to William H. Smith votes forW. H. Smith or W. Smith;' nor to Leonard Clark votes cast for " L. Clark." ° But a mandamus -to canvassers to compel them to count for different persons, votes returned for "Mathew Ryan," " Mattius Ryan " and " M. Ryan " was denied, because it was not shown that these were, in fact, the names of ' Rigsbee v Durham, 98 N. C. 81. * Kortz v County Canvassers, 13 Abb. N 2 Op'n of the Just., 117 Mass. 599 ; C. (N. Y.) 84. People V Robertson, 27 Mich. 116 ; = Op'n of the Just., 64 Me. 596. State V Harrison, 38 Mo. 540 ; » q^^^^ ^ qo_ Exam'rs, 126 Mass. 282 ; Bowen v Hixon, 45 Mo. 340 ; People v Tisdale, 1 Dougl. (Mich.) 59 ; People V Sup'rs, 12 Barb. (N. Y.) 217 ; Qp'n of the Just., 38 Me. 597. Hadley v Albany, 33 N. Y. 603 ; jjj People v Cicott, 16 Mich. 283, Camp- State V Wilson, 24 Nebr. 139 ; ^,^11^ j^ ga_yg (.jj^t inspectors or can- Ingersou v Berry, 14 Ohio St. 315 ; vassers have no power to make in- State V Donnewirth, 21 Ohio St. 216. q^ij.y ^^^g ^■^^^ indentity of initials See also the preceding sections as to ^j^j^ ^ persons full name ; if this is Inspectors. done at all, it must be done by the ' State V Ringo, 42 Mo. App. 115. courts. See p. 308. 165 § 169. PUBLIC OFFICERS [Book II. different persons.' But it seems that the same strictness is not required, with respect to the designation of the title of the office, as with respect to the candidate's name; and that canvassers may disregard slight variations from the correct legal designation, if the intent of the voter is clearly apparent. Thus a mandamus was granted to compel canvassers to count ballots containing the words "For Congress" for a candidate for representative in congress.'' In other cases are to be found intimations that canvassers must disregard similar errors.^ Where a name on a printed ballot is erased, although imperfectly, and another name is written in its place, or the printed name is covered, although partially, by a " paster " con- ■ taining another name, and the voter's intention to oblit- erate the first name is manifest, upon inspection of the ballot; it seems that the inspectors or canvassers may properly allow the vote to the person, whose name was thus subsequently placed on the ballot; but where the other name is not obliterated, or the obliteration is so imperfect that the other name appears plainly upon the ballot, the ballot must be rejected, by the canvassers, as containing two names for the same office." § 159. Remedy after rejection of ballots by canvassers ; effect of their certificate. — Where the canvassers have > state V Williams, 95 Mo. 159. See Inglis v Shepherd, 67 Cala. 469 ; Accord, State v Foster, 38 Ohio St. 599. Detroit, etc., R. R. Comp'y v Bearss, 2 State V Berg, 76 Mo. 136. ^^ ^^^- ^^^ ' Clark V Com'rs, 33 Kan. 202; = People V Matteson, 17 111. 167 ; Applegate v Eagan, 74 Mo. 258 ; State V Meohem, 31 Kan. 435. p^^pj^ ^ McManus, 34 Barh. (N.Y.) 620 ; Most of the oases arose upon Informa- g^^^g ^ Elwood, 12 Wis. 551. tioninthenatureofacLUOwarranto, g^ ^^ ^^ ^he omission of the word or a statutory substitute for such an .. j,„^„ preceding the designation of information ; and the most that can ^^^ ^^^ p^^pj^ ^ (,.^^^^_ ^g ^.^^ be said is that the court, in deciding ggg thatsucherrorsmustbedisregarded, , ^^^^ ^ Behrensmeyer, 125 111. 141 ; uses language which appears to in- p^^pj^ ^ cioott, 16 Mich. 283 ; dicate that the canvassers might p^^pj^ „ Robertson, 27 Mich. 116 ; have done bo. Newton v Newell, 26 Minn. 529. 16C Chap. IX.] ELECTION BY THE PEOPLE § 160. rejected ballots for the defects mentioned in the last section, and the intent of the voters was clear, the defeated candidate, for whom they were intended, has a remedy by an information in the nature of a quo warranto, or other statutory substitute for it, to test the title to the office.' In such a proceeding, the certificate of the can- vassers of the result, although it is, for other purposes, conclusive," is ovibf prima facie evidence, even where a statute declares it to be conclusive evidence of the title to the office of the person named therein. And the con- testing party may consequently go back of it, in order to ascertain the real facts of the case. ° VII. Rules tvhich govern, in the absence of a constitu- tional or statutory regulation, where the success- ful candidate at an election cannot laiufully hold the office. § 160. English rule as to the validity of a vote. — We have considered, in a former chapter,' the rules of law respecting the eligibility of a person to a public office: we are now to consider the rules where an ineligible person receives a majority of votes cast at a popular elec- tion. In England, under the system of elections which existed there until a very recent time, whereby binding > See ante, % 145. Winter v Thistlewood, 101 111. 450 ; Dishon v Smith, 10 Iowa 213 ; Comm. V Jones, 10 Bush (Ky.) 725: Newcum v Kirtley, 13 B. Mon. (Ky.) 515 ; Prince v Sliillin, 71 iVIe. 361 ; People V Van Cleve, 1 Mich. 362 ; State 1) Justices, 1 N. J. L. 244 ; ' People V Seaman, 5 Denio (N. Y.) 409. g^^^f^ „ Passaic, ;a N. J. L. 354 ; See also cases cited in § 145, ante ; and People v Van Slyolc, 4 Cow. (N. Y.) 297 ; Rex u Vice-Ch'r, etc., of Cambridge, jjjn „ jjju^ 4 McCord (S. C.) 277 ; 3 Burr. 1647 ; Att'y Gen'i i' Barstow, 4 Wis. 567 ; Echols V State, 56 Ala. 131 ; gj-^te v Fetter, 12 Wis. 566 ; People V Jones, 20 Gala. 50 ; State v Avery, 14 Wis. 122. People V Kildulf , 15 111. 492 ; People V Matteson, 17 111. 167 ; » Prettyman v Sup'rs, 19 111. 406; People V Pease, 27 N. Y. 45. See also McCrary on Elections, 8 382 ; Paine on Elections, § 625, and cases cited. ' Ante, ch. 7. 16? § 161. PUBLIC OFFICERS [Book 11. nominations were made before the election; the voting was viva voce; the polls were often held open for several days; and the electors, being subject to a property quali- fication, were comparatively few in number; the rule has been established, that if the fact of the disqualification of a particular candidate was known to an elector, in season to enable him to vote for another candidate, but he nevertheless voted for the disqualified person, he is deemed to have wilfully thrown away his vote; and his vote is consequently a nullity; so that, if the votes thus deemed nullities are sufficient in number, to more than exhaust the majority or plurality of the ineligible candi- date, the candidate receiving the next highest number of votes, and who is eligible, is declared to be elected. But if the elector was ignorant of the fact that the candidate was ineligible, his vote is not regarded as thrown away, but is to be counted; and if the result is to retain the majority or plurality of the ineligible candidate, the election has failed, and there must be a new election. ' And the same rule has been followed in Ireland." It has also been held, that knowledge of the fact, which creates in law a disqualification, does not involve knowledge that the candidate is legally disqualified. ' § 161. American cases following the English rule. — Sorne of the American authorities have followed these rulings, and have extended them even further, in the ' Reg. V Tewkesbury, 3 L. R., Q. B., 629 : Rex v Bridge, 1 Maule & S. T6 ; 37 L. .J., Q. B., 288 ; 18 L. T. 851 ; 18 W. Reg. I) Coaks, 3 El. & Bl. 249 ; 2 C. L. R. R. 1200 ; 9 B. & S. 683 ; 947 ; 23 L. J., Q. B., 133 ; 18 Jur. 378. Gosling V Veley, 7 Ad. & Ell., N. S. 2 r«,r6TipperaryEleo.,9Ir.R., C.L.,2I7. 406 ; 4 H. L. Cas. 079 ; 1 C. L. R. 950 ; ggg also Reg. i) Franklin, 6 Ir. R., C. L., 17 Jur. 939. 239 ; See also Rex v Foxcrof t, 2 Burr. 1017 ; Trench v Nolan, 6 Ir. R., C. L., 464 ; 20 Rex V Monday, 2 Cowp. 530 ; W. R. 833 ; 27 L. T. Rep., 69. Bex V Hawkins, 10 East 211 ; Rex V Parry, 14 Bast 549 ; Claridge v Evelyn, 6 Barn. & Aid. 81 ; Reg. V Tewkesbury, supra ; Gosling v Veley, supra. 163 Chap. IX.] ELECTION BY THE PEOPLE § 162. direction of annulling votes for an unqualified person. Thus it has been held in Indiana, that the question whether such a vote is to be deemed a nullity, depends upon either actual knowledge; by the voter of the candi- dates's ineligibility, or the existence of facts which charge him with knowledge, and if the votes for the ineligible candidate, cast by those who knew, or were bound to know, that he was ineligible, will exhaust his majority, the next highest eligible candidate is elected. Thus, if the disqualification results from the fact that the candi- date held another public office, which is made a disquali- fication by the constitution; all the voters within the dis- trict to which that office pertains, are chargeable with knowledge of his ineligibility, and their votes for him are void." And substantially the same ruling was made at nisi prius in Maryland.^ § 162. The same. — In New York, rulings, substantially in conformity to those in England, were made in a case where the statutes, relating to the officers of a city, were construed to mean, that a supervisor of a ward of the city was not eligible to the office of superintendent of the poor. In that case a person, holding the office of super- visor, was elected superintendent of the poor, and resigned his office of supervisor, after the election, and before the commencement of his term of office as superintendent of the poor. "Whereupon he was declared duly elected to the latter office; and filed his oath of office and his official bond, and entered upon the discharge of the duties of the office. The next highest candidate also filed an official oath and bond; and an action in the nature of a quo warranto was brought by him, as relator, to oust the other from the office, and to put the relator into posses- • Gulick V New, It Ind. 93. s Hatcheson v Tilden, 4 Harr. & McH. Accord, in principle, Carson v McPhet- (Md.) 879. ridge, 15 Ind. 387. § 163. PUBLIC OFFICERS [Book 11. sion. The court of appeals held that the defendant was ineligible, and had not entitled himself to hold the office by resigning his office as supervisor; that judgment of ouster must consequently pass against him; but that the relator was not entitled to the office, and the office was vacant. It was insisted, in behalf of the relator, that all the votes for the defendant, cast in the ward for which he was supervisor, must be deemed nullities; the effect of which would have been to cancel the defendant's major- ity. Upon this branch of the case, the court, after fully examining the English and American authorities, said : " We think that the rule is this : the existence of the fact which disqualifies, and of the law which makes that fact operate to disqualify, must be brought home so closely and so clearly to the knowledge and notice of the elector, as that to give his vote therewith indicates an intent to waste it. The knowledge must be such, or the notice brought so home, as to imply a wilfulness in acting, when action is in opposition to the natural impulse to save the vote, and make it effectual. He must act so in defiance of both the law and the fact, and so in opposition to his own better knowledge, that he has no right to complain of the loss of his franchise, the exercise of which he has wantonly misapplied." And, inasmuch as there was no proof of actual notice of the defendant's ineligibility, nor of any facts from which notice could be implied, save that he was a supervisor; it was held that the votes in question could not be treated as nullities, and that the election had failed. ' § 163. The American rule, as established by weight of authority. — But most of the American courts ignore the ' People V Clute, 50 N. Y. 451. rev'g 63 be elected to the same office, a ballot Barb. (N. Y.) 356, and afl'g 12 Abb. Pr. east for three persons could not be N. S. (N. Y.) 399. counted, although one of the three In State v Tierney, 23 Wis. 430, it was was ineligible, held that where two persons were to 170 Chap. IX.] ELECTION BY THE PEOPLE § 163. distinction between knowledge and want of knowledge of the disqualification. A learned and distinguished writer says on this subject: "The choice of a disquali- fied person is ineffectual. Thus, if the law requires free- holders to be chosen for certain oflBcers, the election of a person not a freeholder is void. But unless the votes for an ineligible person are expressly declared to be void, the effect of such a person receiving a majority of the votes cast, is, according to the weight of American authority, and the reason of the matter (in view of our mode of election, without previous binding nomina- tions, by secret ballot, leaving each elector to vote for whomsoever he pleases), that a new election must be held, and not to give the office to the qualified person having the next highest number of votes." ' And in a recent case, this doctrine is laid down in more forcible terms, as follows : "In England, it has been held that where electors have personal and direct knowledge of the ineligibility of the majority candidate, the votes cast for such candidate are void, and the minority candidate is elected. In this country, the great current of authori- ties sustains the doctrine that the ineligibility of the majority candidate does not elect the minority candi- date; and this without reference to the question as to whether the voters knew of the ineligibility of the candi- date for whom they voted. It is considered that in such a case the votes for the ineligible candidate are not void." " Other cases in the United States sustaining the same doctrine are cited in the note.' But where the con- ' DiUon on Mun. Corp.4tliea., 8 196 (*135), Cluley , 56 Pa. St. 270 ; People v Clute, citing State v Swearingen, 12 Ga. 23 ; 60 N. Y. 451 ; Wood v Bartling, 16 Kr.n. SuMett 1) Bedwell, 47 Miss. 266; 12 109, 114. Am. R. 338; State v Giles, 1 Chand. j prfvett v Biokford, 26 Kan. 52, per (Wis.) 112; State 1) Smith, 11 Wis. 65 Saunders v Haynes, 13 Gala. 145 State V Gastinel, 20 La. Ann. 114, Cooley Const. Lim., 620; Comm. v Crawford i) Dunbar, 52 Gala. 36; Op'n 171 Horton, Ch. J., pp. 57, 58. ^ See the cases cited in note 1 ; also § 163. PUBLIC OFFICERS [Book 11. stitution declares that votes cast for one who has refused to take the oath of loyalty are void," votes for such a person cannot be counted, and are treated as nugatory.* It has been held that the death of the successful candi- date, before the opening of the polls, did not entitle the next highest candidate to the oflSce, although it was known to the voters." of the Just., 38 Me. 597 ; People v Ijume, 20 W. Va. 89 ; State u Smith, Molltor, 23 Mich. 341 ; Barnum V Gil- 14 Wis. 497. man, 37 Minn. 466 ; State v Boal, 46 i gj^^^g ^ g^g^j^ ^ jjo_ 528. Mo. 528; State D Vail, 53 Mo. 97; Hos- „„ „r,^»i>» a ^A« ' ^, „ ' . „,. T ».., 2 State u Walsh, 7 Mo. App. 142. king V Brantley, 57 Miss. 814; In re Corliss, 11 R. I. 638 ; Dryden v Swin- PosTSCEiPT. — While these pages are passing through the press, the court of appeals of New York has decided the important causes in that state, arising under the general election of 1891. In People ex rel. Nichols V Board of Canvassers of Onondaga County, the court ruled, that under the "Ballot Reform Act" of 1890, official ballots, indorsed with the wrong number of the election district ■wherein they were used, must be rejected, although the inistake was made by the county clerk in transmitting the ballots, and the result is to give the office to the minority candidate. In People ex rel. Sherwood v Board of State Canvassers, the court ruled, that although the duties of the state board of canvassers are ministerial, and the board has no power to determine whether a candidate is or is not eligible, yet a mandamus will not issue, to compel the board to give a certificate of election to an ineligible can- didate, who has received the majority of the votes, because the court will not aid in the accompUshment of an illegality. These adjudications, and others arising out of the same election, were made Dec. 29, 1891, and will probably be contained in 189 or 130 N. Y. 173 Chap. X.] ACCEPTANCE; REFUSAL § 164. CHAPTER X ACCEPTANCE OR REFUSAL; PENALTY FOR REFUSAL CONTENTS Sec. 164. Acceptance necessary to vest title to office; what suffices as an acceptance. 165. Refusal to accept an office is punishable by indictment at common law; municipal corporation may also impose penalty for such refusal. 166. Mandamus also lies against person so refusing, although he has paid the penalty; person disqualified not liable to penalty; quere, whether penalty recoverable where no compensation is provided. 167. Statute imposing penalty is constitutional; but ineligibil- ity or holding an incompatible office is a defence; quere, whether, where there is a penalty, person may hold incompatible offices. 168. Officer who resigns, incurs thereby a penalty attached to refusal to serve; where he has paid one penalty, he is not liable to another, for refusing to serve upon reap- pointment. 169. What suffices as a refusal; it may be treated by appoint- ing power as a forfeiture. § 164. Acceptance necessary to vest title to office ; what suffices as acceptance. — An appointment or election to an office is insufficient to vest the title to the office in the person chosen, without proof of his acceptance thereof. In general, it is provided by statute that an officer must take an oath of office, before he is invested with the office, and in many cases he is also required to give an official bond; but as we shall see hereafter, an officer fre- quently becomes possessed de facto of an office, although he has failed to take the official oath, or to give the official bond. In such a case, his acts show his accept- 173 § 165. PUBLIC OFFICERS [Book IL ance. And the acceptance of an office may always be shown by proof of the acts of the person chosen to fill it. Asa learned judge has remarked: "On general princi- ples, the choice of a person to fill an office constitutes the essence of his appointment. After the choice, if there be a commission, an oath of office, or any ceremony of inauguration, these are forms only, which may or may not be necessary to the validity of any acts under the appointment, according as usage and positive statute may or naay not render them indispensable. But in no case can the office itself be considered as filled, till an accept- ance of the appointment by the person chosen. That acceptance, however, need not be signified in express terms. It is often implied from previous conduct, as well as a subsequent receipt of a commission, taking the oath of office, or discharging some of its duties." ' Where a statute requires a person elected to a town office to file notice of his acceptance within a specified time, and pro- vides that a failure to file such notice shall be deemed a refusal to serve, such a notice is a substitute for an oath of office; and the filing thereof is essential to render the person an officer de jure, although he may become an officer de facto without filing it.' "Where the acceptance of an office within the time prescribed, is prevented by another's usurpation thereof, the failure seasonably to accept will be excused, and upon ouster of the usurper, the officer elect will be admitted.^ § 165. Penalties for refusal to accept office. — With respect to many offices, chiefly local in their character, it is provided by statute, in England and in the United States, that a person chosen to fill the office is subject to a penalty, if he refuses to accept it. But, apart from such I Johnston v Wilson, 2 N. H. 203, per « Bentley v Phelps, 27 Barb. (N. Y.) 534. Woodbury, J. s Reg. v Coaks, 3 El. & Bl. 249. See also Smith v Moore, 90 Ind. 294. 174 Chap. X.] ACCEPTANCE; REFUSAL § 166. a statutory provision, it is an offence at common law for a person chosen to a public office to refuse to serve, even where an official oath and bond are, or either is, requi- site to qualify him for so doing. Thus it has been said that "the grant of an office generally may be made to any person whom the king pleases; for the king has an interest in his subject and a right to his service; and therefore an information lies against him who refuses an office, being duly elected; and he shall not be excused for his neglect to qualify himself according to law." ' So it is well established at common law, that a municipal cor- poration is entitled to the official services of its members; and therefore that it may impose, by its by-laws or ordi- nances, a pecuniary penalty upon any of its members who refuses, without sufficient excuse, to serve in an office to which he has been duly chosen." This rule was declared, and the reasons therefor were very fully set forth by Lord Holt in a case arising under a by-law of the city of London;' which has been followed by several other cases.' It seems, also, that if the office is of a public character, not only may the penalty bo recovered, but the party is also liable to be punished criminally.' § 166. The same subject ; remedy against person refusing. - A mandamus will also lie against a member of a municipal corporation, who fails to take an office of a public character to which he has been chosen, as, for instance, the office of mayor;" and this, although he has 1 Com. Dig., tit. Officer, B 1. » Rex v Lone, 3 Str. 920 ; See also Edwards V United States, 103 Rex v Jone3, 2 Str. 1146 : U. S. in. Rex V Burder, i T. R. 778 ; o T^.., T,, n <»!, J ao Rex V Bower, 2 D. & R. 842 ; 1 B. & C. = Reg. v Richmond, 11 W. E. 65. ^^- 8 Hinze « People, 92 111. 408, per Sohol- See also Rex v Lone, 2 Str. 920 ; &elA, J., p. 424. Rex V Jones, 3 Str. 1146. 176 Chap. X.] ACCEPTANCE; REFXJSAL § 168. 1 Ld. Raym. 446, and other English authorities the court continued: "It is seen in Vanacker's case, that by the by-law of the corporation which imposed the penalty, he was allowed to defend himself ' by any rea- sonable excuse.' Our statute contains no such provision. Nevertheless it cannot be doubted that the defendant in the present casQ might have defended himself by any legal excuse; that is by a plea of any matter which legally disqualified him from performing the duties of the office. For example, that he was ineligible, as not being a member of the corporation, or that he already was fill- ing some public office, the duties of which were in- compatible with those of town constable, etc." ' It seems, however, from a case cited in a former chapter, that where a person holding an office is chosen to fill another office, for refusing to serve in which he is liable to a penalty, he may hold both offices, although they are incompatible." But probably the correct rule is that laid down in the North Carolina case. So it has been held, that where a town brought an action, to recover the stat- utory penalty for refusing to serve in the ofl3.ce of con- stable, an answer setting forth that at the same election, at which the defendant was elected constable, he was elected to the office of supervisor, and accepted the latter office, and qualified and entered upon the discharge of the duties thereof, discloses a sufficient defence, and is good upon demurrer, because a citizen, in such a case, will not be compelled to accept both offices." § 168. Effect of resignation or reappointment ; and of paying one penalty. — And it has been said that the fact that a penalty is imposed by statute for refusing to serve in an office, does not prevent the incumbent from resign- ' LondonuHeadoii,7GN.C. 72, approving ' Goettman i; Mayor, etc., 6 Hun (N. Y.) state V MoEntyre, 3 Ired. (N. C.) 171, 132, ante, § 32. per Ruffln, Ch. J., p. 175. , Hartford v Bennett, 10 Ohio St. HI. See also Smith v Moore, 00 Ind, 291. 177 § 169. PUBLIC OFFICERS [Book II. ing, but that he incurs the penalty by sucli resignation. ' The question whether an officer may resign, without the consent of the appointing power, will be considered in a subsequent chapter. ' Where a person has been appointed to an office, for refusal to serve in which a penalty has been attached by statute; and he refuses to serve, and has been sued, or has become liable to be sued for the penalty; he cannot be subjected to another penalty by being reappointed to fill the vacancy occasioned by his own refusal to serve. In a case thus holding, the learned judge, delivering the opinion of the court, said that "the legislature considered the penalty as an equivalent for the service;" a remark which runs counter to the rule that a mandamus will lie to compel the party to serve, although he has paid the penalty.' § 169. What is a refusal ; may be a forfeiture. — A refusal to accept an office may be express, or may be inferred from acts or omissions of the person chosen to fill it; and the authorities empowered to fill a vacancy in the office, may treat the refusal as a forfeiture. These matters will be fully considered in a subsequent chapter.' ■ Conner v Mayor, etc., 3 Sandf. (N. Y.) ' Haywood v Wheeler, 11 Johns. (N. Y.) 355, per Sandford, J., p. 3T1. 432. 2 Post, ch. 17. « Poet, eg m, 428. 178 Ohap. XI.] OATH AND BOND CHAPTER XI OFFICIAL OATH; OFFICIAL BOND CONTENTS J. General principles; and rulings applicable equally to official oaths and official bonds. Sec. 170. Oath and bond evidence of acceptance of office; officer liable to common law action, although bond given; officers empowered to administer oath or accept bond, have no power to decide upon the title of person offer- ing them. 171. Whether officer succeeding ex officio to a new office must give new oath and bond; holding office under color of title is evidence that bond and oath have been furnished. 172. Statute fixing time to qualify not applicable to one kept out of office; or where two receive an equal number of votes; or where officer had no notice of his appoint- ment till expiration of time. 173. Such statutes are deemed directory, although they make the failure ground of forfeiture, unless they declare that the failure ipso facto forfeits the office; but in some cases a contrary ruling has been made. 174. Various rulings in cases where oath or bond was not fur- nished within the prescribed statutory time; whether failure to give a bond for one office vacates another, where the former is held ex officio. 175. Eefusal of approving officer to act is excuse for not season- ably giving bond; but mistake no excuse; officer fail- ing to give oath or bond cannot justify, or have his salary. 176. Where bond seasonably executed, but not filed, whereupon office declared vacant, and same person reappointed, sureties in bond first prepared not Uable. 179 PUBLIC OFFICERS [Book II. II. Rulings relating to the sufficiency and effect of an official oath. Sec. 177. When a state may not require a test oath; ■what is evi- dence of legislative intent to dispense with oath; office not vacated because test oath is false. 178. Eulings respecting the officers by whom an official oath may be administered; effect of taking it before one not thus authorized. 179. Eulings respecting the sufficiency of the oath, and evidence that it has been duly taken. 180. Rulings upon various formal defects in official oaths; and whether such defects vitiate the officer's title to the office. 181. The same subject. III. Rulings relating to the sufficiency and effect of an official bond. 182. Validity of bond, as respects parties' liability, not affected by omission of, or defects in acknowledgement, or approval, or justification, as required by statute. 183. Various rulings as to sufficiency, date, and effect of the approval. 184. What is or is not sufficient evidence of an approval. 185. Defects in approval; courts liberal in disregarding them; rulings thereupon, and upon acknowledgements. 186. When an official bond takes effect. 187. Courts liberal in disregarding irregularities and defects in official bonds, where not vital, even in proceedings to oust the officer. Numerous cases establishing the gen- eral rule. 188. When bond, which so departs from the statute, that it cannot be sustained as a statutory bond, will be sus- tained as a common law bond; rulings on either side. 189. Where bond is sustained as a common law bond, it must be enforced by common law rules; instances. 190. Rulings in cases where the bond departed from the statute as respects the obligee. 191. The same subject. 193. Rulings in cases where the bond departed from the statute as respects the condition thereof. 193. The same subject. 180 Chap. XI. J OATH AND BOND ■§ 170. Sec. 194. Rulings where the instrument, given as an official bond, was not sealed. 195. Rulings where principal not a party; where names of sureties or principal do not appear in body of bond. 196. Rulings where bond was executed with blanks left, which were afterwards filled up, without parties' assent. 197. Rulings where alteration made in bond or in some of par- ties, after execution, and without other parties' assent. 198. Rulings where bond varies from statute as to the penalty. 199. Rulings where it is joint, instead of joint and several; where each surety is bound for part only of the penalty; where the bond is executed by less than the number required by the statute. 300. Rulings where a surety is disqualified; where the officer was not appointed at the prescribed term of the court. 201. This subject to be further considered in the next succeed- ing chapter. I. General principles; and rulings applicable equally to official oaths and official bonds. § 170. Effect of oath and bond ; powers of officer accepting bond or administering oath. — With few excep- tions, every public officer is required by statute to take an official oath, before entering upon the duties of his office. Many officers are also required by statute to fur- nish official bonds, with sureties; those who receive public money are almost invariably required so to do, for the safety of the public ; and those whose powers and duties involve the receipt of money or property for the benefit of individuals; the seizure and disposition of the property, or the arrest or detention of the persons, of individuals; or otherwise bring them into conffict with the rights of individuals; are generally required to furnish official bonds, for the safety of those interested in or injured by the exercise of such powers and duties. The bond thus given affords merely a cumulative security for the due performance of the duties of the officer; for he is liable 181 § 170. PUBLIC OFFICERS [Book II. to an appropriate action for any failure to perform the same, without reference to his bond, and of course with- out joining his sureties.' Thus a county may maintain assumpsit against its treasurer for moneys received by him, and not duly accounted for and applied; and so it may prove its demand against the estate of its deceased treasurer in the probate court.' Taking the official oath, and, where a bond is required, giving the official bond, constitute the most satisfactory evidence of the accept- ance of a public office by the person chosen to fill it. And it has been said that where the oath of office is taken, but the bond required by statute is not given, the office is not accepted;' a remark which may be correct in the abstract, but, as will hereafter be shown, is subject to several qualifications in its practical application. The officer who is required to administer the oath, or act upon the bond, has no power to inquire into the validity of the title to the office of the person tendering it. Thus, where an infant has been chosen to a public office, and the statute confines the right to hold the office to persons of full age, the officer authorized to administer the official oath cannot lawfully refuse to administer it to the person so chosen, by reason of his ineligibility," .And where a statute authorizes the board of supervisors of a county to approve an official bond, the board, although in so doing it exercises judicial powers, has no authority to refuse to approve the bond, on the ground that the officer had tendered his resignation before the time when he was authorized to take possession of the office, or before he had qualified and entered upon the duties thereof; and an order rejecting the bond for that reason will be annulled. ' 1 Post, ch. 29. ■■ People v Dean, 3 Wend. (N. Y.) 438. = Cole Co. V Dallraeyer, 101 Mo. 57. » Miller V Supervisors, 25 Cala. 93. = Morrell v Sylvester, 1 Maine 248. 183 Chap. Xl. OATH AND BOND § 173. § 171. Officer succeeding to new office ; evidence, color of title. — Where, by force of a constitution or statute, an officer succeeds to another office, upon a vacancy happen- ing in the latter, the usual course is for the person so succeeding to take a new official oath, and to give a new official bond, if a bond is required by law; and, upon principle it seems that it is necessary for him to do so. But the justices of the supreme court of Maine have held, that where, by virtue of a provision in the constitution of the state, the president of the senate becomes the act- ing governor, an additional oath of office is not neces- sary.' In quo warranto, the fact that the defendant holds the certificate of election or appointment, and is acting in the office to which he lays claim, raises the presumption that he duly took the official oath, and gave the official bond, as required by the statute." The cases, where it is or is not permitted to inquire, whether an act- ing officer has taken the official bond as required by law, will be fully examined in a subsequent chapter, relating to the exercise of power by an officer defacto.^ § 172. Effect of statute fixing time to qualify as to certain persons. — A statute, requiring an official oath to be taken and an official bond to be given, within a certain time, applies only to persons declared to be elected, and to whom the certificate of election has been given. Therefore where an action ■ is brought upon the relation of the defeated candidate, to test the right of the person to whom the certificate of election was given, it is not necessary that the relator should file or offer to file the official oath and bond. As to the bond, the officer empow- ered to approve it, has no right to try the validity of the election, and recognize the relator as the lawful officer, by taking and approving an official bond from him; so ■ Opinion of the Just., 70 Me. 593. SeealsoBaradaj)Carondelet,8Mo.644. 2 People V Clingan, 5 Cala. 389. = Post, ch. 27. 183 § 173. PUBLIC OFFICERS [Book II. that the tender of such a bond would be an idle ceremony; and as to the oath, " no person can reasonably be required to swear that he will perform the duties of an office, out of which he is thus kept by another, and which it is yet uncertain whether he can ever obtain." ' And where a statute requires a person elected to an office to qualify within a certain time, and declares that the office shall be vacant if he fails so to do, if two persons receive the same number of votes at an election, neither is required to qualify, until the result of the election is determined, although such determination is not made until after the expiration of the statutory time." Where the officer did not receive his commission, until seventeen days had elapsed since his term began, and he had no knowledgCj until its receipt, that he had been appointed to the office; it was held that the ten days, within which he was required to qualify, commenced to run upon the receipt of the commission, although the statute required a person appointed to an office to qualify within fifteen days after the commencement of his term.' § 173. Construction of statutes fixing time for officer to qualify. — Where a statute fixes the time, within which the official oath must be taken, or the official bond given, the weight of the American authorities is decidedly in support of the doctrine, that the provision respecting the time is directory, although the statute declares that the office is forfeited by the default; and that, unless the statute expressly declares that the failure to take the oath or to give the bond, by the time prescribed, ipso facto vacates the office, the oath may be taken and the bond » People V Miller, 16 Mich. 66. State v Dahl, 85 Wis. 510, cited post, See also People v Potter, 63 Cala. 127 ; § 175. People V May worm, 5 Mich. 146 ; Lj^y^ „ ^^^^^^ 75 ,j,g^_ ^g^ Pearson v Wilson, 57 Miss. 848 ; j g^^^ ^ Kraft, 18 Oreg. 550. People V McManus, 34 Barb. (N. Y.) 620 ; C2H0W. Pr. (N.Y.)25; » People V Perkins, 85 Cala. 509. 184 Chap. XI.] OATH AND BOND §173. given at any time afterwards, before judgment of ouster upon an information in the nature of a quo warranto, or other legal declaration that the office is thereby vacated.' But the authorities are not uniform in support of this doctrine; for it has been held, in other cases, that the failure to take the oath or to give the bond, within the prescribed time, vacates the office, without any proceed- ings to declare it vacant; so that it cannot be restored by a subsequent compliance with the statute.' And where the prescribed time expires, before the commence- ment of the term of the officer elect, the former incum- bent holds over, as in case of a failure to choose his successor. And it has been held, that where the statute declares that an office shall become vacant, by the failure » Dillon Mun. Corp., ith ed., § ZU (*153) ; Paine on Elections, § 232 ; See also Spro wl v Lawrence, 33 Ala. 674; State « Ely, 43 Ala. 568 ; state 1) Falconer, 44 Ala. 690 ; Ross V Williamson, 44 Ga. 501 ; Cawley v People, 95 lU. 249; Chicago V Gage, 95 lU. 593, rev'g Gage V Chicago, 2 111. App. 332; State » Porter, 7 Ind. 204 ; Smith V Cronkhite, 8 Ind. 134; Boone County v Jones, 54 Iowa 699 ; Morgan v Vance, 4 Bush (Ky.) 323 ; Curry v Stewart, 8 Bush (Ky.) 560; State V Peck, 30 La. Ann., 1, 280; State V Ring, 29 Minn. 78 ; State V Churchill, 41 Mo. 41 ; State V County Court; 44 Mo. 230 ; Kearney v Andrews, 10 N. J. Eq. 70 ; People V Holley, 12 Wend. (N. Y.) 481 ; McRoherts v Winant, 15 Abb. Pr. N. S. (N. Y.)210; Duntley v Davis, 42 Hun (N. Y.) 229 ; People V Ferguson, 20 Week. Dig. (N. Y.)276; Foot 1) Stiles, 57 N. Y. 399 ; People V Crissey, 91 N. Y. 616 ; Cronin v Stoddard, 97 N. Y. 271 ; State V Findley, 10 Ohio SJ ; State V Colvig, 15 Oreg. 57 ; Comni. V Read, 2 Ashm. (Pa.) 261 , State V Toomer, 7 Rich. L. (S. C.) 216 ; Bank v Dandridge, 12 Wheat. (U.S.) 64 ; < Falconer v Shores, 37 Ark. 386 ; People V Taylor, 57 Gala. 620; People 11 Perkins, 85 Cala. 509; In re Att'y Gen'l, 14 Fla. 277 ; State V Hadley, 27 Ind. 496 ; State 11 Johnson, 100 Ind. 489 ; State V Matheny, 7 Kan. 327 ; Creighton v Comm., 83 Ky. 142; Childrey v Rady, 77 Va. 518; Johnson v Mann, 77 Va. 265 ; Vaughan v Johnson, 77 Va. 300 ; Kilpatrick v Smith, 77 Va. 347; Branham v Long, 78 Va. 352 Owens V O'Brien. 78 Va. 116 ; See also Jackson v Simonton, 4 Cranch Cir. Ct. (U. S.) 255 ; Bennett v State, 58 Miss. 556 ; and, in England, Prowse cFoot, 2 Bro. P. C. 289; Anon., Free., 474. Many of the cases cited in this note, turned upon the peculiar language of the statute in question. 185 § 174. PUBLIC OFFICERS [Book IL of the officer to renew his bond annually, his failure so to do does not vacate his office, without judgment of ouster or forfeiture;' and that a subsequent compliance with the statute will cure the defect, and prevent a judg- ment of forfeiture in proceedings for that purpose." On the other hand, it has been held, that a statute, requiring an officer elect to qualify within a prescribed time, will be considered as directory, only where circumstances beyond his control have caused a delay; not in case of a neglect or refusal. ' So where the statute requires two or more bonds, and the officer enters after having given one, the subsequent tender and acceptance of the remain- der cures the defect." § 174. Rulings where oath and bond were not given within statutory time; effect of failure as to former office. — Where a person, elected a justice of the peace, filed an official bond within the time prescribed by law, which complied with the statute, except that the condition omitted a recital well and truly to perform all duties enjoined by law, to the best of his ability, and after the time had expired, he filed another bond, fully confirming to the statute; it was held, on quo warranto, that the first bond was insufficient; that the second was not filed in time; and that the office was consequently vacant." Where an act was passed, after a person had been elected lieutenant-governor, providing that the lieutenant-gov- ernor should be ex officio state librarian, and should give a bond in the latter capacity; and, after the bond was given, one of the sureties withdrew, pursuant to a statute allowing him so to do; and the principal failed to give another bond, whereupon the governor declared the ' Clark u Ennia, 45 N. J. L. 69. < People v Smith. 81 N. C. 305. •■' Cawley D People, 95 111. 249. » People v Peroells, 8 111. 59. 3 Flatan i> State, 56 Tex. 93. S«« ^1^°' "^o"^™- ^ Yarbroiigli, 84 Ky. See also Ross v Williamson, 44 Ga. 501. 186' Chap. XI. J OATH AND BOND § 175. oflSce of state librarian vacant; it was held that the office of state librarian was, but the office of lieutenant- governor was not, vacated by the failure.' Where county commissioners appointed a person county treasurer, pro- vided that he should give a bond within two days there- after, and he gave the bond three days thereafter and the same was not objected to, it was held that he was lawfully in office." And a bond given several months after the party's election, and while he was holding the office, is valid, to the extent that the sureties therein are liable for subsequent defaults.' Where a town collector is required by law to take an oath, but no time for taking it is fixed, and he is also required to give a bond within ten days after notice of the amount of taxes to be col- lected, he may take the oath at any time before the office is forfeited by his failure to give the bond ; and it is not so forfeited until after the supervisor of the town, or the board of supervisors of the county, has given him actual notice of the amount of taxes : he is not bound to take notice of their proceedings fixing the tax." Where the statute requires an official bond to be taken at a particu- lar term of a court, the court cannot take it at any other term; and if it is not taken at the prescribed term, the office is forfeited. " But in another case, it was held that where the bond was filed with the clerk in vacation, and indorsed by him as so filed, and no action was taken by the court thereupon, the bond was valid against the obligors therein." § 175. The same subject. — Where the officer elect failed to file his bond seasonably, in consequence of the refusal to approve it by the officer whose duty it was to do so, the bond may be filed after judgment in his favor, ' state V Laughton, 19 Xeva. r)(K. < People v McKinney, S2 N. Y. 374. » State I) Ring, 29 Minn. 78. ' Calloway v Comm., 4 Bush (Ky.) 383. » Weston V Sprague, 54 Vt. 393. » Jones v State, 7 Mo. 81. 187 .§ 177. PUBLIC OFFICERS [Book II. in an action to oust a usurper; and the rule is the same, with respect to any other act necessary to enable him to discharge the duties of the office. ' But in proceedings to oust an officer for his failure to take the official oath, or give the official bond, within the time required by law, it is no defence that the omission resulted from a mistake. ° A justice of the peace, sued for an arrest, cannot justify unless he had taken the oath of office before the arrest was made, although he took it on the same day." And an officer who has failed to take the official oath, as required by statute, before entering on the duties of his office, cannot have the salary attached to the office." But where he has taken the oath, but has filed it in the wrong office, the error does not affect his title to the office." §176. Bond invalid, where not filed in season, and' filed after reappointment. — Where, a person elected to an office, failed to file his official bond, which had been executed by him and his sureties, until after the expir- ation of the time prescribed by law, whereupon the office was declared vacant; and the same person was appointed to the office, and thereupon filed the bond first prepared; it was held that the sureties were not liable upon the bond.' II. Bulings relating to the sufficiency and effect of an official oath. § 177. Test oath ; office not vacated because test oath is false. — The form of the official oath is usually pre- ' state V DaW, 85 Wis. 510. " State v Matheny, 7 Kan. 327. See also anU. § 172. a Courser « Powers, 34 Vt. 517. So there is no forfeiture for failure to take the official oath within the time ' '^^°'^^ « Owens, 4 Md. 189 ; specified by law. Where the officer Philadelphia v Given, 60 Pa. St. 136. whose duty it was to administer the ' People D Perry, 79 Gala. 105. oath refused so to do. State « Kraft, , -winneshlek Co. v Maynard, 44 Iowa 15. 18 Oreg. 550. 188 Chap. XI.] OATH AND BOND § 178. scribed in the constitution, accompanied with a declara- tion that no other oath shall be required as a qualification for an office. The latter clause is intended to guard against the imposition of test oaths, except in cases where the constitution itself requires such oaths. It has been said that a state cannot, even by its constitution, prescribe a test oath, which will exclude a person from office by reason of an act, which was innocent when he committed it. ' Where a provision of the constitution of a state requires every officer to take an official oath, unless the legislature otherwise provides, it is not neces- sary in order to exempt an inferior officer from taking an oath, that the legislature should expressly provide that he shall not be required so to do; it suffices that such an intent on the part of the legislature is manifest in the statute. "^ An office is not vacated because a special oath required by law, ex gr., an oath against bribery, is false; but, by statute, a disability to hold the office would fol- low a conviction for perjury in taking it. ' § 178. Effect of statute prescribing who may take oath. — It has been held that a statute, designating the officers to administer official oaths to particular officers elect, or a particular class of such officers, is merely directory, and that the oath may be administed by any officer authorized so to do by a general statute." But the oath of a United States officer, under the act of con- gress of July 2, 1862, prescribing a test oath to be admin- istered, with respect to participation in the civil war, must be taken before an officer authorized to administer oaths by the laws of the United States; and a foreign con- sul, residing in Mexico, has no authority to administer I Cummings c Missouri, 4 Wall. (U. S.) • Ex parte Heath, 3 Hill (N. Y.) 43 ; 277. Canniff V Mayor, etc., 4 E. D. Smith, (N Y ) 430 " School Directors v People, 79 111. 511. „,'„..".. c.^ , <■» xt r< ci. See also State V Stanley, 66 N. C. 59. " People V Thornton, 25 Hun (N. Y.) 456, rev'g 60 How. Pr. (N. Y.) 457 189 § 180. PUBLIC OFFICERS [Book II. the same.' And it was held, in an English case, that where the charter required a newly elected mayor to be sworn into oflSice before the old mayor, this in effect requires him to be sworn in by the old mayor; so that, where the clerk administered the oath, in the presence of the old mayor, but against the latter's consent, the new mayor had not qualified." But the taking of an official oath, before an officer not authorized to administer it, does not render void the official acts of the person taking it, and assuming the office thereupon; for the rule sustain- ing the acts of an officer de facto will validate his acts.' § 179. Rulings respecting sufficiency of oath ; evidence that it has been taken. — A memorandum in writing, at the foot of the certificate of appointment of a person to fill a city office, in the following words; "Sworn before me this 31st day of December, 1857, F. W., Mayor," is not a sufficient oath of office." If, however, the governor certifies that an officer has duly taken the oath accord- ing to law, such certificate suffices, although the oath is not set out, for it will be intended that the proper oath was administered. " So where a record states that a public officer "took the oath of office," it will be intended that the oath prescribed by law was taken." And where the certificate does not show the fact, it may be proved by extrinsic evidence that an oath of office was taken before the proper officer. ' § 180. Rulings as to formal defects in oaths; effect as to title to office. — An official oath is not vitiated by, the omission of any " venue," ' if in fact it was taken within ' Otterbourg v United States, 5 Ct. of CI. > Harwood v Marshall, 9 Md. 83. (U. S.) 430. 8 Scammon v Soammon, 28 N. H. 419. » Rex V Ellis, 9 East. 253, noU; 2 Str. 994. , g^^t^ ^ ^.^^^^ ^g jj_ j_ l. gs. = State V Perkins, 24 N. J. L. 409. s Horton V Parsons, 37 Hun (N. Y.) 42. See also post, § 630. ^g,^ ^ g^^ p^_ j^ g_ ^^^^ y.) 124. * Halbeck v Mayor, etc., 10 Abb. Pr. (N. See also, Colman, d Shattuok, 62 N. Y. Y.) 439. 348. 190 Chap. XI.] OATH AND BOND § 181, the jurisdiction of the officer;' nor by the fact that the name of the person taking it is misspelled in the body of the affidavit, the signature being correct;" nor by a slight error in the designation of the office;' nor by the use of the words " declare and affirm " where the statute requires the oath to be in the words "I promise and affirm."' But an oath, "faithfully to discharge their duties," is not a compliance with a statute, requiring road viewers to take an oath to discharge their duties " impartially, and according to the best of their judg- ment." " The rule to be deduced from the cases is, that where the constitution or the statute prescribes the form of the official oath to be taken, that form must be sub- stantially followed, and any material variation from it will render the oath invalid; but a strict literal adherence to the form prescribed is not required, provided the variation does not alter the effect. " § 181. The same subject. — A recent case in New York has extended to its utmost limits the doctrine, that a defective oath of office will not vitiate the officer's title to his office. In an action, brought by a town overseer of the poor, to recover penalties for unlawful sales of intoxicat- ing liquors, it appeared that the action was originally brought by one IST, the plantiff's predecessor, who died in office, and the plaintiff was substituted in his place; and that N had taken and filed an official oath in accord- ance with a former statute, but not in accordance with a subsequent constitutional amendment; whereupon the defendant contended that N was not in office de jure when the action was commenced. The general statute provided that, an overseer of the poor, within a specified ' People!) Stowell, 9Abb. N. C. (N.Y.) 456. * Bassett v Denn, 17 N. J. L. 432. » Hoagland v Culvert, 20 N. J. L. 387. ^ In re Cambria Street, 75 Pa. St. 357. ' People V Perkins, 85 Gala. 509 " State v Trenton, 35 N. J. L. 485. 191 § 181. PUBLIC OFFICERS [Book 11. time and before entering upon his office, should take the oath of office, and if he neglected to do so, such neglect should be deemed a refusal to serve; and that, in case of a refusal to serve, a special town meeting should be called to supply the vacancy. No such meeting was held. Bradley, J., delivering the opinion of the court, after saying that the action could not be maintained, unless N was an officer de jure as well as de facto, con- tinued: "He became an officer by the election, and his title to it was defeasible. His right to continue to hold it depended upon the statutory conditions, one of which was the taking of the oath of office. He was in no sense a usurper of the office, but was legally inducted into it by election. It may not appear clear that" (he was) "an officer dejure, in the strict sense of that term, since by the terms of the statute his right to perform the duties of the office, seems dependent on his taking the oath. But it has been held in effect that the statute is not self executing, and does not work a forfeit- ure for the cause it affords, but that it must come from some act, judicial or otherwise, which effectually ousts him, and severs his relation to the office; and that until then he is practically an officer de jure, having a defeasi- ble title to the office. Upon that theory, when no judicial action is taken to that respect, the vacancy is condi- tional, depending upon election to fill it, and thus effect- ing his ouster from the office. And this may be the statutory rule to apply, in view of the needs which may- arise in the public service, requiring the performance of the duties of an officer, which is in the interest of the public, not of the individual. And public policy is entitled to and has consideration, in the construction of statutes and their effect, so far as their provisions may permit. The statute does not in terms declare that the office shall be vacant on the failure to take the oath of office; but merely provides for an election, arising out of what 19a Chap. XL] OATH AND BOND § 183. is treated by it as a refusal to serve, to supply a vacancy, the cause for which is furnished and provided for by the statute in the events there mentioned." And so a judg- ment for the plaintiff was affirmed." III. Rulings relating to the sufficiency and effect of an official bond. § 182. Effect of defects in bond, justification, acknowl- edgement, or approval, as to liability. — The statute, relat- ing to an official bond almost invariably requires that it shall be executed by the principal and one or more sure- ties; that it shall be acknowledged before an officer or a court; that the sureties shall justify in a particular man- ner, and to a particular amount; and that the bond shall be approved by an officer or a court, and filed in a parti- cular office. It is well settled that the validity of the bond, that is, the liability of the principal and sureties therein, is not affected by an omission to acknowledge it; or by an acknowledgement before an officer not empow- ered to take the acknowledgement, or by a failure to ap- prove it; or an approval by an unauthorized officer or court;' or by any defects in the justification.' § 183. Rulings as to sufficiency, date, and effect of approval. — With respect to the approval of an official ' Horton v Parsons, 37 Hun (N. Y.) 42, Davis v Haydon, 4 111. 35 ; aff'g 1 How. Pr. N. S. (N. Y.) 124; Green D Ward well, 17 111. 278 ; citing Foot v Stiles, 57 N. Y. 399 ; State v Blair, 32 Ind. 313 ; People V Crissey, 91 N. Y. 616, on pp. McCracken v Todd, 1 Kan. 148 ; 635, 636 ; Young V State, 7 Gill & Johns. (Md.) Cronin v Gundy, 16 Hun 520 ; 253 ; Clark V Ennis, 45 N. J. L. 69 ; Wendell v Fleming, 8 Gray (Mass.) 613 ; Plymouth v Painter, 17 Conn. 585 ; . People V Johr, 22 Mich. 461 ; St. Louis Co. Court v Sparks, 10 Mo. 117. Carmlchael v Governor, 4 Miss. 238 ; As to the effect of suhstituting an offl- Moore v State, 9 Mo. 330 ; cer dejure in place of an officer de facto McLean d Buchanan, 8 Jones L. (N. C.) in a pending action, see also People v 444 ; Brown, 47 Hun (N. Y.) 459. Mussehnan v Comm., 7 Pa. St. 240. 2 People V Edwards, 9 Gala. 286 ; » People v Smyth, 28 Gala. 21. , 193 § 184. PUBLIC OFFICERS [Book 11. bond, it has been held that an officer who is sued, cannot justify as an officer, unless his official bond has been approved as required by law.' But as respects the sure- ties' liability, the approval is not deemed in law a part of the bond; and, in an action upon the bond, the sureties are not entitled to oyer of the approval." In general, the approval takes effect from the time when it is made, and does not relate back to the date or the actual delivery of the bond.' And where a surety died, after delivery but before approval of the bond, it was held that he was liable thereupon.* But where a statute requires an official bond to be given and approved by a certain day; and on that day the officer elect delivers the bond to the officers empowered by law' to approve it, and they retain it till the next day, their approval on the latter day relates back to the presentment, and satisfies the statute." So where a collector's bond is seasonably filed, the accept- ance thereof, after the statutory time, relates back to the filing, and renders it sufficient." Where the tribunal, authorized to approve a new bond, given by the officer during his term, pursuant to the requirements of a statute, refuses to act upon it, the officer is not bound to sue out a mandamus, but he may set up the refusal in defence of his right to the office.' § 184. Sufficient evidence as to approval. — The approval of an official bond may be inferred from circumstances, unless the statute expressly prescribes that it must be proved in a specified mode. Thus, where a postmaster • Rounda v Manefleld, 38 Me. 586 ; Postmaster General v Norvell, Gilp. Rounds V Bangor, 46 Me. Ml. (U. S.) 106. See also ante, § ir5,and post, §§ 6i9,6t seq. , Mowbray v State, 88 Ind. 324. ^ Clark V State, 7 Blackf . (Ind.) 570. Se'e also Broome n United States, 15 3 Bruce V State, 11 Gill & Johns. (Md.) ^°"^- Postmaster General t> Norvell, GUp. (U. S.) 106. 2 Pepper i) State, 22 Ind. 399; Pierce v Richardson, 3T N. H. 306; Young 1) Comm., 6 Binn. (Pa.) 88. See also Bartlett v Board of Education, 59 111. 364. ' Apthorp V North, 14 Mass. 167. See also Wright v Leath, 24 Tex. 24 ; Poer V Brown, 24 Tex. 34. See, however, ante, S 174. « People V Evans, 39 Cala. 429 ; Mendocino Co. v Morris, 32 Cala. 145 ; Boone Co. v Jones, 54 Iowa 699 ; Young V State, 7 Gill. & .T. (Md.) 253 ; ■JVesterhaveu v Clive, 5 Ohio 136. For instances, where a detective ap- proval was held to vitiate the bond, see Crawford v Meredith, 6 Ga. 552 ; O'Marrow v Port Huron, 47 Mich. 5&5, distinguishing the case from People V Johr, 22 Mich. 461. In the case in 6 Ga., the court held that the defective approval vitiated it as a statutory bond, and that the ques- tion whether it was good as a com- mon law bond did not arise. 195 § 186. PUBLIC OFFICERS [Book II. the duties of his office, but the bond was not approved by the supervisor until the town meeting in 1877; and at a town meeting held in 1876, upon the supposition that the office was vacant, votes were cast for K to fill a vacancy in the office, and he was declared to be elected, and qualified and assumed to act ; the court held that K was not legally in office, even de facto; that the failure to procure the approval of B's bond "at the utmost afforded cause for forfeiture of the office, but did not create a vacancy; that could only be effected by a direct proceed- ing for the purpose. " ' The court referred to a previous case decided by it,' wherein it was held that by accept- ance of an election to another office, a person vacated the office held by him, without any proceeding for the purpose; and said that the decision in that case turned upon the language of the statute, which declared that in such an event, the former office " shall immediately become vacant." So the acknowledgement of an official bond, before an officer not authorized to take the acknow- ledgement, does not vitiate a bond which has been duly approved, so as. to entitle the predecessor of the officer elect to hold over." § 186. When official bond takes effect. — An official bond takes effect from the delivery thereof;' but where no other mode of delivery is expressly or impliedly required by the statute, the filing of the bond is in law a delivery thereof. " But where the language of the bond is such as to cover the entire term of the officer, and it is delivered after the term has commenced, the sureties' liability extends back to the commencement of the term." In an action by a sheriff upon a bond of his deputy, con- ditioned for the faithful discharge of the deputy's duty, ' Cronin v Stoddard, 97 N. Y. 271, follow- • Ante, 8 183. ing Foot V Stiles, 57 N. Y. 399. . Sacramento Co. v Bird, 31 Gala. 66. 2 People V Brooklyn, 77 N. Y. 503. , g^^ .^^^ gg ^^^_ * State v Mlnton, 49 Iowa 591. 196 Chap. XI.] OATH AND BOND § 187. etc., it appeared that a bond had been previously given; but one of the sureties refused to be longer liable, where- upon the bond in suit was given. It was executed by the deputy and one of the sureties, on the 30th of January, 1878, and by the other surety on the 5th of February, 1878, and on that day was delivered to the sheriff, bearing date December 1, 1877. In December, 1877, the deputy made a levy, under an execution, upon property, which he sold in January, 1878. The property was claimed by a third person, who sued the sheriff and recovered, whereupon the sheriff brought this suit. A judgment for the plaintiff was reversed, the court say- ing: "The welhestablished rule is that such a bond speaks only from its delivery. The delivery is presumptively at its date; but when the time of actual delivery is shown, the date becomes unimportant The liability for the acts of Dodge under the levy occurred by the sale, several weeks before the delivery of the bond in suit The case is not to be confounded with those, in which a bond or undertaking has been given to indem- nify the sheriff, for proceeding with a levy previously made; in which case, the surrounding circumstances show the intention to indemnify against a liability previously incurred." ' § 187. Numerous cases establishing general rule as to defects in official bonds.— The courts strongly incline to disregard irregularities and defects in, or relating to, or affecting, an official bond, such as deviations from the language of the statute prescribing its con- tents; or the proceedings of the person giving it; or of the officer, body, or court taking it, or charged with the duty of rendering it effectual; or the proceedings whereby the person giving it was chosen; or defects or insufficiencies in the evidence of his title; where > ReiUy i> Dodge, 42 Hun (N. Y.) 646. 197 §187. PUBLIC OFFICERS [Book II. such irregularities or defects are not so substantial and material, that the essential provisions of the statute are not complied with: and this is so, whether the question arises in an action upon the bond, or in proceedings to oust the officer. Numerous cases, where such irregularities and defects have been disre- garded, are cited in the note: they present a very great diversity, as respects the character of the defect or irre- gularity in question.' We shall presently illustrate the application of this rule, by citing in detail, some of the rulings upon particular defects in official bonds. Boring v Williams, 17 Ala. 510 ; In re Read, 34 Ark. 239 ; Hull V Shasta Super. Court, 63 Cala. 174 ; Hubert v Mendheim, 64 Cala. 213 ; Stephens v Crawford, 1 Ga. 574 ; Smith V Taylor, 56 Ga. 292 ; Mayo V Renf roe, 66 Ga. 408 ; People V Slocum, 1 Idaho 62 ; People V Shannon, 10 ni. App. 364 ; Green v Wardwell, 17 lU. 278 ; State V Lynch, 6 Blackf . (Ind.) 395 ; Ellis V State, 2 Ind. 262 ; Yeakle v Winters, 60 Ind. 554 ; Mowbray v State, 88 Ind. 324 ; Carroll Co. v Ruggles, 69 Iowa 269 ; Johnston v Gwathney, 2 Bibb. (Ky.) 186; Justices V Bartlett, 5 B. Mon. (Ky.) 195 ; Bontau County Court, 7 Bush (Ky.) 576 ; Whitehurst v Hickey, 3 Mart. N. S. (La.) 589; Harris v Hanson, 11 Me. 241 ; Quimby v Adams, 11 Me. 332 ; Lord V Lancey, 21 Me. 468 ; Trescott v Moan, 50 Me. 347 ; Scarborough v Parker, 53 Me. 252 ; Young V State, 7 Gill & J. (Md.) 253 ; Frownfelter v State, 66 Md. 80 ; Supervisors v Coffenbury, 1 Mich. 355 ; Berrien Co. Treas'r v Bnnbury, 45 Mich. 79; Matthews v Lee, 25 Miss. 417 ; Boykin v State, 50 Miss. 375; Cox V Ross, 56 Miss. 481 ; StateuKlrby, 9Bfe. 295, StateuCook, 72Mo. 496; State 1) O'Gorman, 75 Mo. 370; Wimpey v Evans, 84 Mo. 144 ; Co. Commissioners v Lineberger, 3 Monta. 231 ; Williams V Golden, 10 Nebr. 432; Kopplekom v Huilman, 12 Nebr. 95 ; State V Rhoades, 6 Neva. 352; Horn V Whittier, 6 N. H. 88 ; Pierce v Richardson, 37 N. H. 306 ; Hoboken v Evans, 31 N. J. L. 342; McEachron v New Providence, 35 N. J. L.528; Titus V Fairchild,49 N.Y. Super. Ct. 211; Governor v Montfort, 1 Ired. L. (N. C.) 155; Governor v Miller, 3 Dev. & Bat. L. (N. C.) 55 ; Governor v Matlock, 2 Hawks (N. C.) 368; Reid V Humphreys, 7 Jones L. (N. C.) 258; Co. Gom'rs V Magnln, 88 N. C. 285 ; Place V Taylor, 22 Ohio St. 317 ; McCaraher v Comm. 5 Watts & S. (Pa.) 21; . Philadelphia v Shalloross, 14 Phila. (Pa.) 135; Musselman v Comm., 7 Pa. St. 240 ; Stevens V Treasurers, 2 McCord (S. C.) 107; Treasurers v Bates, 2 Bailey (S. C.) 362 ; State V Toomer, 7 Rich. (S. C.) 216 ; Miller v Moore, 2 Humph. (Tenn.) 421 198 Chap. XI.] OATH AND BOND §188. § 188. Defective statutory bonds sometimes sustained as common law obligations; rulings. — Where the bond departs so materially from the provisions of the statute, that it cannot be sustained as a statutory bond, but the officer elect has obtained the office, and exercised its functions, the bond is often, especially where the ques- tion arises upon the liability of the sureties, sustained as a common law bond, unless such a result would violate some rule of public policy, or some statutory provision expressly declaring it to be void. ' Thus it has been said, that it is sufficient to validate the bond at common law, that the bond was voluntarily given, and that it covers the office, and the duties assigned thereto." So an addi- tional voluntary bond, executed after entry into the office, is valid at common law. ' And where the sheriff Groodrum v Carroll, 2 Humpli. (Tenn.) 490; Polk V Plummer, 2 Humph. (Tenn.) 500 ; Governor v Porter, 5 Humph. (Tenn.) 165; Boughton V State, 7 Humph. (Tenn.) 193; Smith V Wlngate, 61 Tex. 54 ; Winslow V Comm. 2 Hen. & Mum.(Va.) 459; United States D Bradley, 10 Pet. (U. S.) 343; Rogers v United States, 32 Fed. R. (U. S.)890; Probate Court v Strong, 27 Vt. 202. MontviUe V Haughton, 7 Conn. 543 ; Stephens v Crawford, 1 Ga. 574 : s. o. 3 Ga. 499; Stevens v Hay, 6 Cush. (Mass.) 229 ; Sweetser D Hay, 2 Gray (Mass.) 49 ; State V Bartlett, 30 Miss. 624 ; State V Horn, 94 Mo. 162 ; Lee V Waring, 3 Desau. (S. C.) 57 : Goodrum v CarroU, 2 Humph. (Tenn.) 490; Polk V Plummer, 2 Humph. (Tenn.) 500; King V Ireland, 68 Tex. 682; Jessup V United States, 106 U. S. 147. See also Pritchett v People, 6 lU. 525 : TodduCoweU, 14111. 72; Gradle v Hoffman, 105 111. 147 ; Barnes v Brookman, 107 111. 317 ; Sheppard v Collins, 12 Iowa 570 ; Garretson v Reeder, 23 Iowa 21 ; Supervisors v Coffenbury, 1 Mich. 854 ; United States v Tingey, 5 Pet. (U. S.) 115; United States v Bradley, 10 Pet. (U. S.) 343; United States v Linn, 15 Pet. (U. S.) 290; United States v Hodson, 10 Wall. (U. S.) 395. 2 United States v Rogers, 28 Fed. R. (U. S.) 607. s Johnson v Caffey, 59 Ala. 331 ; Todd 11 Cowell, 14 111. 72 ; See also State v Perkins, 10 Ired L. (N. C.)333; Comm. V Wolbert, 6 Binn. (Pa.) 292. 199 § 189. PUBLIC OFFICERS [Book II. is ex officio tax collector, and the statute does not require him to give a separate bond as tax collector, but he voluntarily gives one, it is valid at common law for the taxes. ' But the authorities are not entirely in harmony on this question; for it has also been held that where the statute does not require an officer to give an official bond, if he voluntarily gives one, it is void.^ And where a collector of the United States internal revenue, under the act of 1796, was required to give an additional bond as prescribed in the statute, and gave a bond, conditioned that he had accounted and would account for all taxes, collected or to be collected; it was held that the bond was void as to the sureties, with respect to the taxes pre- viously collected, for the law did not require the bond to be conditioned for previous defaults." § 189. Bond sustained as common law bond must be enforced by common law rules; instances. — Where the bond is upheld as a common law bond, it can only be enforced, at least in those states where the common law procedure has not been changed, according to the com- mon law rules. Thus the successor in office of the obligee, or any other stranger to the bond, cannot main- tain an action upon it." " state V Harney, 57 Miss. 863. ' Wilson v Cantrell, 19 Ala. 642 ; ' state V Heisey, 56 Iowa 404 ; tucker v Hart, 23_Miss. 548 ; See also State v Bartlett, 30 Miss 624 ; ^tate v Bartlett, 30 Miss. 634 ; United States v Humason, 6 Sawyer Governor v Twitty, 1 Dev. L. (N. C.) (U.S.) 199; ^^' United States v Tingey, 5 Pet. (U. S.) J™«« ■" "^^'"^y' * Humph. (Tenn.) 146 ; JJ- See also Casteele v Cornwall, 5 Gala. 419; = Armstrong d United States, Pet. Cir. gtevens v Hay. 6 Cush. (Mass.) 229 ; Ct. (U. S.) 46 ; Branch V Elliot, 3 Dev. L. (N. C.) 86 ; See also United States v Brown, Gilp. Williams v Ehringhaus, 3 Dev. L. (N. (U.S.) 155; 207; Farrar v United States, 5 Pet. (U. S.) y^^^ ^^'^^ „ Barnett, 4 Dev. L. (N. C. 373; 268; United States v Snyder, 4 Wash. (U. ^^^^^ ^ Commissioners, 1 Ohio 271. S.) 559. 200 Chap. XI.] OATH AND BOND § 190. § 190. Rulings where bond departed from statute as respects the obligee. — We will illustrate these principles, by examining some of the rulings of the courts, upon parti- cular defects in official bonds. And first, as to a depart- ure from the statute in the name or description of the obligee. Where the statute required an official bond to be given to the people of the State of California, it was held that a bond to "The State of California" was a sufficient compliance with the statute.' So a bond to the people of the state is sufficient, where the statute requires that it shall be given to the county f or where the statute requires that it shall be given to the county, and it is given to the people of the county;' or vice versa;" or where it is given to the selectmen of the town, instead of the town: but in such a case it is good only as a common law bond, and cannot be enforced by their successors.' So a bond given to the state has been upheld as a com- mon law bond, where the statute required that it should be given to the township trustee;" and a bond to the treasurer of the United States, where the statute required it to be given to the United States.' An ordinary bond, in which the name of the obligee is omitted, is void;' but in a case, decided in Arkansas, it was held that a county treasurer's official bond, which did not name an obligee, was valid; and, that under the statute of Arkansas, the state could maintain an action upon it for the use of the county.' Where a statute required the supervisor of a town to give an official bond ' People V Love, 19 Gala. 676 ; » Stevens v Hay, 6 Cuah. (Mass.) 229 ; See also state v Henderson, 40 Iowa Sweetser n Hay, 2 Gray (Mass.) 49. 242. c state v Horn, 94 Mo. 162 ; 2 HufEman v Koppelkom, 8 Netr. 344 ; s. See also King v Ireland, 68 Tex. 682. u., p. r., 12 Nebr. 95. 7 Jessup v United States, 106 U. S. 147. 3 Charles v Hasklns, 11 Iowa 329 ; % phelps v Call, 7 Ired. L. (N. C.) 262. See also Tevis v Randall, 6 Cala. 6C3 ; People V Love, 19 Cala. 676. * Bay County v Brock, 44 Mich. 45. ' State V Wood, 51 Ark. 205. 201 § 193. PUBLIC OFFICERS [Book II. to the town clerk, and the bond was given to "A. J. H., town clerk of," etc., it was held that the bond was not to the individual, but to the officer; that it satisfied the statute; and that the town clerk's successor could maintain an action upon it.' And a bond required to be given to the treasurer of a township is valid, where it runs to the trustees of the township.^ So where the statute required a village officer to execute an official bond "to the village by its corporate name," it was held that a bond to the trustees of the village, and their successors in office, was. a substantial compliance with the statute.' § 191. The same subject. — But it has been held, that where the statute requires that a bond be given to the state, a bond to the governor and his successors is not a valid statutory bond, and that an action upon it in the name of the governor's successor, will not lie." And a clerk's bond, running to the justices of the county by name, he being one of them, and they not being a corpo- rate body, cannot be sued in the names of their succes- sors; although if it had been given to the justices collec- tively, by their official title only, it would have been valid." But in another case, it was held that an officer's bond is not void, because the penalty is payable to him- self in another capacity." § 192. Rulings where bond departed from statute as respects the condition thereof. — With respect to variances in the condition of the bond from the requirements of the statute, if the statute enumerates particular duties, for ' Sutherland v Carr, 85 N. Y. 105 ; ' Tucker v Hart, 23 Miss. 548. See also Smith v Wingate, 61 Tex. 5i. e justices v Armstrong, 3 Dev. (N. C.) 2 Barret v Reed, 2 Ohio 409. 284. 5 Warren v Philips, 30 Barb. (N. Y.) 646. " Marshal v Hamilton, 41 Miss. 229. See also on this subject, post, S 284. 202 Chap. XI.] OATH AND BONB § 193. the performance of which the condition must provide, and also contains general words, including the officer's whole duty, an obligoi- in a bond is not discharged from the gen- eral obligation, by the omission of the particular enumer- ation.' So if the condition of the bond is more specific than the statute requires, yet if it substantially conforms to the statutory requirements, and imposes no additional obligations, it is good as a statutory bond.' So if several conditions are required, they are regarded as cumulative, and the omission of one or more does not invalidate the others.' But quere, whether, where the statute requires a bond from a disbursing officer, conditioned for the faith- ful discharge of his duties, and also for the faithful dis- bursement of money, and the latter condition is omitted, it is not covered by the former, as it would be if the statute had not been so specific.'' If the bond contains conditions which the statute does not require, it is good to the extent of the statutory requirements, and void for the excess. ° But a surety is not holden upon a bond, which does not substantially conform to the statute." § 193. The same subject. — In an action brought by the plaintiff in an execution against a constable and his sure- ties, on the constable's official bond, one of the defences was that the condition of the bond was not in the form prescribed by the statute. The condition of the bond was to the effect, that the constable should faithfully discharge his duties, and account for, and pay over all moneys received by him as constable; whereas the statute required that it should be for the payment to the persons entitled ' Justices V Wynn, Dudley (Ga.) 22. * Farrar v United States, 5 Pet. (U. S./ ' Boring V Williams, 17 Ala. 510 ; ^'^• See also Supervisors V Van Campen, 3 = State v Findley, 10 Ohio 51. Wend. (N. Y.) 48. See also Armstrong v United States, Farrar « United States, 5 Pet. (U. S.) 373. " Jackson v Simonton, i Cranoh, C. 0. 203 Peters C. C. 46. ackson v Si (U. S.) 255. § 194. PUBLIC OFFICERS [Book II. thereto of all the moneys collected upon executions, and of all damages incurred by any act of the constable. The court aflQrmed a judgment for the plaintiff, saying: "Courts have made abroad distinction between bonds given by public officers, and bonds taken by such officers in the supposed discharge of their duty. As to the former, courts are liberal ; as to the latter, strict, in order to prevent oppression. It was the constable's duty to cause a proper bond with sureties to be executed, approved, and filed. He and his sureties were the persons to see that it was in the right form. It would be hghly unreasonable should they now escape liability, and thus to be permitted to practice a fraud on all who might be injured by the constable's neglect. The act of the sureties in executing the bond has enabled the constable to act as such." ' But where a sheriff's official bond, which was required by law to cover his entire official term, was conditional only for the years 1873 and 1873, and an action was brought thereupon for his default in collecting the taxes for 1874; it was held that the sureties were not liable, notwithstandng a curative stat- ute, saving official bonds which varied from the provis- ions prescribed by law. The court said: " The object " (of the statute) " was to enforce the substance of the obliga- tion, without regard to formal defects or variances. But it certainly never was the purpose of the act, to make men do that which they never undertook to do, in form or in substance, nor especially to do precisely the contrary of their undertaking." ' § 194. Rulings where instrument given for bond was not sealed. — A bond, ex vi termini, imports a sealed instrument; but where the sureties neglected to affix their seals to an instrument, given as an official bond, a court of equity will decree that it stand as if it has been sealed.' • Jones V Newman, 36 Hun (N. Y.) 634. See also Raymond « Lent, 14 Johns. « Prince v McNeill, 77 N. C. 398. (N. Y.) 401 ; ' Kutland v Paige, 24 Vt. 181. Whitney 1) Coleman, 9 Daly (N. Y.) 238. 204 Chap. XI. J OATH AND BOND § 196. And it has been held that an unsealed instrument, if delivered and accepted as an official bond, is valid against the parties, who are liable thereupon in assumpsit. ' § 195. Rulings where principal not a party, and where names do not appear in body. — Where the statute requires that the principal shall be one of the obligors in the bond, a bond executed by the sureties only is invalid, as a statutory or a common law bond, although it has been approved by the proper authority." But where there is no statutory provision, the sureties are liable, if the bond is filed without its execution by the principal, although they executed it in reliance upon his promise also to execute it. ' And, unless the statute expressly so requires, an oflficial bond is valid, although the names of the sureties do not appear in the body of it.* Where a bond was signed by four persons as obligors, but a blank in the condition, left for the principaFs name, was not filled up, so that it did not appear on the face of the bond who was the principal, and who were the sureties, it was held that the bond was void.' But another case held that the omission of the principal's name in the body of the bond, where the intent is clear from the context, does not vitiate. * § 196. Bond executed with blanks, afterwards filled without parties' assent. — Where the parties executed a bond with blanks left in it, and delivered it to the proper officer for approval; it was held that he might fill up the blanks, and that the bond as thus filled up was valid.' • Boothbay v Giles, 68 Me. 160. See also Stewart v Carter, 4 Nebr. 564 ; , ,, „ * <:ar.» jns Partridge B Jones, 38 Ohio St. 375. > Mayo V Renfroe, 66 Ga. 4D8. See also People V Hartley, 21 Cala. 585, ° Grier v Hill, 6 Jones L. (N. C.) 572. and post, §§ 266, et seq. e Rader v Davis, 5 Lea (Tenn.) 536. s School Trustees v Scheik, 119 HI. 579, See also Moore v MoKlnley, 60 Iowa rev'gieill. App. 49. 367. See also Bartlett v Board of Eduoa- , jj^jfj. „ Comin., 3 Grant Cas. (Pa.) 61. tion, 59 111. 364. gee also, State V Pepper, 31 Ind. 76. 4 Hodgkin v Holland, 34 Ark. 203 ; 205 § 197. PUBLIC OFFICERS [Book II. But in another case, where the bond was executed by the sureties on a printed form, with blanks left unfilled, including the names of the obligors, and the penalty, and the blanks were filled without the sureties' knowledge, and the bond thus filled up was delivered to and accepted by the proper officers; it was held, upon a plea of non est factum, that the bond was not obligatory upon the sure- ties. ' Where a printed form of a city treasurer's bond was executed, with blanks left unfilled for the names of the obligors, the amount of the penalty, the date of the instrument, and the title of the oflBce; and the blanks were afterwards filled up, by direction of the principal, but without the express assent of the. sureties, by one of the city officers, and the bond filed with the city clerk, its legal custodian, who had notice of the facts; it was held that the bond was valid, and that the sureties were liable in an action upon it." § 197. Alteration in bond, or in parties, without other parties' assent. — A material alteration in an official bond, after its execution by a surety, but without his assent, will vitiate it as to him, as in the case where a private bond is thus altered. Thus it was held, that an action would not lie upon a tax collector's bond, which had been so altered, to correspond to a reassessment of the taxes.'' And where the principal, after execution and before delivery of his official bond, erased the name and signa- ture of one of the sureties; it was held that the sure- ties were not bound.* Where the officer who approved the bond was one of the sureties, it was held that his ' United States v Nelson, 3 Brook, (U. persons wlio were to become their co- S.) 64. sureties, 'but it was delivered with- » Chicago V Gage, 95 111. 593, rev'g s. c, ' °"t execution by the latter, see poet, p. r., 3 111. App. 333. Upon the ques- *^ ^^' ^ *"«• tion whether sureties are liable, ' Doane v Eldridge, 16 Gray (Mass.) 354. where the bond, as executed by 4 state u Craig, 58 Iowa 238. them, contains the names of other 206 Chap. XI. J OATH AND BOND § 197. approval did not ratify such an erasure of the name and signature of another surety, unless it was made with knowledge on his part, that the sureties, whose signatures were not erased, had not assented to the erasure. ' Some important rulings have recently been made in Missouri, on the subject of the alteration of an official bond. It has been said that where an officer, having by law the custody of an official bond, alters or defaces it after it has been filed, this is an act of spoliation by a stranger, and does not effect the liability of any of the parties; but where he does so before delivery or acceptance, this is not spoliation by a stranger;' that the county court, in accept- ing an official bond acts ministerially, and if it had knowledge that a surety's name had been erased, without the knowledge and consent of the other sureties, the lat- ter are discharged; that the bond is void as to a surety, who executed after the erasure and without knowledge thereof;' that where a collector's bond was presented to the county court for approval, and one of the sureties objected to the approval as unlawful, because he was a judge of the court, whereupon his name was erased, either by the clerk or by the collector, in presence of the judges, and a new surety executed the bond in the same place, and opposite the same seal, whereupon it was approved; this releases the sureties who had previously executed the bond, and who did not consent to the change, and also a surety who signed it after the erasure, and without knowledge thereof.' In a case decided in Mis- sissippi, where the sureties, after executing the bond, delivered it to the principal, a tax collector, for approval and filing, and the bond having accidentally become 1 state V Churclim, 48 Ark. 426. * State v Findley, 101 Mo. 368. As to the principle upon which these cases 2 State V McGonlgle, 101 Mo. 353. State V Mcfionigle, 101 Mo. 353, guishing State v Potter, 63 Mo. 213. ^^^^^ jjj division XII of chapter 12. were decided, see the suggestions of » State V Mcfionigle, 101 Mo. 353, distin- (.j^g author, post 8§ 264, 277, and oases 307 § 300. PUBLIC OFFICERS [Book II. mutilated, the collector cut off the signatures, and at- tached them to a copy of the bond; it was held that the bond was valid as to all the parties. ' § 198. Rulings where bond varies from statute as to penalty. — A variation from the statutory directions as to the penalty, by making the penalty larger than the sum prescribed, does not vitiate the bond, as to any of the parties, but it is binding only to the amount of the statu- tory penalty.' Where the statute required the amount of the penalty to be fixed by the board of education, and the board accepted a bond with the penalty inserted therein by the obligors, without being previously fixed by the bond, it was held that the statute was satisfied.' § 199. Rulings upon various other departures from statutory requirements. — If the statute requires a joint and several bond, and a bond which is joint only is given and accepted, none of the parties can object to it, as the obligation is less burdensome;* and where, under such a statute, a bond was given and accepted, which purported to bind each surety for only a specified part of the penalty, he cannot be holden for more." Where the statute requires two sureties, a bond executed by one surety only, binds him." Where an official bond is required by law to be joint and several, the discharge of one or more of the sureties does not discharge the others.' § 200. Rulings where surety is disqualified ; or officer not appointed at prescribed term of court. — Where the stat- ute requires the sureties in an official bond to be residents 1 state V Harney, 57 Miss. 863. < Tevis «■ Randall, 6 Cala. 632. ^ Graham v State, 66 Ind. 386 ; • » ^^^^^ ^ p^l,,^ ^^ L^^ (Ten^,, j, McCaraher v Comm., 5 W. & S. (Pa.) , justices v Ennis, 5 Ga. 569 ; ^^ ' Sharp V United States, i Watts (Pa.) S. P:. TrareRead, 34:Ark.239; ^l- Johnston V Gwathney, 3 Bibb (Ky.) 186; j^^^^^ ^ Comm. 8 Watts (Pa.) 223. Treasurers V Bates, 2 Bailey (S. C.) 362. = Bartlett V Board of Education, 59 111. 364. ' People V Otto, 77 Gala. 45. 308 Chap. XI. J OATH AND BOND § 301. of the county, wherein the duties of the oflBce are to be per- formed, and provides that a bond without such resident sureties " shall be invalid and insufficient;" the bond is not void in consequence of the non-residence of any or all of the sureties, so as to enable them to defend upon that ground an action brought upon it.' Where the county court is required to accept an officer's bond, and the statute for- bids the court to accept any bond, in which a judge of the court is a surety, the statute is deemed to be directory, and if such abend is accepted it is valid." Where a con- stable's bond fails to designate the term for which he was appointed, and he was in fact appointed for one year, at a term other than the one prescribed by law for that purpose, and he acted for the ensuing year; it was held that he and his sureties were liable upon the bond.' § 201. This subject continued in next chapter.— The subject of the validity of an official bond is necessarily, in many pq,rticulars, coincident with that of the lia- bilities of the sureties in such a bond, which is treated at length in the next succeeding chapter; so that the reader will find many additional cases upon the former subject, cited in that chapter. 1 state V Flinn, 77 Ala. 100. ' Shipman V McMinn, 1 Wins. (N. 0.) 132. ' State V Findley, 101 Mo. 368. 30ft PUBLIC OFFICERS [Book II. CHAPTER XII RIGHTS AND LIABILITIES OF THE SURETIES IN AN OFFICIAL BOND CONTENTS I. Preliminary observations. Sec. 203. Rights of sureties, as against promisee or obligee, under general law of principal and surety, defined; this gen- eral law applies to bond given by deputy to principal; reasons why its application is restricted, where bond is given by an officer elected, or appointed by public authorities. 203. Rights of sureties, inter sese or against principal, are the same under an official bond, as under a private bond; right of subrogation also the same; extent and applica- tion of such right under an official bond, and conse- quences of impairing it. II. Questions relating to the time when an act or omission of the prin- cipal viust have occurred, in order to render the sureties liable therefor. 204. General rule is, unless bond otherwise provides, that sure- ties liable for future transactions only, and not liable for previous transactions, occurring either during the same term or a former term, or where a new bond is given as a substitute for an old bond, which is thereupon cancelled. 205. General rule also is, unless bond or statute otherwise pro- vides, that sureties are liable only for defaults which occurred before the end of the term for which bond was given. 206. Exceptions to rule that sureties are not liable for previous defaults are based upon peculiar language of statute or of bond, or upon peculiar circumstances attending the giving of the bond; cases where they were so held liable. 310 208. 209. Chap. XII.] SURETIES IN OFFICIAL BONDS Src.207. Rule that sureties' liability does not extend to defaults beyond the term, not varied by general language of the condition. Sureties not precluded from showing that defalcation occurred before bond was given, although the princi- pal is estopped from so shovring; various rulings as to liability in such cases. Rulings as to the liabilities of the sureties, where the officer, holding for two terms, has acted partly during one term, and partly during another. 210. The same subject continued; cases where the officer had begun to execute process during the expired term. 211. Liability for money received at the date of the bond; lia- bility where the officer's term is shortened by resig- nation. 312. Liability of sureties, where the officer wrongfully holds over, without giving a new bond. 213. Liability where he rightfully holds over; rule that it con- tinues only for a reasonable time. III. Respective liabilities of the sureties in two or more bonds, given by the same officer for successive terms, or for successive periods of the same term. 214. This subject partly examined under the last preceding head; general rale, where there were successive terms, is- that each set of sureties is liable for defaults during the term for which his bond was given. 215. But if successive bonds are given during one term, new bond is cumulative, and sureties in both liable pro rata for future defaults; various cases upon this subject. 216. Additional cases thereupon; exceptions to the rule. 217. Presumptions as between the sureties in successive bonds. 218. Where money is completely misappropriated during first term, only the sureties for that term are liable, although balance carried over to second term; so as to succes- sive annual bonds during same term; cases where balan- ces were thus declared and applied. 219. The same subject continued. IV. Respective liabilities of sureties in a general bond, and sureties in a special bond, given by the same officer, p>ursuant to a statute. 211 PUBLIC OFFICERS [Book II. Sec. 220. Where, in addition to his general official bond, an officer is required to give a bond for particular duties, sureties in that bond are liable only for those duties, and sureties in general bond not liable therefor. The rule illustrated by several cases. V. lAdbility of sureties of an officer, for public money received by him, and lost by theft, robbery, the act of God, or of the public enemy; the failure of a depositary; or otherwise without his negligence or other fault. 331. Great diversity of opinion on this question; cases turning upon the peculiar language of the statute, or of the bond, whereby officer made a debtor for the money. 833. Where no such peculiar feature, the U. S. courts hold that officer is liable as a debtor, and sureties not excused where money stolen, etc. 323. Additional cases to the same effect, in the U. 8. courts; exception allowed, where money was seized by the public enemy. 284 These rulings followed in several cases, decided in the state courts; accidental fire not within statute, exempt- ing officer, from loss by ' ' irresistible supei-human cause. " 835. Rulings that officer and his sureties are liable for money lost through failure of a bank, etc. 336. Rulings to the contrary, and upholding the doctrine, that the officer and his sureties are not liable for money lost without his fault. 337. The same subject continued. 838. The same' subject continued. 829. Where money, process, etc., delivered lawfully by one officer to another, the latter's sureties are, and the former's are not, liable for loss, etc., thereof. VL Liability of sureties, depending upon the official or unofficial character of the act or omission, by reason whereof a claim is made against them. 230, General rule is that officer's sureties are not liable, except where the law requires him to act; various illustrations. 331. Other illustrations of the rule, and cases where they are liable, because the law required the act to be done. 212 Chap. XII,] SURETIES IN OFFICIAl, BONDS Sec. 233. The same subject. 233. Various rulings upon the liability of the sureties of the clerk of a court, for money received by him. 234. The same, as to the liability of the sureties of a notary pubUo. 235. The same, as to the sureties of a justice of the peace, or con- constable, with respect to the collection of demands, etc. 236. Sureties not liable for money received by oflEicer, although in an official capacity, where the bond did not cover that official capacity; various illustrations of the rule; but where two offices are united, and one bond given, sureties are liable for defaults in either office. 237. Bonds of justices of the peace cover only ministerial acts; rulings as to the liabilities of sureties therefor. VII. Liability of sureties for acts of malfeasance, or lorongs com- mitted colore officii. 238. Contradictory rulings on general proposition as to sure- ties' liability for acts done colore officii. 239. Rulings in miscellaneous cases upon the same subject. 240. Weight of authority is, that sureties of sheriff, etc. , are lia- ble for seizure, etc., of goods of one person undercolor of process against another; instances. 241. Authorities on both sides of the question. VIII. Various other rulings as to the liabilities of sureties in particular cases. 242. Liable for negligence, etc. ; instances. 243. Condition for faithful performance; when not broken by honest mistake or want of skill. 244. It is broken by failure to keep correct accounts, and make correct reports, as required by law; so as to dis- bursements. 245. Question whether such accounts, etc., are conclusive against sureties, or only prima facie evidence. 246. Mere omission of county treasurer to foreclose mortgage, not a breach of his bond, unless negligence shown. 247. Questions as to liability for acts or omissions out of the officer's district. 248. Miscellaneous cases, as to liability of sureties of officer hav- ing charge of records of deeds, etc. 249. The same as to the sureties of a clerk of a court. 213 PUBLIC OFFICERS [Book II. Sec. 350. The same as to sureties of officer issuing marriage license. 251. Sureties not liable, where deficiency in accounts is only apparent; other cases of same general character; failure to keep separate accounts of separate funds, etc. 258. Miscellaneous cases, as to liability of sureties of sheriff, constable, etc. 253. Not liable for depreciation of current bank notes; tax col- lector's sureties liable for failure to collect taxes; grain inspector's sureties liable for failure to pay over fees. 254. Town commissioner's sureties liable for impi-operly issu- ing bonds of town. 255. Whether sureties are liable for profits, made by officer from funds in his hands. ' 356. Sureties of officer de facto not liable to officer de jure for emoluments of office, after ouster. 357. Sureties of officer not liable to printers for advertising ; sureties of mail contractor not liable to individual for failure to transport mail. 358. Sureties not liable for a statutory penalty. IX. Liability of sureties, where the bond was executed, upon a condition which has not been fulfilled. 359. General rule, in case of private contracts, that sureties are not liable, where promisee or obligee had express or implied notice of the condition; otherwise they are liable. 360. Rulings of U. S. courts, as to the rule in case of official bonds. 261. Rulings of the courts in New York on same question. 263. Rulings of the courts in Indiana, Michigan, and Iowa, on the same question. 263. Other cases elsewhere: the cases appear to hold that approving officer is chargeable with notice, as a promisee or obligee in a private contract. 264. The author's criticisms upon that doctrine; reasons why an official bond should not be invalidated by any notice. 265. Additional seal not notice per se that another was to exe- cute the bond; where surety acquiesces, he waives con- dition; if some of sureties thus discharged, aU are; but the mere addition of another surety does not affect those who have signed. 2U Chap. XII.] SURETIES IN OFFICIAL BONDS Sec. 266. Where the principal is named in the body of the bond, but does not execute it, and it is thus accepted, the sureties are not holden, without proof that they assented. X. Idability of a surety, where a cosurety's signature was forged, or otherwise affixed without his authority. 267. On this point, some conflict of authorities; but the recent cases hold that surety is Uable. XL lAability of sureties, as affected by a subsequent alteration of the officer's duties, or the tenure of his office. 268. Leading English case that surety is discharged; Pybus y. Gibb. 269. Other English cases to the same effect. 370. Rulings of the United States courts, following English rulings. 871. American cases, holding that sureties are not discharged by alteration of duties, if new duties appropriate to oflSce. 272. Weight of American authorities sustains this rule; cases, and qualifications. 273. Whether sureties discharged by extension of principal's term; or of time for him to account; authorities on either side of this question. 274. So where new districts added, or county re-districted. 275. Sureties' liability not affected by change of compensation; nor, in case of a postmaster, by change in postage rates; nor by a revision of ordinances, or change of mode of payment of customs charges. 276. Sureties of water works superintendent not liable, where he was required to collect water rents; or of clerk, where he was required to collect license fees. 277. The author's comments on this rule, and suggestions that it should be made broader to hold the sureties. 278. Where new duties are imposed, bond not invalidated, but sureties remain liable for original duties. 379. Siu-eties liable, where the new duties were imposed before the bond was given, or where bond provides for duties " now or hereafter " imposed, XII. Effect, upon the liability of the sureties, of the acts or omissions of other officers, including transactions between them and the principal. 315 PUBLIC OFFICERS [Book II. Sec. 880. Peculiar character of obligee renders inapplicable some of the rules, governing private contracts of suretyship. 281. General rule that government is not liable for acts or omissions of oiHcers. 283. Effect, upon liability of sureties, of settlements, etc., between principal and auditing officers, 283. The same subject; sureties not discharged by omission to proceed against principal, as required by law; or by any other laches or omissions of other officers. 284. Where bond improperly given to town treasurer, instead of town, deaUngs between treasurer and principal may discharge sureties; cases for and against the doctrine that they are discharged by similar dealings with nom- inal obligee. 285. Illegal cancellation of bond; settlement under a statute, or by authority of city council; quere, if sureties discharged; they are discharged by payment with money furnished by the principal. 286. No defence to sureties in disbursing officer's bond, that he was a defaulter when appointed; or that appointing officers falsely represented that his accounts were set- tled; or failed to remove him for defalcation, as required by law, etc. 387. Where collector's bond in terms covers all the county taxes, but in fact part were collected by another, who was collector de facto, sureties not liable. XIII. Defences of sureties, founded upon defects in the acquisition of his office by the principal, or in proceedings to charge him. 288. All the obligors in an official bond are estopped from deny- ing principal's title to office, or otherwise questioning his power to act therein. 389. Tax collector, receiving defective warrant, etc. , may refuse to act, but his sureties are liable for taxes collected by him; so where statute was unconstitutional, etc. 290. So where rate of taxes exceeds the lawful rate; rule where collector unlawfully receives county warrants, and is credited therefor. 216 Chap. XII.] SURETIES IN OFFICIAL, BONDS § 202. Sec. 291. Where sherifiE collects money under execution, no defence that there was no judgment; so where tax collector col- lects more than was due; so where clerk receives money irregularly paid into court, etc; but semble, that where county illegally borrows money, sureties for col- lector not liable for that money. XIV. Miscellaneous questions, relating to the amount recoverable against sureties; the formal proceedings necessary to found an action against them; and the like. 293. Some of these questions already considered; general rule that liability of principal and that of surety are co-ex- tensive; exceptions to the rule; sureties not liable to a partieeps criminis. 293. Sureties generally liable for actual damages; cases where liable only for nominal damages. 294. Sureties not liable beyond penalty of bond, except for interest, etc. 295. Sureties liable without a special demand, where it is prin- cipal's duty to pay at a specified time; otherwise where no time fixed; rule th'B same as to charging them w^ith interest. 296. Sureties of U. S. officer liable for expense of procuring performance of neglected duties; but not for money, delivered by the government to an official agent, for transmission to principal, without proof that it came to his hands; when state may sue bond before expiration of officer's term. I. Preliminary observations. § 202. Rights against promisee or obligee under gen- eral law of principal and surety. — The rights of sureties comprise, where the general rules of law relating to principal and surety are under consideration, many of the duties and obligations towards the sureties, which rest upon the promisee or the' obligee in the contract of suretyship, and the violation of which will enable the sureties successfully to defend an attempt to enforce the contract of suretyship. And in the case of a bond given 217 § 202. PUBLIC OFFICERS [Book II. by a deputy or other subordinate to the principal officer, to indemnify the latter against liability by the act or omission of the deputy, the contract is, for these pur- poses, one of a private character; and the rules referred to operate as in other cases of private contract. But the relation of the sureties toward the obligee in the bond of an officer, holding by appointment or election under the authority of the sovereign power, is peculiar and excep- tional. In such a case the obligee in the bond is either the sovereign power itself, or some municipal body, exer- cising by statute a portion of the sovereign power, or some officer or board of officers, representing the sovereign power. This circumstance materially modifies the rules of law, relating to the rights of sureties in private con- tracts of suretyship. As a general rule, the sovereign power is not charged with duties or obligations to indivi- duals; and the exercise of its authority is not controlled by any rights which they may assert, except in the cases where the constitution has expressly fixed limits to such exercise. And where the bond runs to a municipal cor- poration, or a public officer, the obligee is a mere repre- sentktive of the sovereign power, whose rights, powers, duties, and liabilities are fixed by statute, which not only charges the sureties with notice of the extent thereof, but binds them as well as the obligee. Thus the obligee takes no power by intendment, or by his own acts or omissions, or the acts or omissions of any other person. Consequently questions, arising between the sureties and the obligee in an official bond, are properly to be regarded as part of those which relate to the liabilities, rather than the rights, of sureties. The effect of this peculiar and exceptional relation between the sureties and the obligee has been considered in some cases in the last preceding chapter, and will be considered more particularly in subsequent pages of this chapter. 218 Chap. XII.] SURETIES IN OFFICIAL BONDS § 203. § 203. Rights of sureties inter sese, and against prin- cipal. — The rights of a surety against a corsurety, or of one or more sureties against the principal, or against a third person, are the same in a case of an official bond, as in the case of a private contract of suretyship. ' In one respect, it is possible that a duty to the sureties may arise on the part of the government or an obligee repre- senting tlie government. The right of the sureties in an official bond to subrogation, is the same, so far as it can be enforced, as in the case of a private contract of suretyship.* Thus, where the statute Inakes the official bond of a tax collector a lien, from the time of filing the same, upon the collector's real property, in favor of the state, or the municipality interested, the sureties of the collector, who have been compelled to respond for his defalcation, are entitled to be subrogated to that lien, and to enforce it, even against subsequent purchasers, without actual notice of the lien, and before any actual default.' So the sureties in the official bond of a sheriff, on payment of a judgment recovered against him for a wrongful levy, are entitled to be subrogated to the instrument of indemnity given to him by the party.' And it has been held that a surety for a debt due to the United States, is entitled, upon paying the debt, to the priority given by the act of congress to the United States, in case of insolvency. * To what extent this rule ' Where a tax collector, at tlie request Schuessler v Dudley, 80 Ala. 647 ; of one of his sureties, deposits the Callen v Schuessler, 86 Ala. 537 ; public money in a bank of which the Boltz's estate, 133 Pa. 77. surety is an officer, and the surety Equities, which accrued before the fll- refuses, upon the collector's order, ing of the bond, are not affected to pay the money to the county thereby. Crisfield v Murdoek, 55 treasurer, the surety becomes pri- Hun (N. Y.) 143. marily liable upon the collector's , People i) Schuyler, 4 N.Y. 173, seep. 183. bond, as between himself, the col- philbrick v Shaw, 61 N. H. 356. lector, and the co-surety. Crisfield V Murdoek, .55 Hun (N. Y.) 143. ' ^ias v Bouchaud, 10 Paige (N. Y.) 445. On appeal the bill was dismissed on the » Philbrick V Shaw, 61 N. H. 356. ^^^^^^^ ^^^^ ^^^^ ^j^e ja^ta^ tl^^re ^ Knighton v Curry, 63 Ala. 404j was no right to priority ; s. c.l N. Y. 201. 219 304. PUBLIC OFFICERS [Book II. would operate to discharge a surety, where the govern- ment, or the obligee, as its representative, had impaired this remedy, has not, as far as our examination has discovered, been decided by the courts. II. Questions relating to the time, when an act or omission of the principal must have occurred, in order to render the sureties liable therefor. § 204. General rule relating to this subdivision. — The general rule is, that unless the bond is in express terms retrospective, it binds the sureties with respect to future transactions only, and that they are not liable for any default in the condition of the bond which had already occurred, when the bond took effect;' whether it occurred during a previous portion of the official term for which the bond was given, or during a previous term of the same office held by the principal.' This rule is the same, where a new bond is given as a substitute for an old bond, which is cancelled; in such a case, the sureties ' As to the time when an official bond takes effect, see ante % 186. » Haley v Petty, 42 Ark. 392 ; State V Churchill, 48 Ark. 426; Coons 1) People, 76 111. 383 ; Stern v People, 96 111. 475 ; Potter V School Trustees, 11 111. App. 28(1; Dickens v State, 7 Blackf. (Ind.) 358 ; Rogers v State, 99 Ind. 218 ; Webster County v Hutchinson, 60 Iowa 721; Colyer v Higgins, 1 Duv. (Ky.) 6 ; Rochester v RandaJl, 105 Mass. 295 ; Scarborough i) Parker, 53 Me. 252 ; Paw Paw V Eggleston, 25 Mich. 36 ; Detroit v Weber, 29 Mich. 24 ; Pine County i) Willard, 39 Minn. 125 ; Montgomery v Governor, 8 Miss. 68 ; Marney v State, 13 Mo. 7 ; State V Alsup, 91 Mo. 172 ; Comm'rs v McCormiok, 4 Monta. 115 ; Van Sickel v Buffalo Co., 13 Nebr. 103 ; Jeflers u Johnson, 18 N. J. L. 382; Bissell V Saxton, 66 N. Y.55 ; 77 N. Y. 191; Board of Education v Fonda, 77 N. Y. 350; Thomson v MacGregor, 81 N. Y. 592; Kellum V Clark, 97 N. Y. 390 ; Fitts V Hawkins, 2 Hawks .(N. C.) 394; Governor u Lee, 4 Dev. & B. (N. C.) 457; Richardson i>Smith,3JonesL. CN.C.)8 State V Galbraith, 65 N. C. 409; State V Orr, 12 Lea (Tenn.) 725 ; State V Polk, 14 Lea (Tenn.) 1 ; Myers v United States, 1 McLean (U. S.)493; Crawn » Coram., 84 Va. 282; Vivian t> Otis, 24 Wis. 518. For additional authorities, see notes to 8§ 214 et seq.y post. 230 Chap. XII. J SURETIES IN OFFICIAL BONDS 205. in the second bond are not liable for defaults occurring before its execution, unless the new bond so provides. ' § 305. General rule that sureties liable only for defaults occurring during term for which bond given. — And with respect to the time when the liability of the sureties expires, the general rule is, that, in the absence of any designation of another limit, either in the bond itself, or in the statute under which it is given, the sureties are responsible only for defaults of the principal, occuring before the end of the official term which he is serving, or is about to serve, when the bond takes efEect." This question often arises, where the principal has given two or more successive bonds, ' during successive terms to which he has been chosen, and it is necessary to deter- mine the liability of the sureties in each of such bonds. We shall have occasion presently to consider some special cases where such bonds have been given, and also where ' Thompson v Dlckerson, 33 Iowa, 360; Myers v United States, 1 McLean (U. S.) 493. » Mayor v Horn, 2 Harr. (Del.) 190 ; Comm. « Hughes, 10 B. Mon. (Ky.) 160; State 1) Powell, .40 La. Ann. 241 ; Norridgewock v Hale, 80 Me. 362 ; Heuitt V State, 6 Harr. & J. (Md.) 95 ; Bigelow V Bridge, 8 Mass. 275 ; Chelmsford Comp'y D Demarest, 7 Gray (Mass.) 1 ; Scott Co. V Ring, 29 Minn. 398 ; Lauderdale v Alford, 65 Miss. 63; Mobs v State, 10 Mo. 338 ; Dover v Twombly, 42 N. H. 59 ; Mayor v Crowell, 40 N. J. L. 207 ; Kingston M. Ins. Comp'y v Clark, 33 Barb. (N.Y.) 196; Kellum V Clark, 97 N. Y. 390 ; Bissell V Saxton, 66 N. Y. 55; s. c. 77 N.Y.191; Board of Education v Fonda, 77 N. Y. 350; Governor v Coble, 2 Dev. (N. C.) 489 ; MlUer V Davis, 7 Ired. (N. C.) 198 ; ThomasuSummey , IJones L. (N. C.) 554; Richardsoni) Smith,2 Jones L. (N. C.) 8 i Holloman D Langdon, 7 .Tones L. (N. C.)49; State I! Galbraith, 65 N. C. 409 ; Gregory v Morisey, 79 N. C. 559 ; State V Crooks, 7 Ohio 573 ; County Comm'ra v Greenwood, 1 De- sauss. Eq. (S. 450; Atkins 1) Baily, 9 Yerg. (Tenn.) Ill; Yoakley v King, 10 Lea (Tenn.) 87 ; United States v Kirkpatrick, 9 Wheat. (U.S.) 720; United States v NichoU, 12 Wheat. (U. S.) 505 ; Sthreshley « United States, 4 Cranoh, (U. S.)169; United States v January, 7 Cranoh (U. S.)572; United States t> Spencer, 2 McL. (U. S.)265; Munf ord l) Rice, 6 Munf . (Va.) 81 ; Comm. V Fairfax, 4 Hen. & Munf. (Va.) 208 ; Tyler v Nelson, 14 Gratt. (Va.) 214. 321 § 306. PUBLIC OFFICERS fBook II. two or more successive bonds have been given during the same term." At present it suffices to say, that in con- sequence of the rules just stated, the sureties in such bonds for successive terms are generally liable, each set of sureties for such defaults in the condition of the bond, as occurred after the bond was given, and before the expiration of the term for which it was given. § 306. Exceptions to general rule, and cases where sureties were held liable for previous default. — The few exceptions to the rule, that sureties are not liable for defaults which occurred before the bond was given, are based upon the peculiar language of the statute, under which the bond was given, or of the bond itself; or upon some peculiar circumstances attending the giving of the bond. Thus, in Massachusetts, it was held, that the sure- ties in the bond of a town treasurer, given after the beginning of his official term, and reciting that th§ principal had been chosen treasurer " for the current year," were liable for his defaults from the beginning of the year, that being the beginning of his official term." So a township treasurer's sureties are liable for the prin- cipal's defaults during his entire statutory term, although the bond was in fact intended for a shorter time, and the sureties were induced to execute it, by the principal's representations that such would be its effect.' And it has been held that persons, who, in September, added their names as sureties in a sheriff's bond filed in the preceding February, were liable as if they had executed it when it was filed." But, in another case, it was held that the execution of an official bond by others as sure- 1 Many of the cases, cited In the preced- See also Conover v Middletown, 42 N. ing notes to this section, Involve this J. L. 383. question. s Ladd « Town Trustees, 80 lU. 233. See also post, §8 214-219. „ ,, „„,,,,., 4 Conun. V Adams, 3 Bush (Ky.) 41. " Hatch V Attleborough, 97 Mass. B33. 323 Chap. XII. J SURETIES IN OFFICIAL BONDS § 207. ties, after the filing thereof, was unwarranted by law, and did not bind the additional sureties for want of delivery.' And where a collector of customs was appointed by the President on the 13th of November, 1853, to fill a vacancy, the senate not being in session; and on the 16th of December, in the same year, executed the bond on which this action was brought; and on the 16th of January, 1853, during the session of the senate, was appointed, by and with the advice and con- sent of the senate, for a term of four years; it was held that, under the peculiar language of the bond, given under the act of 1799, the sureties were liable for his acts as collector from the time of his appointment; but as depository of public moneys and fiscal agent of the United States, under the act of 1846, the sureties were liable only for future acts; and that the sureties were not liable, in either capacity, for acts of the principal after his appointment in January, 1853; that the first appointment would have expired with the close of the session of the senate in March, 1853, if it had not been superseded by the second; but the second appointment was a new and distinct appointment, the acceptance of which was a surrender and superseding of the first; and that the liability of the sureties for the principal's acts, either as collector or as fiscal agent, ceased upon such acceptance." § 207. General language of condition does not vary rule as to defaults beyond term.— The rule, that the liability of the sureties in an official bond, where the term of office is for a definite time, cannot be extended to defaults beyond that time, is not varied by the fact that the language of the condition is broad enough to to last ^ayor, etc., v Horn, 2 Harr. (Del.) preceding section. „t '„ „ „. , Wapello County v Bigham, 10 Iowa, 2 Montgomery v Hughes, 65 Ala. 201. gg . See also Scott County I) Ring, 29 Minn. Chelmsford Comp'y v Demarest, 7 398. Gray (Mass.) 1 ; ' Rahway v Crowell, 40 N. J. L. 207. Treasurer v Mann, 34 Vt. 371. 330 Chap. XII.] SURETIES IN OFFICIAL BONDS § 215. liable only for defaults occurring during the new term.' Or, as was said in an adjudication by the supreme court of Michigan, if an officer has held office during two or more successive terms, the respective liabilities of the sureties in his official bonds for the successive terms, are "to be determined by considering the term for which they were sureties by itself, precisely as if he had suc- ceeded some other person." ' But it has been held that the sureties in the bond for the preceding term, are not discharged, until the new bond is approved, that is, until the approval is complete, by having been made by all the officers who are required by law to approve it. ' § 215. Successive bonds during single term; cases. — But if an officer, during the same term, and pursuant to the requirement of a statute, or of another officer empow- ered by law to make such a requirement, gives a new bond, the general rule is that such new bond is cumula- tive, and does not release the sureties in the former bond from liability for future defaults; but that the two bonds are liable pro rata for such future defaults." Thus it has ' People V Aikenhead, 5 Cala. 106 ; = State v Wells, 61 Tex. 562. Coons V People, 76 111. 383 ; < jj^^ Orleans v Gautlireaux, 36 La. Stern v People, 96 111. 475 ; Ann. 109 • Webster County v Hutchinson, 60 state i Sappington, 67 Mo. 529 ; s. c. 68 Iowa 721; Mo. 454; ' Bigelow V Bridge, 8 Mass. 275 ; p^^^ ^ qox, 9 Ired. L. (N. C.) 69 ; Pine Co. V Willard, 39 Minn, 125 ; jjo^.^.^ „ Soudinot, 64 N. C. 190 ; Lewenthal v State, 51 Miss. 645 ; g^^^^ ^ Crooks, 7 Ohio 221 ; Hoboken v Kamena, 41 N. J. L. 435 ; United States v Hoyt, 1 Blatchf. (U. State V McNeill, 74 N. C. 535 ; gj ggg . Com'rs V Greenwood, 1 Desauss. (S.C.) United States v Anderson, 1 Blatchf. *50. (U.S.) 330; South Carolina Soo. v Johnson, 1 Mc- Postmaster General v Munger, 2 Paine Cord(S.C.)41; (U. S.) 189. South Carolina Ins. Company D Smith, _^ „g^ ^g^^ ordered by the county 2 Hill (S. O.) 589; commissioners is cumulative to the State V Wade, 15 W. Va. 524. former bond, although one of the ' Detroit V Weber, 29 Mich. 24. sureties on the old boud is dead. Finch V State, 71 Tex. 53. 231 § 216. PUBLIC OFFICERS [Book II. been held, under the statutes of North Carolina, that where an officer's term extends for more than one year, the successive annual bonds, required to be given by him, are cumulative, so that the first covers the whole term, and the succeeding bonds are additional securities, each for so much of the term as remains when it is given; and the sureties are liable to contribution inter sese, in a ratio to be determined by the aggregate of the penalties of all the bonds, and the amount of the penalty of the bond signed by each.' In Tennessee, it has been held, that where a sheriff, having collected part of the taxes, was required, before the day of payment, to give a new bond, the sureties in that bond were liable for money previously received by him;'' and that the sureties in a tax collector's bond, given in 1874 for the full term, were liable for a deficit in the taxes of 1875, although, the time for the payment of the taxes of 1874 was extended, and the sureties failed to comply with a statute, allowing them to consent to continue to be bound, so that a new bond was taken for the taxes of 1874.° In Illinois, it was held, where an officer had until June 1, as the time in which to account for money received by him; and on the 16th of March gave a new bond, pursuant to proceedings to compel him to do so, instituted by his sureties under a statute; that the former sureties were liable for money received by him before the 16th of March, and not accounted for.* § 316. Additional cases; exceptions to the rule. — In order that a new bond shall have the effect to release the sureties in a former bond, given for the same term, such Poole V Cox, 9 Ired. L. (N. C.) 69 ; ^ Miller v Moore, 3 Humph. (Tenn.) 189. Moore v Boudinot, 64 N. C. 190. , Chandler d State, 1 Lea (Teun.) 296, See also Bell u Jasper, 3 Ired. Eq. (N. C.) 597 ; < Cullom V DoUoff, 94 111. i Oats 1) Bryan, 3 Dev. L. (N. C.) 451 ; Accord, Jones V (JaUatin Co., 78 Ky. 491. 233 Chap. XII.] SURETIES IN OFFICIAL BONDS § 217. an intent must be expressed in the new bond, or must appear from the statute, or by other sufficient proof: where such an intent does not appear, the new bond is cumulative.' But where the new bond recites that it is in lieu of the former bond, the sureties therein are liable for the entire term of the principal." Where the rules of the United States treasury department required an accounting, before a new bond could be accepted in sub- stitution of a former bond; and a pension agent applied to give a new bond, and received permission so to do, and gave the bond accordingly; but it was not approved till two months afterwards, and he resigned two days after the approval, without having accounted, it was held that the approval did not effect the substitution, and the former sureties were liable for a deficiency.' § 217. Presumptions as between the sureties in suc- cessive bonds. — As respects the sureties in successive bonds, the presumption is, that those whose bond covered the time when the money was received, are liable for their principal's default; if he is chosen for another term, the burden is upon them to show such facts, as will be equiva- lent to a payment by him to himself as his own succes- sor.* And it has been held, that, in the absence of any proof showing when the default occurred, the presump- tion is that it occurred during the last term, and the sureties for that term have the onus of showing that it occurred in a former term." It has also been held, that the sureties in the bond for the second term are presump- tively liable for a balance, appearing to be due at the end of the first term, as the officer is supposed, in the absence of proof to the contrary, to have had the money in his ' People V Gushing, 36 Hun (N. Y.) 453. = Pine Co. 1) Willard, 39 Minn. 125 = State V Finn, 23 Mo. App. 290. ^^eUy v State, 25 Ohio yt. 567. ' United States i) Uaynes, 9 Ben. (U. S.) See also Jleppe v Johnson, 73 Cala. 265; Bruce v United States, 17 How. (U. S.) < State V Smith, 95 N. C. 396. 233 g 218. PUBLIC OFFICERS [Book II. hand at the beginning of the second term. ' And where an officer, holding for several years by successive annual appointments, gave successive annual bonds, it was held, that all the money, which had come to his hands during the entire time, and was not duly accounted for, might be recovered in an action upon the last bond, in the absence of evidence that it had been misapplied or wasted during previous years." But other cases hold, that where a person has served as tax collector for two or more successive terms, or has given a new bond for each suc- cessive year of his term; and at the end of the term, or of the last term, there is a deficiency, but there is no evi- dence to show when it commenced or occurred; the deficiency must be apportioned on all the bonds in pro- portion to the sums " collected vby the collector on each commitment." ' The sureties of a town treasurer, in his bond for his first term, are liable for money received during that term which he did not, at the commence- ment of the second term, hold officially and as town money, and had not lawfully paid out during the first term." § 318. Money appropriated during first term ; balance carried over; cases. — Where it appears that an officer, who has served two successive terms, completely misap- propriated, before the beginning of the second term, money which he received during the first term; the sureties in the first bond are, and the sureties in the second bond are not, liable for such money, although the balance was car ried over by the officer to the second year, and charged to himself in his accounts for that year." And where ' Fox V McCord, 54 Iowa, 346. See also, State v Churchill, 48 Ark. 420. See also, Haley v Petty, 43 Ark. 392 ; , bairns v O'Bleuess, 40 Wis. 469 Hartford v Franey, 47 Conn. 76 ; People V Shannon, 10 111. App. 364; ' Molntyre v Sch'l Trust's, 3 111. App.77. Goodwine V State, 81 Ind. 109. ^ee also, Bissell v Saxton, 66 N. Y. 55 ; B. c. 77 N. Y. 191 i = State V Stone, 7 Jones L. (N. C.) 383. Supervisors v Bristol, 99 N. Y. 316. * " Phipsburg V Dickinson, 78 Me. 457 ; Chap. XII.] SURETIES IN OFFICIAL BONDS § 219. successive annual bonds were given by an officer during the same term, and each year the officer debited himself with the balance; it was held that the sureties for each year were liable for the money in his hands during that year.' Where a person was town treasurer, for five suc- cessive terms of one year each; and served for the first four years without any bond, but at the beginning of the fifth year gave a bond for that year; it was held, that his sureties were not liable for his appropriation to his own use, during the first year, of money for which he falsely credited himself in his account of that year, as disbursed by him, and which he did not again enter in any of his subsequent accounts." But where a town treas- urer has held the office for several successive yearly terms, giving a new bond each year; and at the begin- ning of the year, for which the bond in suit was given, reported a balance due from him, and afterwards charged himself with money collected, and credited himself with money paid, during that year; the credits may, in an action against the sureties, be applied towards the payment of the balance due at the beginning of the year, although the treasurer was then a defaulter for that sum.' And where the officer has not made any application, sums received generally from him will be applied to extinguish the earliest charges against him; and the sureties for the last year will be holden for the balance thus ascertained." §. 219. The same subject. — Where a tax collector has held office for two successive years, and has made up his arrears for the first year, with money collected during the second year, the sureties for the second year cannot deduct that money from his defalcation." The general rule is, that where a deficiency for one term has been cov- ' Miller v Macoupin County, 7 111. 50. » Sandwich v Fish, Z Gray (Mass.) 298 ; , ^ ,- . T, J ,1 ,nc -AT oos Frost V Mixsell, 38 N. J. Eq. 586. ' Rochester v Randall, 105 Mass. 295. , „ . . i„.T,T ic 5 Colerain t) Bell, 9 Met. (Mass.) 499. = Esremont v Benjamin, 125 Mass. 15. 235 § 320. PUBLIC OFFICERS [Book II. ered up by money received during a second term, the sure- ties in the bond for the second term are liable for that money." In some cases it has been held, that money received in one year cannot be applied, by an arrange- ment between the tax collector and the treasurer or select- men, upon a balance due for the previous year, to the prejudice of the sureties for the year when it was re- ceived." Where a school officer, upon going out of office, gave his note to his successor for the balance in his hands; and, after the lapse of two years, having been reappointed, received the same note back as part of the school fund, and gave a release to his predecessor; it was held that the sureties in his last bond were liable for the money. " IV. Respective liabilities of sureties in a general bond, and sureties in a special bond, given by the same officer, pursuant to the requirement of a statute. § 230. General and special or particular bonds ; respective liability of sureties. — It is now well settled in this country, that where a statute prescribes that an officer shall,. in addition to his general official bond, give a bond, conditioned for the performance of duties par- ticularly specified, which devolve upon him; the sureties in the special bond are liable only for defaults in the per- formance of the particular duties, covered by that bond, and the sureties in the general bond are not liable for ' Cook V State, 13 Ind. 154 ; See also Gwynne v Burnell, 7 Clark & Rogers v State, 99 Ind. 218 ; F. 572 ; 6 Bing. N. C. 463 ; 1 Scott N. State V Powell, 40 La. Ann. 234 ; R. 711. Pine County v WiUard, 39 Minn. 125 ; , Boring v Williams, 17 Ala. 510 ; Lauderdale v Alford, 65 Miss. 63 ; Porter v Stanley, 47 Me. 515. State D Sooy, 39 N. J. L. 539 : g^^^ however, Readfleld v Shaver, 50 United States v Boyd, 15 Pet. (U. S.) jjg_ 3g_ 187 ; Lyndon v Miller, 30 Vt. 329 ; ' hooper v Cherry, 8 Jones L. (N. C.) 323. Crawn v Comm. 84 Va. 282. 236 Chap. XII. J SURETIES IN OFFICIAL BONDS § 320. those defaults. Thus, in Pennsylvania, it was held, that the official bond of the register of wills did not cover his duties and receipts, under the collateral inheritance tax laws, although the bond was given since those laws were passed, and those duties and receipts would appear to be included in the terms of the bond; because those laws contained a provision, requiring the register to give a special bond for the performance of his duties under them, and provided a mode to enforce the giving thereof; and that this result was not affected by the fact, which appeared in the case, that the register had never filed a bond for collateral inheritance tax, as required by the stat- ute. "It seems to us very plain, therefore," said the court, "that the general bond is not intended to secure either payment of these collections or the giving of the special bond to secure them." ' The rule, that the sureties in the general bond are not liable for the duties covered by the special bond, and vice versa,, has been affirmed in several other cases;" and it has been held that the same result follows, where the statute, prescribing new duties and requiring a new bond, was passed after the general bond was given; and another statute made all official bonds liable for duties, imposed by subsequent statutes. ' And where, in a county, there is a special fund, and a special bond for its protection, payments out of the special fund, of general demands against the county, are breaches of the special bond; and a formal, without an actual trans- fer of money, from the special fund to the general fund, does not discharge the sureties in the special bond, or charge the sureties in the general bond." Where a county treasurer 1 Comm. D Toms, 45 Pa. St. 408. State B Bateman, 102 N. C. 52 ; » Morrow v Wood, 56 Ala. 1 ; ^tate v Starnes, 5 Lea (Tenn.) 545 ; White V East Saginaw, 43 Mich. 567 : ^road v Paris, 66 Tex. 119 ; State B Young, 23 Minn. 551 ; Supervisors v Khlers, 45 Wis. 281 ; County Commissioners v Tower, 28 Supervisors v Pabst, 70 Wis. 352. Minn. 45 ; ' Morrow v Wood, 56 Ala. 1. State V Felton, 59 Miss. 402 ; , Supervisors v Pabst, 70 Wis. 352. 237 § 331. PUBLIC OFFICERS [Book II. was required by statute to increase his bond, before receiv- ing the poll taxes, and failed so to do; it was held that the sureties in his bond were not liable for the poll taxes.' In an action on the official bond of a township trustee, it is proper to charge the trustee with the amount overdrawn by him from the special funds in his hands, and to credit him with the amounts overpaid by him to the general fund, for which vouchers are produced; and it is imma- terial whether the sureties furnished the money for the overpayments, or whether the money came from the mis- application of the other funds, if the defendants were compelled to make good the deficiency occasioned by the misapplications, as they were required to do by the judg- ment." In an action upon the general official bond of a city treasurer, where it appeared that the general fund and the school fund had been mingled by the treasurer, and the aggregate default, and the aggregate of both funds, and of the school fund, were known; it was held that the sureties were not liable for the school, fund, and that, the two funds having been mingled, "a pro rata of the loss should be borne by each fund," so that the sureties were liable for the proportional loss of the general fund.' V. Bulings relating to the liability of the sureties of a public officer, for public money received by him, and lost, while in his hands, by theft, robbery, the act of God or of the public enemy; the failure of a depositary; or otherwise without negligence or other fault on his part. § 231. Great diversity of opinion upon this question; cases. — The question whether an officer, and conse- quently his sureties, are liable for such a loss, has given rise to so much diversity of opinion, that it is impossible > Morrow v Wood, 66 Ala. 1. ' State v Finney, 125 Ind. 427. See also, Woodall v Oden, 62 Ala. 125. a Britton v Fort Worth, 78 Tex. 227. 238 Chap. XII. J SURETIES JN OFFICIAL BONDS § 321. to reconcile the adjudications thereupon. A few of such adjudications turn upon the peculiar language of the bond, or of the statute under which it was given. Thus, in a state where the courts have leaned to the opinion that the officer and his sureties are not liable for such a loss, in the absence of a statutory provision imposing a liability therefor upon them, it was held, that in the particular case of the tax collector of a town, the effect of the statutes was to render him a debtor to the town for the amount of the taxes, which he was required by his warrant to collect, and to provide the manner in which that debt was to be discharged; and therefore that it was no defence to an action upon his bond, that the money had been stolen from his dwelling house, without his fault. ' On the other hand, where a county treasurer's bond was conditioned to " exercise all reasonable dili- gence and care, in the preservation and care of the moneys, books," etc., "appertaining to his oflSce," and also "to pay over promptly to the person or officer entitled thereto, all moneys which may come to his hands by virtue of his ofiice;" it was held, after a consideration of all the cases on the subject, which had been reported at the time, that, under the peculiar language of the treasurer's bond, he was not liable for public money received by him, and stolen from him, without want of diligence or care on his part." But where the bond in terms renders the principal a debtor for the money received by him, he and his sureties are absolutely bound to respond for the money; and its loss without the prin- cipal's fault is no defence; a proposition which is much more easily stated, than practically applied, in view of the different rulings upon the language of particular bonds." ' Muzzy V Shattuck, 1 Denio (N. Y.) 233. Barb. (N. Y.) 605. See also Fake v Whipple, 39 N. Y. 394 ' Ross V Hatch, 5 Iowa, U9. aff 'g 39 Barb. (N. Y.) 339 ; ° Union Township i' Smith, 39 Iowa 9 ; Looney v Hughes, 26 N. Y. 614, affl'g 30 State v Moore, 74 Mo. 413. 239 § 223. PUBLIC OFFICERS [Book II, § 223. Ruling of the U. S. supreme court.— Where, however, there are no statutory provisions rendering the case exceptional, and the bond is in the usual form, conditioned for faithful performance of the officer's duty, with or without an additional condition for faith- ful disbursement and accounting, or the like, the courts of the United States and of several of the states regard a receiving and disbursing officer as a debtor for, or insurer of, the public money in his hands, and refuse to allow him or his sureties to escape liability therefor, although it is stolen, or lost, or taken from him by irresistible force, and without his fault. In the leading case in support of this doctrine, it was held by the United States supreme court, that where a receiving and disbursing officer of the government has given a bond, with sureties, condi- tioned for the faithful performance of his duties, and the safe keeping of, the due accounting for, and the pay- ment over of, all moneys which he may receive; he and his sureties cannot escape from liability, by proof that the money in his hands was stolen from him, without fault or negligence on his part. It was said that the law of bailments is not applicable to such a case; that the liability of the officer arises out of his bond, which has been broken, since the officer failed to pay over the money; and also rests on grounds of public policy. With respect to the latter ground, Mr. Justice McLean, deliver- ing the opinion of the court, said: " Every depositary of the public money should be held to a strict accountability; not only that he should exercise the highest degree of vigilance, but that he should keep safely the moneys which come to his hands. Any relaxation of this condi- tion would open a door to fraud, which might be prac- ticed with impunity. A depositary would have nothing more to do, than to lay his plans and arrange his proof; so as to establish his loss without laches on his part. Let such a principle be applied to our postmasters, 240 Chap. XII. J SURETIES IN OFFICIAL BONDS §334. collectors o£ the customs, receivers of public moneys, and others who receive more or less of the public funds, and what losses might not be anticipated by the public ? " ' § 323. Additional U. S. cases ; exception where money seized by public enemy.-This principle has been re-affirmed and applied, under a variety of circumstances, by the courts of the United States in subsequent cases.' The only exception, which the federal courts have allowed, to the liability of the officer and his sureties for money received, and not accounted for and paid over, is where the officer was prevented from doing so by the act of God or the public enemy. Thus, where the money in the hands of a collector was forcibly seized by the insur- gent authorities, during- the civil war, against the will, and without fault or negligence of the collector, it was held that he and his sureties were not liable therefor.^ But, in the absence of any physical coercion, it is no defence that the officer paid money in his hands upon an order from the Confederate States, although he was then within the confederate lines.* § 224. Rulings followed in several cases by state courts; irresistible superhuman cause. — The courts of many of the states have followed, in several cases, this ruling, with respect to the liability of the sureties of an officer for ' U. S. V Presoott, 3 How. (U. S.) 578. decree relief- to a disbursing officer, » United States v Morgan, 11 How. (U. ""^^ ^*^ 1°^* government money, „ ^ . , . " without fault or neglect on his United States v Dashiel, 4 Wall. (U.S.) P^-^-" See Whittelsey v United States, 3 Ct. of 01. (U. S.) 452; Malone v United States, id. 466. 182; United States v Keehler, 9 Wall. (U. S.) 83 ; ' United States V Thomas, 15 Wall. (U. Boydeu V United States, 13 Wall. (U. S.) 337 : S.) 17 ; United States v Humason, 6 Sawyer Bevans v United States, 13 Wall. (U. (U. S.) 199. S.) 56. . United States v Keehler, 9 Wall. (U. By the act of Congress of May 9, 1886, gj g3_ the court of claims is authorized to 241 § 335. PUBLIC OFFICERS [Book II. money lost or stolen, or of which he was robbed, while it was in his hands.' One of the state rulings even refuses to acknowledge an exception from the act of God or the public enemy;'' and a territorial ruling holds that the sureties are liable, although the oflficer was murdered, as well as robbed,' a feature of the case which might well take it out of the principle of public policy, established in the United States courts. Where a statute exempted an officer and his sureties from any loss, arising from "irre- sistible superhuman cause," it was held that an accidental fire, not caused by lightning, whereby the money was destroyed, was not within the statutory exception, although the officer (a; county treasurer) had requested the county to furnish him a safe.." § 335. Rulings in case of failure of bank, etc. — So it has been held, that where public money has been deposit ted by an officer in a bank, and is lost by the failure of the bank, the officer and his sureties are liable for the money, although the bank was then in good credit, and the officer was not chargeable with want of care-° and ' Halbert i) State, 23 Ind. 135 -, « gtate v Clarke, 73 N. C. 255. Mortec V State, 28 Ind. 86; s united States); Watts, 1 NewMex. 553 Rook V Stinger, 36 Ind. 346 ; Taylor v Morton, 37 Iowa 560 ; * ^lay County v Simonsen.l Dak.Ter. 403. Hancock v Hazzard, 12 Gush. (Mass.) ^^^ ^^^° Union Township v Smith, 39 j]2 . Iowa 9. Redwood CouutyDTower,28 Minn. 45; » Lowry i! Polk County, 51 Iowa 50 ; Board of Kducation v Jewell, 44 Minn. Perley v Muskegon Co., 32 Mich. 132 ; 427 ; State v Powell, 6T Mo. 395 ; State V Moore, 74 Mo. 413 ; Havens v Lathene. 75 N. C. 505 ; County Com'rsDLineberger, 3 Monta. Hart v Poor Guardians, 81* Pa. St. 231; 466; State V Nevin, 19 Neva. 162 ; Nason v PoorDirectors, 126 Pa. St. 445 ; New Providence v McEachron, 33 N. See also, Wilson v Wichita County, 67 J. L.389. Tex. 647; State V Harper, 6 Ohio St. 607 ; Supervisors v Kaime, 39 Wis. 468. Comm. « Comly, 8 Pa. St. 872 . See also. Ward v School District, 10 Nebr. 293. 343 Chap. XII.] SURETIES IN OFFICIAL. BONDS § 226. although the deposit was necessary for the safety of the funds. ' § 226. Rulings upholding contrary doctrine and exempt- ing officer and sureties. — Other well considered cases uphold the contrary doctrine, to wit, that an officer and his sureties are not liable for money in his hands, and lost without his negligence or other default, where there is nothing in the statute, or the terms of the bond, to impress upon him the character of a debtor or of an insurer." In New York, where, as we have already shown, ^ a tax collector is deemed, by the peculiar provi- sions of the statute, a debtor for the taxes, even before collection, it was held, that the sureties of a county treasurer are not liable for money stolen from his office, without fault on his part." Some doubt has been thrown upon the authority of this case, chiefly by reason of the subse- quent decisions of the United States supreme court; and in the most recent case on the subject in that state, the court said that the question was still probably open. In the case referred to, it was held that a surrogate, who received officially money of the estates in his hands, is bound only for good faith and reasonable diligence; and where, pending proceedings to determine who was entitled to such money, the surrogate deposited it with a private banker of good credit, who failed, and the money ' state V Moore, 74 Mo. 413. ' Ante, § 221. ^ The only English case that we have * Supervisors v Dorr, 25 Wend. (N. Y.) found, which bears directly upon 440 ; affirmed, on an equal division, this question, arose upon the bond 7 Hill (N. Y.) 583. In support of the of the treasurer of a building soci- proposition that an officer is liable ety. It was held that he was a bailee only for misfeasance or neglect, of the money, not a debtor ; and that Nelson, Ch. J., cited, if he was robbed of the money, be- Lane v Cotton, 1 Ld. Raym. 646 ; fore he had an opportunity to pay Whitfield v Le Despencer, Cowp. 754 ; it over, and without fault on his Com. Dig., tit. Action upon the. ca'ie part, he was not liable. Walker v for negligence, A 3 ; British Guardian Ass'n, 18 Q. B. 277; Bartlett v Crozier, 15 Johns. (N. Y.) 250 ; 21 L. J., Q. B. 257 ; 16 Jur. 855. Guille v Swan, 19 Johns. (N. Y.) 381. 243 § 227. PUBLIC OFFICERS [Book II, was lost, the surrogate's sureties were not liable for the loss." In delivering the opinion of the court, Earl, J., reviewed the decisions previously cited, and declared his dissent from the reasoning in United States v. Prescottj' on the ground that the changed condition of the country sinco 1845, when that case was decided, rendered it unnecessary to enforce such, a rigid rule on the ground of public policy. In South Carolina, it has been expressly held, that a county treasurer's bond is not liable for money, lost by the failure of a bank, in good credit when the money was deposited therein. ' § 227. The same subject continued. — It was held in Maine, in a case decided in 1879, that the responsibility of a county treasurer, in the absence of any statute enlarging it, is measured by the common law rule appli- cable to bailees for hire, other than common carriers and innholders; that the statutory official bond of a county treasurer does not increase his responsibility; but its office is to secure the performance of his legal obligations; and that if, without fault or negligence on his part, he is vio- lently robbed of money belonging to the county, that is a valid defence, pro tanto, to an action on his official bond. Virgin, J., delivering the opinion o- the court, said that the doctrine that a depositary of public funds is an insurer, was first established in the case of United States V. Prescott,* which case has been " followed, with more or less consistency, by numerous cases, in various jurisdictions, in which the question was directly or indirectly involved;" but that " notwithstanding the high character of the several courts whose decisions are above cited, we cannot yield our convictions as to the construc- tion to be given to the bond in such case, or concur in > People V Faulkner, 107 N. Y. 477, rev'g ' York County v Watson, 15 S. C. 1. 38 Hun (N. Y.) 607. , 3 jj^^^ y. S. 578, cited ante, § 232. ' Ante, 8 223. 244 Chap. XII. J SURETIES IN OFFICIAL. BONDS § 228. relation to the new-born public policy, based upon sup- posed facility or temptation, which depositaries of the public money are said to possess for collusive robberies." ' But where a treasurer has refused to pay orders lawfully drawn on him, while he had money with which to pay them, he and his sureties are liable, although the money was subsequently destroyed by the burning of his house.' § 228. The same subject continued. — In Alabama, in a recent case (1885), where a tax collector was robbed on the highway, by being put in peril of his life, of money which he was carrying to the county seat to pay it over, it was held, that if he exercised " the highest amount of care, diligence, and vigilance " to protect the funds in his hands, and was robbed by irresistible force, which he could not have foreseen or guarded against, this was a defence to an action against him and his sure- ties; otherwise if it was not the same money which he received, or if he was in default for not paying it over, as if he permittted the public money to accumulate in his hands, instead of turning it over, and thus had more money with him than he should have had; and that it was for the jury to say, whether he had taken every pre- caution which " a very prudent and cautious man " would have taken; and so a judgment against the defendants, in an action on the officer's official bond, was reversed, and the cause remanded. ' Upon exceptions to the rulings of the court upon the second trial in this cause, it was held, that where the tax collector took the money from the safe wherein it was deposited, at about 9 or 10 o'clock in the morning, put it in envelopes in the side pockets of his coat, and walked about a village until two o'clock in the afternoon, when he started for the > Cumberland v Pennell, 69 Me. 357. ' Monticello v Lowell. 70 Me. 487. See also Potter v Titcomb, 7 Me. 302 ; 3 ^^^^^ „ Houston, 78 Ala. 576. Bridges V Perry, M Vt. 262. § 230. PUBLIC OFFICERS [Book II. county seat, and on the road was robbed by a highway- man, who presented a pistol, and compelled him, by threats of death, to give up the money; he was not, as a matter of law, guilty of negligence, without proof that his con- duct contributed in some way to the subsequent robbery. ' In Louisiana, it has been said that an officer and his sureties are liable for public money, of which he has been robbed, where he might have avoided the loss, by the exercise of ordinary care and diligence. " § 229. Liability where money, etc., are delivered by one officer to another. — Where money collected by an officer is delivered, pursuant to an order of the court, to another officer, and is lost through the latter's death and insolvency, the sureties of the first officer are not liable for it. ° And if a constable, holding an execution, delivers it to another constable, who collects the money, the second constable is liable to the plaintiff in the execu- tion, in an action for money had and received, but his sureties are not liable in any form." VI. Liability of sureties, depending upon the official or unofficial character of the act or omission, by reason of which a claim is tnade against them. § 230. General rule and various illustrations. — The general rule is, that sureties for a public officer are not liable for his doijig or failing to do any acts, which the law does not require him to do. ' Thus they are not liable for a sheriff's or constable's acts or omissions in ' state t! Houston, 83 Ala. 361. State v Conover, 28 N. J. L. 324 ; » State u Lanier, 31 La. Ann. 423. ^^^^^ " ^"^^^^^ ^ Wis. 43. See also,Coleman v Ormond, 60 Ala. 328; = Lewis V Lee County, 66 Ala. 480. g^.^^^^ ^ ^^^^^ ^ ^^^ 5jj . « Pettijohn v Hudson, 4 Harr. (Del.) 178. McKee v Griffin, 66 Ala. 211 ; - Cotton V Atkinson, 53 Ark. 98 ; J°''°^°° « Foran, 58 Md. 148 ; Schmitt V Drouet, 42 La. Ann. 1064 ; State v Davis, 88 Mo. 585 ; State V Norwood, 12 Md. 177 ; ^^°^^^ " ^"""^^ ^ ^- Y- 585 ; and th. State V Rollins, 29 Mo. 267 ; °"^^'' "^^^^ hereinafter cited. 246 Chap. XII.] SURETIES IN OFFICIAL BONDS § 231. the service of a precept or other writ, which he could not lawfully serve. ' So the sureties of a city assessor and clerk are not liable for taxes collected by him, where there was no statute or ordinance authorizing that officer to collect taxes;'' and the same rule holds respecting license fees. ' And where a village tax collector gave a bond, conditioned to collect all taxes delivered to him, and for faithful performance and paying over money ; it was held that the bond was necessarily restricted to such taxes as the village authorities had power to impose; and that the sureties in the bond were not liable for state, county, and town taxes upon real property, situated within the corporate limits of the village, collected by him under a warrant, delivered to him without authority of law." And where a county collector advances to the treasury the whole amount of the taxes chargeable against him as collector, and dies before the expiration of his term, leaving part of the taxes uncollected, his successor is not bound to collect such taxes; and if he does so, he acts as an agent, and not in his official capacity. His sureties are consequently not liable for his failure to collect such taxes, and would not be liable for his failure to pay them over if he had collected them. " § 231. Other illustrations and cases. — So where pay- ment of money is made to the clerk of a court, who is not authorized to receive it, the remedy is against him personally, and not qn his bond, and consequently his sureties are not liable therefor.' And, since it is not a part of the official duty of a collector of United States customs to carry gold to another city, to deposit it with the assistant treasurer, if he attempts to do so, under an order of the secretary of the treasury, and the gold is 1 Dane v Gillmore, 51 Me. 544. Ward v Stahl, 81 N. Y. 406. ' San Jos« V Welch, 65 Cala. 358. State v Rollins, 29 Mo. 2B7. 3 Linch V Litchfield, 16 111. App. 612. « Bowers v Fleming, 67 Ind. 541. •247 § 233. PUBLIC OFFICERS [Book II. lost during the transit, his sureties are not liable there- for.' In Missouri it has been held, that the sureties of a county auditor are not responsible for the school moneys collected by him, and not accounted for, as it is not a part of the official duty of an auditor, in that state, to collect the school moneys.'' But in Iowa, the county auditor is the custodian of the school fund; and it was there held, that if he delivers up, without payment, a note and a mortgage constituting part of that fund, his bond is liable, for at least nominal damages, although the county may recover against the makers of the surren- dered sureties. ° The doctrine, that the sureties of an officer are not liable for money paid to him, which the statute did not require him to receive, has been affirmed in several other cases." Especially is this the rule, where the principal received money, which by law ought to have been paid to another officer. " § 232. The same subject. — Some questions arise, in the application of the rule to cases, where money came to the hands of an officer authorized by law to receive it, but not in the manner or under the conditions prescribed by law. Thus where a sheriff sells personal property, which he has attached, or on which he had levied under an execution; but the sale is made by agreement of the parties, and not as prescribed by law; his sureties are not liable for the money." So it has been held, that the sure- > United States v Adams, 24 Fed. B. (U. State V White, 10 Rich. L. (S. C.) 442 ; S.)348. Branch DComm. 2 Call (Va.) 428. 2 State 1) Bonner, 73 Mo. 387. s Madison Co. v TuUis, 69 Iowa 720. See also, United States v White, 4 Wash. (U. S.) 414 . » Sample v Davis, 4 Greene (Iowa) 117 ; Leigh » Taylor, 7 Barn. & Cr. 491 ; People v Pennock, 60 N. Y. 421 ; Smith V Stapler, 53 Ga. 300 ; -^^^j.^ ^ Stahl, 81 N. Y. 406. Saitenherry v Louoks, 8 La. Ann. 95 ; -. „ r^ „ /~i„ „t„ n„„-t 11 ° Governor t) Perrine, 23 Ala. 807 ; NoUey v Callaway County Court, 11 ^^^ i,v .. a _ r. o /-,v • c. eno Mo. 447: People V Pennock, 60 N. Y. 421 ; Webb V Anspaoh, 3 Ohio St. 522. So IS to property replevied. Sohloss V White, 16 Cala. 65. 248 Chap., XII.] SURETIES IN OFFICIAL BONDS §233. ties of a constable are not liable for his failure to pay to the plaintiff, money intrusted to him for the purpose by the defendant, after the writ was served." It has been held that money, paid to a sheriff or constable in satis- faction of an execution, but after the return day thereof, charges the sureties.' But other cases hold that the sureties are not charged, on the ground that the officer had no authority to receive the money. ' The sureties of a sheriff are not liable for money, paid to him by a judg- ment debtor, to apply upon the judgment, where no pro- cess had been issued thereupon.^ Nor are they liable for money, deposited with the sheriff in lieu of bail, by a defendant arrested upon a capias." The sureties of a deceased county treasurer arei liable to a railroad com- pany for a condemnation fund, of which he should have had charge, but which he had not taken into his possession at the time of his death." Where a county judge, pursuant to a statutory authority, has received money paid by an executor upon claims against the estate, which have been allowed, his sureties are liable for his failure to pay the same to the persons entitled thereto.' § 333. Various rulings relating to the clerk of a court. — The following rulings have been made, respect- ing the liability of the sureties for the clerk of a court, for money paid to the clerk, depending upon the question whether he received it officially or unofficially. The sureties are liable for money paid to the clerk with- > Boston V Moore, 3 Allen (Mass.) 126. See also, McGehee v Gewln, 35 Ala. So where the constable purchased 176; property from the debtor, and, as , g^^^^ ^ j^^^^ ^ jo^^g ^ (>j (, , 5^4 part of the price, agreed to pay the judgmpnt, Hill V Kemble, 9 Gala. 71. " State v Long, 8 Ired. (X. C.) 415. See also State v Long, 8 Ired. (N.C.) 513. ' Beale v Coram. 7 Watts (Pa.) 183. ' Doolittle V Atchiuson, etc., R. R. s Forward v Marsh, 18 Ala. 645 ; Comp'y, 20 Kan. 329. Thomas v Browder. 33 Tex. 783. „ . „ , ™„ ' Wright V Harris, 31 Iowa 273. 249 § 234. PUBLIC OFFICERS [Book II. out process, upon a judgment entered in his office;' or upon a sale in partition, where the court has directed him to make the sale;" or for jail fees collected by him, pursuant to a statute, for the benefit of a city or county;' and generally for any money which the clerk is author- ized to by law to receive, although he is not author- ized to distribute it.' So the sureties of a prothonotary, who is authorized to receive fees due to his predecessor, are liable for fees so received. * On the other hand, it has been held that a clerk's sureties are not liable for money paid into court, where there was no statute requiring him to take charge of such money, but only a custom that he should do so;" nor for the money paid into court by a guardian on resigning his trust, although the court on al- lowing the resignation, directed the money to be so paid;' ' nor for the fees of other officers collected by him, and not paid to them. ' The sureties of a clerk are liable for money paid into court, subject to the further order of the court, although he disposed of it with the consent of the admin- istratrix of the estate, to which the money belonged." § 234. Liability of sureties of a notary public. — The sureties of a notary public are not liable for money deposited with him, for the purpose of cancelling a mort- gage; as it is not made by law the official duty of a notary to receive money for that purpose.'" But vi^here the statute makes it the duty of a notary public, to give notice of non-payment or non-acceptance of a note or bill in his hands, his sureties are liable for his failure so to do. " ' Morgan v Long, 29 Iowa 434 ; Carey v State, 34 Ind. 103. McDonald v Atkins, 13 Nebr. 568. , g^^^^ ^ g^^^^^ ^ ^^^ 2^3 " State V Blair, 76 N. C. 78. See also State v Givan, 45 Ind. 267. s State V Norwood, 13 Md. 177. « State v Givan, 45 Ind. 267 ; * Henry v State, 98 Ind. 381. Matthews v Montgomery, £5 Miss. 150. » Watson V Smith, 26 Pa. St. 395. " Sullivan v State, 131 Ind. 342. • Hardin v Carrico, 3 Met. (Ky.) 289 ; ' ° Lescouzeve v Ducatel, 18 La. Ann. 470. " Wheeler v State, 9 Heisk (Tenu.) 393. 250 Chap. XII. J SURETIES IN OFFICIAL BONDS § 235. § 235. Justici? of the peace or constable, as to col- lections, etc. — The following rulings have been made, respecting the liability of the sureties of officers con- nected with the administration of justice, to the person intrusting them with securities for collection. The sure- ties in the bond of a justice of the peace are liable for his conversion of notes or other securities left with him for collection;' but not for money paid upon such a demand before it was due," or where he received the demand for collection as the creditor's agent." They are liable, how- ever, for money collected in his oflBcial character, although without suit;' or paid to him, without execution, upon a judgment recovered before him;' even although the judgment was for a sum exceeding his jurisdiction." They are not liable for money received by him, as security for the appearance of a prisoner before him on a criminal charge, and converted by him, where the statute contains no provision allowing him to receive money in such a case. ' A constable's sureties are not liable for his default, with respect to the collection of a demand, left with him for that purpose.' But in North Carolina, it has been held, that a constable's sureties are liable for his failure, through his default, to collect a note or other security placed in his hands." And in Tennessee, it has been held, that where a constable obtains, without suit, the money upon a demand placed in his hands for collection, his ' Latham v Brown, 16 Iowa 118 ; ' Bogart v Green, 8 Mo. 115 ; Bessinger v Diekerson, 20 Iowa 260. Treasurers v Temple, 2 Spears (S.C.) 48 ; See also Peabody I) State, 4 Ohio St. 387. Crittenden v Terrill, 2 Head (Tenn.) " Stevens v Breatheven, Wright (Ohio) 733. ' State v Stephens, 3 Ired. L. (N. C.) 92 ; . _, Tj- J- o-n £!.. i Hubbard v Elden, 43 Ohio St. 380. State ti Thomas, 88 Tenn. m. 5 Redwood BGrimmenstein, 68 Gala. 512 ; = State u Wright. 50 Conn. 580. People V Stewart, 6 lU. App. 62 ; , McGrew v Governor, 19 Ala. 89 ; Satterfield r People, 104 111. 448 ; (jj,^i„g „ GowgiU, 12 Iowa 493 ; Van Valkenburgh v Patterson, 47 N. pj^^g ^, Baylor, 22 Ohio St. 317 . ''■ ^- ^*®- See also, Hamilton v Williams, 26 Ala. See, however, Jamagin v Atlcinson, i ^ Humph. (Tenn.) 470 ; 253 § 238, PUBLIC OFFICERS [Book II. where he acts through favor, fraud, or partiality, or knowingly commits a wrong in virtue of his office, although it was done in the performance of a judicial act, his sureties are liable; as where he heard a cause three hours before the time set for the hearing, and through favor and with intent to defraud. ' It has been also held, that where a probate judge makes an illegal order, upon the final report of an administrator, his sureties are liable." And that the sureties of a justice of the peace are liable, even after his death; for his failure to file appeal papers, as his duty required him to do, since it was a breach of his bond for faithful performance, although a tort must be proved to establish it. ' VII. Eulings relating to the liability of the sureties for acts of malfeasance, or wrongs committed by the officer colore officii. § 238. Contradictory rulings on general proposition. — Upon this question, there is much diversity of opinion in the adjudications. The general proposition that the sure- ties are not liable for wrongful acts, done colore officii, has been stated in some cases;* and in others, it has been said that they are liable for such acts. " It has been said, in Kentucky, that they are liable for tortious acts colore officii, but not for acts of violence, which are personal > Gowlng II Gowgill, 13 Iowa 495. HufiEman v Koppelkom, 8 Nebr. 344 ; See also State v Flinn, 3 Blackf. (Ind.) State v Nichol, 8 Lea (Tenn.) 657 ; 72 . State v Mann, 21 Wis. G84 ; State V Littlefieia, 4 Blackf. (Ind.) 129 ; Gerber v Ackley, 32 Wis. 233 ; Howe V Mason, 12 Iowa, 202 ; Gerber v Ackley, 37 Wis. 43. Fox V Meacbam, 6 Nebr. 530. 5 gt^te v Druly, 3 Ind. 431 ; 2 Smith V Lo veil, 2 Monta. 332. Charles v Haskins, 11 Iowa 329 ; a State D Houston, 4 Blackf. (Ind.) 391, Oomm. V Cole, 7 B. Mon. (Ky.) i State 1) Moore, 19 Mo. 369 ; " Lowell V Parker, 10 Met. (Mass.) 309 ; s^^te v Farmer, 21 Mo. 160 ; Rollins V State, 13 Mo. 437 ; State v Shacklett, 37 Mo. 280 ; State V McDonough, 9 Mo. App. 63 ; Mosby v Mosby , 9 Gratt. (Va.) 584. 254 Chap. XII. J SURETIES IN OFFICIAL BONDS § 240. wrongs." And in the same state, it was held, that the sureties of a tax collector are not liable for trespasses, such as the acts of the collector in collecting the taxes without an order of the court." The sureties of a justice of the peace are not liable for his wrongful act, in com- mitting a person for contempt without authority of law. " § 339. Rulings in various cases upon the same sub- ject.— Where a constable attached goods under a writ, in which the ad damnum exceeded $70, and which he there- fore had no authority to serve, it was held that his sure- ties were liable, because he took the goods colore officii, and this was a breach of his official duty." Where a county clerk, during the term, improperly made out a certificate of a matter of record, and after the expiration of the term, presented the certificate to the county board, and procured an allowance thereupon, to which he was not entitled, it was held that his sureties were not liable. " But an officer's sureties are liable for an excessive amount of salary drawn by him without lawful authority." Where a sheriff, who had levied an attachment upon sufficient property, falsely represented to the plaintiff that no property could be found, and thereby induced the plain- tiff to sell him the demand for a fraction of its value, it was held that his sureties were not liable.' § 240. The weight of authority upon the question ; in- stances. — The preponderance of the American authorities supports the doctrine, that the sureties of a sheriff, con- stable, or other officer having similar powers, are liable for an unauthorized levy upon or sale of property, under pro- ■ Jewell V Mills, 3 Bush (Ky.) 62. (Mass.) 427. •■■ GreenweU v Comm., 78 Ky. 320. ° People v Toomey, 25 111. "App. 46 ; 122 s Doepfcer v State, 36 Ind. 111. ^'^- ^^■ ' Lowell V Parker, 10 Met. (Mass.) 309. " P«°Pl« '^ Treadway, 17 Mich. 480. See also Knowlton v Bartlett,;l Pick. ^ee also Mahaska County v Ruan, 45 (Mass.) 271; Iowa 328. Williamstown v Willis, 15 Gray ' Governor v Hancock, 2 Ala. 728. 255 § 341. PUBLIC OFFICERS [Book II. cess in his hands; although the cases do not agree upon this question. In New York, it has been held, that where a sheriff, having in hands process against A, seizes, under color thereof, goods belonging to B, this is an act of official misconduct, and a breach of his bond, "for the faithful performance of the duties of his office," for which his sureties are liable. ' The contrary rule was established in a more recent case, where the action was against the sureties of a constable; but the decision turned upon the peculiar language of the constable's bond, which was only conditioned to pay to the persons entitled, all sums which he "may become liable to pay on account of any execu- tion delivered to him for collection." The court said that a neglect to return the execution, or to levy under it, or to pay over money collected, or the like, was a liability within the fair meaning of the bond; but that " where the constable commits a bare trespass upon the property of a third person, not a party to the execution, although imder color of the process, the liability he incurs to the person injured, is in no just sense on account of the exe- cution. The act done is neither commanded nor justified by the writ. . . . The execution is a mere circum- stance attending the conversion. The liability of the constable is not founded upon the execution, but upon the trespass of which it was the occasion and incident. " " § 241. Authorities upon either side of the question. — The doctrine,that the sureties in a bond for faithful per- formance are liable for a levy upon, or sale of A's prop- erty, under process against B, or other similar wrongful act, has been stated and applied in a preponderating ' People V Schuyler, 4 N. Y. 173, rev'g 5 ' People v Lucas, 93 N. Y. 585, rev'g 25 Barb. (N. Y.) 166, and overruling Ex Hun (N. Y.) 610; approving Sloan v parte Reed, 4 Hill (N. Y.) 572. Case, 10 Wend. (N.Y.) 371 ; and distin- See also Ex parte Chester, 5 Hill (N. Y.) guishiug People v Schuyler, 4 N. Y. 555; 173. Gumming v Brovrn, 43 N. Y. 514. Chap. XII.] SURETIES IN OFFICIAL BONDS § 242. number of cases." But, in a few others, the contrary doctrine has prevailed, and the sureties have been exon- erated from liability for such a levy or sale." VIII. Various other rulings, relating to the liability of the sureties in particular cases. § 242. Liability for negligence, etc.; instances.— It will be more convenient to group together in one division^ some miscellaneous rulings upon the question,, whether the condition of an official bond is forfeited in particular cases, before proceeding to the consideration of questions arising upon affirmative defences of the sureties, in cases clearly within the condition of the bond. Where the clerk of a court, on entering judgment, omitted to insert the sum recovered, whereby a levy was defeated, it was held that he and his sureties were liable therefor to the judgment creditor.' A sheriff's sureties are liable to the judgment creditor for the sale by the sheriff of exempt ' Van Pelt v Littler, 14 Gala. 194 ; Turner v Killian, 12 Nebr. 580 ; United States v Hine, 3 MacArthnr, Mayor, etc., i) Ryan, 7 Daly (N.Y.) 436; (D. C.) 27 ; State v Jennings, 4 Ohio St. 418 ; Jefferson v Hartley, 9 S. E. (Ga.) 174 ; Hubbard D Elden, 43 Ohio St. 380 ; Horan v People, 10 111. App. 21 ; Brunott i) McKee, 6 Watts & S (Pa.) 513 ; Jones V People, 19 111. App. 300 ; Carmack v Comm., 5 Binn. (Pa.) 184 ; State V Druly, 3 Ind. 431 ; Holliman v Carroll, 27 Tex. 23 ; Strunk v Ocheltree, 11 Iowa 158 ; Sangster i) Coram., 17 Gratt. (Va.) 124 ; Charles v Haskins, 11 Iowa 329 ; Lammon v Feusier, 111 U. S. 17. Forsythea)Ellis,4 J. J. Marsh. (Ky.) 298 ; See also, Walsh D People, 6 111. App. 204 : Comm. V Stockton, 5 T. B. Mon. (Ky.) Heidenheimer v Brent, 59 Tex. 533 ; 192; • GerberuAckley, 32Wis. 233; Jewell V Mills, 3 Bush (Ky.) 62 ; Gerber v Ackley, 37 Wis. 43. Archer v Noble, 3 Me. 418 ; s gtate t) Brown, 54 Md. 318 ; Harris v Hanson, 11 Me. 241 ; g^ate v Conover, 28 N. J. L. 224 ; Greenfield v Wilson, 13 Gray (Mass.) g^a^e „ Brown, 11 Ired. L. (N. C.) 141.- 384; See also, MoElhaney « Gilleland, 30 Tracy 1) Goodwin, 5 Allen (Mass.) 409 ; ^-^^_ -^^ . Turner V Sisson. 137 Mass. 191 ; McKee D Griffin, 66 Ala. 211 ; People « Mersereau, 42 N. W. (Mich.) Jenkins v Lemonds, 29 Ind. 294 : 153 ; Carey v State, 34 Ind. 105 ; State V Moore, 19 Mo, 369 ; Brown v Moseley, 19 Miss. 354. Noble V Himeo, 12 Nebr. 193 ; ^ ^^^^^^^^ ^ ^^^^^ ^^ j^ jgg_ 257 § 343. • PUBLIC OFFICEES [Book II. property, after notice of the exemption.' So, also, the sureties of a sheriff are liable to the judgment creditor, for his release of a valid levy; and it is no defence that the property was claimed by a third person, and that the sheriff demanded an indemnity from the judgment cred- itor, which he promised but failed to furnish." And the sureties of a constable, or other officer exercising similar powers, are liable for the acts of a deputy illegally appointed.' The sureties of a constable are liable where property, seized by virtue of a lawful writ, is damaged in his hands, by reason of his negligence." So, also, the sure- ties of a sheriff are liable for not paying a landlord his rent, from the proceeds of the sale of the tenant's goods, liable to distress, after notice that the rent is in arrear. " But where the statute provided that a guardian should not act without a bond, and the clerk issued to him a cer- tificate of guardianship without a bond; it was held that the clerk's sureties were not liable for the wasting of the estate, because it was not a part of his official duty to give such a certificate, and the guardian had no power to act without giving a bond. ° Payment by a treasurer of an illegal warrant, after a legal warrant has been substi- tuted therefor, out of the fund set apart for the payment of the substituted warrant, is a breach of the treasurer's bond, for which his sureties are liable.' § 243. Honest mistakes and want of skill. — An official bond, whatever special conditions it may contain, almost invariably contains a general condition that the officer shall faithfully discharge the duties of his office. This ' Casper v People, 6 111. App. 28. See also State v Wailes, 3 Harr. & M. See also, cases cited in note ', p. 357. (Md.) 241 ; =■ State V Rayburn, 22 Mo. App. 303. Governor v Jones, 2 Hawks {N. C.) 59 ; McKee i; Love, 2 Overt. (Tenn.) 243 ; 3 State V Muir, 20 Mo. 303. Crawford v Jarrett, 2 Leigh (Va,) 630. « Witkowski V Hern, 82 Gala. 604. , g^^te „ Sloane, 20 Ohio 327. » Governor V Edwards, 4 Blhb (Ky.) , p^^^^ „ ^e La Montanya, 85 Gala. 148. .319. 258 Chap. XII.] SURETIES IN OFFICIAL BONDS ' § 2U. condition is not broken by an honest error of judgment, or an honest mistake, or want of skill in the discharge of a duty, where the precise mode of discharging it is not pointed out by the statute.' But the mere fact that the officer acted in accordance with the opinion of the attor- ney general will not suffice to protect him or his sure- ties.'' § 244. Correct accounts and reports ; faithful disburse- ment. — The condition for faithful performance is broken by the officer's failure to keep his accounts, or make his reports, as required by statute." In a recent case in New York, the court said: "The undertaking of sureties in a treasurer's official bond is that he shall faithfully perform his duties; and this involves the obligation of making correct reports, conforming to the requirements of the statute, as well as the payment of funds in his cus- tody. In an action against sureties for an alleged breach of such a bond, the official reports made during the term covered by them, are a part of the res gestae, and compe- tent evidence, not only of the facts affirmatively appear- ing therein, but also of such other facts and circumstan- ces, bearing upon the liability of the sureties, as are legiti- mately inferable therefrom. This arises, not alone from the principle authorizing the reception of such evi- dence or declarations of the principal, but as being an official act, performed under the directions of the statute, in pursuance of the stipulations contained in the bond, whereby the sureties have assumed the liability of any neglect in the discharge of the duty." * That such a con- dition covers the faithful disbursement of the moneys, coming into the officer's hands, goes without saying; but ' Alexandria v Corse, 2 Cranch C. C. (U. See, however, Bocard v State, 79 Intl. S.)363. 270; See also. State v Chad wick, 10 Oreg. 465. State v Mayes, 54 Miss. 417. -' Dodd V state, 18 Ind. 56. ' Supervisors v Bristol, 99 N. Y. 316, per ' Powesheik County v Ross, 9 Iowa, 5U. ^°2®'"' ^^- J- PP- ^^^ ^■^• 259 § 346. PUBLIC OFFICERS [Book II. a doubt has been suggested in one case, whether it has that effect, where the statute expressly requires a con- dition for faithful disbursement, in addition to the general condition for faithful performance, and the former con- dition has been omitted from the bond. ' § 245. The effect of such accounts and reports. — To what extent the officer's accounts and reports, especially where they have been settled by competent authority, are conclusive against the sureties, is left open to doubt by the adjudications. The better opinion appears to be, that such accounts and reports are only prima facie evidence against the sureties;" although in some cases it has been held that they are conclusive.' And the effect is the same, where the settlement was made between the proper auditing officers and the administrator of a deceased principal." But where the county court had allowed a collector's account, in which he had credited himself with excessive commissions, it was held that the court might, within two years thereafter, open and restate the account. " § 246. Omission of county treasurer to foreclose mort- gage. — Where a county treasurer received from his pre- decessor a bond and mortgage for $5,000, for the benefit of certain infants, the interest upon which was nearly » Farrar v United States, 5 Pet. (U. S.) See also ante, §9 208, 217, and post, 373, cited ante, § 192. 2 Kilpatriok v Pickens Co., 66 Ala. 432 ; a State v Wood, 51 Ark. 205 ; Lowry v State, 6i Ind. 421, overruling Morley v Metamora, 78 111. 394 ; former cases ; Roper v Sangamon Lodge, 91 111. 518 ; Boone Co. v Jones, 54 Iowa 699 ; Chicago v Gage, 95 111. 593 ; Hatch V Attleborough, 97 Mass. 533 ; Longan v Taylor, 130 111. 412 Rochester v Randall, 105 Mass. 295 ; Baker v Preston, 1 Gilm. (Va.) 235, Williamshurgh Ins. Comp'y v Froth- questioned, and, semble, overruled, ingham, 122 Mass. 391 ; In subsequent cases. See Crawford Bissell V Saxton, 66 N. Y. 55 ; n Turk, 24 Gratt. (Va.) 178. Sup'rs V Bristol, 99 N. Y. 316 ; , Wycough « State, 50 Ark. 102. United States v Eckford, 1 How. (U. g ) 250 ■ " Wilson v State, 61 Ark. 212. United States v Boyd, 5 How. (U.IS.) 29. ^"^ further, as to opening a settled ac- count, post, 8§ 282, 283. 260 Chap. XII.] SURETIES IN OFFICIAL BONDS § 248. two years in arrear; and the property covered by the mortgage had greatly depreciated in value, and the mort- gagor was insolvent; but the treasurer did not commence proceedings to foreclose the mortgage until a year after he received the same; and upon the foreclosure sale the property brought much less than the amount due upon the mortgage; it was held that a complaint, setting forth those facts, was bad on demurrer, because it did not expressly charge negligence or notice, or show that the defendant was chargeable with neglect of duty. ' § 247. Acts or omissions out of officer's district.— Where a constable is elected for a particular dis- trict, and gives bond accordingly, the sureties are not liable for his failure to collect an execution, out of prop- erty in another district of the same county, although he had authority to act in the latter, inasmuch as his bond covers only the particular district." "Where a second parish is formed in a town which had not been organized as a parish, and the town continues to manage the affairs of the first parish, the sureties of the collector are liable for money received by him, on a tax assessed to pay the minister of the first parish.' Money received by a sheriff, for keeping and guarding prisoners in a county other than his county, is received by him officially; and his sureties are liable therefor to the persons rendering the services.^ § 248. Liability of sureties of officer having charge of records of deeds, etc.— The sureties of a register of deeds, county clerk, prothonotary, or other officer having charge of public records, are liable to the person injured, for a false statement in a certificate given by the officer, upon the requisition of such person, respecting the exist- ' WooUey v Baldwin, 101 N. Y. 688. = Ashby v Wellington, 8 Pick. (Mass.) 524 2 Governor v Morris, 3 Murph. (N. C.) 146. * Martin v Seeley, 15 Nebr. 136. 261 § 249. PUBLIC OFFICERS [Book II. ence or nonexistence of records of conveyances, judg- ments, or other liens, affecting property which is the subject of inquiry; or the contents of such records.* And it seems to be immaterial, whether there is any proof of payment of the ofl&cer's fees." So where the clerk is required by statute to note in the margin of the record of a mortgage, the payment and cancellment of the mortgage, if he falsely makes such a note, his sureties are liable to a purchaser for the amount necessarily paid to relieve the property from the incumbrance.^ But one who fails to make the proper inquiries, from the clerk or the vendor, cannot recover." § 249. Liability of sureties of clerk of a court. — So, if the clerk of a court having jurisdiction neglects to give notice to a guardian to renew his bond, as the statute requires the clerk to do, he and his sureties are liable to the ward for any loss incurred by the insufficiency of the bond.' They are liable also for losses sustained through the failure of the clerk to require proper sureties in a guardian's bond." But the sureties of the clerk are not liable for his taking an insufficient bond on appeal, for it is the duty of the court to see that the bond is sufficient.' But they are liable, where he takes the bond of the defendant, with his wife as the only surety, upon the dissolution of a garnishment; and the amount of their liability is the sum which might have been recovered from the garnishee, except for such dissolution. ° In Illinois, it was held that they were not liable, where the ' Fox V Thibault, 53 La. Ann.,33 ; " Ziegler v Comm., 12 Pa. St. 327. Smitli t- Holmes, 54 Mich. 104 ; , Appleby v State, 45 N. J. L. 161. McCaraher v Comm., 5 Watts & S. (Pa ) 21 • ' Crews v Taylor, 56 lex. 461. Ziegler v Comm., 13 Pa. St. 337. . = State v Watson, 7 Ired., L. (N. C.) 289 ; But he is liable for such negligence „ ^^^^^ „ Windley, 99 N. C. 4 ; only to the person for whom the search was made. Day v Reynolds, ' McAllister « Serice, 7 Yerg. (Tenn.) 377; 23 Hun (N. Y.) 131 ; Savings Bank v " Spain v Clemen s, 63 Ga. 786 • Ward, 100 U. S. 190. 262 Chap. XII.] SURETIES IN OFFICIAL BONDS § 249. t clerk transmitted to the appellate court, upon an appeal, a bond, in which the name of one of the appellants was omitted, because, in that state, the statute requires him only to approve the sufficiency of the sureties in an appellate bond, and otherwise he has no duty to perform, with respect to the sufficiency of the bond. ' They are liable for his failure to enter a cause on the docket;" or where he has negligently allowed one of two judgment creditors to secure a preference to which he was not entitled.' And they are liable for the clerk'is failure to enroll a judgment, but not necessarily to the full amount of the judgment; that depends upon the sufficiency of the property upon which it would have been a lien, if properly enrolled, and which was swept away by the junior judgment.' They are liable to the county, where the clerk lent his official seal and signature to a witness's certificate which was false;' or where he has failed to index and enroll the judgments recovered, and has charged and received the fees for so doing. " But non- payment of money is not a breach of the condition of a clerk's bond, unless after an order to pay it, and a demand of payment.' It is not a defence to an action on the bond, that the plaintiff agreed with the clerk, that he might keep for a time money paid into court, to which the plaintiff was entitled, and pay the plaintiff interest upon it." The clerk's omission to issue an execution upon a judgment is not a breach of the condition of his bond, unless the judgment creditor has applied to the clerk so to do.° > People V Leaton, 121 111. B66 ; ' State « Lake, 30 S. C. 43 ; 2 Brown « Lester, 21 Miss. 392 « Sullivan v State, 121 Ind. 342, at p. 347; = Newbern Bank v Jones, 2 Dev. Eq. » Badham v Jones, 64 N. C. 655. (N. C.) 284 ; For additional rulings, respecting the a o^ ■ Tj 1,%, on a /-. 5X0 liability of a clerk and his sureties ■• Strain v Babh, 30 S. C. 343. J . , for official negligence, see 5 Lewis V State, 05 Miss. 468 ; Collins v McDaniel, 66 Ga. 203 ; ° Chester u Hemphill, 29 S. C. 584 ; Billings V Lafferty, 31 111. 318 ; 263 § 351. PUBLIC OFFICERS [Book II. § 350. Liability of sureties of officer issuing marriage license. — Several rulings have made, in the states where a license is required for a marriage, respecting the liability of the sureties in the bond of an officer author- ized to grant such a license. It has been held, that a father cannot maintain an action upon the official bond of a register of deeds, for a breach of duty in issuing a marriage license to his daughter, who was under eighteen years of age, without the father's consent; because the condition of the bond covers only the performance of the duties recited in the, bond, that is, the safekeeping, etc., of the records. ' The same ruling was made respecting the sureties in the bond of a circuit clerk, but it was put upon the ground that as the marriage was lawful, and the husband had succeeded to the father's right to the girl's services, the issuing of the license was damnum absque injuria.^ But it was held, in Alabama, that the sureties of a judge of probate were liable in an action qui tarn, brought by a father for illegally issuing a marriage license to his minor son, under a statute imposing a penalty for so doing, although the license was issued by an authorized clerk.' § 251. Apparent deficiencies, and cases of same; gen- eral character. — Where there is only an apparent defi- ciency in an officer's accounts, that is, where the balance against him is merely a matter of bookkeeping, caused Hubbard v Switzer, 47 Iowa 681 ; Lyman d Windsor, 24 Vt . 575 ; Haverley v McClelland, 57 Iowa 182; Lyman v Edgerton, 29 Vt. 305. Anderson v Jobett, 14 La. Ann. 624 ; , ji^retz v Ray, 75 N. C. 170 ; Maxwell,) Pike, 2 Me. 8: H^H ^ McLean, 75 N. C. 347. Smitb V Holmes, 54 Mich. 104; ^^ ^^^ g^„„^g ^ Governor, 17 Ala. McNutt V Livingston, 15 Miss. ti41 ; qq^ Brown v Lester, 31 Miss. 392 ; Rosenthal v Davenport, 38 Minn. 543; ' Holland v Beard, 59 Miss. 161, over- Brock V Hopkins, 5 Nebr. 231 ; ™l™e ■^l"*"™ i» State V Baker, 47 Lum V McCarty, 39 N. J. L. 287 ; ^^^- ^ Boyden v Burke, 14 How. (U. S.) 575 ; = Wood v Farnell, 50 Ala. 546. 364 Chap. XII.] SURETIES IN OFFICIAL BONDS § 252. by his failure to keep separately the payments and receipts belonging to different funds, but there is really no defalcation; his sureties are not liable, although their bond applies only to the particular account which is apparently short.' A tax collector's sureties are not liable because he keeps money collected for a dissolved municipal corporation, until some one appears, who has a right to demand and receive it.' Where a constable defended an action to protect his levy, the plaintiff in the execution having had notice of his so doing, and, having succeeded, paid his attorney from the proceeds of the levy, and retained the sum so paid, it was held that this was not a breach of his bond.' In one case it was held, that the use of township money, by a township trustee in his own business, was not per se a conversion and a breach of his official bond.* But in other cases, it has been held, that if a township trustee is required by law to keep two or more funds distinct, it is a breach of his bond to apply money belonging to one fund to pay a claim against another.' As against his sureties, the con- dition of a financial officer's bond is broken, if he dies with funds in his hands unaccounted for." § 252. Miscellaneous cases as to liability of sureties of sheriff, constable, etc. — The condition of a sheriff's, constable's, or marshal's bond is broken by the exaction of illegal fees;' or by his refusal to lay off exempt prop- erty upon making a levy. " His exaction from the judg- ment debtor of more than can be lawfully required upon the writs in his hands, even although he does not levy, ' United states v Morgan, 28 Fed. Rep. " Robinson v State, 60 Ind. 26 ; U. S.) 48. Oconto County v HaU, 47 Wis. 208. ' Dodge V People, U3 lU. 491. ^ee also ante, § 230. » Johnson v Haynes, 37 Hun 303. « Allen V State, 6 Blackf. (Ind.) i ' Brown v State, 78 Ind. 239. ' ^^^^ " ^'"*™ P" ^- ^- Comp'y, 5 Neb. See also Bocard v State, 79 Ind. 270. 105. 8 State V Kenan, 94 N. 0. i 2C5 § 353, PUBLIC OFFICERS [Book II. is also a breach of nis bond.' Where a sheriff collected money under an execution, regular upon its face, and the judgment was reversed after his deathj it was held that his sureties were not liable for the sheriff's commissions, to the defendent in the execution, although it was con- ceded that they would have been liable, if the judgment had been reversed in the sheriff's lifetime." But the sureties of a sheriff are liable for the value of attached property, not returned to the owner, after judgment in the latter's favor.' They are liable also for a false return.* It was held, in one case, that a tender to the creditor by a sheriff, of money collected by him upon execution, and the creditor's refusal to receive it, do not discharge the sureties in the sheriff's official bond, and they are liable, if the sheriS afterwards fails lo pay the money. Read, J., delivering the opipion of the court, said: "The condition of a sheriff's bond is for the faith- ful discharge of duties. It is urged by counsel that if tender and refusal will not relieve his sureties, it is the application of a harder rule than exists in ordinary suretyships. The principle of discharge, arising from an act done by the creditor, prejudicial to the surety, does not apply. An ordinary suretyship is a mere contingent obligation for the payment of money, in default of the principal. The sureties upon ah official bond guaranty the faithful performance of official duty. The payment of money, and other acts done by the creditor, injurious to the surety, may discharge the one; but the faithful and honest performance of official duty alone can fulfil the condition of the other. The fact of tender and refusal does not convert the official trust, into a mere private liability for a money demand. The obligation to ' TreasurersuBuckner,2McMull. (S. C.) " Clark u Lamb, 76 Ala. 406. ^"''- = Dennie u Smith, 129 Mass. 143. Accord, Snell v State, 43 Ind. 359. * Ex parte Chester, 5 Hill (N. Y.) 555. 266 Chap. XII.] SURETIES IN OFFICIAL BONDS § 253. pay over money, received by a sheriff in his official capacity, continues an official duty, until performed by payment to the party entitled. As long, then, as the obligation to pay continues an official duty, so long were th^ sureties responsible for its violation, upon their bond." ' But, in another case, it was held that where a constable, who had collected money, tendered it to the creditor, who said to him that he might keep it for some weeks or months, and he did so, the sureties were dis- charged." § 253. Depreciation of current bank notes; tax collec- tor; grain inspector.— It has been held, in Tennessee, that a county officer and his sureties are not liable for the depreciation in his hands of bank bills, taken when they were current as money, and in good faith. ' The sureties of a tax collector are liable for the taxes which he might have collected with due diligence, but which were lost by his remissness; although the uncollected taxes have been delivered to his successor for collection." If the tax collector of a village pays over less than his warrant calls for, and renders no account or return of the unpaid taxes, his sureties are liable for the deficiency, since, with- out the return, proceedings cannot be taken by the village collect the unpaid taxes. ° Where it is the duty of the chief inspector of grain, as fixed by the board of rail- road and warehouse commissioners, to pay over to his successor the residue of the inspection fees which he has collected, the sureties in his official bond are liable for his default in paying over the same; and they cannot be heard to say that the surplus is larger than it ought to be." > state V Alden, 12 Ohio 50. State v Rollins, 29 Mo. 267 ; = Wells V Gant, 4 Yerg. (Tenn.) 491. Pittsburg V Tabor, 61 N. H. 100. = Peck V James, 3 Head (Tenn.) 75. ' Olean v King, 116 N. Y. 355. * State V Lott, 69 Ala. 147 ; Colerain v Bell, 9 Met. (Mass.) 49C ; " People V Harper, 91 111. 357. :c7 § 355. PUBLIC OFFICERS [Book II. § 254. Town commissioners' sureties liable for im- proper issue of bonds of town. — Where commissioners were appointed for a town, under an act of the legislature authorizing them, with the consent of the town, to issue the bonds of the town, to take stock in a railroad com- pany; and they issued the bonds without such consent; it was held that this was a breach of their official bond, and that a subsequent statute, ratifying and confirming their act in so doing, was unconstitutional. ' § 355. Liability of sureties for profits made by officer from funds in his hands. — It was held, in New York, that a county treasurer's sureties are liable for money, which the treasurer received as inter- est on the deposit of the money in his hands. In so holding, the court said: "The notion that a public officer may keep back interest, which he has received upon a deposit of public moneys, as a perquisite of office, is an affront to law and morals; for, if done with evil intent, it is nothing less than embezzlement." " But, in Georgia, where the statute prohibits the state treasurer from using the funds of the state in his hands, or allowing others so to do, under a penalty, it was held that an action would not lie upon the treasurer's official bond for money received by him for the use of the funds in his hands; since, inas- much as the act was prohibited under a penalty, the money could not be said to have come to his hands, by .virtue of his office.' In Illinois, it has been held, that a sheriff, receiving commissions from a bank for the deposit of the taxes collected by him, cannot retain the money to his own use, but must account therefor as part of the taxes received by him." So the sureties of a county treasurer are liable for his appropriation to himself of the interest, ' Hardenbergh v Van Keuren, 16 Hun ' Supervisors tiWandel, 6 Lans.(N.Y.) 33. (N. y.) IT, reVg i Abb. N. C. (N. Y.) » Renfroe V Colquitt, 74 Ga. 618. 43. * Hughes V People, 82 111. 78. 268 Chap. XII.] SURETIES IN OFFICIAL BONDS § 258. received on bonds procured through the sale, or on notes given for the purchase money, of the four leagues of land, granted to the county for school purposes. ' § 256. Sureties to officer de facto not liable to officer de jure for emoluments. — Where an officer dejure recovers the office from the officer de facto, the sureties on the latter's bond. are not liable to the former, although their principal is so liable, for the emoluments received by the latter, during his wrongful occupancy of the office." § 257. Liability to printers for advertising; sureties of mail contractor. — The sureties of a sheriff or other officer are not liable to the printers, for their fees in advertising notices of sales and other official notices, although he is required by law to make such advertisements, and they would have been liable if he had failed so to do.^ Nor are they liable to the printers, where the sheriff has collected upon an execution their bill for advertising, and has failed to pay them.* The sureties in a mail contrac- tor's bond are liable only to the United States, for his failure to fulfil his contract; and a private person cannot recover against them damages for the contractor's failure tc transport a mail package. * § 258. Sureties not liable for statutory penalty.— The authorities agree, that the sureties in an official bond are , not liable for a penalty imposed by statute upon the officer for his official neglect or misconduct." 1 Simons 1) Jackson, 63 Tex. 428. Comm. v Swope, 45 Pa. St. 535. It lias been held, that the receipt of 4 Allen u Ramey, 4 Strobh. (S. C.) 30. interest by a custodian of public . ,, „ „ „^.,,. ,. _, „. . ^ , tj, „.i4. ,•„ „„* " McRea v Mc Williams, 58 Tex. 328. money, from a bank of deposit, is not an offence at common law. Tn re " Brooks v Governor, 17 Ala. 806 ; Breene, 14 Colo. 401, Caspar v People, 6 111. App. ' Curry v Wright, 86 Tenn. 636. ' Brown v Phipps, 14 Miss. 51 ; Tappan v People, 67 111. 339 ; State V Baker, 47 Miss. 88 ; 269 259. PUBLIC OFFICERS [Book II. IX. Liability of the sureties, where the bond was executed upon a condition, which has not been fulfilled. § 359. General rule in cases of private contracts. — The most common form., in which the question now to be considered arises, is where one or more of the sureties, at the time when they signed their names to the bond, stipulated that the bond, which was then undelivered, should not be delivered so as to take effect, until one or more specified persons should also aflfix their signatures to it as cosureties. As between the parties to a private contract of suretyship, the general rule, that a surety is not bound, who affixed his name to it on condition that it should not take effect, as to him, until another signed it as a cosurety, if the creditor accepts it without such additional signature, and with notice, express or implied, of the condition, has been established in several cases in England and in the United States.' But if the creditor has no express notice of the condition, and there is nothing on the face of the contract, or in the attending circumstances, sufficient to charge him with implied notice thereof, and he, or others for whose benefit the Treasurers v Hilliard, 8 Rich. L. (S. C.) «2; McDowell V Burwell, 4 Rand. (Va.) 317; Fletcher v Chapman, 2 Leigh (Va.) 560. See also Renfroe v Colquitt, 74 Ga. 618, ante, § 255. Evans v Bremridge, 8 De Gex, McN. & G. 100; Evans v Bremridge, 3 Kay & J. 174 ; Jordan « Lof tin, 13 Ala. 547 ; Guild V Thomas, 54 Ala. 414 ; CofEman v Wilson, 2 Met. (Ky.) 542 ; Bivins v Helsley, 4 Met. (Ky.) 78 ; Clements « Cassilly, 4 La. Ann. 380 ; Readfleld d' Shaver, 50 Me. 36; Hall V Parker, 37 Mich. 500 ; Dunn V Smith, 20 Miss. 602-; Read v McLemore, 34 Miss. 110 ; Goff 1) Bankston, 35 Miss. 518; Fales V Filley, 2 Mo. App. 345 ; Hill D Sweetser, 5 N. H. 168 ; Cowan V Baird, 77 N. C. 201 ; Miller v Stem, 12 Pa. St. 383 ; Smith V Doak, 3 Tex. 215 ; Pawling V United States, 4 Cranoh (U.S.) 219; United States v Hammond, 4 Biss. (U. S.)283; Ward V Churn, 18 Gratt. (Va.) 801 ; King V Smith, 2 Leigh (Va.) 157; and eases hereinafter cited. 270 Chap. XII.] SURETIES IN OFFICIAL BONDS § 360. contract was made, have relied thereupon; the surety is holden, as if there had been no condition." Most of the adjudications, where this question arose upon an official bond, hold or assume that the rule is the same, with respect to such a bond, and a private contract of surety- ship; although, as we shall presently endeavor to show, there is a broad distinction, upon which the solution of the question turns, between the two kinds of securities. § 360. Rulings of U. S. courts, as to the rule in case of official bond. — In an early case, the United States supreme court held, that where an official bond was executed by some of the sureties named in the body thereof, and intrusted by them to the principal obligor in escrow, to take effect upon its being executed by the others; and he delivered it without the signatures of the latter; the sure- ties were not liable." But in a subsequent case, in an action upon a distiller's bond, where the bond was perfect upon its face, executed by all whose names appeared in the body of it, and actually delivered to the proper revenue officer without any stipulation; the same court held that the sureties could not avoid liability, on the ground that they signed it on condition that it should not be delivered, unless it was exiecuted by another who did not execute it, where the officer receiving it had no notice of the condi- tion, and there was nothing to put him upon inquiry. Davis, J., after referring to the case last cited, said that it went upon the ground, that the additional sureties to be procured were named in the body of the bond; and that if, in the case then before the court, the additional surety's name appeared in the bond, the defence would be sustained, because that would have been notice to 1 Deardorll v Foresman, 24 Ind. 481 ; Lyttle v Cozad, 21 W. Va. 183; and cases Hessell v Johnson, 63 Mich. 623 ; hereinafter cited. Dair V United States, 16 WaU. (U. S.) 1; j Pawling v United States, 4 Cranch (U. Nash V Fugate, 24 Gratt. (Va.) 202 ; s. gj gjg_ c. 32 Gratt. (Va.) 595 ; 271 § 261. PUBLIC OFFICERS [Book II. the agent of the government that the bond was incom- plete, sufficient to put him upon inquiry; and that "in any case, if the bond is so written, that it appears that several were expected to sign it, the obligee takes it with notice that the obligors who do sign it can set up in defence the want of execution by the others, if they agreed to become bound only on condition that the other cosureties joined in the execution." ' § 261. Rulings of the New York courts on same sub- ject. — In New York, where an action was brought upon a bond to the people, given upon a loan to a bank of a portion of the canal fund, and conditioned for the repay- ment of the money; the sureties' defence was that the bond, after they had signed it, was handed by them to the president of the bank, " with the distinct understand- ing " that it was not to be used, until it was signed as cosurety by one D. The bond upon its face appeared to be complete, D's name not appearing in it, and their being no blank left in it for his name. It was delivered by the president of the bank to the state auditor, without D's signature. The court of appeals sustained the defence, on the ground, that, as to the sureties, the bond never had any legal existence, since it was never delivered as their act and deed.' This ruling has been much criticized in other states, and in a later case, the same court intimated a doubt whether it was correct. In the later case referred to, the action was brought upon a bond of a deputy col- lector of internal revenue to the collector. At the time when the sureties signed it, it contained the name of J in the body of it, as one of the sureties, and the principal informed them that J would sign it, and they expected that he would do so; but the name of J was stricken out, and the bond delivered to the collector, he having no 1 Dair v United States, 16 Wall. (U. = People v Bostwlck, 33 N. Y. «5, aff'g S.) 1. 43 Barb. (N. Y.) 9. Chap. XII.] SURETIES IN OFFICIAL BONDS § 2611 notice of the facts. The court held that the erasure of J's name was not sufficient to charge the collector with notice, and that the defendants were liable, there having been no agency for the principal on the part of the person who received the bond, as in the last case cited. ' How- ever, rulings, resting upon principles similar to those declared in People v. Bostwick, have since been made in the courts of New York.' But in a recent case in the supreme court of that state, it was said, that whether or not People v. Bostwick has been weakened as authority, the rule there laid down has not been extended beyond the facts of that case; and in that case the officer who received the bond was told, that the person, whose name was missing, would call and sign the bond; and he answered that it was good enough as it was. This action was upon a guardian's bond to the plaintiff, the ward, then an infant; and the surety's defence was that it was executed upon an agreement between him and the plaintiff, that it should not take effect, until it was also executed by one of three other persons named; and that, if not so executed, it should be returned to him. A verdict for the plaintiff was sustained. The court said that the rule is, that " where there is nothing upon the face of the paper, indicating that other sureties were expected to become parties to the instrument; and no fact is brought to the knowledge of the obligee, before he accepts the instrument, calculated to put him on guard in respect to that point, and to induce him, in the exercise of ordinary and reasonable caution and prudence, to make inquiry- before accepting the security; the fault cannot be said to rest to any extent on the obligee, and the failure to pro- cure other sureties is no defence." In this case, it was said, notice to the plaintiff was of no effect by reason of • Russell V Freer, 56 N. Y. 67. Benton v Blartin, 52 N. Y. 570 ; „n ■ J ^T-1 at TT, „ ™ V ^ Bookstaver v Jayne, 60 N. Y. 146, rav'g = tomwood V Wilson, 31 Hun (N. Y.) ^ ^_ ^ ^ ^^_ ^^ ^^ E15; 273 § 362. PUBLIC OFFICERS [Book II. her minority, and the bond was not to take effect on its delivery to her, but upon the filing thereof in the surro- gate's office,' § 363. Rulings in Indiana, Michigan, and Iowa on same question. — The same doctrine has been affirmed by the supreme court of Indiana in several cases. In one, "which was an action on the official bond of a county treasurer, it was held, that where a bond is executed and delivered to the principal obligor by a surety, upon con- dition that certain other persons shall execute it, before it is delivered to the obligee; and it is delivered without their having executed it, and received by the obligee without notice of the condition, or any circumstances which should put him on inquiry; the condition imposed will not avail the surety. It is not a question of the power of the principal to deliver the bond in its apparently perfect condition, but a question of estoppel." In Michi- gan, it has been held, that where a person signs his name in blank as surety in an official bond, and delivers it to his principal to have it completed, and signed by others, and delivered to the proper authority; he makes the principal his agent for the whole business, and is estopped and bound by his action in filling it up and delivering it, without the additional signatures. The court said: " Public officers cannot be expected to leave their offices to run about and hunt up every one whose signature is genuine, to ask if there is any reason for doubting the correctness of documents." ' But in Iowa, it has been held, that where several sureties execute an I Bangs V Bangs, 41 Hnn (N. Y.) 41. State v Garton, 32 Ind. 1 ; » State V Pepper, 31 Ind. 76, following ^unt v State, 53 Ind. a?l ; DeardorfE v Foresman, 24 Ind. 481 ; Mowbray ,; State, 88 Ind. 324. BlaokweU v State, 26 Ind. 204, and ' McCormick v Bay City, 23 Mich. 457. Webb V Baird, 27 Ind. 368, and over- Accord, Smitli V Peoria County, 59 111. ruling Pepper v State, 22 Ind. 399, 412. The same doctrine was re-afflrmsd in 274 Chap, XII.] SURETIES IN OFFICIAL BONDS §264 official bond, and intrust it to the principal; and he, before delivering it, erases the name of one of the sure- ties, without the consent of the others; this discharges all the sureties, whether they had executed before or after the person whose name was erased. ' § 263. Other cases elsewhere. — The foregoing cases seem to agree in establishing the rule, although they assign different reasons for their conclusion, that the defence of the sureties rests upon the question, whether the obligee, or, in an official bond, the approving officer, had actual notice, or was chargeable with notice, of the con- dition upon which the bond was signed by the sureties; and' that the presence, in the body of the bond, of the name of a person whose signature does not appear upon it when it is delivered, is sufficient to charge him with such notice. The same doctrine, or one very nearly approaching thereto, has been affirmed in several other cases cited in the note.' § 264. The author's criticisms upon the doctrine. — But it may well be doubted, whether so much of this rule ' state V Craig, 58 Iowa 238. See also Allen v Marney, 65Ind. 398. 2 Crawford v Foster, 6 Ga. 202 ; Smith V Peoria County, 59 111. 412 ; Pepper v State, 22 Ind. 399 ; State V Pepper, 31 Ind. 76 ; Mowbray v State, 88 Ind. 324 ; Wildcat Branch v Ball, 45 Ind. 213; Carroll Co. v Ruggles, 69 Iowa 260 ; Taylor County v King, 73 Iowa 153 ; Chamberlin v Brewer, 3 Bush (Ky.) 561 ; Whitaker v Crutcher, 5 Bush (Ky.) 621; Millett V Parker, 2 Met. (Ky.) 608 ; Police Jury v Haw, 2 La. (Miller) 41; Canal and Bkg. Comp'y v Brown, 4 La. Ann. 545 ; York County M. F. Ins. Comp'y V Brooks, 51 Me. 506; State V Peck, 63 Me. 284 ; Readfleld v Shaver, 50 Me. 36 ; Stevenson v Bay City, 36 Mich. 44 ; Linn County « Farris, 52 Mo. 75 ; State V Potter, 63 Mo. 212 ; State V Baker, 64 Mo. 167 ; Cutler V Roberts, 7 Nebr. 4 ; Gwyn v Patterson, 72 N. C. 189 ; Bramley v Wilds, 9 Lea (Tenn.) 674; Quarles v Governor, 10 Humph. (Tenn.) 122; Duncan v United States, 7 Pet. (U. S.) 435; Fletcher v Austin, 11 Vt. 447 ; Washington Probate Court v St. Clair, 52Vt. 24; Ward V Churn, 18 Gratt. (Va.) 801 ; Nash V Fugate, 24 Gratt. (Va.) 202 ; Wendlin'^er v Smith, 76 Va. 309. 275 § 365. PUBLIC OFFICERS [Book II. as assimilates the officer, approving an official bond, to the obligee or promisee in a private contract of suretyship, or his agent who accepts the contract, is founded upon sound principles. It was well said, in one case, that an approv- ing officer's powers and duties are limited to the inquiry, whether the bond is in all respects according to law, and the sureties are sufficient." His powers and duties are defined by statute; and all the parties to the bond are chargeable with notice thereof, and that they cannot be extended by implication. He has no power to reject a bond for erasures, etc., or because he has reason to suspect that the sureties would, by reason of some extrinsic fact, be able to defend successfully an action upon it. Nor is an approval equivalent to an acceptance of the bond; it remains undelivered, and consequently invalid, until, after the approval, it is filed by the obligees, or some of them, with a clerk or other purely ministerial officer. There is, therefore, no point of time, between the execution of the bond and the delivery thereof, when it is possible to charge the public, which is the real party to the bond, with notice of any extrinsic matter, which would tend to invalidate it. It seems, therefore, that an official bond ought to constitute an absolute exception to the rule, which invalidates a contract of suretyship in consequence of such extrinsic matters. And this reasoning is equally applicable, where the obligee in the bond is a public officer: in such a case he merely represents the public or sovereign power, under a statute, which fixes all his powers and duties, and thus prevents him from becoming the gen- eral agent of the public." § 265. Additional seal not notice per se that another is to execute bond; and similar cases. — Although the pres- ' Ladd V Town Trustees, 80 111. 233. next two divisions of tbid chapter, "The rules established by the weight ^^^*' '^P"^ "^^"""^ analogous to of the American authorities, upon ^'^°^^ ^^^^^^ i^ ^^^^ ««'=t'0"- the questions considered under the 376 Chap. XII.] SURETIES IN OFFICIAL BONDS § 366. ence in the body of the bond, of the name of a person who has not executed it, may charge the obligee with notice of the condition, it has been held that the mere presence of an additional seal, is not sufficient for that purpose. ' Where the record of a county court stated, that a sheriff elect and his sureties (naming them) came into court, and exe- cuted an official bond; and one of those named, who was present, did not sign the bond; it was held that neither of the sureties was liable." But if a surety, who has signed a bond, on condition that it shall not take effect until others have signed it, is present when it is delivered without the additional signatures, and makes no objection, he waives the condition; and a fortiori where he delivers the bond.' When a bond is not binding upon some of the sureties, by reason of the breach of a condition annexed to their signing the same, semble, that it is not binding upon those who afterwards execute it, in ignorance that it does not bind the former." But a surety does not escape liability upon the bond, merely because other sureties executed it, after ne had executed it, whose names were not in the bond.^ § 266. Effect where principal is named in body, but does not execute bond. — In the last preceding chapter, we have considered the question, whether an official bond is valid against the sureties, where it has not been executed by the principal. ° In connection with the ques- tion now under examination, we refer to cases where it was held, that sureties are not liable upon an official bond, signed by them alone, and accepted, without their knowledge, without the signature of the principal, who ' Simpson V Bovard, 74 Pa. St. 351, at p. « Pepper v State, 32 Ind. 399. But the 361. case was overruled, upon the prin- > Fletcher v Leight, 4 Bush (Ky.) 303. "P^^ P°'"*= decided, in State v Pep- per, 31 Ind. 76. s State V Lewis, 73 N. C. 138, at p. 143. See also, State v Peck, 53 Me. 284. " Mowbray v State, 88 Ind. 324. • Ante, 8 195. 277 § 267. PUBLIC OFFICERS [Book II. is named in the bond as the primary debtor; and that their liability upon such a bond cannot be established, without affirmative proof that they delivered it, to be operative against themselves only. ' -XT. Liability of a surety in an official bond, where the signature of a person, appearing therein as a co- surety, was forged, or otherwise affixed without the latter's authority. § 367. Conflict of authorities; but recent cases hold surety liable. — Upon this question, there has been some conflict of opinions, but the more recent cases hold that the surety is liable, although he executed the bond, in the belief that the other signature was genuine.^ And it has been said in some cases, that by executing the con- tract of suretyship, the surety affirms that the previous signatures are genuine.' Where a surety signed an official bond at the principal's request, after the other signatures had been placed thereupon, without reading it or hearing it read, or any information concerning it, except that it was "a county paper;" it was held, that the forgery of one of the signatures was no defence, as he evidently had not relied upon that signature." I School Trustees v Sheik, 119 111. 579 ; overruling Seeley v People, 27 111. 173. Johnston v Kimhall, 39 Mich. 187. See also Mathis ti Morgan, 72 Ga. 517 ; See also, under a statute, Bunn 'v Jet- Helms v Wayne Agr. Company, 73 more, 70 Mo. 228. Ind. 325 ; S. P. as to unofficial bonds, Hall v Chamberlain v Brewer, 3 Bush (Ky.) Parker, 37 Mich. 590 : s. c. 39 Mich. 561 ; 287 ; Franklin Bk. i) Cooper, 89 Me. 532 ; Bean i) Parker, 17 Mass. 591, per Par- State v Baker, 64 Mo. 167. ker, Ch. J,, p. 604 ; a York Co. M. F. Ins. Comp'y « Brooks, Wood 1) Washburn. 2 Pick. (Mass.) 24. gj^ jjg gjg . a Stern i> People, 102 111. 540, approving Selser v Brock, 3 Ohio St. 302. Btoner v Milliken, 85 111. 218, and 4 state v Pepper, 31 Ind. 76. 878 Chap. XII.] SURETIES IN 01-FICIAL BONDS § 369. XI. Liability of the sureties, as affected by a subsequent alteration of the officer's duties, or of the ten- ure of his office, § 268. Leading English case holding surety dis- charged. — The leading case in this subject was decided in the year 1856, by the court of queen's bench. An action was brought upon a bond, conditioned to indem- nify the high bailiff of a county court, against any liability from the misconduct of a person appointed by him, to be one of the bailiffs. After the execution of the bond, the jurisdiction of the county court was extended by five different statutes, so as greatly to increase the amount in which it had jurisdiction, and to extend its jurisdiction to various other subjects, and change entirely the bailiff's fees. It was held that the sureties were dis- charged by the additional statutes. The lord chief jus- tice said: " It may be considered settled law, that where there is a bond of suretyship for an officer, and by the act of the parties or act of parliament, the nature of the office is so changed, that the duties are materially altered, so as to affect the peril of the sureties, the bond is avoided." With him the other judges agreed, on the ground that the " effect of the increased jurisdiction was to so alter the court and the office of bailiff, as to affect the liability of the surety to his prejudice." ' § 269. Other English cases to same effect. — This case has been cited and discussed, in most of the subsequent cases upon the question under consideration; and in some of them, it has been severely criticized.'' But as the bond on which the action was brought, although of an official character, was to all intents and purposes a private bond, it appears to have been well decided. In more modern English cases, it has been said, that where one is surety for 1 Pybus V Gibb, 6 Ell. & Black. 902 ; 26 ' Ex. gr. per Ruger, Ch. J., 92 N. Y. 396, L. J., Q. B. 41 i 3 Jur. N. S. 315. cited post, § 278. 279 § 271. PUBLIC OFFICERS [Book II. another s good behavior in a particular office, and the principal is subsequently appointed to a perfectly dis- tinct office, which is incompatible and inconsistent with the first office, the surety is discharged, although the duties under the two appointments are the same; but where he is subsequently appointed to an additional office which is not incompatible, the liability continues; that a change of duties, if the duties are materially altered, so as to affect the peril of the sureties, discharges the sureties; but if the change does not materially alter the duties, the bond is not avoided. ' § 270. Rulings in U. S., following English rulings. — The United States courts have, in general, followed the English rules as contained in the foregoing extracts;" and they have also been recognized and adopted in some cases in the state courts, as will be seen in our sub- sequent citations. But in most of the state courts, a broader rule is recognized. § 271. American cases holding that sureties are not discharged. — In a case decided by the court of appeals of the state of New York, an action was brought by the people, against the sureties in the official bond of a com- missioner appointed in 1850, under an act, passed in 1837, to provide for loaning the money deposited by the United States with the state. The bond was conditioned for the Mailing Union v Graham, 5 L. R. C. 856 ; 2 Jur. N. S. 743 : P. 201 ; 39 L. J., C. P., 74 ; 22 L. T., Mayor of Berwick d Oswald, 1 E. & B. 789; 18W. R.674; 295 ; 22 L. J., Q. B. 129. Skillett V Fletcher, 1 L. R., C. P., 217 ; . „,,, . „. ^ „ „„ . „ „ > „„„ 35 L. J., C, P., 1,54 12 Jur N. S. 295 ^Tj^^T i ^f J o w. / 1 H. & R. 197 ; a«-cl 2 L. R., C. P., ''^u. 1.) T^T " "''''"*"'''' ' '"''""'■ 469 ; 36 L. J., C. P., 206 ; 16 L. T, 15W. R., 8T6; Bartlett v Atty.-Gen., Park. 277; United States v Hillegas, 3 Wash. C. C. (U.S.) 70; „„ .,,„^ Postmaster General uReeder, 4 Wash. Oswald t! Mayor of Berwick, 5 H. L. C C (U S ) 678 280 Chap. XII.] SURETIES IN OFFICIAL BONDS § 271. faithful performance of the duties under that act. While he was in office, and after the bond was given, in the year 1850, the legislature enacted a statute, closing up the business of certain commissioners for loaning the state's money, and transferring it to the commissioners appointed under the act of 1837. Upon the expiration of his term in 1853, the commissioner was in default for $2,134.59, of which $500 consisted of money received by him under the act of 1850, and the residue of money received under the act of 1837. The sureties insisted that they were dis- charged by the change in the principal's duties under the latter act; but the court held that that they were liable for the full amount of the defalcation.' Grover, J., after admitting that the sureties would be discharged if the transaction was of a private nature, said: " The anology between this class of cases and the contracts of indi- viduals fails in this respect. In the latter, no alteration can be made without the mutual assent of both parties. In the former, the legislature have power at any and at all times to change the duties of officers; and the con- tinued existence of this power is known to the officer and his sureties; and the officer accepts the office, and the sureties execute the bond, with this knowledge. It is, I think, the same in effect as though this power had been recited in the bond. Had this been done, it would not be claimed that the sureties were discharged by its exercise." The learned judge concluded that " any alteration, addi- tion, or diminution of the duties of a public officer, made by the legislature, does not discharge his official bond or the sureties therein, so long as the duties required are the appropriate functions of the particular officer." Hunt, J. , delivered an opinion to the same effect, examin- ing the authorities upon the question, and showing that in those where it was held that the sureties were dis- charged, some were cases of private contract, while in 281 § 273. PUBLIC OFFICERS [Book II, others the duties of the office had been essentially altered.' In a recent case, the same person was treasurer and tax receiver of a city; r.nd an act was passed, after his official bond had been given, separating the school money from the other funds of the city, and requiring it to be paid over to the treasurer and tax receiver "in trust," to be kept separate by him, and paid out by him on the orders of the board of education of the city. In an action to recover for the misappropriation of the school money, the sureties insisted, that by requiring the school funds to be held "in trust," the legislature had changed the officer, as to those moneys, to a trustee of the board of educa- tion. But it was .held that they were liable. The court said: " There is no special force in the words ' in trust' to justify such a construction. In his official capacity, the treasurer held all the public moneys in trust, whether any statute so specifically declared or not. The duties added by the act were in every sense official, because not dif- ferent from the ordinary and usual duties of the office. The change effected was to require him to keep them " (the school funds) " separate, and answer for them to one department of the city government, instead of to the municipality. In this his official character and duties were not essentially altered." ' § 373. Weight of American authorities sustains this rule; cases and qualifications. — The foregoing cases state substantially the principles established by the weight of the American authorities; as shown by the cases cited in the note;" although, in some of the cases, expressions are 1 People V Vilas, 36 N. Y. 459 ; 3 Abb. Pr. Dawson v State, 38 Ohio St. 1. N. S. (N.Y.) 252, disapproving Bartlett See also Mayor, etc., v Kelly, 98 N. Y. V Att'y-Gen., Park., 277, and United 467 ; States V Kirkpatrick, 9 Wheat (U. King v Nichols, 16 Ohio St. 80. S- ) 'i'20- a Walker v Chapman, 22 Ala. U6 ; ^ Board of Education v Quick, 99 N. Y Governor v Ridgway, 12 111. 14 ; 138. People v MoHatton, 7 111. 638 ; A similar ruling was made in Ohio. Compher v People, 12 111. 290 ; 2S3 Chap. XII.] SURETIES IN OFFICIAL BONDS § 373. found, to the effect that the sureties are not bound for the discharge of duties, subsequently added to the office, " unless their affinity to the office is plain and obvious." ' But with respect to the application of the principles to particular circumstances, and, in some instances, with respect to the principles themselves, the cases are not uniforrn. § 273. Extension of principal's term, or time for him to account. — Thus it has been held, in one state, that where a statute extended an officer's term six months, the sure- ties continued to be liable for the additional time, although he failed to give a new bond, as the statute required, because the constitution provided that the officer should hold over until his successor should qualify.' But in other states, it has been held, under the same circum- stances, that the sureties were not liable for the addi- tional time.' So, in the majority of the cases, it has been held, that a statutory extension of the time, within which the officer is required to pay over money in his hands, does not discharge his sureties.' So also, if the statute confers upon the trustees of a village power to renew the tax collector's warrant from time to time, his sureties are not discharged by such a renewal, without their con- People V Blackford, 16 111. 166 ; Brown v Sneed, 77 Tex. 471 ; Kindle v State, 7 Blackf . (Ind.) 586 ; Gaussen v United States, 97 U. S. 584 ; Bartlett v Governor, 2 Bibb. (Ky.) 586 ; Comm. v Hohnes, 25 Gratt. (Va.) 771. Colter V Morgan, 12 B. Mon. (Ky.) 278 ; , Comm. v Drewry, 15 Gratt. (Va.) 1. Graham v Washington County, 9 Dana (Ky.) 182 ; White V Fox, 22 Me. 341 ; State V Carleton, 1 Gill (Md.) 249 ; « State v Carleton, 1 Gill (Md.) 249 ; Marney v State, 13 Mo. 7 ; State v Swinney, 60 Miss. 39 ; Comm. V Holmes, 25 Gratt. (Va.) 771. Worth v Cox, 89 N. C. 44 ; ' White V East Saginaw, 43 Mich. 567, Chandler v State, 1 Lea (Tenn.) 296, per Graves, J., p. 569, citing Kitson v "'^"^ »"'^' ^ ^^ • Julian, 4 Ell. & Bl. 854 ; Nashville v Knight, 12 Lea (Tenn.) 700; ' Brown v Lattimore, 17 Gala. 93 ; MuUikin v State, 7 Blackf. (Ind.) 77. Mayor, etc., i) Crowell, 40 N. J. L. 207 ; _,.. ,- . , , T.T „„(. An -KT Smith D Comm., 25 Gratt. (Va.) 780. Citizens' Loan Ass'n v Nugent, 40 N. ^ ^ ^ ' ^ „, ^,.^ J. L.215; 283 Comm. V Holmes, 25 Gratt. (Va.) 771 ; Smith V Comm., 25 Gratt. (Va.) 780. See also, Crawn v Comm., 84 Va. 282. § 375. PUBLIC OFFICERS [Book II. sent, for they executed the bond with express or implied knowledge of the existence of such a power.' But the adjudications are not harmonious upon this point; for in some of them it has been held that such an extension dis- charges the sureties, since it postpones the right of action upon the bond without their consent;' but that a statute postponing the time of holding a term of a court, at which the taxes are to be paid, does not discharge the tax collector's sureties, although it incidentally extends his time for payment.' An order of the county court, thus extending the time, does not discharge the sureties, since it is not binding.' § 374. Addition of new districts and redistrict'ing county. — Where the bond was for faithful performance of the officer's duties, as collector of the United States taxes for eight specified townships, and the appointment was afterwards extended to another township; it was held that the sureties were not liable for taxes, subse- quently collected by the officer.^ But where a deputy assessor gave a bond to the assessor for faithful perform- ance of "the duties of the said office of deputy asses- sor," during his continuance therein, and the county was afterwards redistricted; it was held that his sureties were liable for a subsequent default. " § 375. Change of compensation, or postage rate, or mode of payment of customs charges; revision of ordin- ances. — The liability of an officer's sureties is not affected by the increase or diminution of his salary or fees;' nor. where the officer is a postmaster, by the increase or diminu- ' Olean v King, 116 N. Y. 355, aSE'g 42 Hun » People v MoHatton, 7 111. 638. (N. y.) 651. i Lane v Howell, 1 Lea (Tenn.) 275. = Davis V People, 6 111. 409 ; , jjiH^^ ^ Stewart, 9 Wheat. (U. S.) 680. state V Roberts, 68 Mo. 234; Johnson v Hacker, 8 Heisk. (Tenn.) 388. " Kruttschnitt v Hauck, 6 Neva. 163. ' Sacramento County v Bird, 31 Gala. 66. 384 Chap. XII.] SURETIES IN OFFICIAL BONDS § 377. tion of the rates of postage.' Nor is the liability of a city oflBcer's sureties affected by the revision of the City ordin- ances, and the repeal of the former ordinances, with a proviso that the repeal shall not affect the tenure of any office, or any forfeiture or penalty already incurred." Where the mode of payment of the customs duties, in the republic of Texas, was changed, after a col- lector's bond had been given; it was held that the sureties' liability was not affected by the change, because the col- lector was bound to receive such payments as the statute directed, and to pay them over in specie.^ § 376. The case of a waterworks superintendent, and of a clerk who was required to collect license fees. — Where, after the superintendent of . the waterworks of a city had voluntarily given an official bond, he was required by an ordinance to collect the water rents, it was held, that his sureties were not liable for his default with respect to the water rents, on the ground that the collection thereof was not within the scope of a superintendent's duty,, and so not within the fair construction of the condition of the bond." So, where a statute required the clerk of a court to collect an account for the license fees of attorneys, it was held, that the sureties in his bond, previously given, were not liable for his default with respect to such fees.' § 377. The author's comments upon the rule, and sug- gestions. — It seems somewhat inconsistent with the prin- ciples, upon which the cases were decided, which hold that the officer and his sureties contract with reference to the power of the legislature at any time to change the officer's duties, to limit the continued liability of the sureties in an official bond running to the sovereign power, or 1 Postmaster-General v Hunger, 2 Paine 3 Borden v Houston, 3 Tex. 594. (U. S.) 189. * Lafayette 1) James, 83 Ind. 840. » Cambridge v Fifleld, 128 Mass. 428. " Denio v State, 60 Miss. 949. 385 § 278. PUBLIC OFFICERS [Book II. to a particular body or officer as its representative, to duties of the same general character, as those which were imposed upon him when the bond was given. The rule, which discharges the surety in a private contract from liability, where such an alteration is made, rests upon the idea that the contract has been altered by dealings between the principal and the obligee; for such an altera- tion cannot take place without the assent of both. But in the case of an alteration by the sovereign power, the principal's consent is eliminated from the transaction; and if the obligor^s contract is made, with reference to the known power of the real obligee to alter the contract at pleasure, there seems to be no limit to the alteration which may be made, without affecting the liability of the sureties; and since this stipulation is deemed to be incor- porated into the contract, the provision of the United States constitution, against impairing the obligation of contracts, cannot apply to such a case. § 378. Where new duties are imposed, bond not invali- dated. — Although the American cases are not entirely uniform, with respect to the sureties' liability for defaults in duties imposed upon the officer, after the execution of the bond, they substantially agree in holding, that such imposition of new duties does not invalidate the bond, as an undertaking for the faithful performance of the duties which were originally imposed upon him, and which he continues to discharge, in addition to the new duties." In the state of New York, the same rule was applied in a case, where the board of supervisors of a county, under the general authority conferred upon them by statute, imposed upon the county treasurer, during his term of oflSce, the duty of raising, keeping, and disbursing large sums of money for county purposes, during the civil war. The court, after remarking that the defalcation, for which the 1 Gaussen v United States, 97 U. S. 581. 386 Chap, XII.] SUEETIBS IN OFFICIAL BONDS § 379. action -vvas brought, did not arise out of the duties added to those, which devolved upon the officer when the bond was given, cited and approved the case last cited, and con- tinued: " Such is the uniform course of decisions in the United States, and the rule is now too well settled to be controverted. The case of Pyhus v. Crihh, 6 Ell. & Bl., 903,' which supports the contrary rule, has been uniformly repudiated in this country, whenever it has been cited as an authority." ' This doctrine has been also declared and applied in the cases cited in the note.' § 379. Liability where new duties imposed before bond, or where bond provides for duties "now or hereafter" imposed. — When the bond is given after the new duties have been imposed, the sureties are, of course, liable for defaults with respect to such duties, unless the statute also requires a special bond for the latter.' And the sureties' liability is not affected by any subsequent change in the officer's duties, where the bond, as provided in some states by statute, is conditioned for the performance of " all the duties, now or hereafter required" from the officer by law." > Cited amU, § 268. 41 Mich. 339 ; = Supervisors- f Clark, 92 N.Y. 391, afl'g Mumford v Memphis, etc., B. R. 25 Hun (N. Y.) 283. ^omp-y, 2 Lea (Tenn.) 393; United States v Klrkpatrick, 9 Wheat. » Colter V Morgan, 12 B. Mon. (Ky.) j^. S.) 720. 278; „„.. „ „,, a.,. ' Marquette Co. « Ward, 50 Mich. 174 1 White I! Fox, 23 Me. 341 ; ^ „ ,, ,„' , , Tx X 1. Aiii v 1, iTrnj-„„„ cQo. State V Bradshaw, 10 Ired. L. (N. C.) Hatch V Attleborough, 97 Mass. 533 ; ' \ ^ i Mayor,etc.,uSil3herns,3Abb.Ct.App. J^' , „ , ,„, (N. Y.) 2.16 ; 35 How. Pr. (N. Y.) 408 ; ^ee also Board of Education i- Quick, 99 N. Y. 138. Comm. 1) Holmes, 25 Gratt. (Va.) 771. See also Lafayette i) James, 92 Inc 240; White Sew. Mach. Comp'y » Mullins, See also Morrow v Wood, 56 Ala. 1. See also Lafayette i) James, 92 Ind. * Mahaska County v Ingalls, 14 Iowa 240; 170. 287 § 382. PUBLIC OFFICERS [Book II. XII. Effect upon the liability of the sureties in an offi- cial bond, of the acts or omissions of other officers, including transactions between them and the principal in the bond. § 380. Some of rules governing private contracts of suretyship inapplicable. — In this class of cases, as in some of those previously considered, we shall find that the peculiar character of the real obligee in the bond, renders inapplicable some of the rules, which govern in private contracts of suretyship. § 381. General rule that government not liable for acts or omissions of officers. — With respect to negli- gence, laches, or other misconduct of officers, the general rule has been well laid down by the United States supreme court as follows : " The government is not responsible for the laches or the wrongful acts of its officers. Every surety upon an official bond to the government is presumed to enter into his contract, with full knowledge of this principle of law, and to consent to be dealt with accordingly. The government enters into no contract with him, that its officers shall perform their duties. A government may be a loser by the negligence of its officers; but it never becomes bound to others for the consequences of such neglect, unless it be by express agreement to that effect." ' § 383. Effect of settlements, etc., between principal and auditing officer. — Although a fair and reasonable settlement of a doubtful matter, between a financial offi- cer, and those officers who are required by law to examine and audit his accounts, will not be reopened at the in- stance of the successors of the latter; the same strictness is not applied, as in the case of private persons; and a mistake will be rectified, even in a case where the settle- ' Hart V United States, 95 U. S. 316, per Walte, Ch. J. 288 Chap. Xn.] SURETIES IN OFFICIAL BONDS § 2So. ment would be conclusive, if the question arose between private persons. ' Thus, where the supervisors, in settling a county treasurer's account, allowed him to retain, as a perquisite of office, interest upon deposits of money of the county, received by him; it was held that their successors might recover the amount thereof, in an ac- tion against the sureties.' So where the selectmen failed to discover, in settling the treasurer's accounts, an error in addition against the town, it was held that their suc- cessors might recover the amount thereof from the sureties, although the treasurer was then solvent, and had since become insolvent." So where the county board authorized the county treasurer to retain $2000 for his , services in selling tax certificates, and settled his accoimts on that basis; it was held that the sureties were not dis- charged as to the $2000, as the board had no power to make such an allowance." § 283. The same subject ; omission to proceed against principal; laches and omissions of other officers. — So, in an action upon the official bond of a county treasurer, conditioned for faithful performance and disbursement, and also to " render a just and true account thereof to the board of supervisors," etc. ; where it appeared that the supervisors had annually adjusted the treasurer's ac- count, as required by law, but that he had nevertheless misapplied and wrongfully appropriated certain sums; it was held that the defendants were liabl-e for such sums. The court said: "The board of supervisors and the treas- urer were alike the agents of the county, as a body politic and corporate, and the acts and neglects of one ' Supervisors v Birdsall, 4 Wend. (N. Y.) ' Farmington V Stanley, 60 Me. 472,- ^53. 4 Sup'rs V Knipfer, 37 Wis. 496. See also Boardman v Flagg, 70. Mloli. Accord, Wilson v Glover, 3 Pa. St. 404. S''^; See further on this subject, ante, Britton v Fort Worth, 78 Tex. 227. gg 208, 217, 245.. ^ Supervisors v Wandel, 6 Lans.(N.Y.) 33. 289 § 2S'3. PUBLIC OFFICERS '[Book II. agent cannot affect or detract from the liability of an- other agent, or of the sureties of either to the common principal. The board of supervisors owed no duty to the defendants, the appellants. The law, while it imposes upon the supervisors the duty of examining the accounts of county treasurers, does not guaranty to the sureties the performance of that duty, or make the omission or negli- gent performance of it available to the sureties, as a re- lease from their obligations, or a defence to an action upon the bond of suretyship." It was also held that " there was none of the elements of an equitable estoppel available to the sureties." ' In another case in the same court, it was held, that it was no defence to the sureties of a tax collector, that, if a warrant against their princi- pal as a delinquent collector had been issued by the county treasurer, as directed and within the time pre- scribed by law, the amount of his defalcation might have been collected from him; and this, although such a warrant is a condition precedent to maintaining an ac- tion upon the bond; because the provision for a warrant was for the benefit of the public, and did not form a part of the contract of the sureties." The doctrine, that the sureties of a public officer are not discharged by laches or omissions of another officer or board of officers to take proceedings against the principal, or to settle his accounts as required by law, although such laches have been gross and unreasonable, and the principal has mean- while become insolvent, has been established in ."".umer- ous other cases.'' So the sureties of a disbursing officer of the United States are liable for his defalcation, with ' Supervisors v Otis, 62 N. Y. 88, at p. 96 ; 640 ; 9 Bing. 544 ; Accord, County Com'rs i) Mao Rae, 89 People v Jenkins, 17 Gala. 500 ; N. C. 95. Bonta v Mercer Co. Court, 7 Bush (Ky .) Looney v Hughes, 26 N. Y. 514, aff'g 30 ^''^ ' Barb fN Y ) 605 Duncan v State, 7 La. Ann. 377 ; = Collins. f.-Grvrynae, 2 Moore & Scott, 390 Mayor, etc., v Merritt, 27 La. Ann. 568 ; Chap. Xlt.J SURETIES IN OFFICIAL BONDS § 284. respect to money advanced to him, without the express direction of the president, as the act of congress re- quires. ' The effect of the appropriation by the principal, with the consent of an auditing officer, of money re- ceived by the principal in one year, to make up a defi- ciency in his accounts for a preceding year, has been con- sidered elsewhere." § 284. Effect of improper transactions between prin- cipal and receiving or auditing officers. — Where a tax collector's bond, which by law must run to the town, ran to the treasurer; if the latter, on the collector's offering him the ta.x money, agrees with the collector that he may keep the money for a time, and pay his own debts with it, the collector's sureties are discharged pro tanto. But the court said: " Whether such an agreement between the treasurer and the collector would have ex- onerated the sureties, if the bond had been given to the town, as it ought to have been, instead of the treasurer, it is not necessary to inquire. " ' Where an officer consents to the use of public money by his deputy in his own busi- ness, that discharges the sureties on the deputy's bond to him, for the money so used.' But here the contract is Mayor, etc., i> Redmond, 28 La. Ann. 274; United States v NiehoU, 12 Wheat. (U. Farmington v Stanley, 60 Me. 472 ; S.) 505 ; Freaner v YmgUng,.37 Md. 49i;; Dox », Postmaster-General, 1 Pet. (U. DetroitD Weber, 26 Mich. 284; S.)318; People u Russell, 4 Wend. (N. Y.).570; Smith i! United States, 5 Pet. (U.S.) Supervisors i)Wandel,6Lans.{N.Y.) 33; 292; McKecknie v Ward, 58 N. Y. 541, over- United States v Boyd, 15 Pet. (U. S.) ruling People v Jansen, 7 Johns. (N. 187 ; Y.) 332; Jones v United States, 18 Wall (U. S.) Comm. V Wolbert, 6 Binn. (Pa.) 292 ; 662 ; Pittsbtirg, etc., R. R. Comp'y « Shaef- Suiith* Comm.,^Gratt. (Va.)780; f er, 59 Pa. St. 350 ; Crawn v Comm., 84 Va. 283. City Council v Paterson, 2 BaUey L. , united States v Cutter, 3 Curtis (U. S.) (S. C.)165; 617. = Ante, S 319. United States » Klrkpatrick, 9 Wheat. (U.S.) 720; United States v Vanzandt, 11 Wheat. ' Johnson v Mills, 10 Gush. (Mass.) 503. (U. S.) 184 ; 1 Pickering v Day, 3 Houst. (Del.) 474. »91 § 285. PUBLIC OFFICERS [Book II. practically a private one. It has been held, however, that if county commissioners take from the county treas- urer his note, and a mortgage upon land, in payment of his defalcation, that discharges the treasurer's sureties. ' In another case it was held, that where the mayor and common council allowed a city treasurer to use public money for his own benefit, the treasurer's sureties were liable for such money." A surety who consents is not discharged by the release of a mortgage, held as security for a treasurer's defalcation; but a cosurety, not consent- ing, is discharged thereby. '' Where the same person was tax collector and treasurer, and settled his accounts as collector with the auditor, and received a certificate from the auditor, that a certain sum was due from him, which was afterwards found in the treasury; it was held that the presumption was that the money was then deposited; and, a defalcation having occurred, and there being no proof when it occurred, that the presumption was that it occurred after the deposit, and the sureties in the bond as treasurer were liable therefor." § 285. Illegal cancellation; statutory settlement, or by authority by city council; quere, if sureties discharged, etc. — The illegal cancellation of an official bond does not affect the liability of the sureties therein. ^ Although a settleraent of accounts, as we have seen, is not conclusive in favor of the sureties, against the obligee in the bond, or the sovereign power represented by the obligee, a settlement pursuant to the statute is conclusive against a third person, seeking to hold the sureties liable for the officer's misconduct, to the plaintiff's injury. " Where a city charter authorized the council to settle the accounts of the outgoing treasurer, and he gave, in payment of a 1 Goodin "j State, 18 Ohio 6. ' Butte Co. v Morgan, 76 Gala. 1. ^ Manley f Atchison, 9 Kan. 358. ' Roohereau v Jones, 29 La. Ann. 28. ' Mayor V Blache, 6 La. (Curry) 500. • Missouri « Winterbottom, 123 U. S. 215. 293 Chap. XII.] SUEETIES IN OFFICIAL BONDS § 386. balance due from him, a certificate of deposit in a bank, which immediately afterwards failed; it was held that the sureties might show, in defence of an action upon his bond, that the council had ratified his action. " Where a collector of the United States internal revenue had given a bond in $10,000; and, being indebted to the United States in a sum exceeding the penalty, made a deed of property to the United States to secure his indebtedness, having previously transferred $10,000 to his sureties to pro- cure their exoneration; and they applied the money accord- ingly, and were discharged by the treasury department; it was held that the discharge was valid, although the department had no knowledge, when the discharge was given, that the $10,000 were received from the collector.' § 286. Certain facts not defences in action upon dis- bursing officer's bond. — The principle, that the govern- ment, or its representative, the obligee, is not responsible for the negligence or other misconduct of other officers, is well illustrated in the ruling that the sureties in a tax collector's bond cannot defeat a recovery upon the bond, by proof that the collector was a defaulter when he was appointed, and that the appointing officers knew that fact but did not disclose it;' and this, although the statute expressly forbids such an appointment;* or the appoint- ing board falsely represented that the accounts for the preceding term had been settled.' So the failure of the proper officers to remove a delinquent financial officer, pursuant to the directions of the statute, is not a defence to an action against the sureties for a subsequent defal- ' Lansing v Wood, 57 Mich. 201. See also State v Rushing, 17 Fla. 326 ; .,,.., „^ ^ ^ T. o Tj 1 /TT Crawn 1) Comm., 84 Va. 282. ' United States u Cochran, 2 Brock. (U. g ) 274. ' Boreland i' Washington County, 20 Pa St 150 8 Frownf elter v State, 68 Md. 80 ; ... Pine Co. v Wlllard, 39 Minn. 125. ' Palmer i) Woods, 75 Iowa, 402. 293 § 387. PUBLIC OFFICERS [Book II. cation.' Where the county commissioners erroneously advertised, that a tax collector had paid up all his liabili- ties for a preceding term of office; and the defendants became his sureties for a new term, in reliance upon the advertisement; it was held that they were nevertheless liable." Where one officer is surety for another, who is in default, the continuance of payment of the former's sal- ary, which had been retained, and applied to the defalca- tion, and the settlement and closing up of his accounts, do not affect his liability as surety for the defaulter. ' § 387. A Pennsylvania case where part of taxes were collected by collector de facto. — In Pennsylvania, where county commissioners appointed A tax collector, and issued to him the warrant and other papers for collection of the taxes, but he failed to give a bond; whereupon they appointed B tax collector, who gave a bond, reciting that the tax warrant and other papers had been issued to him, but in fact they had not been and were not at any time issued to him; and B proceeded in the collection of the taxes, and paid over such as he collected; but A also collected some of the taxes, and did not pay them over; whereupon an action was brought to hold B and his sureties liable for taxes received- by A, inasmuch as the bond by its terms covered all the county taxes; the court held that they were liable only for the taxes actually received by their principal." ' stern v People, 103 111. 540 ; will not be bound. Newark v Stout, United States v Vanzandt, 11 Wheat. 52 N. J. L. 35. (U. S.) 181. See also, Mayor, etc., v Dickerson, 45 See also Marlar v State, 62 Miss. 077 ; N. J. L. 38. People V Berner, 13 Johns. (N. Y.) 383. , q^,^^^ ^ Washington Co. Com'rs, 25 But this rule appears to be limited p^^ g|. gg in New Jersey, in the case of a mu- g^^ ^^ Detroit v Weber, 26 Mirb . 2Si ; nicipal officer, to the executive of- gj^^g ^ ^^^^^^ 3g y^_ ^._ fl.cers of the city ; it has been said that if the common council knew of ' United States v Beattie, GUp. (U. S.) 02. a previous defalcation, and did not * Cannell v Crawford County, 59 Pa. St. remove the delinquent, his sureties 1%. 294 Chap. XII.] SURETIES IN OFFICIAL BONDS § 289. XIIL Defences of sureties, founded upon, defects in the proceedings, whereby the principal acquired the office, or whereby he was charged with the liabil- ity, upon which the action against them is brought. § 288. Obligors estopped from denying principal's title to office, and from questioning his power to act. — It is well settled, that all the obligors in an official bond are estopped from denying the regularity of the officer's elec- tion or appointment;' or from showing that he was not duly sworn, or otherwise qualified;' or that he was ineligible;' or from objecting to the sufficiency or approval of his official bond;' or otherwise questioning his official character. ° Or, as the reason for the same result is expressed in other cases, the sureties of an officer de facto are liable in any case, where those of an officer dejure are liable." § 289. Effect of defective tax warrant ; of unconstitu- tional statute. — Where the warrant and tax lists, delivered to a tax collector, are defective in some material and juris- dictional particular, he may refuse to proceed to collect the taxes; but if he actually collects them, he and his sureties ' People II Jenkins, 17 Gala. 500 ; State i> Cooper, 53 Miss. 015 ; People V Huson, 78 Gala. 15i ; o Teoplo v Jenkitis, 17 Gala. 500 ; Boone County v Jones, 54 Iowa, 699 ; gj^^^^ ^ Havekluf t, 21 111. 127 ; Billlngsley v State, 14 Md. 309 ; Basham v Gomm., 13 Bush fUy.) 36 ; Taylor v State, 51 Miss. 79 ; Byrne v State, 50 Miss. 688 ; State V Clark, 1 Head (Tenn.) 369 ; g^^^^ ^ Rhoades, 6 Neva. 352 ; Borden v Houston, 2 Tex. 594. jj^n „ Luther, 13 Wend. (N. Y.) 491 ; « St. Helena Parish v Burton, 35 La. Kelly v State, 25 Ohio St. 567 ; Ann. 521 ; Com'rs of Treasury v Muse, 3 Brev. Horn V Whittier, 6 N. H. 88 ; (S. C.) 150 ; State V Flndley, 10 Ohio 51 ; Borden v Houston, 2 Tex. 594 ; Lyndon V Miller, 36 Vt. 329 ; Monteith v Gomm., 15 Gratt. (Va.) 172. Lane v Harrison, Muuf . (Va.) 573 ; Lyndon v Miller, 36 Vt. 329 ; 3 Jones V Gallatin County, 78 (Ky.) 4BU State v Bates, 36 Vt. 387. < People V Huson, 73 Gala. 154 ; Bocae County v Jones, 54 Iowa 699 ; See, however, Comm. v Jackson, 1 Leigh (Va.) 485. See also post, ch. S7. 295 § 290. PUBLIC OFFICERS [Book II. are liable therefor, and cannot set up the defects in an action in the official bond.' If, however, the defect is naaterial and jurisdictional, so that the collector could not lawfully levy the taxes, it is a defence to an action for failure to collect the taxes." If the warrant was not delivered to the collector in season to enable him to give the statutory notice, and thus enforce the collection, this is not a defence to his sureties, without proof that he did not actually receive the taxes.' The sureties of a tax col- lector are liable for taxes collected by him under an unconstitutional statute, although they would not have been liable if he had refused to collect them.' And where the collector has collected part of the taxes, his sureties are liable for the money thus received, but not for taxes of which payment was refused, on the ground that he had no lawful authority to collect them. " § 290. Rule where tax rate exceeds lawful rate; col- lector unlawfully receiving county warrants. — So a county treasurer's sureties are liable for taxes collected by the treasurer, upon a duplicate in his hands, although the rate of taxes was in excess of the rate allowed by law." And where a tax collector accepts county warrants without authority, and the county treasurer receives them with- > Durham u Fowler, 22 L. E., Q. B. Div. Clean v King, 116 N. Y. 355 ; 394; - State D Woodside, 9 Ired. L. (N. C.) 498 State V RnsMng, 17 Fla. 226 ; Webb County v Gonzales, 69 Tex. 456 ; Johnson v Goodrldge, 15 Me. 29 ; Mast v Nacogdocbes Co., 71 Tex. 380. Kellar v Savage, 17 Me. 444 ; s. c. 20 Me. , Frankfort v Wbite, 41 Me. 537. 199' Orono V Wedgewood, 44 Me. 49 ; " ^^^<> " Whipple, 39 N. Y. 394, aff 'g 39 BrunswickliSnow, 73Me. 177; Barb. (N. Y.) 339. Waters v State, 1 Gill (Md.) 302 ; » Chandler v State, 1 Lea (Tenn.) 296. Sandwich V Fish, 2 Gray (Mass.) 298 ; » Lincoln v Chapin, 132 Mass. 470. Great Harrington v Austin, 8 Gray (Mass ) 444 at p 446 • ° Feigert V State, 31 Ohio St. 432. Wendell v Fleming, 8 Gray (Mass.) 613,; ^ee also, Morris t) State, 47 Tex. 583 ; State V Harney, 57 Miss. 863 ; ^^'^''^ " S^te, 48 Tex. 120. 296 Chap. XII. J SURETIES IN OFFICIAL BONDS § 291. out authority, and has credit for them in his account, the treasurer's sureties are liable for the amount.' § 291. Cases as to sheriff; clerk; tax collector; money illegally borrowed by county.— So, in an action upon a sheriff's bond,- to recover money collected by him under an execution, it is no defence that there was no judgment.' The sureties of a town treasurer, who, by reason of an error in the assessment roll, has collected a larger amount of taxes than was due, are liable for his failure to pay the whole amount, including the excess, to his successor; and this, although the supervisors have settled with him, and charged him only with the sum which he ought to have collected. ' The sureties of the clerk of a court are liable for money, turned over to him by his predecessor, although there was an irregularity in the manner in which the original deposit with the- predecessor was made.* So a plerk's sureties are liable for money, paid into court and received by the clerk, although it was not a legal tender. " And the sureties for the receiver of public moneys in a land district, who has failed to pay over money received by him for public lands, cannot defend an action on the receiver's bond, on the ground of irregularities in the pro- ceedings for the entry. ° But where the county illegally borrowed money for county purposes, by giving notes; and the money was received by the county collector, with the lawful money of the county; his sureties are not liable for his failure to disburse the borrowed money, but are liable for his failure to pay over the lawful money.' 1 Coleman v Pike Co., 83 Ala. 393. Accord, Sutherland v Carr, 83 N. Y. 2 state « Hicks, 2 Blackf. (Ind.) 338. 105. See also. CUnn v Perry, 2 Blackf. 4 Heppe d Johnson, 73 Cala. 265. (Ind.) 268 ; _ ,,. „. . .OUT /orr " BiUings « Teeling, 40 Iowa 607. Rollins V State, 13 Mo. 437 ; a a, Lawtou t> Erwin, 9 Wend. (N. Y.) zn. ' Potter v United States, 107 U. S. 126. ' Bullwlnkel v Guttenberg, 17 Wis. 583. ' Frost 1; MixseU, 38 N. J. Eq. 586. 297 § 393. PUBLIC OFFICERS [Book II. XIV. Miscellaneous questions, relatiug to the amount recoverable against sureties, the formal proceed- ings necessary to found an action against them, and the like. § 292. The general rule and exceptions.— The scope of this work contemplates only the consideration of the general principles applicable to these subjects: and many of the questions relating thereto have been incidentally considered in the foregoing pages of this chapter. It has been said, and correctly, as a general proposition, that there is no distinction between the liability of a surety and that of the principal in the bond; and that the same act or neglect which will charge the principal, will also charge the surety." But this proposition must be con- fined strictly to the bond, and to an action founded upon it; for the principal is liable, in other forms of action, for many acts and omissions, for which the sure- ties are not liable. And in many of the states, the forms of procedure are such, that, in an action upon the bond, a judgment may be rendered against the principal, and in favor of the sureties, where such an act or omission is proved. But in whatever form an action may be brought, the sureties of an oflBcer will not be charged with lia- bility in favor of a person, who was particeps criminis in the unlawful act, with respect to which the action is brought.'' § 293. Generally liable for actual damages; cases where liable only for nominal damages. — As a general rule, subject to the exceptions just mentioned, and to another exception depending upon the amount of the penalty of the bond, sureties, like the principal, are liable > Seaver v Young, 16 Vt. 6:8. McCaraher t! Comm., 5 Watts & S. See also, Charles v Hoskins, 14 Iowa 471; , McConneU « Simpson, 36 Fed. R. (U. S.) (Pa.) 21. y50_ 298 Chap. XII.] SURETIES IN OFFICIAL BONDS § 394. for the actual damages sustained by the person aggrieved, by the misconduct or omission of the principal. A few- cases, where questions as to the sum recoverable against the sureties were passed upon, have been already cited in this chapter. ' In an action upon the bond of a recording officer, for negligently recording a deed reserving a lien, in such a manner as to make the amount of the lien less than it really was; it was held that the defendants were liable for nominal damages only, without proof that the full amount of the lien cannot be collected.'' So the sureties of a sheriff, failing to make a return upon an order for the sale of mortgaged property, whereby the mortgagee was prevented from collecting the deficiency, are liable for the actual loss incurred. ° Where a con- stable sells mortgaged chattels under an execution, and delivers them to the purchaser, without requiring com- pliance with the mortgage, as the statute prescribes, this is a breach of the condition of his bond; but, as the sale and delivery do not transfer the absolute title to the pur- chaser, actual damages must be proved, to justify a recovery for more than nominal damages.* § 294. Not liable beyond penalty of bond, except for interest, etc. — The entire amount, for which the sureties are liable, is limited by the penalty of the bond; and after they have been charged with sums, which, in the aggre- gate, equal the penalty of the bond, they cannot be holden for any additional sums,' except, perhaps, for an excess caused by charging them with interest, as to which the cases are not harmonious. But the bond is not » Ante, §8 248, 249. See also, Lowell v Parker, 10 Met. a State v Davis, 117 Ind. BOT ; s. c. 96 Ind. (Mass.) 309. g39_ = State v Blakemore, 7 Heisk. (Term.) 638" s Boyd n Desmond, 79 Gala. 350. ' .. .^ , „. . c r> * /tt c= \ .j^u ' Farrar D United States, 5 Pet. (U.S.) iWd. * Slif er V State, 114 Ind. 291. See also, ante, § 198. 209 § 296. PUBLIC OPFICKKS [Book 11, discharged by the faithful accounting by the principal to the amount of the penalty; it stands good for losses and defalcations by him to that amount.' § 295. Rules as to necessity for demand.— Where the statute expressly requires an officer to pay to his sucessor all moneys in his hands, and the bond is also conditioned to the same effect, an active duty is thereby imposed on the officer, "and a failure to perform it, constitutes a breach of the conditions of his bond." " So, where a county treasurer settles his accounts annually with the supervisors, and fails to include therein items received during the year, for which he is chargeable. ' So, where an officer is removed, and delivers to his successor the books and papers pertaining to his office, but fails to pay the public money in his hands, this is a breach of his bond." And in such, and all similar cases, wherever the condition of the bond is broken, an action lies thereupon, without notice to or demand upon the principal; and interest is recoverable in such an action from the time of the breach. ° But where there is no fixed time, when the principal is bound to pay over the money, an action lies, and interest is chargeable, only after a special demand on him for payment." § 296. Expenses of neglected duties; transmission of money to principal; when state may sue. — The sureties in an official bond to the United States, are liable for a ' Potter V Titcomt, 7 Me. 303. Grayham v County Court, 9 Dana 2 Cupervisors v Clark, 03 N. Y. 391, at p. *^y-* ^^^ ' 397, afl'g 25 Hun (N. Y.) 282. Cheshire « Howland, 13 Gray (Masa.) Gee also Board of Education i) Heckox, ' 12 Week. D. (N. Y.) 206. People v Gaaherie, 9 Johns. (N. Y.) 71 : » Supervisors c Birdsall, i Wend. (N. Y.) Supervisors v Clark, 92 N. Y. 891, afl'g ^^_ 25Hun(N. Y.)282; Moore v Treasurers, 1 Nott & McC. « School District v Lyf ord, 27 Wis. 508. (SO 214 • ' Id. State V Bird, 2 Rich. (S. C.) 99 ; > Frazier v Laughlin, 6 111. 347/ ^^« *'=°' ^^^^'^ '" ^^™' ^ ^^^ (^enn.) 536. 300 Chap. XII.] SURETIES IN OFFICIAL BONDS § 296. reasonable, but not an extravagant compensation, paid by the government for the performance of duties neglected by the principal." Sureties are not liable for money, delivered by the government to an official agent, for transmission to their principal, without proof that the money came to the latter's hands." Where an officer admits the loss of public money, but insists that he has a a good defence against an action for the same, the state is not bound to await until the expiration of his term of office, before commencing an action upon his official bond.' ' United States V Wann, 3 McL. (U. S.) " Bryana; United States,! Black (U.S.)1«) ^™- 8 State V Nevin, 19 Neva. 162. 301 § 397. PUBLIC OFFICERS [Book II. CHAPTER XIII EVIDENCE OF TITLE TO A PUBLIC OFFICE CONTENTS 297. Commission or certificate is best evidence of officer's title: many questions relating to evidence of title considered in other chapters. 398. Officer's commission not an appointment, but evidence thereof; cases where the commission is void for want of authority; other rulings relating to the effect of, and other matters relating to, a commission. 299. Special case in Louisiana, where each of two claimants to an office held a commission. 300. Proof that act is official may be made, by showing that party exercised the office; other instances where proof that he was officer de facto suffices. 301. Upon indictment for assaulting an officer in discharge of his duty, proof that he was officer de facto suffices. 302. Proof of exercise of a foreign office suffices, as in case of a domestic office. § 397. Commission or certificate best evidence of title. — Where the statute provides for a commission, to be issued by the executive department of the government, or for a certificate of election by the returning officers, or a certificate of appointment by the officer or body hav- ing the power of appointment; such commission or cer- tificate is manifestly the best evidence of the officer's title, with or without accompanying evidence of the jur- isdiction of the officer or body issuing the certificate, as the general rules of evidence may require. As we have shown, in a previous chapter, an oral appointment by an officer or body is invalid; and there must be some written evidence of the appointment, although it may be very 303 Chap. XIII. J EVIDENCE OF TITLE § 298. informal." The consideration of the circumstances which suffice to render a person an oflBcer de facto, in the absence of any proof that he is an officer dejure, belongs to and will be treated in a subsequent chapter;' so that this chapter will be confined to a few propositions, relating specially to evidence of title to an office, as distinguished from the general law of evidence. § 298. Commission not appointment, but evidence ; cases where void. — A commission is not an officer's ' appointment, but the evidence of the appointment f and it has been said, that where the title to an office is derived from an executive appointment, the commission is the only legal evidence thereof." But, in another case, it was said that a commission, issued to a person thus appointed, is "but evidence of those acts of appointment and qual- ificati on, which constitute his title, and which may be proved by other evidence, where the rule of law requir- ing the best evidence does not prevent." ' Where the officer is chosen by the votes of the people, a commission issued by the governor is merely evidence of title, and confers no title to the office; it may be revoked by the governor, and a new commission may be issued to another, if the first commission was issued by mistake." Where the title to an office is derived from a popular election, semble, that the commission of the governor, although he is required by law to issue it, is not absolutely necessary to the right to exercise the duties of the office.' A com- ' Ante, i 86. Carter v Sympson, 8 B. Mon. (Ky.) 155 ; . „ , t ™, Bank of United States v Dandridge, 'P"^'<'^-^- 12 Wheat. (U.S.) 64; 8 Hill V State, 1 Ala. 559 ; CaUison v Hedrick, 15 Gratt. (Va.) Jeter v State, 1 McCord (S. C.) 233 ; 214. State V Lylies, 1 McCord (S. C.) 238. . „ / „ „„ , . ' State 1) Capers, 37 La. Ann. 747. < State V Allen, 21 Ind. 510. gee ^^go Gulick v New, 14 Ind. 93. " United States v Le Baron, 19 How. , (jiascock v Lyons, 20 Ind. 1 ; (U. S.) 73, per Curtis, J., p. 78. g^^^^ „ ^lg„_ 21 Ind. 516 ; See also Allen v State, 21 Ga. 217 ; Shannon v Baker, 33 Ind. 390. 303 § 299. PUBLIC OFFICERS [Book II. mission or certificate of election is prima facie evidence of title to an office, and it entitles the person named therein to exercise the functions of the office, until a judicial determination to the contrary. " It was said, how- ever, in one case, that the operative power of a commis- sion is suspended, pending a contest respecting the officer's election; but where the decision is in his favor, it takes effect again, and a new commission is not necessary. " And where, pending a contest for an office, a commission is inadvertently issued to one of the claimants by the gov- ernor, it is not conclusive upon a quo warranto.' A commission issued by the governor, upon an erroneous supposition that the office was vacant, confers no title upon the person named therein." So where the general assembly assumed to choose a person to fill a vacancy, which the constitution declared should be filled by the governor; and, upon a certificate of such appointment, the governor issued, to the person so chosen, a commis- sion, reciting that he was commissioned as the elect of the general assembly; it was held that this was not an appointment by the governor, and the person named was not entitled to the office. " Other authorities, relating to the effect of a commission or certificate of election, will be found in subsequent portions of this work." § 399. Special case, where two held commissions. — In a case which arose in Louisiana, upon a contest for the office of sheriff, the relator insisted that the defendant was appointed to the office by the governor on the 9th of March, 1869, while the senate was not in, session, the leg- islative session having adjourned nine days previously; that under the constitution and laws of the state, an 1 state « Johnaon, 17 Ark. 407 ; ' Hardin -j Colquitt, 63 Ga. 588. Ewing V Filley, 43 Pa. St. 384 ; , ^^^^^ „ MoNeely, 24 La. Ann. 19. Kerr v Trego, 47 Pa. St. 292. See also Low v Towns. 8 Ga. 300. ° State v Peelle, 124 Ind. 515. ' Luzerne Co. « Trimmer, 95 Pa. S,t. 97. ' ^o*'- ^ 313, and cases in cli. 18. 304 Chap. XIII. J EVIDENCE OF TITLE §300. office thus filled became vacant, at the end of the next session of the legislature, about March 1, 1870; and that, inasmuch as he was appointed on the 16th day of that month, during an extra session of the legislature, and was then confirmed by the legislature, he was entitled to the office. But the defendant's commission recited, that his appointment was made by and with the advice and consent of the senate. The court said: " There is no difference between the commissions, except in their dates and the names of the appointees. Both commis- sions recite that the appointments were made, by and with the advice and consent of the senate. There is no evidence, dehors the commissions, contradicting their recitals, and we are not authorized to take judicial cog- nizance, without proof, of the legislative transactions recorded in its journals, in order to ascertain the truth of the fact, as to whether confirmations were made by the senate, of the persons purporting by these commissions to have been appointed. In the entire absence of any thing, showing that there has been a removal from oflBce of the party first appointed, or that the office had, from any cause, become vacated before the date of the last commission, we can only presume the last commission was issued in error, and must therefore maintain the defendant in the right he sets up to the office, in virtue of his holding the older commission." ' § 300. Proof that act is official ; other instances. — Proof that a particular act was official may be made, by showing that the party exercised the office, before or at the time in question, or within a reasonable time after- wards.' A public officer, who has acted as such, without • state V Bankston, 23 La. Ann. 3T5. Doe d. Bowley V Barnes, 8 Q. B. (Ad. S. P., Ewing 11 Thompson, 43 Pa. St. 373. & El.) 1037; " Doe d. Hopley v Young, 8 Q. B. (Ad. & El.) 63; 15 L. J., Q. B., 9; 9 Jur. 941; Reg. V Murphy, 8 C. & P. 297; See also, McMahon v Lennard, 6 H. L. Cas. 970. 305 § 303. PUBLIC OFFICERS [Book II, objection from the public or the appointing power, is pre- sumed, until the contrary appears, to have been duly appointed,' and to have duly filed his official bond, and taken his official oath." Such proof, until it is overcome by contrary evidence, enables him to justify, in a case where he is obliged to prove that he is an officer de jure, this being one of the exceptions to the rule that the best evi- dence must be adduced.' But where one claims title to a city office, under an appointment from the president of the council, acting as mayor, the facts must be shown, which confer upon the president the right to make the appointment." § 301. Upon indictment for assaulting officer in dis- charge of duty, de facto proof suffices. — Upon the trial of an indictment for assaulting a police officer in the dis- charge of his duty, proof that he was acting as such offi- cer at the time of the assault, and that he had so acted for four years previously, is sufficient to show that he v/as such officer. ' And proof that he then wore the uniform and badge of a police officer is sufficient to charge the defendant with notice that he was such an officer." § 302. Proof of exercise of foreign office sufficient. — No different proof of the official character of a foreign officer is required, from that required with respect to an officer at home; in either case, proof that he actually exercised the office is usually sufficient.' " Callison v Hedrick, 15 Gratt. (Va.) 344. Wilcox v Smith, 5 Wend. (N. Y.) 231 -, ' People V Clingau, 5 Gala. 389. ^0^;°^ ^ Curtice, 9 Wend. (N. Y.) 17 ; United States v Reyburn, 6 Pet. (U. S.) ' Colton V Beardsley, 38 Barb. (N. Y.) 29. ggg See also, Berryman v Wise, 4 T. R. (D. & E.) 366 ; * State i' Board of Health, 49 N. J. L. 849. Bryan v Walton, 14 Ga. 185; • Comm. ti Kane, 108 Mass. 423. Allen V State, 21 Ga. 217 ; . Comm. „ Tobin, 108 Mass. 426. State V Ferguson, 31 N. J. L. 107 ; Potter V Luther, 3 Johns. (N. Y.) 431 ; ' Spaulding v Vincent, 24 Vt. 501. 30G Chap. XIV.] TERM OF OFFICE BOOK III TENURE OF OFFICE. VACANCY CHAPTER XIV TERM OF OFFICE CONTENTS Sec. 303. Meaning of " term:" when ofHcer has no term. 304. If no term fixed by law, olHcer holds at pleasure of appointing power; effect of change in, or abolition of, appointing power; or repeal of act creating office. 305. Legislature has no power to alter term fixed by constitu- tion; but where not so fixed, may alter it at pleasure; effect of fixing a maximum term; incidental alteration by changing time of election. 306. Effect, upon an office held at pleasure, of general statute fixing all officers' terms. 307. Statute allowing city council to regulate, etc., authorizes it to fix term; when mayor, elected under amendment of city charter, begins to hold. 308. General rule, that statute to be construed so as to avoid vacancies; but construction favored, v/hich limits a term to shortest time; various instances of construction of statutes fixing oflBcial terms. 309. Construction of constitutional provision forbidding judicial officers to hold after 70 years of age. 310. Whether particular statutes create permanent or tempo- rary offices. 811. Where constitution requires officers to be elected, legisla- ture cannot change incumbents' terms; a statute may be unconstitutional as to limitation of term, but valid as to election. 307 § 303. PUBLIC OFFICERS [Book III. Sec. 312. Where officer reelected dies before commencement of new term, person appointed to fill vacancy holds till another elected, etc., and new appointment at com- mencement of new term void; where officer is commis- sioned for less than his lawful term, he holds for full term. 313. Commission or certificate of election not required to state length of term, and is not conclusive if length is stated. 314. When term begins, if time not fixed by statute; various rulings. 315. Where statute limiting term is extended, term is extended; where statute creating office is repealed, etc., office abolished. 316. Where elected officers hold for term expiring before elec- tion, term is extended till election; where officer elected under military authority, his term ends when civil authority is restored. 317. Officer commissioned for four years "from" March 3, 1845, is in office on March 3, 1849. 318. Officer appointed by governor, during recess of senate, and afterwards confirmed by senate, holds from the orig- inal appointment; the beginning of the first officer's term fixes that of his successor's. 319. Whether, in absence of special provision, an officer ap- pointed to fill a vacancy holds for a full term, or for unexpired portion of original term. 320. The same subject; cases holding that he holds for a full term, and oases holding otherwise. 321. Where governor appoints, during recess of senate, he can- not make a new appointment, until senate has acted upon the first. 322. Where term is six years, and no appointment made dur- ing first two years, person appointed holds for four years; secretary of state, acting as governor during a vacancy, holds till vacancy filled, although his own term expires earlier. § 303. Meaningof "term;" when officer has no term. — The word " term " is uniformly used to designate a fixed and definite period of time. And where the constitution of a state provides, that ofl&cers of cities and towns *' shall 308 Chap. XIV.] TERM OP OFFICE § 304. be elected for such terms and in such manner, as may be prescribed by law," a statute which creates a police board for a city, and provides that the members thereof "may be removed at the pleasure of the chancellor, and must be removed, whenever, by a change of political opinion, on their part, or on the part of the mayor, they cease to disagree". . . . fails to comply with the provisions of the constitution, because it provides for a tenure of office, unknown to that instrument, and opposed, not only to its letter, but to its spirit and policy." ' And an officer, who holds his office at the pleasure of another officer or board of officers, has no official term, within the meaning of a constitutional or statutory provision relating to such terms." § 304. If term not fixed, officer holds at pleasure of appointing power; effect of change, etc., in appointing power, — Where an office is filled by appointment, and a definite term of office is not fixed by a con- stitutional or statutory provision, the office is held at the pleasure of the appointing power, and the incum- bent may be removed at any time." Where a board of officers has the power to appoint certain officers, to hold during the pleasure of the board, it has been held that the tenure of the offices is not affected by changes in the membership of the appointing board." In the same case, it was said, that if the board is abolished by law, the tenure of the office is thereby determined.' ' Speed V Crawford, 3 Met. (Ky.) 207. See also. Story Const., ith ed., 9 1537; o Tj ^.i.,. TIT onxT T TT IOC Pattoii 1) Vaughaii, 39 Arfc. 211 5 2 Id ; Gibbs D Morgan, 39 N. J. Eq. 126. „.„_„„_ People V Hill, 7 Gala. 97 ; = State V Alt, 26 Mo. App. 673; g^^^^ ^ Doherty, 2.5 La. Ann. 119 ; People V Comptroller, 20 Wend. (N. gj^^^ ^ poij^jg com'rs, 88 Mo. 144 ; Y.) 595 ; People v Whltlock, 92 N. Y. 191 ; and Comm. c; Sutherland, 3 S. & R. (Pa.) p^jj^ §§ 354 ^j s^_ 145; Field V Girard College, 54 Pa. St. 233 ; Williams v Boughner, 6 Cold w. (Tenn.) 486. ' States Board of Public Lands, 7 Nebr. 42. • Id. See also Nichols v Comptroller, i Stew. & P. (Ala.) 154. 309 §305. PUBLIC OFFICERS [Book III. But, in another case, where a board of police commission- ers was created by statute for the city of San Francisco, and the district courts were directed to appoint the com- missioners, but no term of office was fixed; and the dis- trict courts appointed the defendant one of such com- missioners, who entered upon the office; and subse- quently the district courts were abolished by statute, without any provision for the appointment or removal of police commissioners; whereupon, six years after the respondent's appointment, the governor appointed the relator in his place; it was held that the relator was not entitled to the office, as the governor was empowered only to fill vacancies, and there was no vacancy in the office.' But a deputation expires with the office on which it depends, and if the principal is reappointed the deputy must be reappointed also." The repeal of a statute or an ordinance creating an office, abolishes the office.' The term of an officer appointed to hold " during the pleasure of the governor for the time being," does not expire with the term of the governor who appointed him.* § 305. Legislature no power to alter fixed term ; where not fixed, may alter. — Where the constitution fixes the term of an office, the legislature has no power to lengthen it or shorten it, directly or indirectly, by stat- ute, or to enact a statute which would create a vacancy.^ ' People V Hammond, 66 Gala. 654. See also Currier v Boston, etc.. Rail- road Company, 31 N. H. 209. ' Banner v McMurray, 1 Dev. L. (N. G.) 218. See also post, i 582. s Chandler v Lawrence, 128 Mass. 213. ■• Kaufman v Stone, 25 Ark. 336. » People V Dubois, 23 HI. 547; Governor v Nelson, 6 Ind. 496 ; Howard v State, 10 Ind. 99; Deweese v State, 10 Ind. 343; Douglass V State, 31 Ind. 429 ; Griebel v State, HI Ind. 369; Pursel V State, 111 Ind. 519; State V Thoman, 10 Kan. 191 ; Lowe V Gomm., 3 Met. (Ky.) 237 ; State V Wiltz, 11 La. Ann. 439; Fant V Gibbs, 54 Miss. 398; State V Draper, 50 Mo. 353, cited post, §426. State V Brewster, 44 Ohio St. 589 ; Comm. V Gamble, 62 Pa. St. 343; State V Messmore, 14 Wis. 163. See also, ante, cb. 3. 310 Chap. XIV.] TERM OF OFFICE § 306. Thus a statute is unconstitutional, which advances the beginning of the term, leaving the time of its ending unchanged. ' But where the term is not fixed by the con- stitution, the legislature may alter it at pleasure.^ Where the constitution fixes a maximum only, for the duration of a term of an officer, elected by the people, the legisla- ture may extend the term of an incumbent of the office, provided the entire term, as thus extended, does not exceed the constitutional limit; and the incumbent will hold, during the additional period, as an elected officer, not as an officer appointed by the legislature.' And where the constitution fixes the duration of the term, but not its beginning, the legislature may fix the beginning." It has been held that a constitutional pro- vision, forbidding the extension of any officer's term, for a longer period than that for which he was elected or appointed, does not prevent the legislature from chang- ing the time for an election, although the statute for that purpose incidentally extends the officer's term ; because the object of the constitutional prohibition was to prevent special legislation in favor of particular officers, not to control the general power of the legislature to regulate elections. * § 306. Effect of general statute upon office held at pleasure. — Where it was provided by law, that the clerk of the chancellor should hold his office at pleasure, and a subsequent statute enacted that the terms " of all officers not otherwise fixed " should be fixed at four years; it was held that this fixed the term of that officer at four years from the time of his appointment." > Howard v State, 10 Ind. 99. " Christy v Supervisors, 39 Gala. 3. ' In re Bulger, 45 Gala. 553 ; ^^ ^^^ Peoples Hastings, 29 Gala. 449 ; Taft V Adams, 3 Gray (Mass.) 126 ; P«°Pl« '' ^^l^^^' ^ C"^!^" *™- Chandler v Lawrence, 1^8 Mass. 213 ; ■* People v Roshorough, 14 Gala. 181. In re Jordan, 37 Minn. 174 ; , g^^^g „ McGovney, 92 Mo. 428. Wilcox V Rodman, 46 Mo. 322. ^^ ^1^^^ ^^^^^ ^ Ranson, 73 Mo. 78. See also, mvte, %% 19, 20. • Hughes V Buckingham, 13 Miss. 311 § 308, PUBLIC OFFICERS [Book III. § 307. City council to regulate, etc.; when mayor begins to hold. — Where a statute authorizes a city coun- cil to regulate the " manner of appointment and removal " of the city officers, this authorizes the council to fix the terms of their respective offices; and the coun- cil may thus fix the terms, by providing that the offices shall be held during good behavior.' Where an act, amending a city charter, provided for the election of a mayor, two years before the expiration of the term of the mayor in office, but did not specify any time for the beginning of the new mayor's term; it was held that the new mayor was entitled to immediate possession of the office.' § 308. General rule to avoid vacancies ; construction favored which limits term. — "The law abhors vacancies in public offices, and great precautions are taken to guard against their occurrence. The policy of the law is to have some one always in place, to discharge the duties of public offices; and, in a doubtful case, the construction of a law fixing the tenure of an office would be greatly influenced by that consideration; but where . . there is a casus omissus, resulting from giving the lan- guage of the law the only construction of which it is fairly susceptible, the courts must leave it to the law- making power to make provisions to avoid such a conse- quence." ' But, other considerations being equal, that construction of a doubtful provision of a statute or a constitution will be followed, which limits the term of the office to the shortest time.* Where the constitution provided, that if the office of a judge should become vacant, the vacancy should be filled by the governor, until a successor should be elected and should qualify; ' state V Trenton, 50 N. J. L. 331. = State v Seay, 64 Mo. 89, per Henry, J., » Alexander v McKenzie, 2 S. C. 81. P- '"'^■ • Wright V Adams, 45 Tex. 134. 313 Chap. XIV.] TERM OF OFFICE § 310. and that such successor should be elected at the first annual election, occurring more than thirty days after the happening of the vacancy; it was held, that although a judge could not be elected for the unexpired term, at an annual election held within the thirty days, he might be then elected for the succeeding term.' A constitu- tional provision that a person, appointed to fill a vacancy, shall hold " until the next regular election," means until the next election for that ofiice." § 309. Provision forbidding judicial officer to hold after 70 years of age. — Where a provision of a state constitu- tion declared, that "no person shall hold the office of jus- tice or judge of any court, longer than until and includ- ing the last day of December after he shall be seventy years of age;" it was held, that the words "justice or judge of any court " were to be construed in their popu- lar sense, and not as including every officer whose func- tions were of a judicial character; and consequently that the restriction did not apply to a surrogate, or to a justice of the peace.' And, under a siniilar provision, the like ruling was made respecting county commissioners.* § 310. Whether statutes create permanent or tem- porary offices. — Where a statute, passed in 1871, author- ized the election of a certain officer for a term of five years; and another statute, passed in 1877, authorized " a second election " for the same officer for the term of five years; it was held that the office expired in 1882, and that no further election was to be held therefor. " And where an appropriation act authorized the secretary of the treasury of the United States, to appoint assistant agents ■ state V Black, 23 Minn. 336. See also Settle i> Van Evrea, 49 N. Y. = People V Wilson. 72 N. C. 155. ^^• = People V Mann, 97 N. Y. 530, rev'g 32 ' ^etts v New Hartford, 2.5 Conn. 180. ■ Hun (N. Y.) 440 : » State u Brown. 38 Ohio St. 344. People V CaiT, 100 N. Y. 236. See also Bergen v Powell, 94 N. Y. 591. 313 § 311. PUBLIC OFPICEKS [Book III. at a certain place, and made an appropriation to pay them; it was held that the office expired with the expen- diture of the appropriation, and could not be prolonged by the continued discharge of the duties by the agents. ' But a statute, directing the appointment of a city officer, "to continue in office two years," creates a permanent office, with a term of two years, and requires the appoint- ment of a person for another term, when the first term expires." Where a statute provided for the appointment of seven commissioners, to bold for one, two, three, four, five, six, and seven years, as determined by lot, and authorized the governor to fill vacancies; it was held that the successor of each of the first appointed commissioners held for seven years." § 311. Legislature cannot change constitutional re- quirements regarding terms. — Where a provision of a state constitution declares, that town officers must be elected by the electors, or appointed by the local authori- ties of the town, as the legislature shall prescribe; it was held that a statute, extending the terms of the incum- bents of certain town offices, was virtually an attempt by the legislature to exercise the power of appointment; and that such a statute was therefore in conflict with the constitution; although the legislature had the power to extend the terms of office of those who should thereafter be elected; and consequently that an act, extending the terms of office of certain town officers one year, applied exclusively to the successors of those then in office; so that a person elected at a tov;n meeting, held just before the expiration of the original term of an incumbent, who was in office when the statute was enacted, was entitled Beaman v United States, 19 Ct. of 01. S. P., State v Pearcy, 44 Mo. 159 ; (U. S.) 5. Buffalo V Mackay, 15 Hun (N. Y.) 204. See also post, § 4fil. a Holden v People 90 111. 434. People V Addison, 10 Gala. 1. "1 ± Chap. XIV.] TERM OF OFFICE § 312, to the office.' Where the constitution fixes the term of an office at four years, an act of the legislature, provid- ing for an election to fill the office, and limiting the term of the officer to be elected to two years, is void as to tho limitation, but constitutional and valid as to the residue; and the person so elected holds for four years.' § 312. Where officer elected dies before new term, person appointed holds till another elected; new appoint- ments, etc., void. — Where the constitution of a state provided for the election of a judge of probate, and that he should hold his office for four years, and until a suc- cessor should be elected and qualified; and that, in case of a vacancy, the governor should appoint a person to hold, until a successor should be elected and qualified; and a judge of probate, having been reelected, died before the commencement of his new term; whereupon the governor appointed a person to fill the vacancy; and on January 1, when the new term would have commenced, the governor, supposing that there was a vacancy, made a new appointment; it was held that the second appoint- ment was void, and the person first appointed would hold until another judge was elected and qualified; and that it made no difference that the commission, issued to tho person first appointed, recited that the office was to be held until the governor should revoke the commission, as such a limitation was inoperative.^ And where the charter of a city provided for the appointment by the common council of a marshal for the city, and fixed his term of office at two years; and a person was appointed by a resolution of the common council, purporting to confer the office for one year; and he gave an official bond, reciting his appointment for that time; it was held » People V McKinney, 62 N. Y. 374, ap- 22 N. Y. 128. provliig People v Bull, 40 N. Y. 57, , ^^^^^^ „ RosboroTigh, 14 Gala. 180. and overruling People v Batohelor, ' People V Lord, 9 Mich. 237. 315 § 313. PUBLIC OFFiCEKS [Book III. that he was entitled to hold the office for two years, that the listnitation in the resolution was void, and the recital in the bond was surplusage, and the bond was valid for the full term. ' So, where a city officer's term, as fixed by statute, is two years, but the common council has been accustomed to appoint the officer annually, a person appointed to the office is entitled to hold for t^vo years, although, at the end of his first year, he unsuccessfully applied for a reelection." § 313. Commission or certificate of election not con- clusive as to length of term. — In the last preceding chapter, the effect of a commission or certificate of elec- tion was considered.' As stated in some of the cases there cited, the commission or certificate of election of an officer does not control, with respect to the duration of his term of office. Other cases declare the same principle, namely, that a commission or certificate of election is not conclusive, with respect to the duration of the term; that the facts upon which that question depends may be always proved; and that they will fix the duration, even though the result is contrary to the terms of the instrument. * So a commission is not void, because it does not state the term for which the officer is appointed; that may be shown by extrinsic evidence, as by proof that the office was vacant for a particular year. " And where the constitution confers upon the governor the power to appoint, only until the end of the next session of the legislature; and he makes an appointment purporting to be for a full term; it is in legal effect only an appointment until the end of ' Stadler « Detroit, 13 Mloh. 346. State v Chapin, UO Ind. 272 ; = State t! Brady, 42 Ohio St. 504. Hale V Evans, 12 Kan. 662 ; State V Taylor, 15 Ohio St. 137 ; s Ante, §§ 298, 299. See also, Bland & G. County Judge < Brower ii O'Brien, 2 Ind. 423 ; Case, 33 Gratt. (Va.) 443. Henoh v State, 72 Ind. 297 ; 5 gtate v Fulkerson, 10 Mo. 681. 316 Chap. XIV.] TEEM OF OFFICE § 314. the next session; but an officer so appointed holds over until his successor is appointed." § 314. When term begins, if time not fixed; various rulings. — It was held, by the supreme court of New Jer- sey, that where an office is filled by appointment, and the beginning of the official term is not otherwise fixed by law, the term begins as soon as the person appointed is authorized by his own action to legally assume the dv^ties of the office, not merely when he enters upon the office.'' The decision in this cause was affirmed by the court of errors and appeals; but the rule laid down in the latter court was, that in such a case, the term begins at the time of the appointment; and that this is the rule, although the statute provides that the officer shall not draw any salary, or discharge any duties, except from the time when he qualifies, and that his predecessor shall hold over until he qualifies.' Where an office is filled by popular election, and the beginning of the term is not fixed by law, the person elected may enter upon it at any time, upon receiving the certificate of election and qualifying.' Other cases hold that the term begins to run from the time of the election;' and that the person thus elected is entitled to the office, without any commis- sion, from the commencement of the term; and if, after a contest for the office, a commission is issued to him, it commences to run from the time of the election. ° Where a statute relating to a public office does not fix the beginning of the term, but requires the governor to issue a commission to the person elected, without specifying > People V Tyrrell, 87 Gala. 475. See also, Alexander v McKenzie, 2 S. , „. . T on-KT T T u C. 81, cited onte, § 307. ' State V Love, 39 N. J. L. U. ' ' Atty. Gen'l v Love, 39 N. J. L. 478, ap- <' McGee v Gill, 79 Ky. 106. proving dictum in Marbury V Madi- ' State v Constable, 7 Ohio 7. son, 1 Crancli (V. S.) 137, and disap- See also Marshall uHarwood, 5 Md. 423; proving Brodle v Campbell, 17 Gala. Hughes v Buckingham, 13 Miss. 632; U- • Shannon v Baker, 33 Ind. 390. 317 § 316. PUBLIC OFFICERS [Book III. the time when it is to issue, it will be presumed that the commission was issued within a reasonable time; and if the statute requires that the oath of office should be indorsed upon the commission, the, courts will look to the time when the oath was taken, to determine the beginning of the term. ' A constitutional provision, requiring an official term to be computed from the first of September, applies to one appointed to fill an unexpired term." § 315. Where statute limiting term is extended, term extended; office abolished, where statute creating it is repealed. — Where a statute creating an office limits the term thereof to two years, and that statute is, by another statute, continued longer in force, the officer holds as long as the original statute is continued. ' Upon the creation of a new judicial circuit, the office of the judge of the circuit becomes ipso facto vacant, and his term expires upon the election and qualification of the new judge.* And upon the repeal of a municipal charter, or the substitution for it of another charter, all the offices held under the old char- ter are abolished. " And an office is abolished by implica- tion, where a statute transfers all its functions to another officer." § 316. Elective term, expiring before election, term extends to election; office held under military authority. — Where a statute, organizing a new county, provides that the county officers first elected shall hold for two years, and no provision is made for the terms of those subse- quently elected, but the general statutes provide that county officers shall hold for two years; it will be intended that the first officers hold until the first general election for county officers, after the expiration of the two years, and ■ Brodie v Campbell, 17 Gala. 11. »' Crook v People, 106 111. 237. = Tatum V Rivers, 7 Baxter (Tenn.) 295. See also McGrathr Chicago, 24 IU.App. » Bruce v Fox, 1 Dana (Ky.):M7. « State V Askew, 48 Ark. 82. 19. People ti Hensliaw, 76 Gala. 436. 318 Chap. XIV.] TERM OF OFFICE § 319. that afterwards their successors hold for two years; and an earlier election will be void. ' Where, during the civil war, and while the state of Tennessee was occupied and administered by the military authority, an officer was elected under such authority, it was held that he was not entitled to hold for a full term, against a person elected to the same office under the state laws, and after the civil authority was restored." § 317. Effect of word " from " in commission. — An officer, commissioned to hold office " during the term of four years from the 2d day of March, 1845," is in office on the 2d day of March, 1849, and his official act on that day is valid. " The word ' from ' always excludes the day of date." ' § 318. Holding from original appointment. — It has been held, that where an officer is appointed by the gov- ernor during the recess of the senate, and afterwards confirmed by the senate, his term begins from his orig- inal appointment, and not from the confirmation, although a new commission was issued thereupon.* Where a statute creates an office, and fixes the term at two years, and until a successor is chosen and qualified, the time of the beginning of the term of the officer first chosen determines the beginning of all subsequent terms. " § 319. Officer chosen to fill vacancy. — The author- ities are not entirely harmonious respecting the duration of the term of an officer, elected by the people, or appointed by the governor, or some other officer or a board of officers, to fill a vacancy, where the constitution or the statute has failed to specify the duration of his ' People V Church, 6 Cala. 76. ' Shepherd v Haralson, 16 La. Ann. 134. = Isbell V Farris, 5 Coldw. (Tenn.) 426. ^ee also Dyer v Bayne, 54 Md. 87, and s Best V Polk, 18 WaU. (U. S.) 113. post, ch. 18. ' state V Stonestreet, 99 Mo. 361. 319 § 330. PUBLIC OFFICEBS [Book III, term, or where a provision upon that subject is of doubt- ful construction. But the weight of the authorities is decidedly in favor of the proposition that a person so chosen holds for a full term, and not merely for the unexpired portion of his predecessor's term. § 320. The same subject ; different rulings. — Where the constitution provides for the election of sheriffs "once in every three years, and as often as vacancies shall happen; " and that the governor may remove them " at any time within the three years for which they shall be elected;" it was held that the defendant, who was elected in 1836, to fill a vacancy occasioned by his pre- decessor's death, held for three years; and the election of the relator, as sheriff, at the general election of 1828, under the general election laws of the state, was void. Marcy J., delivering the opinion of the court, said that the defendant was elected "to fill the vacant office, and not merely to serve out the vacant term of his pre- decessor. I am inclined to think," he continued, " that a diversity of opinion on this subject has arisen, from dif- ferent applications of the term ' vacancies,' in the section of the constitution which we are now considering. It has been sometimes applied to the office, as contradis- tinguished from the term of service, and at others to. the term of the office. I understand it as applicable to the office alone." " The same principle was applied to an officer elected to fill a vacancy in the office of surrogate, where the language of the constitution was substantially the same as in the case last cited, although, in many of the counties of the state, the offices of county judge and of surrogate were united in one person, and the constitur tion prevented a county judge, but not a surrogate, from holding office after he attained seventy years ' People V Green, 3 Wedd. (N. Y.) 266. S. P., Attorney-General I) Brunst, 3 wis. 787. 380 Chap. XIV.] TFEM OF OFFICE § 321, of age; and it was further held, that the legislature might constitutionally provide, that the person so elected should enter upon the duties of his office immedi- ately, although his constitutional term did not begin to run till the first of January following.' The same gen- eral principle, that, in the absence of any constitutional or statutory provision to the contrary, an officer elected to fill a vacancy, holds for a full term, has been recognized in several other cases." And where an offi- cer, elected to fill a vacancy, is reelected to the same office, pending the running of the full term, his reelec- tion does not justify him in holding for any longer time, but it is void.' The cases are not harmonious on the question, whether, in the absence of any constitutional or statutory provision, fixing the term of a person appointed to fill a vacancy, he holds for a full term, or only until the expiration of his predecessor's term." § 321. Where governor appoints, and senate con- firms. — Under a provision of the constitution of California, conferring upon the governor power to fill a vacancy, by ' People V Townsend, 102 N. Y. 430, rev'g State v Mayor, etc., 28 lud. 248 ; 40 Hun (N. Y.) 360. Parmater v State, 102 Ind. 90 ; ^ People V Burbank, 13 Cala. 378 : Scarfl v Foster, 15 Ohio St. 137 ; Sanstary i; Middleton, U Md. 296 : Op'n of the Just., 50 Me. 607. Crowell I' Lambert, 9 Minn. 283 ; » People v Coutant, 11 Wend. (N. Y.) People V Coutant, 11 Wend. (N. Y.) 132; o. c, aff'd on error, 11 Wend. 132; id. 511; (N. Y.)511. Keys V Mason, 3 Sneed (Tenn.) 6 ; , g^^^^^ ^ q,^^^^^ 2 ^^^ ^ . Banton v Wilson, 4 Tex. 400 ; ^^^^^ ^ ^^^^^^^ ^ ^^^ ^j^^ , ^ . Stevens v Wyatt, 16 B. Mon. (Ky.) 512 ; Hughes V Buckingham, 13 Miss. 632 ; some cases, where the vacancy was -n, , tj ^o vt it c ^^ ■,„„ „_,,,.,,.,, People uBreen, 53 N.Y. Super. Ct. 167; Meredith's case, 33 Gratt. (Va.) 119. The same rule has been declared in filled by the legislature. Marshall v Harwood, 5 Md. 423 ; Whipper v Reed, 9 S. C. 5; Contra, Baker u Kirk, 33 Ind. .517. See also, the following cases, which appear, however, to have been deter- State V Hutson, 1 McCord (S. C.) 240 ; State V McClintock, 1 McCord (S. C.) 245. See also. Parcel v State, 110 Ind. 122 ; Op'n of the Just., 64 Me. 596; State 1) Seay, 64 Mo. 89 ; mined under a special constitutional p^^pj^ ^ ^^^^^^^ 73 n. C. 155. or statutory provision. 321 § 333. PUBLIC OFFICERS [Book III. granting a commission, which shall expire' at the end of the next session of the legislature, or at the next election by the people; it was held, that where, during a recess of the legislature, the term of the incumbent of an office, to be filled by the appointment of the governor, with the advice and consent of the senate, expires, the appoint- ment by the governor, during the recess, of a successor, is not an appointment to fill a vacancy, and vests in him the right to hold the office for the full term, subject to be defeated by the refusal of the senate to concur; and that a new appointment by the governor, with the advice and consent of the senate, before action of the senate upon the first appointment, is void. ' In Tennessee, it was held, that where the constitution fixes the term of an officer at eight years, and requires that he shall be elected by the people; an appointment by the governor to fill a vacancy does not confer the right to hold for a full term, but only for the unexpired portion of the predecessor's term." Other rulings as to the cases where a vacancy may be filled and the effect of an appointment to fill a vacancy, are considered in a subsequent chapter.' § 333. When person appointed during term holds for unexpired portion. — ^ Where the charter of New York city provided that every head of a department and com- missioner "shall hold his office for the term of six years, and in each case until a person is appointed in his place;" and that " any person who may be appointed to fill any such vacancy shall hold his office for the unexpired term of his predecessor;" it was held, that the latter clause applied only to vacancies, other than those arising from the expiration of terms; that the intent of the statute was to designate consecutive periods of six years, following • People V Mizner, 7 Cala. 519 ; approved » Barry v Lauck, 5 Coldw. (Tenn.) 588. and followed, People V Addison, 10 s p , . .„ Cala. 1. 333 Chap. XIV.] TERM OF OFFICE § 323. each other in regular order, the one beginning where the other ends; that a person, appointed at any time during one of the periods of six years, was an incumbent of the period to which his appointment related, whose term of office expired with the expiration of his period; and, con- sequently, that where the term of a police commissioner expired on the 30th of April, 1878, and his successor was not appointed until the 15th of May, 1880, the term of the latter ended on the 30th of April, 1884.' Where the con- stitution of a state provides, that in case of vacancy in the office of governor, the secretary of state shall dis- charge the duties of that office, a secretary of state, thus acting as governor, does not cease to act until the vacancy is filled, although his term as secretary of state expires earlier." ' People 1) MoClave, 99 N. Y. 83. " Chadwlok v Earhart, 11 Oreg. 389. 333 PUBLIC OPFICEKS [Book III. CHAPTER XV HOLDING OVER; POWERS AFTER EXPIRATION OP TERM CONTENTS Sec. ®3. lEulings that at common law an officer does not hold over; but the weight of authority is the other way, ex- >cept as to judicial and legislative officers. 324. English cases upon this question. 325. American decisions that officer holds over, until the choice and qualification of his successor; but statute providing that appointed officer holds over, does not apply to elected officer; and vice versa. 336. Whether legislature can provide for holding over, where constitution fixes term; no holding over where successor cannot be chosen. 337. Officer does not hold over after forfeiture; conflict of cases as to holding over, after resignation, until acceptance. 338. Holding over continues until successor qualifies fully and lawfully. 339. No right to hold over, where successor elected qualifies and dies before term begins; aliter, if he dies before qual- ifying; rules as to persons appointed to fill vacancies in such cases; officer does not hold over, where he has already held for the maximum time allowed; if no restriction as to time, hQmay hold over indefinitely. 330. Eule where legislature fails to elect an officer, or vacancy occurs in a body authorized to fill it. 331, Eule where officer chosen for fragment of a term; or to fill vacancy; or where statute creates vacancy. 333. Cases where the incumbent was reappointed or re- elected; or where he was a candidate for reelection and failed; or his election is contested. 333. The same subject. 334. General statute, giving one officer ithe same term as another, does not confer upon the former the right to hold over. 385. Officer holdiag over entitled to official .emoluments, 334 Chap. XV.] HOLDIN OVER § 334. Sec. 336. General powers of officer, after expiration of term and surrender of office; general rule as to sheriff, etc., com- mencing to execute process. 337. Collector of assessments may give deed, after expiration of term, for land sold during term. 388. Miscellaneous rulings as to the powers of particular offi- cers, after their terms have expired.; 339. Liability of officer's sureties where he holds over. § 333. Whether at common law officer holds over ; weight of modern authority. — With respect to most pub- lic offices, it is expressly declared in this country, by con- stitutional or statutory provision, that the incumbent shall hold over, beyond his fixed official term, until his successor shall be chosen and shall qualify. There is highly respectable authority for the proposition, that, in the absence of such express provision, a public officer, whose term has expired, does not hold over.' But the weight of authority is in favor of the contrary rule, which is founded upon obvious considerations of public convenience, to wit, that at common law a public officer holds over, after the expiration of his term, until the choice and qualification of his successor, with the excep- tion of a member of the legislature, and possibly a judi- cial officer, those exceptions being recognized in some of the cases. § 324. English cases upon this question. — We find but few cases on this question in the English reports. In one, it .was decided in the exchequer chamber and afterwards in the house of lords, that although the aldermen of Truro were to be annuatim eligend., these words were only directory, and the aldermen were good ' Paine on Kleotions, § 224, citing Chris- See also Philips v Wioltham, 1 Paige tian D Gibbs, 53 Miss. 314 ; ( N. Y. V590, per Walworth , Chr. , p. 595 ; I People V Tieman, 8 Abb. Pr. (N. Y.) 359 ; People s Bull, « N. Y. 57, per Folger, J., s. c, 30 Barb. (N. Y.) 193. pp. 65-67 325 325. PUBLIC OFFICERS [Book III. officers after the year, and until others were elected.' In another case, it was said by the K. B., that although a town clerk is to be annuatim eligibilis, he continues to be town clerk after the year, until another is chosen; but if he had been eligibilis pro uno anno tantum, his office would have expired at the end of the year." § 325. American cases establish that officer holds over until successor qualifies; appointed and elected officers. — The question, whether a public officer holds over, in the absence of any constitutional or statutory provision to that effect, until the choice and qualification of his successor, was fully examined by the supreme court of California, in an opinion citing and commenting upon the authorities on both sides; and the conclusion reached was, that whatever may be the rule, with respect to members of the legislature and judicial officers, all civil officers, whose duties consist in the safekeeping and current management of public property, hold over until the choice and qualification of their successors respec- tively, without any constitutional or statutory provision to that effect. ° The exceptions suggested in that case seem, especially with respect to members of the legislature, to be consonant to sound public policy and general usage; but in several other American cases, the doctrine is stated or recognized, without exception or qualification.* But ' Foot uProwse.Str. 625; 2Bro.P.C.289. ^ Reg. V Corporation of Durham, 10 Mod. 1«. See also Anon, 12 Mod. 256. a People v Oulton, 28 Gala. 44. » People V Tilton, 37 Gala. 614; People u Beid, H Colo. 138 ; Moser v ShamleflEer, 39 Kan. 635; Wier V Bush, 4 Litt. (Ky.) 429; People V Fairbury, 51 111. 149; Stewart v State, 4 Ind. 396 ; State V Harrison, 113 Ind. 434; Thomas v Owens, 4 Md. 189 ; Marshall v Harwood, 5 Md. 423 ; Sanshury v Middleton, 11 Md. 296 ; Robb V Carter, 65 Md. 321 ; School Dist. V Atherton, 12 Met. (Mass.) 105; Dow V Bullock, 13 Gray (Mass.) 136; Cordiell v Frizell, 1 Neva. 130; State V WeUs, 8 Neva. 105 ; People D Ferris, 16 Hun (N. Y.) 219; Kreidler v State, 24 Ohio St. 22 ; Chandler v Bradish, 23 Vt. 416 ; Ex parte Lawhorne, 18 Gratt. (Va.) 85; WheeUng v Black, S5 W. Va. 266. 826 Chap. XV.] HOLDING OVER § 326. it was said, in a case in the court of appeals of New York, that under a provision of the statute of that state, that every officer " duly appointed " (with the exception of certain judicial officers, specified in the statute,) shall continue to discharge the duties of his office, "until a successor in such office shall be duly qualified;'' the doc- trine that an officer may hold over does not apply to an officer elected by the people. ' And e converso it has been held, that where a statute provides that an officer shall hold until his successor shall be " elected" and shall qualify, the term is not determined by the appoint- ment of his successor." § 326. Power of legislature where constitution limits term.— It was held in one case, that where the con- stitution affixes a specific term to an office, without any provision for holding over, the legislature cannot consti- tutionally provide by statute, that the officer shall hold over till his successor qualifies.' But where the consti- tution provides for the creation of an office by the legis- lature, and the legislature creates the office, to be filled by the governor, with a provision that the officer shall hold for four years, the person appointed holds over until his successor is qualified." The doctrine that an officer holds over is inapplicable to a case, where his successor cannot be chosen, ex. gr.* to an officer of a municipal corporation which has been dissolved. ' ' People V Bull, 46 N. Y. 57, criticising over as stated." Accord, as to the People V Oulton, 38 Gala. 44. See per effect of a similar statute, Saunders Folger, J., pp. 65-67. The learned v Grand Rapids, 46 Mich. 467. judge expresses a doubt whether the , People v Lord, 9 Mich. 227. authorities "go further, than that , ... ■ _ ^, . „,, t s State « Brewster, 44 Ohio St. 589. one holding an office, the incumbent of which is, by its tenure, to be ' Walker c Ferrill, 58 Ga. 512. annually or periodically appointed » Beckwith v Racine, 7 Biss. (U. S.) 142. or elected, and with no restrictive g p^ Barkley d Levee Commissioners, provision as to the term, may hold gg u_ g_ 258. 327 § 327. PUBLIC OFFICERS [Book III. § 337. Effect of forfeiture; of resignation; conflict of cases. — An officer holds over, only where he has served to the end of his term, not where he has been adjudged to have forfeited his office; for such a judgment produces an immediate vacancy. ' So it has been held, that an offi- cer, who has resigned or has been removed, does not hold over, for the same reason, namely, that the office becomes vacant by the resignation or removal." But the rule has been stated differently in other cases. Thus, in the supreme court of Illinois, it was said: " No distinction in this respect is to be drawn between a resignation, and the expiration of the time fixed for the holding df the office. A resignation ends the term of office, the same as the expiration of the time of the tenure of the office does, and no more effectually. The effect in either case is j ust the same. Whatever power there is in the latter case to act officially until the qualification of a successor, must exist equally in the case of a resignation. . . . When it is said in the statute that the resignation may be thus accepted, it is like to the expiration of the term of office. In form the office is thereby ended; but to make it effectual it must be followed by the qualification of a successor." ' The solution of this question appears to depend upon that relating to the effect of a resignation, before the acceptance thereof, which will be considered in a subsequent chapter." A conditional resignation does not take effect, until the happening of the contingency specified. Therefore a decree, granted by a judge, after he has tendered a conditional resignation and before its acceptance, is valid." ' Hyde v State, 53 Miss. 665. and quoting from Badger v United = Olmsted « Dennis, 77 N. Y. 378 ; States, 93 U. S. 599. State D Hawkins, 44 Ohio St. 98. ^^^ ^'^° ^"'^^^ " Jefferson, 68 Tex. 576. » People V Supervisor, 100 111. 332, per ' -P"**' ''^- '^'^■ Sheldon, J., pp. 336, 337, following » Northrop v Gregory, 2 Abb. (U. S.) 503. 328 Chap. XV. J HOLDING OVER § 339. § 328. Holding over continues until successor qualifies lawfully. — Where a statute provided that "town officers shall hold their offices for one year, and until others are chosen or appointed in their places, and have qualified," and there was no statutory provision expressly requiring a town collector to take an oath of office; it was held that this provision implied that he should take such an oath, and that the incumbent of the office would hold over, until his successor had thus qualified. ' Such a provision renders the qualification, as well the choice of a successor, neces- sary to divest the incumbent of the office, until which time his powers in the discharge thereof remain unimpaired." Where an ordinance of a city directs the appointment of a fire engineer by the mayor, with the consent of the council, an appointment by the naayor, without such consent, does not divest an incumbent holding over after the expiration of his term.' Where an appointment to fill a vacancy by the governor must be confirmed by the senate, a person appointed by the governor, during the recess of the senate, to fill a vacancy, holds until the senate confirms a new appointment." So where a constitutional amendment pro- vides, that the existing officers shall hold, till new appoint- ments are made under the new government, this means that the new appointments shall be made constitutionally; otherwise the incumbents continue to hold their offices.^ § 329. Effect of successor's death; holding over indefi- nite, if no restriction ac to time.— Under a constitutional or statutory provision, that an officer shall hold over, until his successor is chosen and qualifies, the right to hold over is determined by the election and qualification • People V McKinney, 52 N. Y. 374. State v Howe, 25 Ohio St. 588. » People V Supervisor, 100 III. 332. " State v Bryson, 44 Ohio St. 457. See also State v Fagan, 43 Conn. 32; , People v Cazneau, 20 Cala. 504. Walker v Ferrill, 58 Ga. 512; State V Jarrett, 17 Md. 309 ; « State i> Dubuc, 9 La. Ann. 237. See also Watkins u Watkins, 2 Md. 341. 329 § 330. PUBLIC OFFICERS [Book III. of a successor, and the right does not survive, if the latter dies before his term begins; in such a case there is a va- cancy. ' But if the successor dies, after election, and before qualification, there is no vacancy, and the incumbent holds over." So if an officer is reelected, and dies without qual- ifying, before the new term begins, the person appointed to fill the vacancy holds only till the old term ends; and there must be a new election for the new term.' And if a successor is elected, who fails to qualify, and resigns, and another is appointed his successor, the term of the former incumbent comes to an end." Where the incum- bent of an office had held the same for eight years, and a constitutional provision prohibited any person from hold- ing the office more than eight years; it was held, that upon the failure of his successor to qualify^ he could not hold over, and that there was a vacancy. ° If the people fail to elect an officer's successor, or the person elected by them fails to qualify, there is no vacancy, and the incum- bent holds over. ' If there is no constitutional or statutory restriction, respecting the length of time for which an officer may hold over, he may so hold for an indefinite time.' § 330. Rule where legislature fails to elect a succes- sor. — Where a statute, creating an office, and fixing the duration of the term thereof, provides that the officer shall be elected by the legislature, and shall hold his office until his successor is elected and qualified; the failure of the legislature to elect a successor, at the expir- ation of the incumbent's term, does not create a vacancy, which may be filled by the governor, under a provision > state 11 Bemenderf er, 96 Ind. 374 ; ' Worley v Smith, 81 N. C. 304. State V Seay, 64 Mo. 89. , g^^^^ ^ 0^^^^^ ^ ^^^ ^2. See also State v Hopkins, 10 Ohio St. gno " Gosman v State, 106 Ind. 203. ' Comm. V Hanley, 9 Pa. St. 513. ' Norton v Buck, 8 Kan. 302. Accord, State « Benedict, 15 Minn. 198 ; ' State v Spears, 1 Ind. 61fi. State V Jenkins, 43 Mo. 261. 330 Chap. XV.] HOLDING OVER § 332. authorizing him temporarily to fill vacancies; but the incumbent holds over until his successor is elected by the legislature.' And where the governor is authorized to appoint a person, to hold until the end of the next session of the legislature, and he appoints for a full term; this is in legal effect an appointment until the end of the next session; but the person so appointed holds over until his successor is chosen." The rule is the same, where a vacancy occurs in a body, which the body is authorized to fill temporarily, until the next meeting of the legisla- ture.' Where the successor is to be appointed by the legislature, if the incumbent's term expires during the recess of the legislature, there is no vacancy which the governor can fill, but the incumbent holds over.' § 331. Rule where officer chosen for fragment of a term; where statute creates vacancy. — Where an official term is extended by statute, and a new election is held for the extended period only, the person so elected holds over, with like effect as the incumbent of a full term. ' The same rule holds, where a person is appointed to fill a vacancy in an office, and for the unexpired term only. ° And even where a statute provides, that the failure of an officer elect to qualify, within a prescribed time, creates a vacancy in the office, this will be controlled by a general provision, that an officer shall hold over, till his successor is chosen and qualifies.' § 333. Rule in case of reappointment or reelection ; where election contested. — The application of the rule to cases where the incumbent of an office is reelected or ■ People V Tilton, 37 Gala. 614, overruling « People v Parker, 37 Cala. 639. People V Reid, 6 Cala. 288, and ap- 4 state v Davis, 45 N. J. L. 39D. proving People v Whitnipn, 10 Cala. ^" E People D Crissey, 91 N. Y. 616. 38. Accord, State v Harrison, 113 Ind. 434. ' People i) Mclver, 68 N. C. 467. See also State v Lusk, 18 Mo. 333. . 7 Branham v Long, 78 Va. 352. ' People V Tyrrell, 87 Cala. 475. 331 § 333. PUBLIC OFFICERS [Book III. reappointed, or is a candidate for reelection, at an elec- tion where no choice is made, or the result is contested, presents some nice questions, with respect to which the decisions are not always harmonious. Such a case has already been cited in a previous section.' In another, where M, the incumbent of the office of alderman of a city, and F, were candidates at an election held for a successor to M; and two of the four inspectors of elec- tion made a statement, certifying that F had received a majority of the votes cast, which was filed, where- upon F took the oath of office; but the other two refused to sign the statement; it was held, that until the rights of the two were settled by proceedings in the courts, the election was to be deemed a failure, and neither party could claim any benefit therefrom; and that, as the city charter provided, that all the city officers should hold their offices " until a successor is duly quali- fied," M held over until the courts should decide that F was elected." But where the incumbent of an office is a candidate for reelection, and his competitor is declared to be elected by the proper authorities, and receives a certificate, regular in form, the incumbent cannot retain the office on an allegation of irregularity or falsity of the canvass, but must surrender it, and bring a quo warranto or other proceeding to oust his competitor; otherwise he is liable upon his official bond." § 333. The same subject. — It has been held, that where an officer is chosen to be his own successor, but fails to qualify, he holds over under the rule.* But, on the con- trary, it has also been held, that in precisely the same case, his failure to qualify vacates the office, so that he ■ WorleyrSmith,81N.C.304;onte,8329. See also State i) Norton, 46 Wis. 333 ; » People V Crissey, 91 N. Y. 616. Brooke v Widdicombe. 39.M Hartwell v Littleton, 13 Pick. (Mass.) 229; School Dist. II Atherton, 12 Met. (Mass.) 105. Halleck v Boylston, 117 Mass. 469. Accord, People v Highway Com'rs, 16 Mich. 63. < Matthews V Houghton, 11 Me. 377. Contra. Gaillard v Anoeline, 10 Mart. (La.) 479. 5 Oliver v Town, 24 Wis. 512. » Grifflng i) Danbury, 41 Conn. 96. ' AnU, §§ 212, 213. 336 Chap. XVI.] REMOVAL; suspension CHAPTER XVI REMOVAL; SUSPENSION CONTENTS Sec. 340. All modes of depriving a person of an oflSce considered in this chapter. I. Effect of express consttutional provisions upon the power to remove an officer. 341. Where constitution fixes mode of and causes for removal, legislature cannot vary the same or add thereto; illus- trations of the rule. 342. When constitutional provision is self -operating; when it leaves no discretion. 343. Statutes authorizing trial, etc., for removal, or removal without notice, constitutional, if constitution does not otherwise provide. 344. Constitutional provision, authorizing governor to remove ofiicers appointed by him, includes those appointed by consent, etc., of senate; power of removal confined to causes specified; but order need not specify the charges. II. Power of the legislature, in the absence of constitutional limitations. 345. Office not being property, and officer having no vested rights therein, power of legislature is practically unlim- ited. 346. Legislature may change statute allowing removal only for cause; whether power to remove is ministerial or judicial in its nature; legislature has no constitutional power to remove an officer by statute, but has power to exclude persons failing to qualify. III. What is or is not a removal, especially within constitutional or statutory provisions regulating removals. 347. Such provisions do not apply to a dismissal, for some reason other than officer's act or default, nor to the abrogation of the office, nor the transfer from one class 337 PUBLIC OFFICERS [Book III. of subordinates to another; instances, and cases where such transfer, etc., held illegal, as evasions of the statute. Sec. 348. Nor to revocation of appointment of an ineligible person; nor where a discharge is reversed by the courts, and officers, who had been promoted, were consequently restored to former places. 349. Where appointment is complete, a revocation of it is within the statute. 350. Whether appointment of a successor is ipso facto a removal. 351. Intent to remove must clearly appear, to render removal effectual; but it may be inferred, when clear, from cir- cumstances; instances. 352. Abolition of office and transfer of duties, etc., to another, constitute a removal; repeal of ordinance creating office is removal. 358. Where sheriff is also tax collector, removal of a person as sheriff, without appointing a collector, leaves him in that office. IV. Bules determining the officer or board vested tvith power to remove. 354. Where no definite term of office fixed by law, the appoint- ing officer or board may remove at pleasure; excep- tions; power does not exist if term fixed, or where power of appointment not continuous. 355. Mayor has no power to remove state officer, acting in the city: where power to remove city officer vested in mayor and council, council alone cannot remove; where a township board has the power, it cannot be exercised at a joint meeting of two boards. ■356. Constitutional provision for removal applies, although officer liable to impeachment; statute, authorizing mayor to remove police justice, not affected by constitutional provision for removal of inferior judges by supreme court. V. Who is liable to be removed; who is entitled to the benefit of the constitutional or statutory restrictions upon the power of removal, 357. Removal of lunatic valid. 338 Chap. XVI.] REMOVAL; SUSPENSION Sec. 358. Person appointed to fill a vacancy till next election liable to removal. 359. Policeman, entitled to be retired after 30 years service, is removable. 360. Constitutional and statutory provisions apply only to a qualified and inducted officer. VI. Cases where an officer may be removed without cause assigned, and where only for cause. 361. General rule, that where removable at pleasure, no cause required; cases thereupon. 363. Common law rule is, that no officer can be removed without cause; where particular officers are specified In statute, as removable at pleasure, other officers removable only for cause; where particular causes are specified for removal, power to remove limited to those causes. 363. Statute requiring removal for cause only cannot be evaded. VII. Cases where a removal can be made, only upon notice to the officer, and hearing him in his defence. 864. "Where officer holds during good behavior, notice is neces- sary; so where he holds for a fixed term, and is remov- able only for cause; where statute enumerates causes, notice and hearing required, otherwise removal is void; contrary ruling in Massachusetts. 365. Usually, where statute requires notice, this implies testi- mony upon a hearing; but where officer is to be allowed opportunity for "explanation," there is no such impli- cation; rule where statute requires a conviction by a jury. VIII. Causes which are or are not sufficient for the removal of an officer. 366. General principles as to the effect of general statutory requirementof " cause;'' where causes enumerated, pre- sumption is that removal was for one of such causes. 367. Where statute specifies misconduct, etc. , in office, officer removable only for act or omission relating to his office, not for matter affecting his private character; but where such a cause occurs, no defence that act, etc., was not done corruptly or maliciously; where honest mis- take insufficient. 339 PUBLIC OFFICERS [Book III. Sec. 368. Miscellaneous instances of "misconduct in office," as sufficient cause for removal. 369. Miscellaneous instances of " disorderly behavior," "mal- practice in office," "neglect of duty;" cases where a removal may be made for such acts, although not done while acting officially. 870. Miscellaneous rulings concerning intoxication as a suf- ficient cause for removal. 371. Whether a crime, for which the officer has not been con- victed, is a sufficient cause for removal. 373. Miscellaneous rulings as to other causes for removal of a policeman. 873. Eailroad commissioner for town, improperly issuing town bonds; county treasurer failing to report. 874. Whether r,n officer may be removed for his inefficiency or incapacity, or that of his subordinates. 875. Cases as to grounds of removal of a sheriff. 376. The same as to the clerk of a court. 377. Chief clerk of inspector of buildings, allowing violation of fire regulations. 378. Reappointment of an officer, when a condonation of pre- vious misconduct; when election or reelection bars removal for a cause previously existing; so as to a for- mer investigation. IX. Legal sufficiency of the proceedings to remove an officer, upon charges, and after a hearing. (1.) General rules. 379. Must be a notice, charges, testimony, etc.; accused entitled to counsel; interested person cannot act as mem- ber of removing board. 380. But the same strictness, technical rules, etc. as on a com- mon law trial are not required; although all the essen- tial parts of the charge must be estabUshed by the evidence. (2) Sufficiency of the notice and of the statement of charges. 881. Notice must be actually served; precision required respect- ing the charges; formality not essential. 383. " Reasonable notice" is 24 hours; cause must be specified; what is a sufficient specification. 340 Chap. XVI.] REMOVAL; suspension Sec. 383. Officer cannot be removed for cause not specified. 384. Effect of rule of department requiring verification of charges. (3) Taking the testimony, and other proceedings upon the trial or hearing. 385. Testimony may be taken before a member, and submitted to the board; rules as to his absence, etc., when hearing takes place; changes in composition of the board, etc. 386. Quorum of board only required; adjournments allowed; when two boards must act; when removal erroneous for failure to hear testimony. 387. When removal invalid, by reason of action during officer's absence. (4) Waiver of his rights by accused, and effect thereof. 388. When presence without objection amounts to a waiver of defects; when a waiver may be withdi-awn; effect of failure to object, or deny charge, and of resignation. (5) Decision, and effect thereof. 389. Subject incidentally considered under other divisions ; when board decides before testimony is written out and submitted, and reaffirms decision afterwards; when board has no discretion; when sentence partly valid and partly void; officer must have notice of his removal; majority vote suffices. 390. Euling upon the question whether removal is valid, where the charge relates to a member of the board, who takes part in the decision. X. Review by the courts of proceedings to remove an officer. 391. General observations. 392. Enumeration of the different modes of reviewing. 393. General rule as to power to review, as laid down by court of queen's bench. 394. Courts will not interfere, where removing officer or board is vested with discretion; instances. 395. Sufficiency of " explanation" is matter of discretion. 396. General power to remove for "cause" vests discretion as to sufficiency thereof. 341 § 340, PUBLIC OFFICERS [Book IIL Sec. 397. Proviaion that a body shall be judge of qualifications, etc., of its members, does not oust the courts of power to decide thereupon. 398. Proceedings to remove upon charges are judicial, and may be reviewed by certiorari; errors of law only to be considered; where courts will or will not interfere upon questions of fact; certiorari is discretionary, a»d will be refused in case of delay. XI. Removal by impeachment. 399. Outlines of provisions of the United States constitution, relating to impeachment; all the state constitutions have similar provisions; outlines of those of the consti- tution of New York. 400. Constitutional provisions for impeachment do not prevent removal, for a cause which would sustain impeachment. XII. Suspension of an officer. 401. In England, power to suspend is the prerogative of the crown; whether suspended officer entitled to his salary, etc. 402. No such prerogative in the U. S. ; legislature may provide for suspension, if constitution is silent; otherwise if constitution fixes term and mode of removal. 403. Conflict of opinion in American courts upon the question, whether power to remove includes power to suspend; cases in the affirmative. 404. Weight of authority sustains the negative ; cases thereupon. 405. Where mayor has power to suspend, subject to decision of common council; change of power of appointment takes it away; rules as to power of common council, and effect of disapproval; effect of constitutional pro- vision for suspension of officer impeached. 406. Powers of locum tenens, appointed in place of suspended officer ; where power to suspend discretionary; in this country officer suspended not entitled to salary. § 340. Scope and subject matter of chapter. — We shall consider in this chapter the rules of law, applicable to the various modes of depriving a person, against his will, of 343 Chap. XVI.] REMOVAL; SUSPENSION § 341. a public office held by him, by means other than proceed- ings instituted for that purpose in the ordinary courts of justice, including those styled in some of the books amotion, expulsion, exclusion, and dismissal. In other chapters, we shall find it necessary to refer again to this subject, in connection with the right of an officer to com- pensation;' and some additional principles and authori- ties, relating to this subject, will be found in those chap- ters. I. Effect of express constitutional provisions upon the power to remove an officer. § 341. Legislature cannot vary or add to constitu- tional provisions. — It is well settled, that where the con- stitution creates or recognizes an office, and declares that the incumbent may be removed in a specified manner or for specified reasons, the legislature cannot constitution- ally provide by statute for his removal for any other reason or in any other manner." And where the consti- tution specifies certain classes of offences, as those for which an officer may be removed, a statute adding others, or declaring that a particular offence, which is not one of those classes, shall be "deemed" such, is unconstitutional.' And where the constitution provides that the duration of any office, not fixed in the constitu- tion itself, may be fixed by law, and if not so fixed, the incumbent shall hold during the pleasure of the appoint- ing power; the legislature cannot limit the power of removal of an officer whose term is not fixed by law; the only mode of limiting the power is to fix the term by law.' Such a provision by implication withholds from ' Post, ch. 19 and 21. Page v Hardin, 8 B. Mon. (Ky.; 648 ; " Lowe u Comm., 3 Met. (Ky.) 237 ; Runnels v State, 1 Miss. 146. state D Wiltz, 11 La. Ann. 439. » Comm. v WiUiams, 79 Ky. 42. See also amte, § 305 ; . p^^pj^ „ g^^ ,^ ^^-^ 9^ Brown v Grover, 6 Bush (Ky.) 1 ; 343 344. PUBLIC OFFICERS [Book III. the governor, power to remove an officer, whose term is fixed by law. ' § 343. When provision self-operative, and leaves no discretion. — A constitutional provision, that certain judges and officers of courts may be removed by the judges of the district courts, for certain specific causes, " upon the cause therefor being set forth in writing, and the finding of its truth by a jury," is self -operating, so that it may be executed without legislation.^ And where the consti- tution provides for the removal of an officer by sentence of the court, upon conviction of wilful neglect of duty or misdemeanor in office, the court, upon the conviction of a person indicted for either offence, has no discretion with respect to that part of the sentence.' § 343. Statutes authorizing trial or removal without notice, constitutional. — It was held in Louisiana, that a provision in a city charter, giving to one of the branches of the city council, sole power to try an impeachment of a city officer, and, upon his conviction, to pronounce judg- ment of removal, and, if it deems proper, of disqualifica- tion from holding any city office, was not unconstitutional, "as vesting judicial powers in a municipal body." A statute authorizing an officer or a board to remove a person from office, without notice or a hearing, is not in conflict with the "bill of rights," incorporated into the constitution. " § 344. Rule where constitution authorizes governor to remove his appointees. — A constitutional provision, em- powering the governor to remove " any officer whom he may appoint," includes officers appointed by him by and ' People V Jewett, 6 Gala. 291. See also Tompert v Lithgow, 1 Busli ^ Trigg V State, 49 Tex. 645. '■^^■^ ^''^■ » Shattuck V State, 51 Miss. 575. ° Donahue v Will County, 100 Ul. 94 ; People V Whitlook, 93 N. Y. 191. • State V Ramos, 10 La. Ann. 420. g^ ^^^ g^^^^ ^ p^^p^^^ ^^03 m_ 5^_ 344 Chap. XVI. J REMOVAL; suspension § 346. with the advice and consent of the senate, and extends to cases for which other specific remedies are provided. ' And where such a provision specifies the causes for which he may thus remove, but prescribes no mode of exercising the power, the governor may determine that such cause exists, upon such evidence and in such mode as he deems proper.'' But he can exercise the power only for one of the causes specified, and upon charges specifying the particular act, omission, or other ground of removal; and the officer must have notice thereof, and a reasonable opportunity to be heard in his defence; and the governor has judicial power to decide upon the proofs." But it is not necessary that the governor should specify the causes.* II. Power of the legislature, in the absence of constitu- tional limitations. § 345. Legislative power unlimited; office confers no vested rights. — As we have shown in a previous chapter," in this country an office is not regarded as property, nor has the officer any vested rights therein, which are within the protection of the United States constitution, or the general provision of a state con- stitution, forbidding legislative interference with prop- erty or vested rights. It follows that the power of , the legislature, in this respect, is practically unlimited, except where it is limited by provisions of the constitu- tion, having express or implied reference to this particular subject. § 346. Whether power ministerial or judicial; removal by statute invalid. — Thus the legislature has power to > Wilcox V People, 90 111. 186. See also post, g§ 361-365. » Wilcox V People, 90 111. 186. ' Keenan B Perry, 24 Tex. 353. s Dullam v Willson, 53 Micli. 393. " AnU, oil. 2. 345 § 346. PUBLIC OFFICERS [Book III. provide that a city officer, appointed under a statute which authorized his removal by the governor, for cause, and after notice and a hearing, may be removed by the mayor " for any cause deemed sufficient by himself;" and such a provision empowers the mayor to remove the officer without notice or hearing. ' The power to remove a state officer has been regarded in New Jersey as judicial, andon that ground one which cannotbe constitutionally exercised by the governor, but only by the court of impeachments." But it has been elsewhere regarded as ministerial,' and thus capable of being conferred by the legislature upon ministerial officers, in the absence of constitutional restric- tions; although, where specific causes are required, and a notice and a hearing must be had to render a removal law- ful, the removing officer or body proceeds in a judicial manner, so that the decision may be reviewed by the courts.* In the absence of power, expressly conferred upon the legislature by the constitution, to remove an officer, a statute, ousting the incumbent of an office, without abol- ishing the office, is unconstitutional, as the power to appoint and remove officers, is not conferred by the constitutional grant of legislative power. ' So it has been held, that the legislature cannot indirectly accomplish the same object, as by a statute shortening the incumbent's tenure of the office." A statute, empowering a court to remove an officer summarily, upon a written accusation and after a hearing, is constitutional, and contemplates proceedings instituted by a private person, and not an indictment or an information.' A constitutional provision for the ' People V Whitlook, 93 N. Y. 191. ' See post. Division X of this chapter. ' State V Pritchard, 36 N. J. L. 101. » Gotten v Ellis, 7 Jones L. (N. C.) 545. See also Territory v Cox, 6 Dak. 601 ; See also State v Wiltz, 11 La. Ann. Page V Hardin, 8 B. Mon. (Ky.) 648 ; 439 ; and post, 8 352 ; . Evans v Populus, 32 La. Ann. 131 ; Hoke v Henderson, 4 Dev. (N. C.) 1. DuUam v Willson, .53 Mich. 392. . jjoke v Henderson, 4 Dev. (N. C.) 1, at = Donahue v Will County, 100 HI. 94 ; p. 24. Stern v People, 103 111. 540. ' Woods v Varnum, 85 Gala. 639. 346 Chap. XVI.] REMOVAL; suspension § 347. removal of officers for specified causes, does not invalidate a statute, excluding them from office for failure to qualify. ' III. What is or is not a removal, especially within the constitutional or statutory provisions restricting the power of removal. § 347. To what cases such provisions apply.— It has been held, in many cases, that the constitutional or statu- tory provisions, which allow a removal only for cause, or for cause and after notice and a hearing, do not apply to a dismissal of an officer, for some reason other than his own act or default, and where there is no intent to appoint another in his place. Thus, where a statute pro- vides for notice and a hearing before removal, an officer may be discharged without either, where the discharge is made, because the services which he renders are no longer needed, or no funds are provided with which to pay him. The court said: " This is not, properly speaking, a case of removal within the meaning of the statute. Here the office or clerkship was abrogated. " ' And the person, thus dismissed, cannot require the courts to review the decision of the board or officer thus discharging him.' The same rule holds, where a dismissal is made for the purpose of reducing expenses by diminishing the force;' or where a transfer is made from one class of subordinates to another; as where the police board transfers a member of the detective force to the patrol force ;° or the board of fire commissioners transfers an assistant engineer to the force of machinists; although the transfer involves a ' Hyde v State, 53 Miss. 665. See also. People v Fire Com'rs, 73 N. Y. U5. ' People D French, in last note. ' Phillips V Mayor, etc., 88 N. Y. 245, afE'g 13 Week. Dig. (N. Y.) 436. Accord, People v French, 25 Hun * People t) Health Department, 24 Week. (N. Y.) m ; 10 Abh. N. C. (N.Y.) 418 ; Dig. (N. Y.) 197. Langdon v Mayor, etc., 93 N. Y. 427, » State v Police Com'rs, 49 N. J. L. 175. afE'g 27 Hun'(N. Y.) 288 ; 63 How. Pr. See, however, Michaelis I) Jersey City, (N. Y.) 134. 4:9 N. J. L. 154. 347 § 348. PUBLIC OFFICERS [Book III. reduction of compensation. ' But a power, conferred upon police commissioners, to remove subordinates for the pur- pose of reducing the force, cannot be exercised to create a vacancy for the appointment of another person.'' It is not a ground for interference, by the courts, with a removal for the purpose of reducing expenses, that the funds at the disposal of the commissioners are sufficient to pay the entire force employed; for they are not bound to exhaust the appropriation; on the contrary, it is their duty to administer the department as economically as possible; nor that the duties of the officer removed were transferred to another at a larger salary, if he was not newly appointed for that purpose." "Where a transfer is ^Tiade to an inferior position, involving inconsistent duties, that is, perhaps, a removal; but if the person so transferred accepts the new position, without protest, and signs the pay rolls for the reduced salary, he waives any right to object thereto." § 348. When revocation of appointment not a removal; effect of judicial reversal of removal. — A statute, thus restricting the power of removal, does not apply to the revocation by police commissioners of the appoint- ment of a policeman, because he was ineligible to receive the appointment, ex. gr., where he had been previously convicted of a crime. " Where a board of fire commis- sioners, who were authorized to remove subordinates only after notice and a hearing, discharged one of their officers, and, supposing that his place was vacant, pro- moted an officer of lower rank to fill it, and promoted the > Riley v Mayor, etc., 96 N. Y. 331, afl'g ' People v French, 23 Hun (N. Y.) HI ; 49 N. Y. Super. Ct. 537 ; 10 Abb. N. C. (N. Y.) 418. Monroe v Mayor, etc., 28 Hun (N. Y.) , ReiUy v Mayor, :etc., 48 N. Y. Super. 2^- Ct. 274. See, however, In re Gleese, 50 N. Y, Super Ct 473 ° People v Police Com'rs, 102 N. Y. 583, ' State V Sohumaker, 27 La. Ann. 332. 348 afE'g 39 Hun (N. Y.) 507. Chap. XVI.] . REMOVAL; suspension § 349. relator to fill the place of the latter; and the person dis- charged procured a reversal of their decision upon cer- tiorari, and was accordingly restored to his former posi- tion, and the two promoted officers were then restored to their former positions; it was held, that the re- transfer of the relator to his former position was not a removal within the statute; although the resolution pro- moting him did not state that he was appointed to fill a vacancy.' § 349. When appointment is complete, revocation is invalid. — Obviously the question, whether a person is the incumbent of an office, so as to be capable of removal, and entitled to insist upon the statutory provisions restricting or .regulating the power of removal, often depends upon the question, whether his appointment or election to the office was complete, so that he was vested with the title thereto, either absolutely, or upon his qualifying. The latter question was considered in a former chapter.^ "We now recur to this subject, to show how the rules respecting removals apply to cases, where an appointing power reconsiders or revokes an appoint- ment, or, without expressly removing the incumbent, appoints another in his place. The governor of a state, having power, by the constitution and statutes of the state, to appoint to an office, for a specified term, but to remove the incumbent only for cause, has no power to revoke a commission; issued to a person appointed by him to the office.' So, where the appointment to an officb by a board is complete, and a removal can be made only for cause, a resolution rescinding the appointment, does not effect a removal, nor affect in any manner the rights of the person appointed.^ ' People V Fire Com'rs, Ui N. Y. 67, aff'g ' Ante, ch. 8, §§ 88 et seq. it Hun (N. Y.) 528. a Ewlng V Thompson, 43 Pa. St. 372. The reversal of a judgment removing «. ^1,- .*,,*, « Att'vGen'luLove, 39N.J.L.U; afif'd an ofHcer restores him, without fur- ^....j^^. !• , ther order. Phares v State, 3 W. Va. ■■^^- *'^^ ' B67. 349 People 1) Stowell, 9 Abb. N. C. (N.Y'.) 456. § 351. PUBLIC oppiCEKS [Book III. § 350. Where appointment of successor is ipso facto a removal. — Where an oflSce is held during pleasure, the appointment of a successor is* a removal of the incum- bent; but if the senate must concur with the governor in a removal, in order to render it effectual, or if the removal is required to be made by the senate, on the recommendation of the governor; the appointment by the governor of a person to fill the office, with the advice and consent of the senate, is not a removal of the incum- bent, and is ineffectual. ' § 351. Removal ineffectual unless intent clear; when intent inferred. — Where an officer is removed, the intent to remove him must clearly appear, as is well illustrated by a decision of the supreme court of the state of Michi- gan. In that case, the charter of the city gave the com- mon council power to remove city officers at pleasure; and, as the court construed the statute, the term of office of a city marshal was fixed by law at two years; but the common council, at the expiration of one year from the appointment of a person to that office, without in terms removing him, appointed another to the office. It was held, that such appointment was not equivalent to a removal of the incumbent, and did not divest him of the office, notwithstanding the facts that the council, in the resolution appointing him, stated that he was appointed for one year, and that his official bond recited an appoint- ment for that time. The court, after holding that the recitals of the resolution and of the bond, as to the dura- tion of the term, were surplusage, continued: "A removal cannot be made, without an intent to remove; and here it is clear that the council did not suppose they People V Carrique, 2 Hill (N. Y.) 93. See also Thomas v Burrus, 23 Miss. 550 ; Comm. V Stifer, 25 Pa. St. 23, per Johnston u Wilson, 2 N. H. 202 ; Lewis, Ch. J., p. 29; Van Orsdallv Hazard, 3 Hill (N.Y.) 243; Ex parte Hennen, 13 Pet. (U. S.) 230, White v Mayor, etc., 4 E. D. Smith (N. per Thompson, J., p. 861. Y.) 563. 360 Chap. XVI.] removal; suspension § 353. were exercising their power to remove, and they cannot, therefore, be held to have intended it. . . The removal of an officer usually is supposed to imply censure of his conduct; and the appointing body might hesitate to remove, when, if the office were vacant, they might pre- fer some other person to ffil it." ' But the intent may be inferred, without being expressly declared, where the circumstances leave no doubt of its existence. Thus, where the mayor of a city was authorized by statute to suspend, and, with the assent of the council, to remove, any city officer; and he sent a message to the council, sus- pending an officer for reasons assigned, and recommend- ing his removal; and the council passed a resolution to the effect that the mayor's message was "received, and action of the mayor confirmed;" it was held that the officer was sufficiently removed." § 353. Effect of abolition or transfer of office.— Where there is no power of removal, except for cause, an officer cannot be removed by a statute, abolishing his office, and transferring its powers and duties to another, to be chosen by a board.' But where a city ordinance, creat- ing a municipal office, reserves to the municipal council the power of removal; if the ordinance is repealed, and the incumbent notified, that operates as a removal.* § 358. If office double, removal from one leaves other intact. — In a state where the sheriff is also tax collector, if a statute authorizes the county court, where there is a vacancy in the office of sheriff, from any cause other than the incumbent's death, to appoint a person to collect the taxes; and the sheriff is removed, but no person is thus appointed to collect the taxes; the sheriff must proceed ' Stadler v Detroit, 13 Mich. 346. * Chandler v Lawrence, 128 Mass. 213. „ T.T ^, TT o^ •««■ ita See also Brackett'!)Blake,7 Met. (Mass.) " Westberg v Kansas, 64 Mo. 493. 335; 3 state V Leonard, 88 Tenn. 485. Knowles V Boston, 12 Gray (Mass.) 338 ; See also ante, S 346. Murphy* Webster, 131 Mass. 482. 351 §354. PUBLIC OFFICERS [Book III. to collect them, notwithstanding his removal, and the sureties in his official bond are liable for his failure so to do.' IV. Rules determining the officer or board vested with power to remove. § 354. When officer removable at pleasure.— The gen- eral rule is, that where a definite term of office is not fixed by law, the officer or officers, by whom a person was appointed to a particular office, may remove him at pleasure, and without notice, charges, or reasons assigned." But in Rhode Island, it was held that a school committee, under a statute which gave the committee power to appoint its officers, but was silent as to the power of removal, had the power of removal for cause, but only upon a trial and after notice; and that a vote removing the appellant for a cause assigned, without notice of the charges, and "an opportunity by proof and argument to defend himself" was void; so that the appellant continued to be legally the clerk of the board. It was said, however, that if the clerk, being present 1 Ballard v Thomas, 19 Gratt. (Va.) U. = Ex parte Hennen, 13 Pet. (U. S.) 230. See also Patton v Vaughan, 39 Ark. 211 j People!) Hill, 7 Gala. 97; Smith V Brown, 59 Gala. 672 ; Garr v State, 111 Ind. 101 ; State V Barrow, 29 La. Ann. 243 ; NewBon u Gocke, 44 Miss. 352 ; Peyton v Cabanlss, 44 Miss. 808 ; People V Fire Com'rs, 73 N. Y. 437; People V Robb, 126 N. Y. 180 ; People 1) Mayor, etc., 5 Barb. (N. Y.) 43 ; Laimbeer v Mayor, etc., 4 Sandf . (N. Y.) 109; People V Durston, 3 N. Y. Supp. 522 : People V Hayden, 32 N.Y. St. Rep'rlUO; ION. Y. Supp. 794; People V Purroy, 31 N. Y. St. Rep'r 934 ; 10 N. Y. Supp. 181 ; Comm. V Slifer, 25 Pa. St. 23; Houseman v Comm., 100 Pa. St. 222; Williams v Boughner, 6 Coldw. (Tenn.) 486, and other oases cited ante, § 304, and post, §§ 361 et seq. Contra, Dubuc V Voss, 19 La. Ann. 210. It has been said, that notice of the re- moval to the officer removed is necessary to complete the removal. Gomm. V Slifer, 25 Pa. St. 23. See also. People v Carrique, 2 Hill 93. But the court of appeals of New York has held, that notice is not necessary tfa complete the removal, although it may be required to con- vert the officer into a trespasser, or affect others' rights. HoUey v Mayor, etc., 59 N. Y. 166. 352 Chap. XVI.] REMOVAL; SUSPENSION §355. when the resolution of removal was presented, asked no delay, but proceeded to defend himself, he would be deemed to have waived formal notice, and the vote would be valid. ' And it is conceded, in all the cases, that where a fixed term is assigned to the office, the appointing power has no absolute power of removal." But a consti- tutional provision, declaring that where the duration of an office is not provided for by the constitution, or fixed by lavv^, thti office shall be held "during the pleasure of the authority making the appointment," applies only where the appointing authority is continuous; and a statute, empowering the supervisor, the president of the excise commission, and the justice of the peace in office, having, at the time of the passage of the act, the shortest time to serve, or a majority of them, to appoint three police commissioners; and further providing that in case of a vacancy in the office, it shall be filled by the super- visor; contemplates only a single act of appointment, which exhausts the authority conferred; so that the pro- vision empowering the supervisor to fill subsequent vacancies is constitutional. ° § 355. What authority has power to remove. — Where an officer (in thi3 case a chief of police), elected by the people of a city, performing his duties in the city, and paid from the city treasury, is a state officer, the mayor has no power to remove him, under a constitutional provision giving the mayor of a city power to remove city officers, and a statute giving him power to suspend temporarily the chief of police." Where the power to remove a city officer is conferred upon the mayor and' common council, it cannot lawfully be exercised by the council alone." And where the charter of ' Willard's appeal, 4 R. I. 595. » Caulfleld v State, 1 S. C. 461; Collins V Tracy. 36 Tex. 546. See also post, §8 361-365. ' Bergen v Powell, 94 N. Y. 591, aff'g 30 Hun (N. Y.) 438. < Burch V Hardwlcke, 30 Gratt. (Va.) 24. » Charles v Hoboken, 27 N. J. L. 203..- 353 § 357. PUBLIC OFFICERS [Book III. a city confers the power of removal- upon a particu- lar board, the board cannot, by any act, deprive itself of that power. ' Where power to remove a township officer is conferred upon the board of the township, the power cannot lawfully be exercised at a joint meeting of two township boards." § 3S6. Different methods of removal allow resort to either. — A provision of the constitution, authorizing the removal of a judicial officer by the governor, with the con- sent of the council, upon the address of both houses of the legislature, applies to a case where the judge is charged with an offence, which renders him_ liable to impeachment; and it is not necessary that the address or the order of removal should assign any cause for the removal.' V. Who is liable to be removed; who is entitled to the benefit of the constitutional or statutory restric- tions upon the power of removal. § 357. Removal of lunatic valid. — Where a person who was a lunatic, and actually confined in a lunatic asylum, was dismissed from the fire department, after notice and upon charges, and after a trial, under a statute requiring those proceedings to be taken to validate a removal; and the fact that he was a lunatic did not appear upon the trial; it was held that the removal was lawful, for, until he had been judicially declared a lunatic, the fire commis- sioner was not required to take proceedings for the appointment of a committee.' > Weidman v Board of Education, 26 N. In re King, 25 N. Y. St. Rep'r 792; 6 y. St. Rep'r 765 ; 7 N. Y. Supp. 309. N. Y. Supp. 420. " Crawford v Township Boards, 24 Mich. ' People v Partridge, 13 Abb. N. C. (N. 248. . Y.) 410. 3 Comm. V Harriman, 134 Mass. 314. ^ee also vast, §§ 365, 374, 416. BeB.alap,.i)ost, §400; 354 Chap. XVI.] REMOVAL; SUSPENSION § 359. § 358. Appointee to fill vacancy, removable. — Where the constitution of a state provides that a sheriff shall hold his office for three years, but he may be removed by the governor upon charges, after an opportunity to be heard; and a statute provides, that the governor may fill a vacancy in the office of sheriff, caused by such removal, by appointing a person to serve until the next general elec- tion, who " shall possess all the rights and powers, and be subject to all the duties and obligations, of the officer so removed;" a person, appointed by the governor to fill a vacancy, caused by the removal of a sheriff, may be removed, and another appointed in his place, by the governor's successor, under a general statute giving power to the governor to remove officers appointed by him, and to fill vacancies, without notice to or charges against the officer so removed. ' § 359. Policeman entitled to retirement, removable. — Where a statute provided that any member of the police force of a city, who has performed duty therein for twenty years, upon his own application in writing, " shall, by resolution adopted by a majority vote of the full board, be relieved and dismissed from the said force and service, and placed on the roll of the police pension fund," and receive a pension to be fixed by the police board; and, after a service of twenty years, a member of the force committed an offence, rendering him liable to be removed, upon notice and charges, and after a hearing; and, within an hour or two before notice and charges were served upon him, he filed his application for a dismissal under the statute; it was held, that the subsequent hearing and order of removal were valid and regular, inasmuch as, under the statiite, his connection with the force, or the power of police board over him, did not terminate upon his filing the application, since the action of the board, ' People V Parker, 6 Hill (N. Y.) 49. 355 § 361. PUBLIC OFFICERS [Book III, retiring him and fixing his pension, was necessary to effect such severance: and that the officer was not there- fore entitled to a mandamus, to compel the board to take such action." § 360. To what officers constitutional and statutory provisions apply. — The constitutional or statutory provi- sions, restricting the power of removal, apply only to an officer who has qualified, and has been inducted into office;" and it has been held also, that they apply only to an officer who has been lawfully and regularly appointed.' But it has been also decided, that after a person has held an office for four years, the objection that he was irregularly appointed, in violation of the civil service law, cannot be taken, upon a certiorari brought by him, to review the proceedings whereby he was removed." VI. Cases where an officer may be removed without cause assigned, and where only for cause. § 361. When officer removable at pleasure, no cause required. — The law, relating to the power to remove with- out cause, has already been incidentally considered, in discussing the question, who has the power of removal." The general rule is thus stated, in a case decided by the supreme court of Pennsylvania: " Where an appointment is during pleasure, or the power of removal is entirely discretionary, there the will of the appointing or removing power is without control, and no reason can be asked for, nor is it necessary that any cause should be assigned. " " In ' People V French, 108 N. Y. 105, aff'g U * People v Hannan, 56 Hun (N. Y.) 469. Hun (N. Y.) 24. 6 ^„te, §§ 354 et seq. See also, People v French, 46 Hun (N. Y ) 232 ' ^'®1* ■" Comm., 32 Pa. St. 478, per Read, J., p. 481, citing Ex parte Hennen, ^ Flatan i) State, 56 Tex. 93. 13 p^^ (u. s.) 230, where the ques- ' State V Gloucester, 49 N. J. L. 177. tion is fuUy discussed. See also ante, i 348. 356 Chap. XVI.] REMOVAL; SUSPENSION § 361. a case, which was decided by the New York court of appeals, where one section of a statute provided, that the mayor of a city " shall from time to time appoint and remove at pleasure two persons, who .... shall be commissioners of accounts;" and another section pro- vided, that certain officers named, and all others whose appointment was in that section provided for, "shall be nominated by the mayor, and appointed by him with the consent of the board of aldermen, and may be removed by the mayor, for cause, and after opportunity to be hea,rd;" it was held, that a commissioner of accounts was not within the provisions of the latter section, as he was not to be nominated by the mayor, but appointed by him, without the consent of the board of aldermen; and con- sequently that he might be removed by the mayor, with- out notice or cause. Danforth, J., delivering the opinion of the court, added: "It would seem, however, to be quite clear, that whenever a statute in express terms gives a discretionary power to any person, to be exer- cised by him upon his own pleasure, he is thus made the sole and exclusive judge as to the propriety of its exer- cise; and in such a case his will or private opinion must stand in place of any reason. Such a power is not to be construed as a judicial discretion, to be regulated accord; ing to the known rules of law. ... It may be arbi- trary and fanciful, but such was the condition of the relator's official tenure. He took office at the pleasure of the mayor, and his pleasure, by whatever reason influenced, is the measure of his term." ' Where a ■ People!) Mayor, etc., 82 N.Y. 491 ;aff'g N. Y. St. Rep'r 765; 7 N. Y. Supp. 16 Hun (N. Y.) 309. 309. See also, Territory v Cox, 6 Dak. 501 ; State v Stevens, 46 N. J. L. 344^ WUliams v Gloucester, 148 Mass. 256 ; Comm. v Sutherland, 3 S. & R. (Pa.) People V Comptroller, 20 Wend. (N. 145; Y.) 595 ; Field v Girard College, 54 Pa. St. 233 ; People B Whitlock, 92 N. Y. 191 ; State V MoGarry, 21 Wis. 496. Weidman v Board of Education, 26 357 363. PUBLIC OFFICERS [Book III. statute provides, that particular classes of members of the fire department of a city can be removed only for cause and upon notice, any member of the department, who does not belong to either of the classes enumerated, may be removed at the pleasure of the board. ' § 362. At common law, removal only for cause. — We shall have occasion to cite, in the next succeeding divi- sion of this chapter,^ many rulings, that in particular cases removals can be made for cause only; here it will be necessary only to state the general rules relating to that subject. The doctrine, that an oflScer may be removed at pleasure, has grown up in the American courts; at common law, an officer could be removed only for cause and after a hearing.' And in this country, it has been said that, in the absence of any statutory pro- vision, the same rule applies to an officer of a municipal corporation. ' Where the constitution gives to the appoint- ing power authority to remove, at pleasure, officers, the duration of whose term is not fixed by law, that operates to withhold such authority, where the duration of the term is fixed by law." Where power is granted, by a statute or the constitution, to remove an officer for certain specified causes, that limits the power of removal to the causes so specified." And where a city charter provided for the removal of appointed officers, by a majority vote ' People V Fire Com'rs, 86 N. Y. 149, » People v Higglns, 15 111. 110. aff'g23Hun(N. Y.)317. = Post, §§ 364, et seq. ' Bagg's ease, 11 Coke (Vol. 6) 98 (b) ; Rex V Gaskln, 8 T. R. (D. & E.) 209. See also Rex i' Oxford, 2 Salk. 428 ; Rex V Mayor, etc., 1 Lev. 291 ; Rex I) Coventry, 1 Ld. Ray,, 391 ; Rex V Andover, 1 Ld. Ray., 710. ' State V Common Council, 9 Wis. 354. See also. State v Kuehn, 34 Wis. 229. ' People V Jewett, 6 Cala. 291. See also. Mayor, etc. v Shaw, 16 Ga. 172; Clark V People, 15 111. 213 ; Lovre v Comm., 3 Met. (Ky.) 237 ; Dubuo V Voss, 19 La. Ann. 210 ; Mead t) Treasurer, 36 Mich. 416 ; State V Jersey City, 25 N. J. L. 536 ; State V Trenton, 50 N. J. L. 338 ; Gardner v People, 62 N. Y. 299. aff'g 3 Hun (N. Y.) 222 ; 5 T. & C. (N. Y.) 678; Comm. V Shaver, 3 W. & S. (Pa.) 338. 358 Chap. XVI. J REMOVAL; suspension § 364. of the aldermen, and of elected officers hj a two thirds vote; and that the latter should be removed only after notice, and a hearing upon charges; it was held, that the charter did not give the aldermen power to remove offi- cers appointed for a specified term, without notice and a hearing; and that the general rule applied that such offi- cers must always have such a notice and a hearing. ' § 363. Statute requiring cause for removal cannot be evaded. — "Where a statute requires a board to appoint an officer, and to fix his term of office, and provides that he can be removed only for cause; the latter provision can- not be evaded by the appointment of the officer, without fixing his term, so as to leave him liable to removal at pleasure, whether the omission was made negligently or purposely: and where the officer has been thus appointed, his removal is void, unless it is made for cause." VII. Cases where a removal can be made, only upon notice to the officer, and hearing him in his defence. § 364. When office held during good behavior or for fixed term, notice required. — As already stated, this is the common law rule in all cases, except where an office is held, absolutely at pleasure. In this country, the rule is, that where an officer holds his office for a certain number of years, "if he shall so long behave himself well," he cannot be removed, even for misbehavior, with- out notice and a hearing.' So where he is appointed for a fixed term, and removable only for cause, he can be removed only upon charges, notice, and an opportunity to be heard.* Thus, in Pennsylvania, where a statute > Hallgren o Campbell, 82 Micli. 355. » Page v Hardin, 8 B. Mon. (Ky.) 648, at See also, People v Therrieu, 80 Mich. p. 672. 187. Contra, apparently, State v Doherty, = State D Police Com'rs, 88 Mo. 144, aff'g ^ ^^- ^^^- ^l®' 14 Mo. App. 297. < State v St. Louis, 90 Mo. 19. See also, post, § 366 et seq. 359 § 365 PUBLIC OFFICERS [Book III. provided, that the superintendent of common schools had " the power of removing any county superintendent, for neglect of duty, incompetency, or immorality;" it was held that a county superintendent could not be removed for any cause, except one of those enumerated in the statute; and that before he could be so removed, there must have been a charge against him, notice to him of the accusation, the hearing of evidence in support of it, and an opportunity given to him of making his defence." The doctrine, that an officer can be removed only upon notice, and after a hearing, where the tenure of his office is during good behavior, or until removed for cause, or for a definite term, subject to be removed for cause, is recognized in other American cases, and may be regarded as settled law in this country.'' And a removal, without notice and a hearing, in either of these cases, is erroneous and void." It was held, in Massachusetts, that a statute allowing a removal by the municipal boards, for such causes " as they may deem sufficient, and may assign in the order of removal," authorizes a removal without a hearing, but that a cause therefor must be assigned; and that an order, reciting that a communication was received from the superintendent, stating that he had discharged a subordinate for intoxication, and thereupon declaring that the superintendent's action was approved, is a sufficient removal.* § 365. Notice implies testimony and hearing; " ex- planation " does not. — Usually, a provision in the statute, ' Field V Comm., 33 Pa. St. 478. Ex pa/rte Hennen, 13 Pet. (U. S.) 230 ; ' Dillon Mun. Corp., 4th ed., S 250 (*188.) Kennard v Louisiana, 92 U. S. 480 ; See also. Board of Aldermen v Darrow, ^o^^^"^ '" Kansas, IK U. S. 201. 13 Colo. 4«0 ; » People i) Brooklyn Com'rs, 106 N. Y. 64. Madison v Korbly, 33 Ind. 74 ; See also. People v Nichols, 79 N.Y. 582 ; Stadler v Detroit, 13 Mich. 346 ; People v Brooklyn Com'rs, 103 N. Y. 370; DuUam ii Willson, 63 Mich. 392 ; People v Health Dept., 24 Week. Dig. State t! St. Louis, 90 Mo. 19 ; (N. Y.) 197. People V Brooklyn Com'rs, 106 N. Y. 64 ; , Q,jy^^^ „ Q^^^ 1^9 ^^_ ^ Hobokeu u Gear, 27 N. J. L. 265; 360 Chap. XVI.] removal; suspension § 366. requiring notice and a hearing, implies that testimony is to be produced in support of and against the charges. But this inference maybe rebutted by the expression used in the statute. Thus, under the provision of the charter of the city of New York, declaring that each head of a department has power to remove his subordinates, but no regular clerk or chief of a bureau shall be removed " until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of explanation; and in every case of removal the true grounds thereof, shall be forthwith entered upon the records of the departments;" it has been ruled that the officer, vested with the power of removal, is not required to take any evidence in support or in rebuttal of the charges; but the effect of the statute is merely to allow the officer whose removal is contemplated, to make such explanation as he deems proper, and refers the suffi- ciency thereof to the removing officer's judgment and dis- cretion.' Neither the charge nor the explanation is required to be in writing." When a statute provides, that the clerk of a court may be removed by the court, for mis- conduct in office, on conviction by a jury, as the court " shall think proper," the clerk cannot be removed with- out charges, and a finding by the jury, supporting some of them,- which charges must be exhibited by the state through the prosecuting officer. ' A removal for mental disability is within a statute, requiring notice and a hearing." VIII. Causes which are or are not sufficient for the removal of an officer. § 366. General principles as to statutory provisions.— Where the statute allows a removal for "cause" only, > People V Thompson, 94 N. Y. 451, a£E'g " People D Campbell, 50 N.Y. Super. Ct. 82. 26Hun (N. Y.) 28. s Callahan u State, 2 Stew. & P. (Ala.) 379. See also, People v Fire Com'rs, 72 N. Y. „ „ „ , ,„. « People V Rohb, 55 Hun (N. Y.) 425. People V Mac Lean, 58 Hun {N. Y.) 152. See also, onte, 8 357 ; post, §8 374, 416. 361 § 366, PUBLIC OFFICERS [Book III. and requires that the accused shall have notice and an opportunity for "explanation," and that the "true grounds" of the removal shall be entered upon the records, without specifying any particular act or omis- sion, as sufficient cause for the removal; it has been held, that the " cause " for removal of an officer " is to be some dereliction or general neglect of duty, or incapacity to perform the duties, or some delinquency, affecting his general character, and his fitness for the office. The cause assigned should be personal to himself, and itiiply- ing an unfitness for the place, and, such cause being assigned, if unexplained, the removal raay be made. An explanation may consist, either of excusing any delin- quency, or apparent neglect or incapacity, that is, explaining the unfavorable appearances, or disproving the charges : that some other man is a better man than the accused, or more congenial to the appointing or removing power, is not a cause which the incumbent can explain, in the sense in which that term is used; and is no cause of removal within the statute." ' But in another case it was held, that where the charter of a city provides that the council may remove a city officer "for cause," that does not create the council a tribunal, to hear and determine with respect to the cause of removal, nor require' notice to be given to the officer; but allows the council to remove him for any cause, which is satisfac- tory to that body.'' Where a removal can be made only for one of certain specified causes, the presumption is that it was made for one of such causes." People V Fire Com'ra, 73 N. Y. 445, per State v Police Com'rs, 49 N. J. L. 170; Allen, J., p. 449. Haight v Love, 39 N. J. L. 14. See also, People v Fire Com'rs, 73 N. Y. , Hotoken v Gear, 27 N. J. L. 365. *^ '< See also, post, 8 398. People V Thompson, 94 N. Y. 451, aff'g i Hnn (N. Y.) i ' State V Graham, 35 La. Ann. 73. People V Grant, 13 Daly (N. Y.) 294 ; ^ee also, Dubuc v Voss, 19 La. Ann. 210. 362 Chap. XVI.] REMOVAL; SUSPENSION § 368. § 367. When only official acts, etc., are grounds for removal; judicial officier not* removable for mis- take. — Where the constitution or a statute author- izes a removal for official misconduct, or misfeasance, misconduct, or maladministration in office, or similar acts of misbehavior in office, the general rule is, that the officer can be removed only for acts or omissions relating to the performance of his official duties, not for those which affect his general moral character, or his conduct as a man of business, apart from his conduct as an offi- cer. In such a case, as a learned judge has remarked, it is necessary "to separate the character of the man from the character of the officer." ' But where such an official act or omission has occurred, the officer may be removed therefor, without reference to the question whether it was done maliciously or corruptly." But it has been held that a mistake, made honestly and from ignorance of the proper steps in a judicial proceeding, will not justify the removal of a justice of the peace; as where he refused bail in a case of misdemeanor.^ And other cases establish the general rule, that a judicial offi- cer is not liable to removal for an act which was not done corruptly." The practical application of these gen- eral rules, and the existence of some exceptions thereto, will appear in the cases cited in the following sections. § 368. Instances of " misconduct in office," as sufficient causes.— It is misconduct in office, which renders the • Comm. 1) Chambers, 1 J. J. Marsh. (Ky.) " nonfeasance " and " malfeasance," 108, per Underwood, J., p. 160. as used in constitutional or statutory See also, Comm. v Barry, Hardin (Ky.) provisions relating to the removal of 229 ; officers. Comm. V Williams, 79 Ky. 42. s j„ re Thomas, 2 N. Y. Supp. 38. " W. , state V Scates, 43 Kan. 330. See also State v Leach, 60 Me. 58; g^g ^Iso, Woods v Varnum, 85 Gala. Minkler v State, 14 Nebr. 181. 839 . ^nd post, § 376. In each of these cases the court defines the expressions "misfeasance,'' 363 § 369. PUBLIC OFFICERS [Book III. ■ officer liable to removal, where a county attorney refuses to prosecute for violations of the liquor law, because he believes that the public sentiment of the community is against the prosecution of such cases;' or where superin- tendents of the poor draw money from the treasurer for the relief of poor persons, and then compel the persons relieved to purchase therewith goods from themselves, or fail to refund money repaid by the persons relieved, or use their power to compel such persons to vote under their dictation;" or where a register of deeds falsely certi- fies that he has examined a title, and found it unincum- bered;^ or where a county clerk refuses to act as clerk of the county conmiissioners, and withholds the official records, books, etc. , from them, insisting that their con- templated action is unlawful.* § 369. "Disorderly behavior," "malpractice in ofifice," and " neglect " as causes. — Where a statute authorized two thirds of a city council to expel a city officer, for " disorderly behavior, or malconduct in office," it was held, on a judicial review of the action of the council in expelling the mayor, that the act was not justified, because he appointed as a police officer, a man under prosecution for resisting an officer.* Where the com- mon council of a city has power, by the charter, to expel a member for disorderly conduct, it may expel him for receiving a bribe for his official influence and vote, as that is " disorderly conduct," within the meaning of the charter; but semble, that if he is reelected, he cannot be expelled a second time for "the same identical offence." ' Where the charter of a city authorized the mayor and city council to dismiss the marshal "for malpractice in 1 state V Foster, 32 Kan. 14, afE'd, on a * State v Allen, 5 Kan. 213. constitutional question only, 112 U. , g^^te „ Teasdale, 21 Fla. 652. S. 201. « State V Jersey City, 25 N. J. L. 536. ^ Gager v Supervisors, 47 Mich. 187. g^^^ however, Comm. v Shaver, 3 W. s State V Leach, 60 Me. 58. & S. (Pa.) 388 ; holding that bribery 364 Chap. XVI.] REMOVAL; SUSPENSION § 370. oflBce, or neglect of duty," it was held, that the word "malpractice" signified "some abuse of the duties of the marshal's office, as extortion, official malversation, or other such improper exercise of the office;" and "that gambling within the city was none of these things;" that it was not a "neglect of duty," since those words in the statute meant a neglect of official duty only, not of the duty of a good citizen; and accordingly that the proceed- ings of the mayor and council, removing the marshal upon the charge of gambling within the city were unau- thorized.' But the supreme court of New York, in a case arising under the New York city police act, held that the police conmiissioners had the power, and it was their duty, to take notice of the conduct of members of the force, as well when they were off duty as when they were on duty; and that a policeman was properly removed for grossly immoral conduct, while he was off duty and not in uniform." But where, by the charter of Newburgh, the mayor, with the consent of the common council, is empowered to remove the marshal for " incapacity or misbehavior, or neglect of duty;" this does not authorize his removal on the ground that he had previously been collector of taxes for the city, and had failed to account for and pay over money collected by him, since the statute refers to the conduct of the marshal, while filling that office." § 370. Intoxication as cause for removal. — It has been held, that intoxication is not within a constitutional pro- vision, providing for removal from office for "malfeas- is not " disorderly conduct." this litigation, Shaw u Macon, 19 For other rulings, as to the effect of a Ga. 468 ; Shaw v Macon, 21 Ga. 280 ; reappointment or reSlectlon, as a Macon v Shaw's Adm'r, 25 Ga. 590. condonation of a former offence, see , p^^pj^ ^ p^jj^g Com'rs, 11 Hun (N. Y.) post, 8 378. ^03 I Macon v Shaw, 16 Ga. 172. , p^^pl^ „ Weygant, U Hun (N. Y.) 540. See also the subsequent phases of .%5 370. PtJBLIC OFFICERS [Book III. ance or misfeasance in office;" and a statute pronouncing it misfeasance, and providing for the removal of an offi- cer (in this case a county judge), for that offence, is unconstitutional.' The contrary ruling was made in the case of the removal of a sheriff, under a constitutional provision, providing for removal for " crime, incapacity, or negligence. " " But where public intoxication is made a crime, as by the New York excise act, and renders an officer ineligible to the police force, a policeman may be removed therefor." So it was held, that intoxication was a sufficient ground for the removal of a fireman, under a statute providing for removal in case of " misconduct or neglect of duty." ' Where a policeman was charged with intoxication, and his defence was, that he took the liquor by the advice of his physician, and for illness, and by mistake took too much; it was held, that the sufficiency of this defence rested in the judgment and discretion of the police commissioners, with the exercise of which the courts would not interfere. ° But to justify the dismissal of a policeman for intoxication, it must be shown that the intoxication was "conscious, voluntary, blamable, and in some way due to the officer's fault," although, in the absence of any proof in explanation, the mere fact of intoxication may establish the offence." And, in a case " Comm. 1) Williams, 79 Ky. 42. " McComaa v Krug, 81 Ind. 327. ' People V French, 108 N. Y. 583, afl'g 39 Hun (N. Y.) 507. * People D Partridge, 13 Abb. N. C. (N.Y.) = People 1) French, 53 Hun (N, Y.) 90, following 110 N. Y. 645. See also Rex v Taylor, 3 Salk. 231 ; People V French, 11 N. Y. St. Rep'r577. ■ People V French, 119 N. Y. 502. For other cases, where the dismissal of an officer for intoxication was in question, see People v McClave, 32 N. Y. St. Rep'r 820; 10 N. Y. Supp. 560; People V French, 32 N. Y. St. Rep'r 840 ; 10 N. Y. Supp. 860. People V Mac Lean, 32 N. Y. St. Rep'r 844; 10 N. Y. Supp. 851 ; People V French, 32 N. Y. St. Rep'r 190 MN.Y. Supp. 217; People V French, 32 N. Y. St. Rep'r 444 lON.Y. Supp. 792; People V French, 32 N. Y. St. Rep'r 557 U N. Y. Supp. 181 ; People V McClave, 32 N. Y. St. Rep'r 434: UN. Y. Supp. 124; A policeman is properly dismissed on the charge of being an habitval 366 Chap. XVI. J REMOVAL; suspension § 371. where a similar defence was made by the accused, and it appeared that he had previously used intoxicating liquors to excess, and he was removed; it was held that intoxication was " conduct injurious to the public wel- fare " and "conduct unbecoming an officer;" and that the question whether he ought to be removed for that cause rested in the discretion of the board, and the courts would not interfere with their decision. ' Where a police justice was charged with intoxication, it was held, that he was entitled to show in his defence, that he discharged his official duties honestly, impartially, and otherwise competently." Under a statute, providing for the removal of a clerk for " misbehavior in office," as the court " shall think proper," it was held that the clerk might be removed, if he was intoxicated, while discharging the duties of his office, but not for intoxication at other times.' § 371. Commission of crime without conviction as cause. — Under a statute, allowing the removal of a police- man for " conduct unbecoming an officer, or other breach of discipline;" the supreme court of New York held, that a policeman could not be removed, upon the charge that he swore falsely upon the trial of another officer before the board of police conmaissioners, because that offence was made perjury by statute, and the officer must have been first convicted of the perjury in the ordinary crimi- nal courts." But that decision was not followed, in a subsequent case under the same statute, where the same court held, that a policeman was properly removed under that statute, where he entered a saloon, under pretence drunkard, and constantly under the > People v Fire Com'rs, 82 N. Y. 358, influence of liquor. People v French, rev'g 9 Week. Dig. (N. Y.) 390. 39 N. Y. St. Rep'r 923 ; 8 N. Y. Supp. , j„ ^^ Grogan, 24 N. Y. St. Rep'r «3; 5 8''*- N. Y. Supp. 499. Chronic alcoholism is also a sufficient cause for removal. People v Rohb, ' Ledbetter v State, 10 Ala. 241. 82 N. Y. St. Rep'r 945 ; 10 N. Y. Supp. * People v Police Com'rs, 20 Hun (N. Y.) 867. 333. 367 § 373. PUBLIC OFFICERS [Book III. that a burglary had been committed there, and broke open several boxes of cigars, and carried away the con- tents.' And it was said, in the latter case, that the board of police commissioners has power to examine into all offences committed by policemen, although they legally constitute crimes, and this for the purpose of purifying and disciplining the force. This decision was followed in a case, where the mayor removed a city officer, for having an interest in real property taken by the city, in violation of the statute, although the same statute made the act a misdemeanor." And so it was held, that a police officer was properly removed, for an assault on a citizen, when off duty and not in uniform.' § 373. Rulings as to other causes for removal of policemen. — It has also been held, that each of the follow- ing acts constitute " conduct unbecoming an officer," or " neglect of duty," for which a policeman may properly be removed, to wit: falsely stating that one of his fellow officers had been guilty of a gravely immoral act, and attempting to procure a statement to that effect to be published in a newspaper;* peddling cigars on commis- sion, although not while on duty;' failing to report an apparent crime, in violation of the rules of the depart- ment;" leaving his post, and remaining in a private house nearly one hour, and also using offensive language to another officer, and threatening him with his club and revolver;' absenting himself from his post to play cards during his term of patrol duty;° taking a gratuity from a person arrested, for favor or indulgence;" participating in ' People V French, 32 Hun (N. Y.) 112. N. Y. Siipp. 869. ' PeopleDMayor,etc.,62Hun(N.Y.)483. « People u Bell, 24 N. Y. St. Rep'r301; 3 = People V Carroll, 42 Hun (N. Y.) 438. N. Y. Supp. 812. > People V Yonkers Police Com'rs, 41 ' People v Bell, 3 N. Y. Supp. 314. Hun (N. Y.) 389. s people v Police Com'rs, 93 N. Y. 97. » People V Bell, 24 N. Y. St. Rep'r 114 ; 4 ' People v McClave, 31 N. Y. St. Rep'r 246; 9 N. Y. Supp. 263. 368 Chap. XVI. J EEMOVAL; SUSPENSION § 373. an altercation at a station house;' using unnecessary vio- lence towards a prisoner, amounting to maltreatment;' smoking, and drinking beer in a gate box (by a park policeman), while on duty." Closely akin to this kind of offence, is that of a violation by the officer of the rules established by the department; for instance, being absent without leave;' failing to arrest while off duty;' or being absent from his post while on duty." Firing a pistol in the air, to attract the attention of another officer, where the bullet hit a passing citizen, will not justify an officer's dismissal, on the charge of violating a rule against draw- ing a weapon on a citizen, except in self defence.' Many of the cases cited in the preceding section arose upon charges of violating the rules. § 373. Rulings as to other officers. — Where a statute provided for the appointment of town railroad commission- ers, and that if any comnaissioner should "refuse or wil- fully neglect to perform any part of the duties," his office should become vacant, and upon proof of the fact, to the satisfaction of the county judge, the latter should appoint a person in his place; and another portion of the statute provided, that the railroad stock to be acquired by the commissioners for the town, as provided in the act should, under certain circumstances be sold for cash; it was held that the vacancy could be created only by non- ' People V Martin, 39 N. Y. St. Rep'r 369 ; People V Mac Lean, 32 N. Y. St. Rep'r 8 N. y. Supp. 516, aff'd (no op'n) 121 838 ; 11 N. Y. Supp. 110 ; N. Y. 676 ; People v French, 31 N. Y. St. Rep'r 87 ; People V Police Com'rs, 32 N. Y. St. 9 N. Y. Supp. 262. Rep'r 824 ; 10 N. Y. Supp. 764 ; » p^gpie „ Bell, 29 N. Y. St. Rep'r 551 ; 8 » People V Bell, 32 N. Y. St. Rep'r 914 ; 10 N. Y. Supp. 748 ; N. Y. Supp. 829. 6 People v Mao Lean, 57 Hun (N.Y.) 141. ' People V Robb, 29 N. Y. St. Rep'r 59 ; 8 This case holds that the charge cannot N. Y. Supp. 418. be maintained, without proof that See also People v Robb, 31 N. Y. St. the officer was on duty at the time. Rep'r 640 ; 9 N. Y. Supp. 83L , People v Mac Lean, 29 N. Y. St. Rep'r ♦ Peopl e V Yonkers Police Com'rs, 181 108 ; 8 N. Y. Supp. 511 ; aSE'ji (no op'n) N. Y. 716, rev'g 55 Hun (N. Y.) 445 ; 121 N. Y. 704. 369 § 374. PUBLIC OFFICERS [Book III. feasance; and that an order of the county judge, declar- ing the offices of the commissioners vacant, and appoint- ing others in their places, on the ground that they had sold the stock on credit, recited a misfeasance, and was unauthorized by the statute.' A county treasurer is properly removed, for failing to make the returns or reports required by law.' § 374. Inefficiency or incapacity as cause. — While an officer may undoubtedly be removed for inefficiency or incapacity, yet he cannot lawfully be removed, where there are no specific charges against his own efficiency or capacity, but simply a charge that the duties per- taining to his office can be more efficiently performed by another person." A rule of the New York fire department, making its members responsible for any want of judgment or skill, or any neglect or failure, " which may cause unnecessary loss of life, limb, or property,^' does not authorize the removal of an officer for want of judgment or skill, which does not actually produce any loss.' Where an officer accepts an additional charge, involving duties of the same general character as those which he already discharges, although he may lawfully decline the added duties, yet if, having accepted them, he proves to be inefficient and negligent in the dis- charge thereof, he may be removed from his office for that cause; but he cannot be made responsible for the inefficiency or incapacity of assistants, whom he had no power to appoint, although he advised and instructed them in the performance of their duties. " Under a stat- ute, authorizing removal by the board of police, "pro- vided good cause shall be shown " .... "after an ' People V Burnside, 3 Lans. (N. Y.) li. ' People v Fire Com'rs 12 Hun (N. Y.) 500. s Randolph d Pope Co., 19 111. App. 100 ; < People v Fire Com'rs, 106 N. Y. 257, State V Hay, Wright (Ohio) 96. afE'g 43 Hun IN. Y.) 554. « People V Campbell, 82 N. Y. 247. 370 Chap. XVI.J EEMOVALJ SUSPENSION § 376. investigation by such board;" the removal of a policeman upon a report of physical incapacity, made by a physician, under the direction of the board of police commissioners, and after hearing testimony, is made for sufficient cause, and in proper form,' And a statute allowing a suspen- sion of pay for absence, on account of sickness, "physi- cal or mental," does not restrict a power, previously con- ferred, to remove at pleasure; so that a dismissal for mental incapacity, upon a physician's report, without notice or hearing, is vaJid." § 375. Grounds of removal of a sheriff. — A sheriff cannot be removed by information, for permitting a pris- oner to go at large, without paying the fine and costs; the proceeding must be by indictment.' The misconduct of a deputy sheriff is not a good ground for removing the sheriff, where there is no evidence that he sanctioned it.* § 376. Grounds of removal of clerk of court. — An over- charge of fees by the clerk of a court, not made corruptly, is not a sufficient cause of removal; but permitting a replevin bond to be altered, after it has been filed, or erasing the name of a person, returned by the sheriff on a panel of grand jurors, is sufficient." So an honest error in exacting his fees before performance of the service, or a refusal to obey a statute of doubtful constitutionality, or permitting a person to act as deputy without taking an oath of office, if done without corrupt motives, is not a sufficient cause for the removal of a clerk." But the fail- ure of a clerk to produce, at the prescribed term of the 1 state V Police Com're, 49 N. J. L. 170. * State v Budd, 39 La Ann. 232. See, however. Hazard's case, 2Rolle 11. , ^^^^ ^ B3^„y_ jja^j.^ (Uy j 229 ' People V Robb, 138 N. Y. 180 ; over- See also Comm. v Chambers, 1 J. J. ruling, gemble. People v Robb, 55 Marsh. (Ky.) 108 and ante, § 367. Hun (N. Y.) 425. See also, ante, §§ 357, . g^^j^jj^^ ^ Arnold, 3 Lltt. (Ky.) 309. The ^^- opinion, in this case, disposed of ' Raskins v State, 47 Ark. 343. ^^^^^ charges, aeriaUm. 371 § 378. PUBLIC OFFICERS [Book III. court, the receipt of the treasurer for money collected by him is a sufficient cause for his removal. ' § 377. Clerk allowing violation of fire regulations. — The chief clerk in the bureau of the inspector of buildings in the city of New York cannot rightfully be removed, by the fire commissioners, because he gave oral permis- sion to an applicant, to proceed with some additions and alterations in a frame building, until the inspector should decide upon the application, where the inspector had authorized him so to act in a case of urgency; although the power to grant the permission was vested in the inspector alone, and could not be delegated by him, and the permission given resulted in a violation of the fire regulations.' § 378. Reappointment or reelection a bar to removal. — The reappointment of an officer, with knowledge of his previous misconduct in a matter not involving moral delin- quency, is a condonation thereof, as respects the right of the appointing power to remove him therefor.' And it has been said, that a board of aldermen of a city, having power to expel a member for cause, cannot deprive him of his seat for a cause affecting his eligibility, which existed at the time of his election;* and that where a mem- ber has been expelled on the charge of receiving a bribe, if he is reelected, he cannot be expelled the second time for the same offence. ' Where the charter of a city provides, that the city council " shall be the sole judge of the elec- tion returns and qualification of its own members," a provision, which, as the court decided in a former case, makes them not only a board of canvassers, but a tribunal with power to go back of the canvass, and determine who 1 Sevier v Justices, Peck (Tenn.) 334. * Ellison v Raleigh, 89 N. C. 125. 2 People V Fire Com'rs, 96 N. Y. 672, ^^^ »1^° ^"^^^ " Raleigh, 89 N. C. 133. rev'g 49 N. Y. Super. Ct. 369. » State D Jersey City, 25 N. J. L. 536. ' State V Common Council, 9 Wis. 254. 372 Chap. XVI.] REMOVAL; SUSPENSION § 379. is entitled to be seated; they cannot, after having once investigated a contested election, and seated a member, order, at a subsequent meeting, a second investigation of the same matter. The right to reconsider is restricted, at least in such a case as this, to the same meeting where the result was determined, unless a motion to reconsider is then made, and held over for future action. ' IX. Legal sufficiency of the proceedings to remove an officer, where the removal can he made only for cause, and after notice and a hearing. (1.) General kules relating to proceedings of this character. §379. Proceeding judicial in character. — Where the statute provides that an oflRcer may be removed, but "only for cause and after an opportunity to be heard," the power thus granted " is not an arbitrary one, to be exercised at pleasure, but only upon just and reasonable grounds, and then not until after notice to the person charged, for in no other way could he have ' an opportun- ity to be heard.' The proceeding, therefore, must be instituted upon specific charges, sufficient in their nature to warrant the removal; and then, unless admitted, proven to be true." The person charged has also the right to " crossexamine the witnesses produced to support the charges, call others in his defence, and in these and other steps in the proceeding be represented by counsel. In no other way could the person sought to be removed have a due hearing, or 'an opportunity to be heard," and this condition must be complied with before the power of removal is exercised. It follows, therefore, that the pro- ceeding is judicial in its character, and as a necessary ' state V Caraden, 47 N. J. L. M; ex- town, 46 N. J. L. 102; Hadley plaining State v Foster, 7 N. J. L. t) Mayor, etc., 33 N.Y. 603; and Mor- 101, and following Lantz v Hights- gani;Quackenbush,22Barb.(X.Y.)72. 373 § 380. PUBLIC OFFICERS [Book III. consequence, is subject to review by a writ of certiorari issued by the supreme court, in the exercise of its superin- tending power over inferior tribunals and persons exercis- ing judicial functions." ' And, inasmuch as the proceed- ing is judicial, if one of the members of the board, who is interested in the subject of the complaint, is present, and his presence is necessary in order to make a quorxmi, the removal is void.' § 380. Proceedingnot a " common law trial." — But the proceeding is not a " common law trial, with the inci- dents and common law rights pertaining to such a trial, nor strictly speaking, a trial before a court." It is "an investigation required by the statute in such cases, to furnish information " to the removing power, upon which it may act in removing the person, against whom the charges are made.' The right to a fair trial does not give the party the right to insist on the formalities, necessary in criminal trials.' And the same precision and accuracy as upon a trial at common law is not required in these proceedings: it suffices that the substance thereof should be fairly preserved." "While the commis- sioners" (the police commissioners of New York city) " have not full power to discharge or dismiss an officer at their own "v olition, and without cause, or without a charge being made and a trial had, yet, in the exercise of their functions, they are, to some extent, vested with a discre- tionary power, which authorizes them, within established rules, to take action without restricting their proceedings ' People V Nichols, 79 N. Y. 583, rev'g 18 = Stockwell v Township Board, 22 Mich. Hun (N. Y.) 530. 341. See also, DuUam v Willson, 53 Mich. See, however, People v Police Com'rs, 392 ; 10 Hun (N. Y.) 106 ; afE'd 76 N. Y. 613, People V Fire Com'rs, 72 N. Y. 445 ; cited post, 8 390. People V Hannan, 56 Hun (N. Y.) 469 ; , p^^^j^ „ p^j.^^ ^^ ^^ ^_ ^ ^ People V Whittemore, 27 Week. Dig. (N. Y.) 213 ; ' ^**'® ^ Police Com'rs, 49 N. J. L. 170 ; And post. Division X. " People v MoClave, 123 N. Y. 512. 374 Chap. XVI.] REMOVAL; SUSPENSION § 381. to strict technical rules. They are a subordinate and an administrative tribunal, vested with disciplinary powers, and not a court, limited in its functions, within the pro- visions of the constitution. Their action must be con- sidered, having in view the special powers conferred, and the purposes for which their organization was intended, and not confined by the application of strict legal rules, which prevail in reference to trials and proceedings at common law." ' But there can be no removal, unless the charge is established by evidence, although the accused, without denying the charge, requested a post- ponement, which was denied." And the evidence must establish all the essential parts of the offence charged. Thus, an officer cannot lawfully be removed for absence from his post, while on duty, if there is no proof, that he was on duty at the time.' In determining the question of the guilt of the accused, the members of the board may not act upon their own knowledge, but must act upon the evidence only, although, in inflicting the punishment, they may take into consideration their knowledge of the officer.* (3.) Sufficiency of the notice and of the statement OF THE charges. §381. Actual service of notice, and certainty in charges required. — Under the New York city police act, it was held, that a member of the force, upon proceedings to remove him, is entitled to actual notice; and that where a notice was left at the station house with another officer, who promised to deliver it to him, and subse- quently made an affidavit of service upon him, on which ■he was removed, but in fact he never received it; the ' People V Police Com'rs, 93 N. Y. 97. See also, People v Ennis, 27 N. Y. St. ' People V Fire and Building Com'rs, 26 ^^P'"" ^'^• N. Y. St. Rep'r 648 ; 7 N. Y. Supp. = People v MacLean, 57 Hun (N. Y.) 141. 139. 4 People v French, 119 N. Y. 502. 375 § 382. PUBLIC OFFICERS [Book III, proceeding to remove him was erroneous, and would be set aside on certiorari.' Under the provision of the charter of New York city, forbidding the removal of any one of certain subordinate city oflficers " until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of explanation;" it is not requisite that the charges and specifications should be drawn with the formal exactness of pleadings in a court of justice; and the question, as to the reasonableness of the time allowed for explanation, rests to a great extent in the discretion of the head of the department; and where it does not appear that the discretion has been abused, a refusal to give further time furnishes no ground for a reversal of his decision. § 383. " Reasonable notice;" when specification suffi- cient. — In one case, where "reasonable notice" was required by the statute, it was held, that personal service of a notice,, "more than twenty -four hours" before the time appointed for the trial,- sufficed. With respect to the sufficiency of the statement of the charges, the court said : "It is not required that the commissioners should do more than specify in writing the offence with which the person is charged; and any language, which conveys that information, enables him to prepare for trial, and thus answers the purpose sought to be effected, by the pro- vision of law referred to." " A notice to the officer "to show cause why he should not be removed," specifying no cause, is a nullity." It is not necessary that the charge should be in the language of the statute, or of the rules established by the board under the authority of the statute; if the substance of the cause of the proposed ' People V Board of Police, 3 Abb. App. See also, People v Campbell, .50 N. Y. Dec. (N. Y.) 488. Super. Ct. 82. 2 People I) Thompson, 94 N. Y. 451, afl'g =■ People v Fire Com'rs, 77 N. Y. 153. 26 Hun (N. Y.) 28. , People v Fire Com'rs, 72 N. Y. 445. 376 Chap. XVI.] removal; suspension § 384. removal is stated, that suffices. ' It is only necessary that the charge should inform the officer of what he is accused, and that the facts charged should show a proper cause for removal; a reference to the statute is not required." But it must specify the cause with sufficient particularity, to enable the person to make his defence; a general charge of incompetency is not sufficient. " The best of clerks may become incompetent, with or without his fault, and such incompetency ihay be suffi- cient ground for removal, in order to protect the public interests; but he is entitled to have the kind and nature of his incompetency stated, and to have, upon such state- ment, an opportunity for explanation." ° The "cause of removal" of a county clerk, required by statute to be specified, is sufficiently stated in a charge, that he refused to affix the county seal to certain instruments, and in the order of removal, that he is removed for " official mis- conduct and wilful neglect of duty."* § 383. Removal for cause not specified invalid. — An officer cannot be removed, where charges are re- quired, for any offence not particularly stated in the charges." And where the charge was the use of vile language and neglect of duty, but the officer was con- victed of incompetency, and of using language unbecom- ing an officer while his trial was pending, his conviction and removal were reversed on certiorari. ' § 384. Non-verification of charge, when no defence. — Where the rules of the police department of New York city, established under the authority of the statute, required all charges against an officer to be verified by ' People V Carroll, 43 Hun (N. Y.) 433. 500, cited ante, § 374. ' People V Fire Com'rs, 3 N. Y. St. Rep'r * State v McCarty, 65 Wis. 163. lH; ■ • Comm. v Arnold, 3 Litt. (Ky.) 309. = People V Starks, 33 Hun (N. Y.) 384. , „ ^, „ , ^„ „ , _ , „. „ 1 10TI « People B Doolittle, 44 Hun (N. Y.) 293. See also, People v Fire Com'rs, 12 Hun o^i-.v- ^ « , v / 377 § 385. PUBLIC OFFICERS [Book III. affidavit, unless they were made by a captain; it was held that the objection, that the charges were made by a roundsman, and were not so verified, was untenable, if they were in fact made by a captain, although the roundsman appeared therein as the complainant. ' (3.) Taking the testimony, and other peoceedings UPON THE trial OB HEARING. § 385. Rights of accused at trial or hearing. — As we have already shown, where the statute requires, expressly or impliedly, a hearing or trial, as distinguished from a mere "explanation," the charges must be proven by testimony, and the accused has the right to crossexamine the witnesses produced to sustain them, to produce wit- nesses in his defence, and to be assisted by counsel. "_ It is not essential, that the testimony should be taken before all or a quorum of the members of the board, which is to act upon it; it may be taken by a stenographer, in the presence and under the direction of one of the mem- bers, and afterwards written out and submitted to the board, so as to form the basis of the judgment of the board;' and the validity of the removal is not affected by the fact that the member, under whose direction it was taken, was hot present, when it was so submitted and acted upon by the board; or that he had then ceased to be a member of the board.' ■ People 1) French, 23 N. Y. St. Rep'r People D Police Com'rs, 99 N. Y; 676 ; 384 ; 5 N. Y. Supp. 57. People v MeClave, 123 N. Y. 512. a ^nte S 379 Contra, apparently, Jacksonville « It was held, in one case, that the party A.llen, 25 111. App. 54. has the right to be represented by ' People v Police Com'rs, 98 N. Y. 332 ; counsel, even in making the " expla- People v Police Com'rs, 23 Hnn (N. Y.) nation" provided for by the New 351; York city charter. People u Police Com'rs, 27 Hun (N. Y.) In re Emmet, 65 How. Pr. (N. Y.) 266. 462 ; 8 People V Police Com'rs, 93 N. Y. 97 ; P«°Pl« ^ P°"<=« Com'rs, 31 Hun (N. Y.) People V Police Com'rs, 98 N. Y. 332 ; ^^■ 378 Chap. XVI. j REMOVAL; SUSPENSION § 386. § 386. Quorum of board only required; adjournments; refusing testimony. — It is not necessary that the testi- mony should be examined, and the decision pronounced, by all the members of the board; it suffices that the testimony should be laid before, and examined and acted upon by, the members constituting the board, at a regular meeting thereof, when a majority is present;' and the pro- ceedings may be adjourned, after a portion of the hear- ing is completed, and continued at the adjourned meet- ing." But where a statute provides that a city officer shall be subject " after hearing, to removal at any time by the mayor, by and with the advice and consent of the aldermen, for inefficiency or other cause;" the hearing must be by the mayor and aldermen, and not the alder- men alone; and both must find that sufficient cause for the removal exists, and must so adjudicate, before there can be a valid removal. ° On the hearing of charges against a policeman, where the commissioner in charge arbitrarily set aside a witness called by the officer, saying that he did not want his testimony; the order of removal was set aside; the commissioner in charge is not justified in arbi- trarily rejecting a witness, offered by the officer on trial, without hearing his testimony, because developments during the trial have affected his credibility.* But where a policeman on trial requested to be allowed to call certain witnesses, who were not present, and was informed by the commissioner that they would not be examined, it was held that no error had been committed, inasmuch as the persons named were not present." ' People V Police Com'rs, 99 N. Y. 676, the aldermen alone did not confer afl'g 31 Hun (N. Y.) 40. jurisdiction. ' Id. - People V French, 51 Hun (N. Y.) 427. » Andrews V King, 77 Me. 224. It was ' People v French, 25 N. Y. St. Eep'r also held, that the officer's consent 636 ; 6 N. Y. Supp. 213. that the hearing should be before 379 § 388. PUBLIC OFFICERS [Book III. § 387. Effect of board acting during officer's absence.— Under the provision of the charter of New York, requiring notice and an " opportunity of making an explanation," before one of certain officers can be removed, where such an officer was notified to appear, and show cause why he should not be removed; and while on his way to appear, at the time and place specified, for the purpose of making the explanation, he was suddenly attacked by a violent illness, rendering it impossible for him so to appear; and he immediately communicated this fact to the board, so that it reached the board before its meeting, but the board made no inquiry, and proceeded to remove him; the proceedings were reversed on 'certiorari, the court holding that the board had acted without allowing an opportunity for an explanation, within the true intent and meaning of the statute." (4.) Waiver of his rights by the accused, and effect THEREOF. § 388. What is a waiver ; when may be withdrawn. — It was held, in a case heretofore cited, that where an officer, who was entitled to notice and an opportunity to defend himself, before he could lawfully be removed, had received no notice; but was present when the resolu- tion of removal was presented, and, without asking delay, proceeded to defend himself, he had waived a formal notice, and the removal was valid." Substan- tially the same ruling was made, in a case, arising under the police act relating to New York city.° And in another case, it was stated, that the rule is, that where the removing officer or board has jurisdiction Of the charge, he or it obtains jurisdiction over the officer by his appear- ance, without objection, in answer to the charge. " Where, » People V Starks, 33 Hun {N. Y.) 384. aflv 39 Hun (N. Y.) SOT. " Willard's appeal, i R. I. 595, cited ' People v Carroll, 4S Hun (N. Y.) 438. onte, 8 364. See also, People v Campbell, 50 N. Y. 3 People V PoUce Com'rs, 102 N. Y. 683, Super. Ct. 82. 380 Chap. XVI. J REMOVAL; suspension § 389; upon charges being made against a policeman of the city of New York, he indorsed upon the notice and signed an admission of the truth of the charges, and a waiver of a trial thereupon; but before the day appointed for the hearing, he presented to the board a statement under oath, in which he withdrew the admission, and revoked the waiver, denied and fully answered the charges, and explained the circumstances under which the indorsement was made, but he did not appear upon the hearing; where- upon the board removed him, without other proof than his admission; it was held that he was not estopped by the admission and waiver, as the paper was not given to the board as his answer to the charge, and was revocable; and that he was therefore illegally removed. ' And an appear- ance by the accused before the commissioners, his failure to deny the charges, and his request of a postponement, which was denied, do not constitute such a waiver of his rights, that an order of removal, without taking any testimony, can be sustained." But a removal will not be set aside, ^ because the officer removed was required to testify against himself, if he objected to so d6ing, until a case had been made out against him.' And one who,- being charged with an offence, presents his resignation, cannot review upon certiorari the proceedings for his removal.' (5.) Decision, and effect thereof. § 389. When decision valid ; notice thereof required ; majority vote suffices.— It is necessary to cite here only a few of the authorities, relating to the decision and the effect thereof, because that subject has already been incidentally considered, in connection with the testimony and the hearing, and will be further considered in the next succeeding division of this chapter, relating to the ' People V Police Com'rs, 67 N. Y. 475, ' People v MoCIave, 123 N. Y. 512. rev'g 6 Hun (N. Y.) 239. « People V Martin, 32 N. Y. St. Rep'r 643 ; » Ante, 9 380. 10 N. Y. Supp. 511. 381 § 390. PUBLIC OFFICERS [Book III, review of the proceedings by the courts. It has been held, that where the board of police commissioners of the city of New York had passed judgment, removing a police- man, before the testimony taken before one of them had been written out and submitted to the board, the error is cured by subsequently causing the testimony to be written out and examined, and pronouncing judgment anew thereupon. ' Where the statute provides that a policeman shall be removed, on his attaining the age of sixty years, the board has no discretion, as in other cases, but it is bound to remove an officer who has attained that age.^ Where the board of fire commissioners sentenced an offending fireman " to be retired from active service, on an annuity of one hundred and fifty dollars;" it was held, that as the board had the power of removal, the sentence took effect as such, although, as it had no power to grant the annuity, that part of the judgment was void.^ And it has been held, that an officer i^ not deprived by his removal of power to execute his office, until he has had notice thereof;* and that, until such notice, he is entitled to his salary." Where power is given by statute to a city council to remove an officer, he may be removed by a majority vote.' § 390. Ruling where charge relates to member of board. — Where a policeman of the city of New York was tried, upon charges, preferred by his captain and sergeant, of neglect of duty in failing to arrest two men fighting in the street, and of conduct unbecoming an officer, in using improper language to police commissioner E, when ■ People V French, 2 N. Y. St. Rep'r 608. weight of authority. See ante, 6 354, ' People V French, 13 N. Y. St. Rep'r 584. ""fe. See also, ante, 8 348. 6 jarvia » Mayor, etc., 2 N. Y. Leg. Obs. » Wood V Mayor, etc., 44 N. Y. Super. Ct. ^^■ 821. « Madison v Korbly, 32 Ind. 74 j « Comm. V Slif er, 25 Pa. St. 23. This Madison v Kelso, 32 Ind. 79. ruling appears to be opposed to the 383 Chap. XVI.] REMOVAL; SUSPENSION § 392. reproved therefor; and, being brought before commis- sioner E for trial, he was sworn, and testified relating to the charges, but no other witnesses were examined; and, at a meeting of the board, commissioner E made his report, and the board found the officer guilty of neglect of duty in not arresting the men, commissioner E not voting; it was held that as E was not the complainant, and was not examined as a witness, he was not inca- pacitated from taking and reporting the testimony, and the removal was valid. And the court said, that even if E had been the complainant, as the act would have been in the line of his duty, that would not necessarily have disqualified him from investigating the charges. ' X. Review by the courts of the proceedings for the removal of an officer. § 391. General observations. — It is not the province of this work, to treat exhaustively of the functions of the different writs for the review of proceedings of this character; the cases where a particular writ will or will not lie; or the mode of procedure thereunder. These are regulated by rules applicable to this class of cases, in common with all others wherein remedies may be thus obtained, and form the subject of numerous treatises, devoted specially to those subjects. A glance at the different modes of review, and the citation of such decisions, as relate specially to the review of the pro- ceedings for the removal of a public officer, are all that will be required here. A more particular examination of the subject will be found in another chapter." § 392. Procedure where no jurisdiction to remove existed.— Where the proceedings to remove an oflBcer were wholly without jurisdiction, that is, where the • People V Police Com'rs, 10 Hun (N. Y.) ' Post, ch. 31. 106 ; aff'd on opinion below, 76 N.Y. 613. 383 § 393. PUBLIC OFFICERS [Book III. removal was made by an officer or a board not possess- ing the power to remove, or without notice or a hearing or the assignment of a cause, in a case where the statute requires the proceedings to be thus taken; and where the record of the proceedings shows upon its face such want of jurisdiction; the removal may in some cases be treated as a nullity, where its validity is collaterally called in question; or the proceedings may be reviewed, by an information in the ijature of a quo warranto,' or in some cases by the writ of mandamus," or the writ of prohibition. Where the order for the removal takes the form of an adjudication by a court of record, it may be reviewed by writ of error. ° It is not the province of a court of equity, to interfere, in cases involving merely the question of title to an office; and accordingly an injunction will not lie, either against the removing officer or body, to prevent the removal, or against the person appointed in place of the officer removed, to prevent him from exercising the duties of the office.' The most common mode of review- ing the proceedings for the removal of an officer is by cer- tiorari, which reaches, not only want of jurisdiction, but errors of law in the proceedings, as will be seen by the cases hereinafter cited. § 393. General rules as to power to review. — The gen- eral rules, respecting the power of the courts to review proceedings of this character, were well stated by the ' state V Lupton, 64 Mo. 415. But it has See also, Ex parte Thatcher, 7 111. 167. been said, that where the governor , callahan v State, 2 Stew. & P. (Ala.) removes an officer under a statute g^g he acts administratively, and his action cannot be reviewed by quo ' Muhler v Hedekin, 119 Ind. 481. warranto. State t, Hawkins, 44 Ohio See also, Beebe « Robmson, 52 Ala. 66 ; g^^ gg Delahanty v Warner, 75 111. 185 ; Tappan v Gray, 9 Paige (N. Y.) 507 ; 2 Hawkins 11 Kercheval.lO Lea (Tenn.)535. and post 8 850. Accord, Street v County Com'rs, 1 111. 25. 384 Chap. XVI.] REMOVAL; SUSPENSION § 394. court of queen's bench, in a case wherein it was ruled, that although the corporation of the city of London has, by statute, power to remove one of its officers holding a freehold office, the court of queen's bench will see that the power is exercised in a lawful manner, and will inter- fere if it should not be so. But if it is exercised in a law- ful manner, the court will not interfere, on the ground that it has not been wisely or discreetly exercised in ''he particular case; and if it is exercised upon an allegation of inability or neglect of duty, if such evidence was given, that a judge, upon an ordinary trial, might properly leave it to the jury to say, whether the accusation was made out, the court will not interfere. And the corpora- tion can lawfully appoint a committee to examine into the complaint, and to receive evidence and report there- upon, and may remove the officer upon the report and evidence." § 394. Courts will not interfere, if removing body vested with discretion. — It is well settled, that where the remov- ing officer or body is vested with a discretion in the par- ticular case, the courts will not interfere with the exer- cise of that discretion. Thus, as was stated in a previous section, where an officer is removed because his services are no longer needed, or to diminish the expenses, or for similar reasons resting in the discretion of the removing authority, he has no remedy in the courts." So, where the proceedings have been taken in accordance with the statute, and the cause alleged is one for which the officer may be removed, but the proof shows that the delin- quency was in a small matter; it is for the removing ■ Osgood V Nelson, 41 L. J., Q. B., 329 ; 5 pleasure, an officer can be removed L. R., H. L. 636. only upon charges, and after notice. See also, Reg. v Smith, 5 Q. B. 614. It Ante, § 362. will he noted here, that the com- j Ante 8 347. mon law rule, as laid down in the g^g ^ig(,_ people v Police Ccm'rB, 20 English courts, is that in all cases. Week. Dig. (N. Y.) 552 except where the office is held at 385 § 395. PUBLIC OFFICERS [Book III. oflRcers to determine, whether the delinquency was sufficiently grave to require the removal; and the courts will not interfere, because the punishment seems to be disproportionate to the offence. ' So, where the charter of a city provided, that the officers of the fire department should retain their positions, as long as they discharged their duties properly " and satisfactorily to the said fire commissioners," and should not be removed for political sentiments, etc., it was held, that the statute vested the fire commissioners with the sole power to determine, whether a cause for removal had occurred; that the mat- ter rested in their own discretion and judgment, which could not be reviewed by an appeal to any other tri- bunal; and that a mandamus to restore a removed officer will not lie, where the power of removal rests in discre- tion, or depends upon the exercise of personal judgment, even if it was exercised maliciously or dishonestly; but in the latter case the commissioners will be answerable for corrupt action.'' So, the courts will not review the exercise of a power of removal, where, in the opinion of the board vested with such power, the misconduct was sufficient for removal, "except in the clearest case of abuse." " §395. Sufficiency of an "explanation," is matter of discretion. — Under the provision of the charter of the city of New York, prohibiting the removal of certain sub- ordinates, until the person proposed to be removed, "has been informed " of the cause, and " has been allowed an opportunity of explanation;" it was held that the head of the department may remove a subordinate, after having heard his " explanation," if the same is not satisfactory ■ People V Grant, 12 Daly (N. Y.) 294. where the matter rested in discre- » State V Register, .59 Md. 283. *i°"' ^™ "*«'^ ^^ ^'^^ foregoing sec- Several other cases, where it was held ^^°'^^ °* ^''^^ chapter, that a decision could notbereviewed, ' State v Prince, 45 Wis. 810. 386 Chap. XVLJ REMOVAL; suspension §396. to him, without calling witnesses or allowing the sub- ordinate to do so; that he may exercise the power, upon facts within his own knowledge, or upon information derived from others; that his decision respecting the removal is final and conclusive, and cannot be reviewed by the courts; and that the question, whether he gave a reasonable time to the subordinate for his explanation, and the extent to which the explanation should be allowed to go, rested to a great extent in his discretion, and could not be reviewed by the courts, in the absence of proof that the discretion was abused.' § 396. Power of removal " for cause " vests discre- tion. — So it has been held, that where a statute gives a power of removal "for cause," without any specification of the causes, this power is of a discretionary and judi- cial nature; and unless the statute otherwise specially provides, the exercise thereof cannot be reviewed by any other tribunal, with respect either to the cause, or to its sufficiency or existence, or otherwise.' Under similar statutory provisions, and even in some cases where the statute specifies the causes of removal, it has been ruled, in other American decisions, that the removing authority is the sole and exclusive judge of the cause, and the sufficiency thereof; and that the courts cannot review its decision in any case where it had jurisdiction.' ' People V Thompson, 9i N. Y. 451, aff 'g 26 Hun (N. Y.) 28. ' People V Stout, U Abb. Pr. (N. Y.) 17 ; 19 How. Pr. (N. Y.) 171. Approved and followed, People v Bearfleld, 35 Barb. (N. Y.) 254. A more restricted meaning to the words "for cause," where the statute also provides for a notice and a hear- ing, has been given in subsequent decisions in the same state. See ante, § 366. I Patton V Vaughan, 39 Ark. 211 ; United States u Oliver, 6 Mackey (D. C.) 47; Oliver v Americus, 69 Ga. 165 ; State V Ramos, 10 La. Ann. 420 ; State V Doherty, 25 La. Ann. 119 ; Hamtramck v Holihan, 46 Mich. 127; Gager v Supervisors, 47 Mich. 167 ; Hoboken v Gear, 27 N. J. L. 265 ; State V Hawkins, 44 Ohio St. 98. 387 § 397. PUBLIC OFFICERS [Book III. § 397. Courts have jurisdiction to review, although body made judges of election, etc., of members.— It has been held, that where a statute declares that the common council of a city, or any other body of ofBcers, shall be the "judges of the qualifications, elections, and returns of their own members," the body referred to has exclusive authority upon that subject, and that the courts have no jurisdiction to inquire into the qualifica- tion, election, etc., of any member thereof.' But the weight of authority is decidedly in favor of the rule, that such a provision is cumulative only, and does not ^ust the courts of their power to determine any such contro- versy, notwithstanding the decision of the body so empowered, unless the statute expressly declares that the body shall be exclusively or finally the judge of the con- troversy." And it was ruled, that where a statute, makes the council of a municipal corporation the exclu- sive judge of the election of its members, an information in the nature of a quo warranto will lie against a person, who assumes to exercise the office of member of the council, from a ward having no lawful existence, or under an election held without lawful authority. " Gen- . erally, the state constitution declares that each house of the legislature shall have such final and exclusive power; but in the absence of any provision on the subject, or where there is no express declaration that the power shall be exclusive, public policy requires that those bodies should constitute exceptions to the rule, that the courts may review their proceedings, in determining the ' People V Metzker, 47 Gala. 524 ; State V Kempf, 69 Wis. 470. People V Harshaw, 60 Mich. 200. Accord, People v Bingham, 82 Gala. 238, ' People 1) Londoner, 13 Golo. 303 ; explaining, and practically overrul- B'd of Aldermen v Darrow, 13 Colo. 460 ; ^"S- ^^°^^^ " Metzker, 47 Gala. 524, State V Gates, 35 Minn. 385 ; <='*«'! ^^ t^e ^^ preceding note. People V Hall, 80 N. Y. 117 ; ' State v O'Brip.n, 47 Ohio St. 484 ; MoVeany v Mayor, etc., 80 N. Y. 185, State v Kearns, 47 Ohio St. 566. and cases there cited ; 388 Chap. XVI. J REMOVAL; SUSPENSION §398. title of a person to a seat therein. ' But such a constitu- tional provision does not prevent the legislature from inflicting by statute a disqualification to hold office, as a punishment for crime." § 398. What considered upon proceedings to review. — It has been settled, by numerous American decisions, chiefly those which have been made by the courts of New York, under the statute regulating the removal of municipal officers, that where an officer can be removed only upon charges, and after notice and an opportunity to be heard, the proceedings to remove him are judicial in their character, and are subject to review by a writ of certiorari, issued out of the supreme court in the exer- cise of its general superintending power over inferior tribunals, and persons exercising judicial functions.^ Upon such a certiorari, only errors of law can be con- sidered, which materially affect the rights of the parties.* Where, therefore, the cause assigned for removal was legally sufficient, and there was sufficient evidence in support of it, to sustain the verdict of a jury, involving the conclusion that it had been maintained, the courts will not interfere with the decision; butif the cause assigned was legally insufficient, or the evidence was insufficient to sustain the verdict of a jury, the court will ' Hnghes V Felton, 11 Colo. 489; State V Tissot, 40 La. Ann. 598 ; In re MoNelU, lU Pa. St. 235. See also, Cooley Const. Lim., 5th ed., 159 (*1(S), and cases there cited. » Barker v People, 3 Cow. (N. Y.) 68C. » People V Nichols, 79 N. Y. 582, rev'g 18 Hun 530. Accord, People v Board of Police, 39 N. Y. 506 : People ti Board of Police, 09 N. Y. 408 ; People II Board of Police, 72 N. Y. 415 ; People D Fire Com'rs, 73 N. Y. 445 ; See also, Asbell v Brunswick, 80 Ga. 503, and cases cited in the next two notes. People V PoUce Com'rs, 93 N. Y. 97. See also, People v Board of Police 69 N. Y. 408, and other cases cited in the next note. The removed oflBcer cannot, on a cer- tiorari, question the constitutional- ity of the statute creating the removing board. State v Newark, 49 N. J. L. 170. 389 § 399. PUBLIC OFFICERS [Book III. set aside the decision, and restore the officer. ' But the officer is entitled to such a review, only in the discretion of the supreme court, which may grant or refuse the certiorari at its discretion, and will refuse it -in case of an unreasonable delay in applying for it; and the exercise of its discretion respecting the same cannot be reviewed by the court of appeals." XL Eemoval by impeachment. § 399. Constitutional provisions. — This mode of re- moval from office is provided for and regulated by the constitution of the United States, and that of each of the states of the union. The former confers upon the house of representatives "the sole power of impeachment,"" and upon the senate " the sole power to try all impeach- ments;" and provides that the senate, when sitting for that purpose, " shall be on oath or affirmation;" that the chief justice shall preside, when the president of the United States is tried; that no person shall be convicted, without the concurrence of two thirds of the members present; that judgment " shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit, under the United States;" but the party convicted shall, neverthe- less, be liable and subject to indictment, trial, judgment, and punishment according to law;* that a case of imneach- > People V Board of Police, 39 N. Y. 506 ; People v Police Com'rs 10 Hun (N. Y.) People V Board of Police, 69 N. Y. i08 ; 106, affl'd 76 N. Y. 613 ; People V Fire Com'rs, 77 N. Y. 153 ; People v Weygaut, 14 Hun (N. Y.) 546 ; People V Campliell, 82 N. Y. 247 ; People v French, 52 Hun (N. Y.) 90. People V Fire Com'rs, 82 N. Y. 358, See also, State t; Lamantia, 33 La. Ann. rev'g 9 W. D. (N. Y.) 390 ; 446, and post, § 816. People V Jourdan, 90 N. Y. 53 ; , p^ppie „ jire Com'rs. 77 N. Y. 605. People V Police Com'rs, 93 N. Y. 97 ; pg^pie ^ Police Com'rs, 82 N. Y. 506. People D Thompson, 94 N. Y. 451, aflE'g g^^ ^^ ^ g g^g 26Hun(N.Y.)28; People II Fire Com'rs, 100 N. Y. 82 ; ' *^™s*- ^- S" -*^- ^' * ^^ 4 Id., § 3. 390 Chap. XVI.] removal; suspension § 400. ment is excepted from the general power of the president, to grant reprieves and pardons for offences against the United States;' and that " the president, and vice-presi- dent and all civil officers of the United States, shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misde- meanors."" Provisions nearly identical in substance, except that the governor is substituted for the president, and the upper and lower Jiouses of the legislature, are substituted for the corresponding houses of congress, and some convenient changes in details are made, are to be found in the constitution of every state in the Union. The principal variations relate to the constitution of the court for the trial of impeachments, which, in New York and several other states, consists, in addition to the sena- tors, of the lieutenant governor and the judges of the court of appeals.^ But the lieutenant governor cannot sit in the court, where the governor is impeached. The constitution of New York further provides, that no judi- cial officer shall exercise his office, after articles of impeachment against him shall have been preferred to the senate, until he shall have been acquitted." § 400. Effect of such provisions upon other methods of removal. — From the nature of the case, there are but few decisions of the courts, respecting proceedings for impeach- ment, and the effect thereof. These are confined to the statement of the rule, that the constitutional provisions for impeachment, do not affect other provisions of the constitution, for the removal of an officer by the governor, or other public anthority, or the power of the legislature to provide for such removal; and that a removal in either mode is valid, although for a cause which would render ' Const. U. S., Art. 3, 8 2. » Const. N. Y., Art. 6, g 1. » Id., 8 i. * Id. 391 § 403. PUBLIC OFFICERS [Book III. the officer liable to impeachment, and to conviction there- upon. ' XII. Suspension of a public officer. § 401. English rule; suspended officer entitled to salary. — The questions relating to the suspension of an officer are so intimately connected with those relating to his removal, that they will be considered here in con- clusion of this chapter. In England, it is regarded as a prerogative of the crown by letters patent to suspend a public officer, although the office was granted for life." And it was ruled by Lord Chancellor Nottingham, that where an officer is suspended by the crown, he is entitled to receive his salary, but not to exercise the functions of his office. * In the king's bench it was said by Lord Holt, that suspension from a public office does not create a vacancy in the office; it is only an impediment to the officer enjoying any benefit from it; but all acts required to be done by such officer must still be done by him, in order to give them vitality.' § 403. American rule; legislature may provide if constitution silent. — No American case has been found by the author, which recognizes such a prerogative as existing, either in the president of the United States, or in the governor of a state. In truth, the subject of the suspension of public officers, is in most cases regulated by constitutional or statutory provisions. In the absence ■ AnU, § SSe; McComas v Krug, 81 lud. speaker of the house of representa- 327 ; tives of a state, is not a state officer, Comm. D Harriman, 134 Mass. 314 ; and, therefore, is not liable to im- In re King, 25 N. Y. St. Rep'r 793 ; 6 peachment ; and that he may be N. Y. Supp. 420; removed by the vote of the house. Barker v People, 3 Cow. (N. Y.) 686. In re Speakership, 15 Colo. 520. See, however, Comm. v Williams, 79 s glingsby's case, 3 Swanst. 178. Ky. 42. In a case, published while this work was passing through the ' Slingsby's case, 3 Swanst. 178. 1 press, it has been held, that the * Philips ti Bury, 3 T. R. (D. & E.) 346, per Holt, Ch. J., p. 351. 393 Chap. XVI.] REMOVAL; suspension ■ § 403. of any express constitutional restriction on the power of the legislature, it may provide by statute for the suspen- sion of a public officer, by some other officer or board. Such an exercise of legislative power is not deeraed a violation of a constitutional provision, iixing the term of an officer;' and the distribution of legislative, executive, and judicial power by the constitution, forms no objec- tion to conferring upon the judges of a court the power to suspend a sheriff,' But where the constitution creates an office and fixes its term, and designates the mode of removal of the incumbent, the legislature has no power to provide for his suspension for any other reason, or in any other mode.' § 403. Whether power to remove includes power to suspend. — There is a conflict of opinion, in some of the American cases, upon the question, whether, in the absence of an express constitutional or statutory provi- sion on the subject, the power to remove an officer, vested in another officer, or in a board, implies that such officer or 'board possessess the power to suspend him, pending proceedings for his removal. It was held, in Missouri, that a power to remove from office necessarily includes a power to suspend from office; and where the charter of a city conferred upon the mayor and city council power to remove all city officers; and further provided that the mayor should have power to nominate, and with the consent of the board of aldermen, "to appoint all city officers, not ordered by this act to be otherwise appointed; also to suspend, and with the con- sent of the board of aldermen to remove, any city officer, except those elected by the people;" that the city council might, by ordinance, confer upon the mayor power to » Allen I) state, 32 Ark. 241. Lowe i) Comm., 3 Met. (Ky.) 237 M =^ * D- V .1 o„T » ^ns State u Wiltz, n La. Ann. 439. " State i; Richmond, 29 La. Ann. 705. 398 § 404. PUBLIC OFFICERS [Book III. suspend a city officer elected by the people.' And, in New Hampshire, the supreme court held, that the suspen- sion of an officer, by the authority vested with power to remove him, was valid without express statutory author- ity to suspend, saying: " It does not seem to require any argument to show that the power to remove must include the power to suspend." " § 404. Weight of authority sustains negative. — But the weight of authority in this country sustains the doctrine, that the power to suspend an officer does not follow from the grant of a power to remove him, or even from general words in a statute, which may refer to something besides removal. Thus, it has been held that a statute, providing that the mayor of a city " shall have a superintending control of all the officers and affairs of the city," and " shall cause all subordinate officers to be dealt with promptly for any neglect or violation of duty," dc^es not confer upon him the power to suspend the city engineer.' And the supreme court of New Jersey has ruled, that where the charter confers upon the common council of a city, power to expel one of its members for a specified cause, that does not confer the power to suspend him, by passing a resolution that he be not appointed upon any committee, and that he be not allowed to vote, debate, or take part in any of the proceedings before the council; because that would leave his constituents unrep- resented, and without remedy. "Expulsion," said the court, " makes a vacancy that can be supplied by a new election. Suspension from the duties of the office creates no vacancy; the seat is filled, but the occupant is silenced. The charter vests no such power in the council; it would be extraordinary if it did. The power is to expel, not to ' state » Lingo, 26 Mo. 496. citing Dillon Mun. Corp., 4th ed.. See also, State v Police Com'rs, 16 Mo. § 151, note. -*-PP- *^- ' Metsker v Neally, 41 Kan. 122. ' Shannon v Portsmouth, 54 N. H. 183, 394 Chap. XVI.] REMOVAL; suspension § 404. suspend." ' The court of appeals of New York followed this ruling, and extended the doctrine to the suspension of an oflScer by a board authorized to remove him, in a very recent case, in which the court held that the com- missioners of excise of the city of New York have not the power to suspend, although they have the power to remove, an inspector of excise. Peckham, J., delivering the opinion of the court, expressed his dissent from the rule laid down in Missouri and New Hampshire, and his concurrence with the ruling in New Jersey. He said: " There is nothing in the nature of the power to remove or expel, which necessarily and in all cases would include a power to suspend; for, in some instances, of which the above case is a good example, the power to suspend would seem to be very different in its nature from the power to remove, and not necessarily a minor power included in the power of expulsion Whether the power to remove includes the power to suspend, must, as it seems to us, depend, among other things, upon the question, whether the suspension, in the particu- lar case, would be an exercise of a power of the same inherent nature as that of removal, and only a minor exercise of such power; or whether it would work such different results, that no inference of its existence should be indulged in, based only upon the grant of the specific power to remove The power to remove is the power to cause a vacancy in the position held by the person removed, which may be filled at once; and if the duties are such as to demand it, it should be thus filled. The power to suspend causes no vacancy, and gives no occasion for the exercise of the power to fill one. The result is, that there may be an office, an officer, and no vacancy, and yet none to discharge the duties of the office. . , . We do not go to the extent " state V Jersey City, 25 N. J. L.'536. 395 § 405. * PUBLIC OFFICERS [Book III, of saying that, in no conceivable case, can the power to suspend be inferred from, the grant of the power to remove. There may be cases, where such an inference, arising from the general scope and nature of the act grant- ing the power, would be so strong as to compel recognition. We think there is no such inference to be drawn in the case before us."' § 405. When mayor or common coun '11 may suspend. — Where a statute conferred upon the mayor of a city the power to suspend any officer of the city for ten days, for specified reasons; and directed him, immediately upon such a suspension, to convene the common council, which should have power to determine the charges, and, if they should be determined to be true, to remove the officer by a two thirds vote; and a statute was afterwards enacted, conferring upon the supreme court the power of removal of a particular officer of the city; it was held that the subsequent statute abrogated the mayor's power of sus- pension of that officer. ° And where the mayor of a city is empowered by a statute to suspend an officer for caus.e, and temporarily to fill his place, subject to the action of the common council; the council may act upon any infor- mation attainable by it, and its disapproval brings to an end the powers of one temporarily so appointed by the mayor. ' Where the constitution of a state provides that an officer shall be suspended, in case he is impeached, until his acquittal; it is necessary, in order to effect a suspension for that reason, that articles of impeachment should be presented to and received by a senate, composed of a constitutional quorum." ' Gregory v Mayor, etc., U3 N. Y. 416, ' Peoples Crissey, 91 N. Y. 610, at p. 637. afC'g U N. Y. St. Rep'r 506. ^ gj^^^ ^ Heiumiller, 38 Ohio St. 101. See also, Emmitt v Mayor, etc., 38 N. y. St. Bep'r 9W. ' In re Executive Communication 12 Fla. 653. 396 Chap. XVI.J REMOVAL; suspension § 406. § 406. Powers of locum tenens; suspended officer not entitled to salary. — One appointed under the laws of Louisiana, in place of an assistant secretary of state, who has been suspended by the governor, is clothed only with ministerial duties, such as arise in the usual routine of his oflfice; and he cannot either suspend or remove another officer, as the suspended officer might have done. ' Where the charter of a city confers upon a board of officers the power to suspend any of the officers of the city, whenever the state of the funds or the public interest so requires, such a power is discretionary, and the exercise thereof cannot be reviewed by the courts." Such a provision implies that the salaries of the suspended officers are not to be paid during the suspension; and indeed, the courts of this country have not followed the ruling of Lord Chancellor Nottingham,' that a suspended officer is entitled to his salary, during the period of his suspension. The American authorities upon that subject are cited in a subsequent chapter.* I state V Herron, 24 La. Ann. 433. ' Ante, 8 401. » People V Police Com'rs, 20 Week. Dig. * Post, ch. 21, § 607 (N. Y.) 552. 397 PUBLIC OFFICERS [Book III, CHAPTER XVII RESIGNATION; FORFEITURE CONTENTS /. Modes of resignation. Sec. 407. Resignation may be express or implied; a resignation by implication is equivalent to a forfeiture; where it occurs. II. Express resignation. 408. Unless otherwise provided, resignation and acceptance may be by parol, and resignation must be .made to appointing power. 409. Held, in England, that officer cannot resign without con- sent of appointing power. 410. American cases, holding that he may resign at pleasure. 411. Other American cases, following the English I'ule. 412. The same subject; rulings of the U. S. supreme court. 413. Officer who has not entered upon duties, or who is ineligible, cannot resign. 414. Held, in England, that a resignation cannot be withdrawn; so held also in the U. S. where the resignation is com- plete. 415. But prospective resignation may be withdrawn, unless successor appointed; and even then, if delivered with- out the officer's consent. 416. Resignation of a lunatic. III. Resignation by implication ; forfeiture. (1.) By accepting an incompatible office. 417. This subject considered in chapter 4. (3.) By nonuser, including absence from the place of performance. 418. English rule as to forfeiture by nonattendance, etc. 419. American adjudications on this uestion. 430. The same subject. 398 Chap. XVII.] RESIGNATION; FORFEITURE § 407. Sec. 431. Where a person is acting in office, forfeiture can be declared only upon a judicial determination. 423. Abandonment or nonuser must be total; instances. 423. Bule, where lieutenant governor is authorized to act, in the absence of the governor. (3.) By ceasing to he a resident of the district; or, in case of a state officer, of the state. ■ 424. Generally statute, etc., provides for such forfeiture. 435. In such case, no adjudication necessary; but temporary absence creates no forfeiture. 436. Rule where county, etc., is redistricted, or county bound- aries changed, so as to affect officer's residence; where the number of a judge's circuit is changed. (4.) By refusal to accept the office. 437. Where the legislature transferred a person from one office to anether, he cannot claim the new office, after long refusal to accept it. 428. Express refusal to qualify vacates office; where new bond 1 to ordinary required, or office forfeited, it is no excuse that ordinary's office was vacant. (5.) Miscellaneous constitutional or statutory causes of forfeiture. 429. Statutory forfeiture for failure to keep office open during certain hours, enforceable only by judgment; statutory forfeiture not prevented, because act made a mis- demeanor. 430. Statutory forfeiture for conviction for felony, not avoided by a pardon. I. Modes of resignation. § 407. Resignation may be express or implied.— The general rules, relating to the modes of resignation of an office, are briefly these. An office may be resigned, either expressly or by implication. ' A resignation by implica- tion, or, what is practically the same thing, a forfeiture ' Van Orsdall 1) Hazard, 3 Hill (N. Y.) See also, Dillon Mun. Corp., tth ed., 243, per Cowen, J., p. 847. 8 224 (*163.) 399 § 409. PUBLIC OFFICERS [Book III. of ail office, occurs where the incumbent commits some act or omission, which clearly indicates an intent to abandon the office, or which disqualifies him from con- tinuing to hold it. Each of these modes of resignation will be considered in its order. II. Express resignation. § 408. How and to whom resignation may be made. — It has been said : "Where no particular mode of resignation is prescribed by law, and where the appointment is not by deed, it may be by parol; as by the incumbent declaring to the appointing power that he resigns his office, or will continue to serve no longer, and requesting an accept- ance of his resignation. Nor need the acceptance be in writing. It is enough that the office be treated as vacant; for instance, by appointing a successor." ' A resig- nation in writing is good without a seal, although the statute requires the appointment to be under seal." Where the statute is silent on the subject, a resignation must be made to the appointing power; or, if the office is elective, to the power authorized to call an election to fill the vacancy.^ § 409. Held, in England, that officer cannot resign without consent of appointing power. — At common law, as we have shown in a previous chapter,' a public office is regarded as a public burden, which it is the duty of • Van Orsdall t) Hazard, 3 Hill (N. Y.) People t) Metropolitan Board of Police. 243, per Cowen, J., p. 248. 26 N. Y. 316, rev'g 35 Barb. (N. Y.) Accord, Rex v Rippon, 1 Ld. Ray. 563 ; 644 ; 14 Abb. Pr. (N. Y.) 151 ; 2 Salk. 433 ; Edwards i) United States, 103 U. S. 471. Reg. V Lane, 2 Ld. Ray. 1304 ; Fortescue, ^ Gilbert v Luce, 11 Barb. (N. Y.) 91. 275; 11 Mod. 270; State V Ancker, 2 Rich (S. C.) 245; " ^^'^ ^''^d''" " hazard, 3 Hill (N. Y.) Barbour t, United States, 17 Ct. of CI. ^43, per Cowen, J., p. 247. /TT a Mjti See also, Edwards i) United States, 103 (L.S.)149. U S 4n See also, Jennings's case, 12 Mod. 402 ; ^ . .s. ■.■ *. State V Allen, 21 Ind. 516 ; * Ante, ch. W. People V Albany C. P., 19 Wend. (N.Y.) 27; 400 ( Chap. XVII.] RESIGNATION; FORFEITURE § 410, every good citizen to bear for the public benefit, and which, if he refuses to serve, he may be compelled to accept by mandamus, besides being subject to indictment, and, in the case of certain municipal offices, to a penalty. It necessarily results from this doctrine, that a person, who has once taken the burden of a public office upon himself, cannot lay it down at his own pleasure. Accord- ingly it has been held, that at common law, a public officer cannot resign his office without the consent of the appointing power, manifested, either by an express acceptance of the resignation, or by the appointment of another in his place. ' § 410. American cases, holding that officer may resign at pleasure. — The American cases upon this question, as upon many others relating to public offices, are in con- flict. The doctrine, that a public officer may resign at pleasure, without the consent of the appointing power, was first laid down in broad terms by Mr. Justice Mac Lean, in a case arising in the United States circuit court. In an action upon the official bond of one Fogg, a coUec- ■ tor of the United States internal revenue, the defence was that the breach occurred after the collector had pre- sented his resignation to the president. Mr. Justice Mac Lean said: " There can be no doubt that a civil officer has a right to resign his office at pleasure, and it is not in the power of the executive to compel him to remain in office. It is only necessary that the resignation should be received, to take effect, and this does not depend upon the acceptance or rejection of the resignsCtion by the president. And if Fogg had resigned absolutely and un- conditionally, I should have no doubt that the defendant could not be held bound subsequently as his surety." But inasmuch as the resignation was to take effect, by its ' Rex V Lane, 2 Ld. Ray. 1304 ; Edwards v United States, 103 U. S. 471. Van OrsdaU v Hazard, 3 HUl (N.Y.) 243 ; 401 § 411. PUBLIC OFFICERS [Book III. terms, when a successor should be appointed, and on successor was appointed for more than four months afterwards, the court intimated that, if. the question had been properly presented by the bill of exceptions, the surety would have bound, as long as the collector con- tinued in office. ' Although these remarks were obiter, the doctrine thus laid down has been recognized and fol- lowed in other American cases, holding that an absolute and unqualified resignation by a' public officer, in the absence of any statute to the contrary, vacates the office, from the time when the resignation reaches the proper authority, without any acceptance, express or 'implied, on the part of the latter;'' or even, it was said in one case, if the appointing power expressly refuses to accept it.° In another case it was held, that an unconditional resig- nation is complete, from the time when it is transmitted; so that if, before the officer empowered to fill the vacancy acts upon it, the resigning officer gives him notice that it is withdrawn, his subsequent appointment of another is valid.* § 411. Other American cases, following the English rule. — But in other American cases, the English rule has been recognized and followed. Thus, in the supreme court of New Jersey, a mandamus was granted to com- pel an overseer of highways to perform a duty of his office, although he had previously tendered his resign- ation to the township committee, and it had been accepted by thena, but at a meeting which was not legally con- ' United States u Wright, 1 McL. (U. S.) Conner v Mayor, etc., 2 Sandf. (N. Y.) 509. 355, per Sandford, J., p. 371 ; s. c, on ^People V Porter, 6 Gala. 26 ; ^^PP^^l' ^ N- Y. 285, per Ruggles, Oh. J., State DHauss, 43 Ind. 105; P-^^' LeechD State, 78 Ind. 570 ; Olmsted D Dennis, 77 N. Y. 378 ; Gates D Delaware County, 12 Iowa 405 ; Bunting v Willis, 27 Gratt. (Va.) 144. ■State V Glarke,,3 Neva. 566 ; , » State v Mayor, etc., 4 Nebr. 260. Gilbert C-Uioe, lOarb, (N. _Y.) 91 ; . gj^j.^ „ j-j^j^^ ^g ^^_ ^_ 402 Chap. XVII.] RESIGNATION: FORFEITURE § 411. vened, and in the absence of one of the members. The chief justice said: "If he" (the officer) "possesses the power to resign at pleasure, it would seem to follow, as an inevitable consequence, that he cannot be compelled to accept the office. But the books seem to furnish no warrant for this doctrine. To refuse an office in a public corporation, connected with local jurisdiction, was a com- mon law offence, and punishable by indictment." Com- menting upon the remarks of Mr. Justice Mac Lean, in United States v. Wright, the chief justice added: "It can hardly be supposed, that it was the intention of the judge to apply this remark to the class of officers, who are elected by the people, and whose services are absolutely necessary to carry on local government; or that it was the purpose to brush away, with a breath, the doctrine of the common law, deeply rooted in public policy, upon the subject. However true the proposition may be, as applied to the facts then before the circuit court, it is clearly inconsistent with all the previous decisions, if extended over the class of officers, where responsibility is the subject of consideration." ' And in the supreme court of North Carolina it was said: "An officer may certainly resign, but, without acceptance, his resignation is nothing, and he remains in office. It is not true, that an office is held at the will of either party. It is held at the will of both, . . ., Every man is obliged, upon a general principle, after entering upon his office, to dis- charge the duties of it, while he continues in office; and he cannot lay it down, until the public, or those to whom the authority is confided, are satisfied that the office is in a proper state to be left, and the officer discharged." " > state V Ferguson, 31 N. J. L. 107. This court in Hoboken v Gear, 27 N. J. L. decision necessarily restricts the 265. broad language as to the right of an , jj^j^g ^ Henderson, 4 Dev. (N. C.) 1, per officer to resign at will, used by the Ruffln, Ch. J., p. 29. 403 § 413. PUBLIC OFFICERS [Book IIL Other decisions of the American courts, cited in the note, affirm the same general rule. ' § 412. The same subject ; rulings of the U. S, supreme court. — Indeed, the doctrine, promulgated by Mr. Justice Mac Lean in United States v. Wright, has been practically overruled by the United States supreme court, in a more recent decision. There the question was, whether a town supervisor in Michigan, whose resig- nation had been presented to the township board, but as far as it appeared in the proofs, had not been accepted by them, no successor having been appointed by the board, could be compelled by mandamus to execute a duty of the office. The court fully discussed the cases on both sides, and held, that inasmuch as no evidence had been presented, that the common law rule had been changed in Michigan by statute, but on the contrary the rule seemed to be confirmed by a statute, providing that an officer should hold over until his successor should be chosen and should qualify; the resignation was a nullity, and the mandamus was properly issued.^ A similar rul- ing had been previously made by the same court, as to the effect of a statutory provision of Illinois, that an officer should hold over till the selection and qualification of his successor, which provision the court held, had the effect to retain the resigning officer in office, until such selection and qualification, although his resignation had been accepted by the proper authority. ° § 413. Officer who has not entered upon duties, or who is ineligible, cannot resign. — One elected to an office can- ' Waycross City Council, v Youmans, upon a constitutional or statutory 85 Ga. 708 ; provision, requiring the acceptance State V Clayton, 37 Kan. 442 ; of a resignation, or that an officer Rogers v Slonaker, 32 Kan. 191 ; shall serve, until his successor is State V Boeker, 56 Mo. 17. appointed. In People v Supervisor, 100 111. 332, 2 Edwards D United States, 103 U. S. 471. and in Jones i) Jefferson, 66 Tex. 576, the decision, in ea^h case, turned ' badger v United States, 93U. S. 599. 404 Chap. XVII.] RESIGNATION; FORFEITURE § 415. not resign it, until after he has qualified, and entered into possession of it. ' A resignation implies that the person resigning has been elected to the office, which he resigns; a man cannot resign that to which he is not entitled, and which he has no right to occupy." And one who is legally ineligible, but receives a majority of the votes for presidential elector, cannot, by declining the appoint- ment, create a vacancy, which the governor can fill, under a general statute relating to filling vacancies, because he has not been lawfully chosen.' § 414. English and American cases, as to with- drawal of resignation. — It was held, by the English court of queen's bench, that under the municipal corporation act of 1882 (45 and 46 Vict., ch. 50, § 3^6), allowing a persdn elected to an office to resign it at any time, by a writing signed by him and delivered to the town clerk, and on payment of the fine provided for nonacceptance, the resignation is com- plete, when the writing is delivered to the town clerk, and the fine paid; and it cannot afterwards be withdrawn, even with the assent of the corporation.* So, it has been held in several American cases, that an immediate and unqualified resignation, which has been received by the proper authority, creates an immediate vacancy, and cannot be withdrawn; and that the officer so resigning cannot resume the office, without a new appointment. ° § 415. Where prospective resignation may be with- drawn, — But where the resignation is prospective, it may ' MiUer v Supervisors, 25 Cala. 93. B. D., 908 ; 64 L. J., Q. B., 338 ; 52 L. DT J OT r. r. Tj « QB T T., 435; 49 J. p., 372. ^ Reg. V Blizard, 2 L. R., Q. B., 55 ; 36 L. ' J., Q. B., 18; 15 L. T. 242; 15 W. R. " State V Fitts, 49 Ala. 402, cited ante, 105 : 7 B. & S. 922, per Lord Coolcburn, 8 410 ; Ch. J. Approved, In re Corliss, 11 R. Pace v People, 50 111. 432 ; I. 638. State v Hauss, 43 Ind. 105 ; Gates V Delaware County, 12 Iowa 405 ; Bunting v Willis, 27 Gratt. (Va.) 144. ' In re Corliss, 11 R. I. 638. * Reg. V Wigan Corporation, 14 L. R., Q. 405 § 415. PUBLIC OFFICERS [Book III. be withdrawn; at least with the consent of the appoint- ing power, and, according to some cases, without such consent, unless some new rights have intervened, such as the appointment of a successor. In a case in the supreme court of Indiana, it was said: "To constitute a complete and operative resignation, there must be an intention to relinquish a portion of the term of the office, accompanied by the act of relinquishment. ... A prospective resignation may, in point of law, amount but to a notice of intention to resign at a future day, or a proposition to so resign; and for the reason that it is not accompanied by a giving up of the office — possession is still retained, and may not necessarily be surrendered till the expir- ation of the legal term of the office, because the officer may recall his resignation — may withdraw his proposition to resign. He certainly can do this, at any time before it is accepted; and, after it is accepted, he may make the withdrawal, by the consent of the authority accepting, where no new rights have intervened." But where a successor has been appointed, a withdrawal, even with the consent of the appointing power, will not displace him.' In Missouri, where it has been held that a resignation is not complete, without the acceptance of the governor, it was also held, that the acceptance must be with the knowledge and consent of the person resigning; so that, where the clerk of a county court filed in the office of the court his resignation, to take effect at a future day, and, before the day specified, he forwarded to the court his written withdrawal of the resignation; but it had been previously, against his express directions, forwarded to the governor and approved, and another had been appointed in his place; it was held that the office had not ' Biddle v Willard, 10 Ind. 02, per Per- State v Clayton, 27 Kan. 442 ; 41 Am. R. kins, J., at p. 60; 418. Accord, Bunting v Willia, 27 Gratt. See also, Leeoli V State, 78 Ind. 570. (Va.)114; 406 Chap. XVII. J K3SIGXATI0N; FOEFBITURE §418, become vacant, and that the resigning officer might, with the sanction of the court, and at the same term, with- draw the resignation, and continue to hold the office, not- withstanding the governor's appointment/ § 416. Resignation of a lunatic. — Where a commis- sioned officer in the United States army, while he was of unsound mind, tendered his resignation, and the same was accepted, and his successor was appointed, it was held that the resignation and the appointment of a succes- sor were valid." II. Besignation by implication; forfeiture., (1.) By accepting an incompatible office. § 417. This subject considered in chapter IV. — A person impliedly resigns, or forfeits, an office held by him, where he accepts an election or appointment to an incom- patible office. This subject has been fully treated in a former chapter.^ (2.) By nonuser of the office, including absence feom the place, wheke the duties of the office abe to be peepoemed. § 418. English rule as to forfeiture by nonattendance, etc. — It has been said that, at common law, an office may be lost by forfeiture; as if the officer "break the condition annexed to it by law;" as if an officer of a court refuses or neglects to attend the court; but not where he had lawful license, or was imprisoned for misdemeanor in office." And where an office concerns the administration of justice, if the officer ought to act or attend, without ' state V Boeeker, 56 Mo. 17. charges and after a trial, is valid, see » Blake v United States, 14 Ct. of CI. ""'^' * ^''• (U. S.) 462. As to the application of s Ante, ch. 4 the same rule to a civil officer, see , f.^^_ jjig., tit. Officer, K. 3. the opinion of the court, p. 478. g^^ ^^^^ -^^ ^^r., tit. Offices and That the removal of a lunatic, upon Officers M. 407 § 419. PUBLIC OFFICERS [Book III. request, nonuser or nonattendance will work a forfeit- ure; but if he is not required to exercise his oflfice except upon request, the nonuser is no ground of forfeiture, unless there has been a request and a subsequent neglect.' But a desertion and neglect of the duties of an office are well recognized, at common law, as affording sufficient cause for a removal of the delinquent officer,' § 419. American adjudications on this question. — In an action to recover the salary, attached to the office of chief of police of a city, for a period of time, subsequent to the passage of a resolution by the council, discharging the plaintiff from that office; where it was shown that the plaintiff had said that he was going to Kansas, and did in fact go west, and was absent a considerable time; that he had made no reports for some time previously; that he was engaged in various other business matters, and did very little actual service as chief of police; it was held that the jury might infer from these f acfts that he had been removed from, or had abandoned or relinquished the office, so as to vacate it: and so a rule to show cause, why a verdict for the defendant should not be set aside, was discharged, and judgment was entered on the verdict. ' So, in an action to oust the defend- ant from the office of tax collector, and to reinstate the relator, who was reelected, but surrendered the office to the defendant, his competitor, under the erroneous belief that the latter had been elected, and made no attempt to perform the duties during the following two years; the court said: "Public office is held, upon the implied con- dition of diligently and faithfully executing the duties belonging to it, and a wilful refusal to perform the duties ' Earl of Shrewsbury's Case, 5 Coke, Rex v Wells, 4 Burr. 1999 ; Part IX, p. 46. Lord Hawley's case, 1 Vent. 143 ; 2 BuUer N. P. 306 207 ; ^^S- ■" IPSwich Bailiffs, 2 Ld. Ray. Rex V Richardson, 1 Burr. 617 ; 1232; 2Salk. 434. ' Bernard v Hoboken, 27 N. J. L. i\2. 408 Chap. XVII.] RESIGNATION; POEFEITURE § 430. works a forfeiture. By the surrender and nonuser of the office for a period of more than two years, relator therefore forfeited his right to it." And so a judgment, ousting the defendant, but refusing to reinstate the relator, was affirmed.' But where the plaintiff was elected in 1871, to fill an office for the term of four years; and in 1873 an act was passed for an election in Novem- ber of that year, to fill the office; and the plaintiff and the defendant, being candidates for the nomination, entered into an agreement to abide the result of the nominating meeting; and the defendant was nominated at that meeting, and elected in November; and the plaintiff surrendered the office to him; but it was after- wards adjudged, that the statute was unconstitutional; whereupon the plaintiff brought this action to recover the office; it was held, that the plaintiff was not estopped by his agreement, and that such agreement, and the sur- render of the office, did not amount to an abandonment of the office.' It has been held, that where a judge engages in a rebellion against the government, under which he holds his office, he thereby vacates his office, and a judicial determination is not necessary to complete the forfeiture thereof.' § 420. The same subject. — In order that an officer's conduct, which takes the shape of nonuser, should amount to an actual vacation, although without express renunciation of his office; the nonuser must be total and complete, and of such continuance as to indicate clearly a total relinquishment. And where an officer of the United States, after being informed that the president intends to vacate the office, is suspended under U. S. R. S., § 1768, and does not, upon the adjournment of the senate, seek to recover the office, nor tender his service, ' People V Hartwell, 67 Gala. 11. = Chisholm V Coleman, 43 Ala. 204. ' Turaipseed v Hudson, 50 Miss. 429. 409 § 421. PUBLIC OFFICERS [Book III. nor demand the salary; his conduct evinces an intention to abandon the office, and is equivalent to a resignation. ' So the voluntary enlistment of a civil officer, in the mili- tary service of the United States, for three years or dur- ing the war, has been regarded as an abandonment or implied resignation of his office, so as to create a vacancy in the same." § 421. How forfeiture may be declared ag:ainst one acting in office. — But where a person, under color of authority, is actually in possession and discharging the duties of an office, the question, whether he has or has not forfeited it by some act or omission, cannot be examined collaterally." And where an officer is charged with having vacated his office by absence and neglect, the appointing power cannot, without a judicial deter- mination that there is a vacancy, proceed to fill the office, as if it was vacant." "After once accepting an office, refusal to serve is a cause of forfeiture, if without good reason; but however general and absolute, it is nbt a for- feiture per se." ' Thus, if a county judge or other county officer, without intending a permanent change of resi- dence, so absents himself from his county, as to be guilty of wilful neglect in the discharge of his official duties, he may be liable to prosecution in the manner provided by law; but the mere existence of such neglect will not of itself operate to vacate the office." Where no authority is expressly empowered by law to enforce the forfeiture of an office, upon the occurrence of an act which creates > Bartour v United States, 17 Ct. of 01. L. (N. C.) 216. (U. S.) 149. 4 g^^jg J, Bryoe, 7 Ohio, Part II. 82. ^ State V Allen, 21 Ind. 516. See also. People v Kingston, etc.. See, however, Bryan v Cattell, 15 Turnpike Co., 23 Wend. (N. Y.) 193, Iowa 538. per Nelson, Ch. ,1., pp. 207, 208. 3 MoKim V Somers, 1 Penn'a Rep. 297. ' "^^-^ ^"--^^^^^ " hazard, 3 HiU (N. Y.) See also, Hunter v Routlege, 6 Jones ^43, per Cowen, J., p. 246. • Curry v Stewart, 8 Bush (Ky.) 560. 410 Chap. XVII. J resignation; forfeiture § 432. a forfeiture, the office does not become vacant, until judgment upon quo warranto, or other appropriate legal proceeding.' § 422. Abandonment or nonuser must be total ; in- stances. — In a well considered case, in the court of com- mon pleas in New York city, it was held that the deputy clerk of the court of sessions, elected a member of the legislature, does not, by attending at Albany to perform his duties as such member, and consequently absenting himself from the city of New York, where his duties are to be performed, either forfeit his office, or forfeit his sal- ary during the period of his absence. Such absence, as in case of other neglects of official duties, may afford grounds for removal by the proper authority, but does not constitute an absolute forfeiture of the office.'' So, where the secretary of state, in violation of an express statute, persistently absented himself from the seat of govern- ment, leaving the performance of his duties to a deputy; it was held, that he had not vacated his office thereby; that a declaration and adjudication by the governor, that he was out of office, by abandonment of it, was void; and that an abandonment of an office, if it can be inferred con- clusively from nonuser or neglect of duty, must be "where the nonuser or neglect is not only total or complete, but of such continuance, or under circumstances so clearly indicating absolute relinquishment, as to preclude all future question of the facts." ' And where a statute empowers the county court to supply any vacancy in a county office, the absence, on account of sickness, of a county officer from his office, for the space of fifty days, does not create a vacancy, or authorize the county court to appoint a successor.^ But nonuser may be so greatly pro- » Graham v Cowgll], 13 Kan. 114. ' Page v Hardin, 8 B. Mon. (Ky.) 648. » People V Green, 5 Daly (N. Y.) 254. ^ee, per MarsHaU, Oh. J., p. 66T. Reversed, but this general principle * State v Baird, 47 Mo. 301. affirmed, 58 N. Y. 295. 411 § 423. PUBLIC OFFICERS [Book III. longed., especially where it is accompanied with other acts, as to indicate conclusively an abandonment of the office; and in that case no removal or judicial declaration is nec- essary. Thus, where a police officer, who was unlawfully removed, delivered up his badge, and other public prop- erty held by him, and ten years thereafter sued to recover his salary; it was held that he could not recover, as he must be deemed to have abandoned his office.' § 423. Rule where lieutenant-governor is authorized to act in absence of governor. — While the subject of tem- porary absence, from the place of performance of official duties, is under consideration, it will be convenient to notice briefly the effect of such temporary absence, upon_ the power of another officer to discharge the duties of the absent officer, where there is no pretence that the absence has forfeited the latter's office. It was held in Louisiana, that the constitutional provision, that the lieu- tenant-governor shall discharge the duties of the governor, in case of the absence or inability of the latter, refers only to such absence or inability as will injuriously affect the public interest; and that consequently the lieutenant- governor has ordinarily no power to act as governor, where the duration of the governor's absence from the state does not exceed a few days. Where a case occurs, in which the lieutenant governor is thus authorized to act, it is to be ascertained by some proof, accessible to the public, from which the public may with certainty know that he is so authorized; and no provision being made by law for the mode of manifestation thereof, it is left to the governor to manifest the same, in such man- ner as he, in his discretion, thinks proper." 1 Phillips I) Boston, 150 Mass. 491. " State v Graham, 26 La. Ann. 568, 413 Chap. XVII. J KESIGNATION; FORFEITURE §435. (3.) By ceasinq to be a eesident op the district, to WHICH the office PERTAINS; OR, IN THE CASE OF A STATE OFFICE, OF THE STATE. § 434. Generally statute, etc., provides for such forfei- ture. — The doctrine of the " political common law," so called, requiring residence as a qualification for holding an oflfice, has been considered in a former chapter. ' In this country, the constitution or the statutes of the United States, and of each of the states, contain special provisions, requiring certain officers to be residents of their districts, or of the state, as the case may be; and declaring that such an officer forfeits his office, by a removal from the district or the state." § 435. No adjudication necessary; but temporary absence creates no forfeiture. — Under such a provision, it has been held, that the office becomes vacant, when the incumbent ceases to be a resident of the district; and that his successor may be appointed, without an adjudi- cation that the office is vacant." So, under the statute of Massachusetts, whereby a person gains a settlement in a town, by being a public officer therein for " one whole year;" it was held that an occasional absence, or a failure through sickness to discharge a particular act, does not interrupt the running of the year; but it is interrupted by a compulsory removal from the district, or a voluntary removal to another town, with the intention to reside in the latter." That a temporary removal, without an intention to make a permanent change of residence, does not affect the tenure of the office, has also been held in 1 _^ntg § 72, ' People v Brite, 65 Gala. 79. See also, Yonkey v State, 27 Ind. 236 ; Curry v Stewart, 8 Bush (Ky.) 560 ; In re Bagley, il How. Pr. (N. Y.) 151. ' Giles V School Dist., 31 N. H. 304 ; Gildereleeve v Board of Education, 17 Abb. Pr. (N. Y.) 201. See also, Rumney v Campton, 10 N. H. » Paris v Hiram, 12 Mass. 262 ; 587 Barr6 v Greenwich, 1 Pick. (Mass.) 129. 413 § 427. PUBLIC OFFICERS [Book III. other cases.' If an office has been once thus abandoned, the effect of the abandonment is not removed by the offi- cer's return, and reoccupation of the office.'' § 426. Changing boundaries or districts, so as to affect officer's residence, etc. — But the removal of a countj"" officer, out of the district for which he was elected, to another district in the same county, does not vacate his office.' And the redistricting of a county, so as to leave the officer in another district, does not vacate his office." But if the change of the boundaries of a county, places the residence of an associate judge without the county, and he does not remove within the county, in a reasonable time, he forfeits his office. * Where a circuit judge's commission designated his circuit as the fifteenth circuit, without specifying its boundaries, and a statute was enacted, placing in the 26th circuit the counties then in the 15th, and a new judge was appointed for the new 15th circuit; it was held that the former became judge of the 26th circuit, without any new commission; and semble, that, under the provision of the constitution, fixing his term, the legislature could not abolish his office, by abolishing his circuit. ' (4.) By refusal to accept the office. § 427. Rule where legislature transferred a person from one office to another. — Although, as was shown in a former section of this chapter,' an officer cannot resign his office, unless he has entered into possession thereof, ■ People V WeUs, 2 Gala. 198, 610 ; a State v Allen, 21 Ind. 516, at p. 523 ; Yonkey v State, 27 Ind. 236 ; ' Yonkey v State, ZTlnd. 236. Curry v Stewart, 8 Bush (Ky.) 560 ; , g^^j^jj ^ g^^^^^ ^ j^^_ ^^^^ McGregor v Allen, 33 La. Ann. 870. See also, Lyon V Comm., 3 Bibb (Ky.) * State v Gilbreath, 48 Mo. 107 ; ^gQ . State V Milwaukee Co., 21 Wis. M3. People 1) Goodwin, 22 Miob. 496 ; ' State v Cboate, 11 Ohio 511. state V Skirving, 19 Nebr. 497 ; « g^^j^ ^ Draper, 50 Mo. 353. Van Orsdall v Hazard, 3 Hill (N. Y.) 243, per Cowen, J., p. 245. ' ^"*«' « *13. 414 Chap. XVII. J EESIGNATION; FORFEITURE § 427. yet in many cases the refusal to accept an office, to which a person has been chosen, will create a forfeiture, or fur- nish sufficient ground for a forfeiture, as the case may be. Thus, where the legislature of New York enacted a statute, creating a metropolitan board of police, for the counties of New York, Kings, Westchester, and Rich- mond, to take the place of the different police authorities in each county, and providing that ' ' the police in the cities of New York and Brooklyn, officers and patrolmen," should, after a certain time therein designated, " hold office and do duty " under the provisions of the new statute, by which provision, as the court decided, a new office of " patrolman and member of the police force of the metro- politan police district" was created; and the relator, who was a member of the police force of the city of New York, took no steps for two years to submit himself to the authority of the board, "disclaimed taking" the office, "and repelled its duties, and followed his own pursuits, having no connection with the police service;" it was held, that he could not maintain a mandamus to restore him to the position of member of the new police force. The court said: " The legislature did not attempt to compel him to continue in office, but only gave him the liberty of continuing; and if he consented, and com- plied with the act, he thereby became a part of the new force. No penalty or punishment was imposed, for not accepting or not continuing; and he could, on the day his functions under the former act ceased, have refused or rejected the office, or withdrawn from or resigned the position cast upon him by legislative author- ity. That he did do this, is found as. a fact. To divest him of the office thrust upon him, a formal resignation was not necessary. Affirmative acts, on his part, of resignation or repudiation of the office, are quite as effectual to divest him of it, as affimative words spoken or written There was a complete practical 415 § 429. PUBLIC OFFICERS [Book III. desertion, abandonment, and repudiation of the office and its duties." ' § 428. Express refusal to qualify ; case where new bond was required. — It has been held, that a person, elected county judge for a full term, may signify his refusal to qualify, before the expiration of the time fixed by law for qualifying; and thereupon his office becomes vacant, and an appointment may be made immediately, although by statute the incumbent holds over until his successor qualifies." But a presumption, that the officer elect abandons the office, does not arise merely from his omission to qualify within the prescribed time. ' Where, pursuant to a statute, requiring the sheriff to give a new bond, whenever the governor, upon the application of his sureties, should direct him so to do, and providing that the right to exercise the powers of the office should be forfeited, in case of his failure so to do; the governor directed a sheriff to give a new bond to the ordinary of the county, and the sheriff failed to comply with the direction; it was held that the forfeiture had occurred, although meanwhile a vacancy had happened in the office of ordinary, since a statute provided that in such a case, the clerk of the superior court should act as ordi- nary.' (5) Miscellaneous constitutional or. statutory causes OF porpeiture. § 429. Failure to keep ofifice open; forfeiture not pre- vented where act is a misdemeanor. — Where a statute requires an officer to keep his oflSce open for the trans- action of official business, during certain hours of a ' People V Metropolitan Board of Po- = State i> Peck, 30 La. Ann. Part I., 280. lice, 26 N. Y. 316, explaining People See ante, eh. 11, whore this subject Is V Metropolitan Board of Police, 19 fully considered. N. Y. 188. 4 Bosworth v Walters, 46 Ga. 635. '■ state V Washburn, 17 Wis. 658. See also, ch. 11, ante. See also, People v Wilson, 72 N. 0. 165. 416 Chap. XVn.] RESIGNATION; FORFEITURE § 430. particular day, and provides that his failure so to do, unless caused by sickness, "shall forfeit his office;" a forfeiture on that ground can be enforced only by pro- ceedings in the nature of a quo warranto, and cannot be made part of the judgment, on conviction of a misdemeanor for neglecting the duties of his office." Where a statute provided, that no councilman of any municipality should become surety for the treasurer, secretary, or other officer of the municipality, and that, for a violation of this provision, he should forfeit his office, and be guilty of a misdemeanor, and on conviction should be fined, etc. ; and another statute provided that the councils of Philadelphia should judge and determine the qualifications of their members; it was held, that where a member of the council became a surety for the city treasurer, this forfeited his office as councilman; that such forfeiture arose from the unlawful act, and not only upon conviction of misde- meanor; that the power of the council to impeach, try, and remove a member for the offence, was not incom- patible with the judicial power to oust a usurping officer; and that their neglect to take such proceedings was not a bar to legal proceedings to declare a forfeiture." § 430. Forfeiture for felony not avoided by pardon. — An officer, whose office has been forfeited, under a con- stitutitional or statutory provision, by a conviction for a felony, is not restored to his office by a pardon.' 1 state V Norman, 82 N. C. 687. » State v Carson, 27 Ark. 469. ' Comm. V Allen, 70 Pa. St. «5. ^ee also, Comm. V Fngate, 2 Leigb- (Va.)724; 417 § 431. PUBLIC OFFICERS [Book IIL CHAPTER XVIII GENERAL RULES RESPECTING VACANCIES, AND DECLARING AND FILLING THE SAME CONTENTS Sec. 431. Reference to other chapters; meaning of "vacant" and "vacancy;" applicable only where officer has been chosen, not to failure to elect, or where a person is in the office and acting, although temporarily, as by hold- ing over; cases where provisions for filling vacancies not applicable for that reason. 433. Vacancy occurs, where officer elect dies before votes counted; or declines to accept. 433. Statute for filli ng vacancies by appointment, when not in conflict with constitutional provision, requiring officer to be elected. 434. Provision creating vacancy for failure to qualify, within a certain time after receipt of commission, applies only to an actual receipt. 435. Election to fill anticipated vacancy not lawful, unless expressly provided for; otherwise as to appointment. 436. Power to appoint includes power to fill vacancy; power to appoint "forthwith" not confined to same day. 437. Power to fill a vacancy does not confer power to make or declare a vacancy; illustrations and limitations of this rule. 438. Resolution that office is vacant not a removal; but appoint- ing power may act upon assumption of a vacancy, •leaving appointee to test the question. 439. Contested election, or judgment for relator on quo war- ranto, does not create vacancy. 440. W^hen governor cannot appoint, after adjournment of the senate, to fill a vacancy occuring during the session. § 431. Meaning of " vacant " and " vacancy " and appli- cation thereof. — The cases where vacancies do or do not occur in public ,oflB.cesj the effect of a vacancy; the mode ■A18 Chap. XVIII.] VACANCY § 431. of filling it; the tenure of office of a person appointed to fill a vacancy; and his rights and duties; have been very fully discussed in the chapters, treating of a plurality of offices held by one person; the persons who may or may not hold public offices; the appointment or election of a person to office; his acceptance or refusal; his official oath and bond; his term, of office; the cases where an officer does or does not hold over after his term; the removal or suspension of an officer; and the resignation or forfeiture of an office. ' Only some general propositions, and some illustrations, which could not conveniently find their places elsewhere, remain, to complete the consid- eration of this subject. " There is no technical or peculiar meaning to the word ' vacant,' as used in the constitution. It means empty, unoccupied, as applied to an office without an incumbent. There is no basis for the distinction urged, that it applies only to offices vacated by death, resignation, or other- wise. An existing office without an incumbent is vacant, whether it be a new or an old office." " " The word ' vacancies ' is applicable to cases, where officers have been duly chosen or appointed, and not to the cases where there has been an omission to elect In such cases, there is, in fact, no vacancy, because the officers of the preceding year hold the offices, until others are chosen or appointed in their places, and have qualified. An office cannot be said to be vacant, while any person is authorized to act in it, and does so act." ' A constitu- 1 Ante, ch. i, 7, 8, 9, 10, U, 14, 15, 16, 17. not elected, because there was a tie in tlie votes. Approved and followed, Tappan v Gray, 9 Paige (N. Y.) 507, per Walworth, Ch'r, p. 512 ; People V Woodruffl, 32 N. Y. 355, per Davies, J., p. 362. « People V Van Home, 18 Wend. (N. Y.) geg ^Iso, State v Lusk, 18 Mo. 333 ; a Stocking u State, 7 Ind. 326, at p. 329 ; followed, Collins v State, 8 Ind. 344 ; State V Harrison, 113 Ind. 434 ; State V Howe, 25 Ohio St. 588 . 515,perSavage,Ch. J.,atp.518,speak- Comm. v Hanley, 9 Pa. St. 513. ing of a case where a town officer was 419 § 433. PUBLIC OFFICERS [Book III. tional provision, authorizing the governor to fill vacan- cies, applies only where there is no person authorized by- law to discharge the duties of the office. Where there is a person so authorized to act temporarily, until the action of the electing or the appointing power, the gover- nor has no power to appoint; and it makes no difference whether the power authorizing him to appoint is con- ferred by the constitution or by a statute. Where a statute provides, that an officer shall be elected by the legislature, and shall hold until his successor is chosen and qualifies, the failure of the legislature to elect his successor does not authorize the governor to fill the office by appointment.' And where a board has the power to fill a vacancy in its membership, until the next session of the legislature, at which time the legislature is required to fill it for the unexpired term; and the next session of the legislature has adjourned sine die, without filling the vacancy; the governor has no power to fill it, either for a full term, or for the unexpired portion of the term." § 432. Where officer dies b'efore votes are counted; or declines. — Where a person dies, after he has been chosen a county officer, but before the votes are counted, the supreme court, under the statute of New Hamp- shire, has power to declare the office vacant." And where a person is elected a judge of the superior court, and declines to accept the office, and never qualifies, this creates a vacancy, within the constitutional provi- sion authorizing the governor to fill vacancies; and a statute, providing for an election to fill such vacancy, is unconstitutional. * 1 People D Tilton, 37 Gala. 614. ' State u Hunt, 54 N. H. 431. ' People V Parker, 37 Cala. 639. « People v Wilson, 73 N. C. 155. See also. People v Bissell, 49 Cala. 407 ; See also. State v Washburn, 17 Wis. and cases cited, ante, oh. 15. 658, cited ante, 8 428. 430 Chap. XVIII.] VACANCY § 435. § 433. Statute as to appointment to fill vacancy, not in confiict with constitution requiring election. — A statute, allowing a particular oflBcer or board to fill a vacancy in an ofiice, until the next election, is not in conflict with a constitutional provision that, such office shall be filled by a popular election. ' § 484. What is a " receipt of commission."' — Where it was provided by statute, that if an officer should fail to give his official bond, within ten days after the receipt of his commission or certificate of election, the office should be vacant; and the incumbent was reelected to an office in October, 1866, and his commission was, in November, 1866, made out and left for him at the office of the secretary of state; but he did not call for it and receive it until the 6th of April, 1867; and on the 13th of April, 1867, the governor declared that a vacancy existed in the office, and issued a commission to another person, who entered upon the discharge of the duties of the office on the 15th of the same month; it was held that the ten days did not begin to run until the actual receipt of the commission, or the occurrence of circumstances, leading to the inference that he did not intend to accept it; and that his failure to call for the commission was not evidence of such an intent." § 435. Anticipated vacancy, election to fill, and appoint- ment. — In the absence of any statutory provision, allow- ing an election to fill a vacancy to be held before the vacancy actually exists, an election to fill an anticipated vacancy is not valid.' It has been held, however, that a ■ Hedley v Com'rs, 4 Blackf. (Ind.) 116. Paine on Elections, § 2U. Accord, State u Benedict, 15 Minn. 198; See also, Nooe v Bradley, 3 Blackf. Tappan v Gray, 9 Paige (N. Y.) 507. (Ind.) 158 ; I ct * TT >ii„„ <» r„/i AOR Biddle v Willard, 10 Ind. 62 ; ' State V Hadley, 27 Ind. 496. ' ,. , o ■, c^i Tit r,T ^ oriA. People D Witherell, 14 Mich. 48 ; See also, States Porter, 7 Ind. 204; ^ ' _ ' .,,. .. „„ sni StateuMcGrath, 64Mo. 139; Boss V Williamson, 44 Ga. 501. „„„„„„ Comm. V Baxter, 35 Pa. St. 263 ; = Dillon Mnn. Corp., 4th ed., 8 S22 (161) ; Lindsey V Luckett, 30 Tex. 516. 421 § 437. PUBLIC OFFICERS [Book III. prospective appointment may lawfully be made, to take effect when an impending vacancy may occur. ' § 436. Power to appoint includes power to fill vacancy; power to appoint "forthwith," — A power to elect or ap- point to an office, includes a power to fill a vacancy therein. " A power to fill a vacancy, caused by death or disability, includes a power to fill a vacancy caused by resignation.' A statutory provision, that if a town treasurer refuses to serve, or if his office becomes vacant, the town super- visors shall "forthwith appoint a treasurer," does not require the supervisors to act on the very day, when the office is vacated by the treasurer's failure to qualify." § 437. Power to fill does not confer power to declare a vacancy. — A statute, conferring upon a board power to fill a vacancy, does not empower them to create a vacancy; but they may decide, in the first instance, whether a vacancy has occurred. ° A constitutional pro- vision, giving the governor power to fill vacancies during the recess of the senate, gives him no power to make a vacancy by a declaration that one exists, and by grant- ing a commission to fill such supposed vacancy; and his decision that the vacancy exists will not conclusively affect the right £>f others." The appointment by the governor of a person to fill an oflice, rightfully held by an incumbent, whose term of office has not expired, and who cannot be arbitrarily removed, is void; and the surrender of the office by the incumbent, to the person so appointed, does not validate the appointment, but creates a vacancy. The constitution empowers the governor to » state V Van Buskirk, 40 N. J. L. a state v Newark, 27 N. J. L. 185. 463, criticising the cases cited in the , Supervisors v Kalme, 39 Wis. 468. last preceding note. See also, Attorney-General v Love, 39 ' Medley v Com'rs, 4 Blackf. (Ind.) U6. N. J. L. 4T6, and ante, §§ 91, 92. « Page v Hardin, 8 B. Mon. (Ky.) 648 ; a People V Campbell, 3 Gala. 135. ««® P- ^^■ Accord, Honey v Graham, 39 Tex. 1. 432 Chap. XVIII.] VACANCY § 438. fill such a vacancy; but the previous appointment does not, in legal effect, fill the vacancy. Where the general assembly assumed to exercise the power of filling the vacancy, and chose a person for that purpose; and, upon a certificate of such choice, the governor issued to the person so chosen a commission, reciting that he was commissioned as the elect of- the general assembly, it was held that this was not an appointment by the gover- nor to fill the vacancy, as provided by the constitution, and that the person named in the commission was not entitled to the ofiice." Where a statute provided that the board of trustees of the Ohio university might " sus- pend" a member of the board for cause, and if "any such removal" should occur during tho recess of the legislature, might fill the vacancy, by an appointment to endure until the end of the next session of the legisla- ture; and that, "where a vacancy occurs by death, resig- nation, or otherwise, it shall be supplied by the legislature at its next session;" it was held, that if the relator had forfeited his office as one of such trustees, by absence and neglect of his duties, it was necessary that the board, after reasonable notice to him, and an opportunity to be heard, should investigate the facts, and determine his office by sentence, and thus create a vacancy; and that a legislative appointment of another in his place, without a vacancy thus created, or created by his own resignation, conferred no legal right upon the person so appointed." § 438. Effect of a resolution that office is vacant. — It has been held, that a county treasurer may be removed, for failure to account for money received by him, although it was stolen; but a resolution by the county commis- sioners that the office is vacant is not a removal; there must be a notice, a hearing, and a decision that he be ' state V PeeUe, 134 Ind. 515. ' State v Bryoe, 7 Ohio, Part II, 83. 423 § 440. PUBLIC OFFICERS [Book IIL ousted.' Where, however, it appears presumptively that acts or omissions have occurred, subjecting a person to a judicial declaration that he vacated his office, the authority empowered to fill a vacancy in the office may proceed, " before procuring a judicial declaration of the vacancy," to appointor elect a person to fill the office. But if, in attempting to take possession of the office, the person so appointed is resisted by the former inctunbent, he must test his right to oust the latter by legal proceed- ings.'' § 439. Effect of contested election, or judgment on quo warranto.-r-A contested election does not authorize the governor to fill the office by appointment, as in case of a vacancy. ' Nor does the power to fill a vacancy author- ize an appointment, where, upon a quo warranto, a judg- m.ent is obtained against the incumbent, on the ground that the relator has the better title; in order to set the power in motion, there must be such a vacancy that no one has title to the office." § 440. Where governor cannot appoint after adjourn- ment of senate. — Where the senate is in session, and the term of a chancellor will expire before the next session, it is the duty of the governor to nominate a person to the senate to fill the vacancy; if he fails so to do, he can- not, during the recess of the senate, make a valid appointment to fill the vacancy. But, although the appointment will be void, a person so appointed will become a chancellor de facto, and his judicial acts as such will be valid. So he may appoint a clerk of the court. " 1 state V Sheldon, 10 Nebr. 452. See further on the subject of filling » State V Jones, 19 Ind. 356. vacancies, ante, §§ 99-103. See also, CanuifE v Mayor, etc., 4 E. D. * State » Ralls County Court, 45 Mo. 58. Smith, (N. Y.) 430. » ^^.^y ^ g^^^^ 5q jjigg_ ^_ 8 Gold V Fite, 2 Baxt. {Tenn.) 237. 424 Chap. XIX.] COMPENSATION GENEBALLY BOOK IV COMPENSATION CHAPTER XIX GENERAL, PRINCIPLES; FIXING, INCREASING, AND DIMINISHING COMPENSATION CONTENTS I. Definitions and general rules. Sec. 441. " Salary " and " emoluments " defined. 443. "Compensation" may Include a sum allowed to cover expenses. 443 Officer's right to compensation is an incident of his office, not resting in contract, and not property; legislature may change amount of future compensation at pleasure. 444. .Rule the same in case of officer of a municipal corporation, exception in case of professional, etc., employment. //. Whether an officer is entitled to compensation, unless given him by the constitution or a statute. 445. In England, fees may be allowed by immemorial usage; not so here. 446. Here the general rule is, that an officer is not entitled to compensation, unless given by constitution or statute. 447. Rule applies, whether it is claimed as salary, fees, or otherwise. 448. Exceptions recognized in certain cases. III. Construction and effect of statutory provisions, granting compen- sation to officers. 449. Where officer allowed a reasonable compensation, this does not embrace services to state, or county, or city; a statute, empowering city to allow "fees," permits allow- ance of commissions. 425 PUBLIC OFFICEES [Book IV. Sec. 450. Where statute provides for compensation, to be collected in a particular manner, officer confined to that, unless there is a want of diUgence etc. , in collecting. 451. Statute allowing policemen salaries, not exceeding a specific sum, does not allow dividing them into grades, with diflferent compensations. 453. Cases where officer, allowed fees by statute, is required by the appointing power to agree to accept a gross sum in lieu thereof. 453. The same subject; effect of acceptance by him IV. Construction and effect of constitutional and statutory provisions, fixing, or allowing a board or officer to fix, the compensation of public officers; or making, or allowing a board or officers to make, an increase or diminution of such compensation. 454. Whether a power to fix is or is not continuous. 455. Compensation, fixed by constitution, payable without appropriation; "stated salaries" in constitution forbids fees; provision for payment by county forbids payment by state, and vice versa; construction of N. Y. constitu- tional provision for pensioning judges. 456. Appointing power cannot require officer to accept less than the compensation fixed by law. 457. When district attorney may reduce his subordinates' com- pensation, although statute confers power on supervisors. 458. Power given to change compensation, does not authorize its abolition, or reduction to a noninal sum. 459. Statute, requiring officer's salary to be fixed by city, and paid by county, is constitutional, and county authorities cannot change it; power to fix salaries of city officers does not include state officer serving in the city. 460. Salary, payable out of fees, is not limited to fees; when paid, successor may collect fees. 461. Whether an insufficient appropriation is or is not a reduc- tion of a fixed salary; appropriation to pay one, who holds three offices, not available to his successor in two. 463. Rules, where statute provides that one officer's compensa- tion shall be the same as another's; foreign minister entitled to his salary, in equivalent of U. S. money. 463. Requirement that salary be fixed before appointment, does not call for a new fixing, whenever officer changed. 426 Chap. XIX. J COMPENSATION GENERALLY Sec. 464. Resolution that salary be "fixed" at a certain sum, is sufficient reduction of a larger salary; reduction may be made by implication; if board authorized to fix, sub- ject to approbation of another board, latter board cannot change, but only approve or disapprove; if fees to be fixed by order, no fees allowed till order made; statute, fixing a monthly rate, entitles officer to monthly pay- ments. V. Construction and effect of constitutional and statutory provisions, forbidding an increase or diminution of compensation. 465. They are usually confined to the term held at the time; cannot be evaded by a resignation and reappoiutment; they apply if term has begun, though but for an hour, and to appointment to fill vacancy, though increase made before the vacancy; officer's right not affected by his receiving compensation, as unlawfully reduced. 466. Constitutional px'ohibition, relating to salaries, does not pre- vent statute to pay officers in U. S. legal tender notes; nor does it apply, where the compensation is a percent- age, a commission, or fees. 467. It applies only to compensation definitely fixed; illus- trations; it does not iu validate an ordinance passed before, but taking effect after, commencement of term. 468. It does not apply, where additional distinct duties are imposed; but it applies, where duties belonging to office are thus compensated. 469. It forbids deduction of compensation for absence; but not where officer's consent required. 470. Constitutional prohibition of such a "law"' not appli- cable to a city ordinance, or proceedings of county officers; applies to officer holding during good behavior. 471. It applies where a chartered city is reorganized under a general law. VI. Times of the beginning and the ending of an officer's compensation. 473. Officer not entitled until he qualifies; but then he may have compensation from beginning. 473. Entitled only while he is actual incumbent of office. 474. Compensation ends when term ends; no right to a full quarter's salary. 427 § 443. PUBLIC OFFICERS [Book IV. Sec. 475. When office abolished, compensation ends, although appropriation made therefor. 476. Exception, where officer who had done a year's work, was allowed a year's salary, although his office was abol- ished before the end of the year. I. Definitions and general rules. § 441. " Salary " and " emoluments " defined.—" The term ' salary ' of itself imports a compensation for per- sonal services, and not the repayment of moneys expended in the discharge of the duties of the office." ' But where a state constitution forbade the increase or diminution of the " emoluments " of an office, during the term of the incumbent, it was held, that the sum provided by law for the compensation of a sheriff, for the board of prison- ers in his charge, was an " emolument" of his office, and so within the constitutional provision.'' § 443. " Compensation " may include a sum allowed to cover expenses. — In a recent decision of the court of appeals of New York, the effect of the word " compensa- tion," as used in the constitution of that state, was deter- mined. The constitution, as amended in the year 1880, fixes the term of office of a justice of the supreme court at fourteen years, but provides that he cannot hold office after the 31st day of December, following his attaining the age of seventy years. Then follows a provision, that " the compensation " of a justice of the supreme court, whose term of office is thus abridged, and who shall have served ten years or more, " shall be continued during the remainder of the term, for which he was elected." In 1870, a statute was enacted, providing that " the justices of the supreme court shall receive an annual compensa- ' Sniffeiii)Mayor,eto.,4Saiidf.(N.Y.)193. The court defined the word " emolu- See also, post, §§ 466, 495. meuts " as importing ''■ any perqul- = Apple V Crawford County, 105 Pa. St. «"«' advantage, profit, or gain, aris- ing from the possession of an office." 300. 438 Chap. XIX.] COMPENSATION GBNARALLY § 443. tion of $6,000 each, payable quarterly, in lieu of all other compensation, except that they shall receive, in addition to such stated salary, a per diem allowance of $5 per day, for their reasonable expenses, when absent from home " on judicial business. In 1872, a statute was enacted, providing that each of the justices of the supreme court, should receive $1,200 annually, "in lieu of and in full of all expenses now allowed by law." A justice of the supreme court, whose term was abridged by his attaining the age of seventy years, applied for a mandamus against the comptroller, to compel the allowance of $1200 per annum to him, the comptroller having refused to allow more than $6,000, alleging that the word " compensation," as used in the constitution, meant only that portion of the sum payable to the justice, while he held office, which represented a reward for his services; and that the $1,200 represented only an allowance for official expenses. The court of appeals held, that there was no distinction between the items: "that the $7,200 had become a debt from the state, which nothing could extinguish except payment, and which remained such until the official term for which he was .elected had expired." ' On the other hand, it has been held, that a constitutional provision, forbidding the increase or diminution by the county board of a county officer's "compensation," does not apply to allowances for the hire of clerks, fuel, and other official expenses, which may be fixed from time to time, at such sums as may be deemed proper by the county board." § 443. The right of compensation ; power of legislature to change same. — It has been often held, that an offi- cer's right to his compensation does not grow out of a contract between him and the state, or the municipality » People V Wemple, 115 N. Y. 302, rev'g » Briscoe v Clark Co., 95 111. 309. 53 Hun (N. Y.) 411. Accord, Kirkwood v Soto, 87 Cala. 394. 429 § 443. PUBLIC OFFICERS [Book IV. by which it is payable. The compensation belongs to the officer, as an incident of his office, and he is entitled to it, not by force of any contract, but because the law attaches it to the office;' and although, during the time for which he claims it, he has earned money in other employment.' " The prospective salary or other emolu- ments of a public office are not the property of the officer, nor the property of the state. They are not property at all. They are like daily wages unearned, and which may never be earned. The incumbent may die or resign, and his place be filled, and the wages earned, by another. The right to the compensation grows out of the rendition of the services, and not out of any contract between the government and the officer, that the services shall be rendered by him. They may be paid for in fees at one time, in salary at another, and either may be increased or diminished at any time before they are earned." " Public officers entitled to fees or salaries fixed by law, take their offices cum onere, and the legislature may attach additional duties to an office, without increasing the compensation, or change the rate of compensation for official services, when they please, whether such compensation is salary, fees, or other remuneration.' This principle, and its derivative, that the compensation of an officer, not resting in contract, is not protected by the provision in the constitution of the United States or a state constitution, against laws impair- ing the obligation of contracts, has been fully stated, and fortified by numerous citations, in a former chapter.* Fitzsimmons v Brooklyn, 102 N. Y. 536. Ruggles, Oh. J., p. 296 ; afE'g 2 Sandf . Accord, Baxter v Brooke, 29 Ark. 173. (N. Y.) 355. See also, Locke v Central City, i Colo. a Turpen v Com'rs, 7 lud. 172. ^^ ' See also, People v Burrows, 27 Barb. Hoboken v Gear, 27 N. J. L. 265 ; (jj_ y.) 89 ; 16 How. Pr. (N. Y.) 27 ; Steubenville v Gulp, 38 Ohio St. 18. a Conner V Mayor, etc., 5 N. Y.285, per 430 * See ante, i 19. Chap. XIX.] COMPENSATION GENERALLY § 444. Nor is a statute, changing an oflficer's compensation, an ex post facto law, within the constitutional prohibition against such statutes. ' § 444. Rule as to officer of municipality, and in cases of professional employment. — In like manner, a munici- pal corporation may, at the pleasure of its council or other legislative body, unless its charter, or some other statute governing it, otherwise provides, change the official term, or increase or diminish the compensation of any of its officers, appointed under an ordinance, or impose upon any of them additional duties, without additional compensation." A case in Massachusetts appears to deny the existence of this rule. There a city council had appointed the plaintiff city engi- neer for one year, at a salary of $1,000, and the city was adjudged to be liable to him for the full sal- ary, although the council, before the expiration of the year, had removed him, and appointed another in his place. The court, after saying that the city had no power to shorten a term of office, in the absence of the grant of such power by statute, unless the officer "mis- behaves in his office, or otherwise becomes unfit to perform its duties," continued: " The election or appointment, for a definite time, of a city officer or agent, entitled to pay for his services, where no law prescribes a different time for the duration of the office or agency, and an accept- ance by him of such office or appointment, constitute, in our judgment, a contract between the city and him, which cannot be dissolved or discharged by the mere will and act of the city." It must be noticed, however, in addition to the distinction, suggested by the court, that there had been no ordinance establishing the office of city engineer, » People V Devlin, 33 N. Y. 869, per Pot- See also, Dillon Mun. Corp., 4th ed., ter,J., p.373. g231(*110); 2 ^jite g 19. Hiestand v New Orleans, 14 La. Ann. 431 § 446. PUBLIC OFFICERS [Book IV. and the plaintiff was appointed under a mere resolution of the council, so that the plaintiff seems to have been a professional employee, rather than an officer, of the city. Unless the case can be distinguished upon one of those grounds, it runs contrary to the current of the other authorities.' 11. Whether a public officer is entitled to any compensa- tion, unless it is given to him by some constitutional or state provision. § 445. Where fees may be allowed by immemorial usage. — It has been said in England, that the immemo- rial existence of fees to an office may be presumed by uninterrupted modern usage, unless there is some evi- dence to the contrary; and that a modern usurpation of an excess will not affect the title to the ancient fees." But, in the United States, there can be no usage, which of itself will entitle an officer to fees, where they are not expressly allowed by law. ' § 446. The general rule in the United States. — Here the general rule is, that the rendition of the services of a public officer is deemed to be gratuitous, unless a com- pensation therefor is fixed by statute." So, a municipal officer has no claim against the municipality for compen- sation, where no compensation is given to him by statute, or by an ordinance passed pursuant to a power given by ' Chase v Lowell, 7 Gray (Mass.) 33. = Albrights Bedford Co., 106 Pa. St. 582; Judge Dillon regards this case as Ogden « Maxwell, 3 Blatchf. (U. S.) 319. having turned upon the ground that See, however, Boyden v Brookline, 8 the services were professional or Vt. 284. private. Dillon Mun. Corp., 4th ed., , ^.^t^ ^ p^^^^^^ gg ^,^_ ^^ . 8 232(*171). White D Levant, 78 Me. 568; a Shephard v Payne, 16 0. B., N. S., 132 ; Perry v Chehoygan, 55 Mich 250 • 33 L. J., C. P., 158 i 10 Jur., N. S„ 540 ; Wortham v Grayson Co. Court, 13 10 L. T., 193 ; 12 W. R. 581. Bush (Ky.) 53 ; 433 Chap. XIX.] COMPENSATION GENERALLY §447. statute." Where the legislature provided by la-w for the election by the legislature of a prosecuting attorney for a particular county, and fixed his salary, but did not elect the officer; and subsequently passed a joint resolution, authorizing the governor to appoint a person to the office, to hold until further provision of law, " without any com- pensation from the state;" and the governor appointed a person accordingly, who served two years, and claimed the salary as fixed; it was held that he was not entitled to any compensation." So, where the statute makes no provision for the payment of a school agent, a promise to pay him by the to-^n, will not be implied by his elec- tion and service in that capacity." § 447. Rule applies whether compensation is claimed as salary, fees, or otherwise. — " The rule is inflexible, that an ofiicer can demand only such fees as the law has fixed and authorized for the performance of his official duties. ■' * This doctrine applies to cases, where the com- pensation claimed is a salary, payable by the public authorities, or fees, payable either by the public authori- ties, or by an individual. " ' Locke I) Central City, 4 Colo. 65 ; Haswell v Mayor, etc., 81 N. Y. 255 ; See also, Dillon Mun. Corp., 4tli ed., § 230 (*169), citing Sikesc Hatfield, 13 Gray (Mass.) 347; Barton i) New Orleans, 16 La. Ann. 317 ; Boswortli V New Orleans, 26 La. Ann. 494; Garnier v St. Louis, 37 Mo. 554 ; Devoy v Mayor, etc., 39 Barb. (N. Y.) 169; = People V Campbell, 8 111. 466. ' Talbot I' East Machias, 76 Me. 415. « Crittenden County v Crump, 25 Ark.235. » Mastin v CuUom, 28 Ala. 670; Kahn v Locke, 75 Ala. 333 ; Tennessee, etc., R. R. Comp'y v East Alabama R'y Comp'y, 81 Ala. 94 ; Hicks V Moore, 2 Ga. 240 ; Price tJ Cutts, 29 Ga. 142 ; Taylor v Co. Com'rs, 110 Ind. 462 ; Wood V Co. Com'rs, 125 Ind. 270; Fawcett v Eberly, 58 Iowa, 544 ; Palo Alto County v Burlingame, 71: Iowa, 201 ; Myers v Marshall County, 55 Miss. 344 ; Gammon v Lafayette County, 76 Mo. 675; Burnbam v Bank, 5 N. H. 446 ; Anonymous, 22 N. J. L. 211 ; Ex parte Minier, 2 Hill (N. Y.) 411 ; Crofut V Brandt, 58 N. Y. 106 ; 17 Amer. Rep. 213; affl'g 5 Daly (N. Y.) 124; 46 How. Pr. (N. Y.) 481 ; 13 Abb. Pr. N. S. (N. Y.) 128 ; O'Connor v O'Connor, 47 N. Y. Super. Ct. 498 ; 433 § 449. PtJBLIC OFFICEKS [Book IV. § 448. Exceptions recognized in certain cases.— Never- theless, some exceptions to this rule have been recognized by adjudicated cases. Thus, where the statute allowed to the sheriff, against a person in contempt, the costs and expenses of the attachment; it was held, that " where the law is silent as to charges for particular services," the court might allow the sheriff a reasonable compensation. ' And it was said, in one case, that where the compensa- tion of an officer (in this case the clerk of the district court,) is not fixed by law, at the time when he renders a service, he may demand a reasonable compensation in advance, and may retain in his possession papers and documents, with respect to which he has rendered ser- vices, until he is paid such compensation, which may be taxed against the defeated party.' And that, where a statute provides that a board of officers shall have a secretary, and no provision is made for his compensa- tion, he is entitled to a reasonable compensation. ^ III. Construction and effect of statutory provisions, granting compensation to public officers. § 449. The effect of the terms, "reasonable compensa- tion," and "fees," when used in a statute. — It has been held, that where a general statute provides, that if an officer or other person shall be required to perform any duty, for which no fee is allowed by law, he shall be entitled to a reasonable compensation; this provision does not embrace services, required to be performed for a state or a county, since it is a rule of statutory construction, that general words, affecting rights and interests, do not Day t) Mayor, etc., 66 N. Y. 592, rev'g 6 See also, post, § 478, and oh. 20. Hun (N. Y.) 93 ; , g^^^.^j^ ^ Blrdsall, 9 Johns. (N. Y.) 328. State V Henderson, 15 Lea (Tenn.) 274 ; Hallman v Campbell, 57 Tex. 54 ; ° Ripley v Glfford, U Iowa, 367. Boyden v Brookline, 8 Vt. 284. » Territory v Norris, 1 Oreg. 107. See further, post, ch, 20. 434 Chap. XIX. J COMPENSATION GENERALLY § 450. include the state, or affect its rights, unless it is especi- ally provided, or is made clear by implication, that the state is included; and that the same rule applies to a county, which is a component and essential part of the state, and a necessary agent of the government thereof. ' A statute, conferring upon a city power to allow its attorney "fees," authorizes it to allow him a commission or percentage upon all money collected by him for the use of the city, and an ordinance granting such an allowance applies to money collected in either civil or criminal cases." § 450. Effect of statute requiring compensation to be collected in a particular manner. — Where the statute, under which an officer is appointed or performs his services, provides for compensating him in a particular manner, he is confined to that manner, unless it fails to provide for his compensation, through the fault of the body responsible for the same. Thus, where the charter of a city provided that the city surveyor should be compen- sated for his services, in the matter of laying out, paving, and grading streets, etc., out of the money raised by assessment on the property benefited by the improve- ments; it was held, that he could not maintain an action against the city for his services, until the money had been collected by such assessments, unless the city was in default, for not proceeding with due diligence to make and collect the assessments.' Cole V White Connty, 32 Ark. 45 ; § 230 (*ie9), citing McClung v St. Wortham v Grayson County Court, 13 Paul, 14 Minn. 420 ; Bush (Ky.) 53. Jersey City v Quaife, 26 N. J. L. 63 ; People -0 Supervisors, 1 Hill (N. Y.) 362 ; Smith V Comm. 41 Pa. St. 335 ; = Austin V Johns, 62 Tex. 179. » Baker v Utica, 19 N. Y. 326. ^ Andrews v United States, 2 Story Gumming v Mayor, etc., 11 Paige ^-g-. S.) 202 ■ (N. Y.) 596. United States v Brown, 9 How. (U. S.) See also, Dillon Mun. Corp., 4th ed., ^y^ 435 § 452. PUBLIC OFFICERS [Book IV. § 451. Effect of statute allowing policemen salary, not over a specific sum, — Where the charter of the city of Albany provided, that "each patrolman of the police force shall receive an annual salary of not over $900;" and gave the commissioners of police general power, to adopt rules and regulations for the government and dis- cipline of the force, to define and enumerate the powers and duties of the members of the force, and to provide for their appointment and removal; it was held, that this did not give them power to divide the patrolmen into two or more distinct grades, to one of which should be attached a salary of $900, and to the other a salary of $600; that although they might -fix the salaries of the patrolmen at a less sum than $900, each of the patrolmen was entitled to the same salary; and accordingly a mandamus was granted, on the application of a patrolman whose salary had been reduced, requiring the commissioners to certify and allow to the relator the full salary of $900. ' § 452. Gross sum in lieu of statutory fees. — To this branch of the subject belong a class of cases, where an officer has been required, by contract or by municipal ordinance, to accept a gross sum, in lieu of the fees allowed to him by law. An English case, where such a bargain, between a municipal corporation and its officer, was decreed in equity to be unlawful, as being against public policy, on the ground that the law would not allow any bargain to be made, respecting an appointment to a public office, and also because the officer "is considered to require them" (his fees) "to enable him to uphold the dignity and perform the duties of his office," was fully cited in a former chapter. ° And it was held in Louisiana^ ' People V Police Com'rs, 108 N. Y. 475, 28 L. J., Ch. 868 ; 5 Jur. N. S. 1156 ; apparently overruling, People v Po- followed, Dublin (Mayor of) v lice Com'rs, 46 Hun (N. Y.) 476. Hayes, 10 Irish R., Com. Law Series » Liverpool v WrigM, 1 Johns. 359; 326, cited with other cases in paH materia, in oh. 6, ante, §§ 62, 53. 436 Chap. XIX.] COMPENSATION GENERALLY § 453. that the sheriff of a parish cannot be compelled, without his consent, to accept a gross sum, in lieu of his statutory fees." So a contract to that effect was adjudged to be void in Iowa.' But in Texas it has been held that such a con- tract is lawful. " § 453. The same subject; effect of acceptance of gross sum. — In New York, where a person was nominated by the mayor of a city for the office of city treasurer, the compensation of which was fixed by statute at a certain percentage upon all his payments; and, before he was confirmed by the board of aldermen, certain of the aldermen required him to execute a written agreement to accept a fixed sum, in lieu of the statutory compensa- tion, and to .pay the excess of his commissions into the city treasury; which he did, and was thereupon con- firmed, and held the office for more than four years, drawing only the fixed compensation; and, at the annual session of the legislature, next succeeding his appoint- ment, a statute was passed, permitting the common council thus to fix the treasurer's compensation; it was held that the plaintiff could not recover from the city the excess of his commissions above the salary, since the transaction was legal, after the statute, and " the agree- ment to limit, made when there was no power, could be and was adopted, after the law was passed, by the acts of the parties;" and thus the volun- tary payment created an estoppel, which prevented the recovery back of the money paid.* Upon appeal, the deci- sion was affirmed, on the ground that the agreement was executed, not executory, and the annual settlements of the plaintiff's accounts, in pursuance thereof, consti- ' state V Fisher, 30 La. Ann. Part 1, 514. Hawkeye Ins. Comp'y v Brainard, 73 » Gilman v Des Moines VaUey R. R. ^"'^^ ^*'- Comp'y, 40 Iowa 200. ' Mclnery v Galveston, 58 Tex. 334. See also, Carrothers v Russell, 53 Iowa , ^^^^^ ^ Yonkers, 33 Hun (N. Y.) 454. 346; 437 § 454. PUBLIC OFFICERS [Book IV. tuted a release of the plaintiff's right to any additional compensation, and an estoppel. ' And where an oificer released all his claims for salary, in consideration of a gross sum, it was held, that the release could not be impeached, by proof that it was made before his elec- tion, in order to induce the electors to vote for him." IV. Construction and effect of constitutional and statu- tory provisions, fixing, or allowing an officer or a board of officers to fix, another officer's compensation; or making, or allowing an officer or a hoard to make, an increase or diminution of such compensation. § 454. Whether power to fix is or is not continuous. — In some of its aspects, this subject depends upon princi- ples, closely analogous to those considered under the last preceding division. In a recent decision of the New York court of appeals, a question arose, whether or not a statutory provision, conferring a power of this charac- ter conferred 'a continuous power, and what were the rights of those who had acted under an exercise of the power. In the year 1860, a statute was enacted, imposing certain additional duties upon the police justices of the city of New York, and, by reason thereof, authorizing the common council to increase their salaries. Accord- ingly, in December, 1862, the common council fixed the salaries of the police justices at $5,000. In 1869, a statute was enacted, forbidding the common council to increase any salaries, "except as provided by acts passed by the legislature." In December, 1869, the common council adopted a resolution, fixing the salaries of the police justices at $10,000, from January 1, 1870. The plaintiff, who was then a police justice, was paid at the rate of ' Hotbs V Yonkers, 102 N. Y. 13, at p. 17, der the next succeeding division of distinguisMng the case from People this chapter, q. d. V Board of Police, 75 N. Y. 38, and ^^^^^ ^ ^^^^ ^^^ 53 j^^^^ 228. other cases in pari materia, cited un- 438 Chap. XIX. J COMPENSATION GENERALLY § 455. $10,000 from January 1, 1870, till August 1, 1871, find after the latter date, during his incumbency of the office, at the rate of $5,000. He brought this action to recover the difference between the two rates; and it was held that he could not recover; that the act of 1860 authorized only one increase, so that the power of the common council was exhausted by the resolution of 1862, and the resolution of 1869 was invalid. But it was also held, that the city could not set up, as a counter claim, the excess paid over the lawful salary, from January 1, 1870, to August 1, 1871; since the money was received by the plaintiff, and was paid by the city, in good faith, and in the belief that the increase had been lawfully made, and the payments were voluntary on the part of the city. ' § 455. Constitutional compensation; " stated salaries;" by whom paid; pensioning judges. — Where the compen- sation of an officer is fixed by the constitution, the legis- lature cannot increase or diminish it." And it has been held, that where the constitution fixes an officer's com- pensation at a definite sum, it may be paid without a legislative appropriation, although another provision of the constitution declares, that no money shall be paid out of the public treasury, without an appropriation by statute; for the constitutional direction to pay the salary is an appropriation of the money to pay the same.' Where the constitution directs that county officers shall receive "stated salaries" from their respective counties, a statute, providing for paying them, by the state, is unconstitutional.' So a statute, fixing the compensation of county officers, is unconstitutional, where the constitu- tion provides that such salaries shall be fixed by the county board. ° Under the constitution of the state of New > Cox V Mayor, etc., 103 N. Y. 519, aff'g « State V Weston, 6 Nebr. 16. 23 Week. Dig. (N. Y.) 355. , gj^t^ ^ g^^^^,^ ^ Fl^. 29. ' Ante, § 19 5 Wulff v Aldrich, 134 111. 591. 439 § 456. PUBLIC OFFICERS [Book IV. York, which, after forbidding a judge to hold office after he shall have attained the age of seventy years, declares that " the compensation of every judge of the court of appeals, and of every justice of the supreme court, whose terra of office shall be abridged pursuant to this pro- vision, and who shall have served as such judge or justice ten years or more, shall be continued during the remain- der of the term for which he was elected;" it is not necessary, in order to entitle the retired judge or justice to his continued compensation, that the ten years' service should have been performed in the term so abridged; it suffices that he has served ten or more successive years, although part of such service may have been performed during a previous term.' § 456. Officer cannot be required to accept less than sum fixed by law. — A board of officers, having the power of appointment to an office, cannot reduce the amount, fixed by law as the salary of the office, or make a binding contract, with the person appointed to fill it, to perform its duties at a less sum; and the acceptance of the office by him, and his discharge of the duties thereof, do not constitute a binding contract to accept such reduced sum, or a waiver of the statutory provision; but he can afterwards enforce his right to the statutory salary, by mandamus, or other appropriate legal pro- ceeding.^ But where the officers authorized by law to appoint, are also empowered by law to fix the compen- sation, they may increase or reduce the compensation. 1 People V Wemple, 125 N. Y. 485, afE'g (U. S.) 115; 58 Hun (N. Y.) 275. Dyer v United States, 20 Ct. of CI. ' People V Board of Police, 75 N. Y. 38„ (U- ^•' ^^^ = rev'g 12 Hun (N. Y.) 853. Stocksdale v United States, 39 Fed. R. Accord, Hawkeye Ins. Co. v Brainard, (U. b.) M. 72 Iowa 130 • ^^® ^^^°' Carrotliers i; Russell, 53 Iowa Purdy V Independence, 75 Iowa, 356 ; ' Kehn V State, 93 N. Y. 291 ; State v Collier, 72 Mo. 13 ; Adams V United States, 20 Ct. of CI. State v Purdy, 36 Wis. 213. 440 Chap. XIX.] COMPENSATION GENERALLY § 457. Thus, where the board of fire commissioners of the city of New York, who are prohibited from making removals except after notice, and a hearing upon charges, trans- ferred an assistant engineer to the place of machinist, at a lower salary; it was held, that this was not a removal within the statute, and the traiTsfer could be made with- out notice or a hearing; and the person so transferred, after accepting the reduced compensation, had no remedy for the balance, the fire commissioners having, by the statute, the power to fix the salaries of their subordi- nates. ' § 457. When district attorney may reduce subordi- nates' compensation. — Where the board of supervisors of a county, having power to fix, from time to time, the compensation of the district attorney, his assistants, clerks, and officers, fixed the salary of the chief clerk to the district attorney at $3,000; and, three months after- wards, the board fixed the sum, to be raised for salaries in the district attorney's office for the succeeding year, at a much smaller sum than had been allowed for that pur- pose in the preceding year; and afterwards, a new district attorney was elected, who reduced all the salaries in his office, so as to correspond to the diminished sum allowed for that purpose, fixing that of the chief clerk at $1500, and appointed the relator to that position; and the latter entered upon the duties of that office, and served three years, receiving a salary at that rate, and then applied for a mandamus, to compel the supervisors to allow him the difference between the salary so received, and the salary as fixed by their resolution; it was held, that the action of the supervisors, in diminishing the allowance, impliedly conferred upon the incoming dis- trict attorney power to reduce all the salaries in his office, ' Riley V Mayor, etc., 96 N. Y. 331, aff'g Accord, Monroe v Mayor, etc., S8 Hun 49 N. Y. Super. Ct. 537. Followed, (N. Y.) 258. Morris v Mayor, etc., 93 N. Y. 645. 441 § 458. PUBLIC OFFICERS [Book IV. SO as to bring the aggregate within the diminished sum allowed; and that the relator, having accepted the appoint- ment at the salary so reduced, and received the money during his term of service, was concluded, and so was not entitled to the mandamus.' § 458. Power to change, not power to abolish, or make nominal. — Where a city charter provided, that the com- pensation of the mayor should be $3400 per annum, and might be changed by ordinance, but not during his term of office; it was held, that an ordinance, providing that after the expiraton of the term of the mayor then in office, the mayor should serve without compensation, was void; and that the mayor thereafter elected was not estopped from claiming the salary, by the fact that he knew of the ordinance, nor by a public statement, made while he was a candidate, that if he should be elected, he would serve without compensation. And accordingly, the court granted a mandamus, to compel the city council to raise the money. The court said: "If the council can deprive the mayor and the board of public works" (respecting the members of which the charter contained a similar provision), "of all compensation, then it has the power so to emasculate those departments of the govern- ment, that all vigor and efficiency will be gone, and the government of the city will be left practically in the hands of the council." And in answer to the argument, that the council might, under the statute, practically accomplish the same result, by reducing the salary to a mere nominal sum, the court said: "This is an argu- ment often resorted to, and no argument is more falla- cious. . . When officials are advised of the fact, that their power over a given matter is not absolute, but that they have a trust to dischargee, a court will never presume that they will abuse that trust. If the city council should » People V Supervisors, 105 N. Y. 180, afl'g 38 Hun (N. Y.) 373. 443 Chap. XIX.] COMPENSATION GENERALLY § 459. ever attempt to abuse their trust, it will be time enough then to decide, whether their action in the exercise of a clearly vested power is final, and not subject to revision by any tribunal; whether the only remedy left is by appeal to the electors at the ballot box. It might be that an ordinance, reducing the mayor's salary to a nominal amount, would be unreasonable and void; or that an ordi- nance, increasing it to an exorbitant amount, would like- wise be invalid. . . . Beit, as stated, it is not neces- sary to decide this point." ' So, where a statute provided for the appointment of a health officer in each county, and that the board of supervisors of the county should fix his salary; and, in a particular county, the board fixed the salary at $15 per month, and two years afterwards reduced it to $1 per month; but the person appointed continued to serve, and then broiight an action against the supervisors to recover on a quantum meruit, and the jury found in his favor at the rate of $15 per month; the judgment on the verdict was affirmed, the court holding that the action of the supervisors was practically an attempt to oust the plaintiff from his office, and that "such action was a nullity, and the salary previously fixed by the board was not thereby changed. " " § 459. As to salaries of city officers, and the fixing and payment thereof. — A statute, providing that the salary of an officer shall be fixed by the common council of a city, and paid by the supervisors of the county, is constitu- tional, and under such a statute, the supervisors have no power to change the salary. ° And a power, conferred on the board of apportionment of the city of New York, "to regulate the salaries of officers and employees of the city and county governments," does not empower them to ■ state V Nashville, 15 Lea (Tenn.) 697. See also, Carr v St. Louis, 9 Mo. 190. ' De Soto County v Westbrook, 64 Miss. ' People v Auditors, etc., 13 Mich. 233. 312. 443 § 4:61. PUBLIC OFFICERS [Book IV. reduce the salary of an assistant district attorney, since the district attorney, and consequently his assistant, are state and not county officers. ' § 460. Salary payable out of fees. — A statute, fixing the salary of a county clerk, and providing that he shall "collect all official fees, and on the first day of every month, pay the same over to the county treasurer, less his salary for the next preceding month," does not limit the salary to the amount of fees received.' Where, under such a statute, the clerk has received the full amount of his salary, his successor is entitled to collect the uncollected fees.' § 461. Insufficient appropriations; appropriation to pay one who holds three offices. — Where the salary of an officer is fixed by law, and the legislature appropriates a smaller sum for his salary, without any provision declar- ing it to be in full for his salary, or repealing the provi- sion fixing his salary; this is merely an insufficient appropriation, not a reduction, and the officer is still entitled to the difference." So the appropriation, for payment of the salary of a municipal officer, of a smaller sum than he had before received, does not itself reduce his salary. ' And not only does an insufficient appropri- ation fail to effect a reduction of the salary, but the officer is not precluded from claiming the difference, by his continuance to serve, and accepting the smaller sum. ° But where the statute shows that the legislature intended to make the reduction, he can have only the smaller sum, although the result is accomplished by a smaller 1 Fellows V Mayor, etc., 8 Hun (N. Y.) 484. ' Fountain v Jackson, 50 Mich. 260. ' Sewell V Placer County, 42 Cala. 650. « Langston v United States, 21 Ct. of CI. 3 Thornton V Thomas, 65 Mo. 272. (U. S.) 10; afl'd, p. r., 118 U. S. 389. Accord, State v Steele, 57 Tex. 200; « French v United States, 16 Ct. of CI. gj^jg „ ^ook, 57 Tex. 205. (U. S.) 419. 444 Chap. XIX.] COMPENSATION GENERALLY §462. appropriation only.' Where an appropriation is made in solido, to pay a state officer who holds three offices, it has been held, that his successor in two of them only is not entitled to any of the money.' § 463. Rules where statute provides one officer's salary shall be same as another's; foreign minister. — It was held, in Iowa, that where a statute provides that the salary of the clerk at A shall be the same as that of the clerk at M, and a subsequent statute increases the salary of the clerk at M, that does not increase the salary of the clerk at A.' But in Texas, it was held, that where a statute provides that a certain judge " shall receive the same salary as the judges of the district courts," and a subsequent statute reduces the salaries of the judges of the district courts, that reduces to the same extent the salary of the first named judge.' Where a general statute provides, that a city marshal shall have the same duties and responsibilities as a sheriff, and shall be entitled to the same fees, that does not permit him to recover from the county fees for services in criminal cases, since the presumption is that a city officer is to be paid by the city and not the county, and this presumption must pre- vail, in the absence of an express statutory provision to the contrary, although services of that character are generally chargeable to the county. " A foreign minister of the United States is entitled to receive the sum fixed for his salary, in the money of the United States, or its market equivalent." » United States v Mitcliell, 109 U. S. 146, ' Kinsey v Sherman. 46 Iowa 463. rev'g s. c, p. r., 18 Ct. of 01. (U. S.) 281. g^g ^j^^^ Jolmbton v Lovett, 65 Ga. 716. See also, People v Supervisors, 105 N. Y. 180, cited ante, § 457 ; * State V Cook, 57 Tex. 805. United States v Fisher, 109 U. S. 143 ; ° Christ v Polk County, 48 lovva 303. Beaman v United States, 19 Ct. of 01. e clay V United States, 8 Ot. of CI. (U. S.) (U. S.) 5, cited ante, i 310. g09_ » State V Hallook, 19 Neva. 371. 445 § 464, PUBLIC OFFICERS [Book IV. § 463. Effect of requirement that salary shall be fixed before appointment. — A statute, requiring that " the com- pensation or salary of any officer" of a city "shall be fixed before his appointment," does not require that it shall be fixed in advance, whenever a new appointment to the office is made: where it has been once properly fixed, that is sufiicient for each successive appointment, until it is changed. ' § 464. As to reduction and changes in fees and salary, and the time of payment thereof. — Where a board has power to reduce an officer's salary, a resolution that it be "fixed" at a certain sum, less than that before paid, is a reduction, without the use of the word " reduce," or any equivalent expression." The reduction of an officer's salary, by a board authorized to reduce it, may be effected by clear implication, as well as by an actual resolution to reduce it. ' Where a statute provides,' that the salaries of members of the fire department of a city " shall be fixed by the board of fire commissioners, sub- ject to approval by a majority vote of the common council;" and the board pass a resolution to fix the salaries of a certain class of the members, at a certain sum for each man, subject to the approval of the common council; and the common council pass a resolution, approving of such fixing of the salaries at a specified sum for each man, less than the sum designated by the board; the effect is that no salary is fixed, since the common council has power only to approve or disapprove the action of the fire commissioners, not to originate a meas- ure to fix the salaries.* Where a statute gives fees to a sheriff, "in such sum as the court shall order," there must be an order of the court fixing his fees, before he is ' People V Crissey, 91 N. Y. 616, at p. 637. fully ante, § 45t. 2 Taylor v Mayor, etc., 67 N. Y. 87. * McCormiok v Syracuse, 85 Hun (N. Y.) ' People V Sup'rs, 105 N. Y. 180, cited ^• 446 Chap. XIX.] COMPENSATION GENERALLY § 465. entitled to any fees.' A statute, fixing- an officer's salary at a certain sum for each month, entitles him to monthly payments thereof. V. Construction and effect of constitutional or statutory provisions, forbidding an increase or diminution of an officer's compensation. § 465. Validity as respects time ; effect of receiving reduced amount. — In the United States, such provisions are very frequently found in the constitutions of the several states, and in statutes defining the powers and duties of municipal bodies, or the boards or officers thereof; and are usually made applicable to an increase or diminution during the term held by the officer at the time. Where the provision prohibits such increase or diminution ' ' during his continuance in office," this applies only to the term held by the officer, when the proposed increase or diminution is made, not to a term thereafter held by him by virtue of a new appointment or reelection. ' But such a statute cannot be evaded by the resignation of the incumbent, during his term, and his reappointment to the same office. * Where a statute authorized the county commissioners to fix the salary of the district attorney, from time to time, but forbade any alteration thereof during his term; and, the salary having been previously fixed by them, on the day when a new district attorney's term began, and about an hour after he had qualified, the commissioners resolved that the salary should be reduced; it was held that this action was void, and that the district attorney was entitled to recover against the county, the amount of the former salary. ' So, where an increase of compensation was made three days after an officer's ' Shumway v Leakey, 73 Gala. 260. * State v Hudson County, U N. J. L. 388. = Carroll v Slebenthaler, 37 Gala. 193. ' Polk v Minnehaha Co., 5 Dak. T. 129. = Smith V Waterbury, 5i Conn. 174. ^ee also, Milner v Reihensteln, 85 Gala. 593. 447 § 467. PUBLIC OFFICERS [Book IV. election, it was held that he was not entitlea to it during the term which he had then begun to run, but that he became entitled to it upon his reelection.' An officer, appointed to fill a vacancy for the unexpired portion of a term, is not entitled to an increase of salary, voted after the beginning of his predecessor's term, and before the vacancy occurred.'' Where a reduction has been made, in contravention of a constitutional prohibition, the officer, by accepting the reduced salary, is not precluded from collecting the difference between the reduced and the original salary; there is no doctrine of waiver or estoppel which prevents him from doing so.° § 466. When constitutional prohibition does not apply. — A constitutional provision, against increasing or diminish- ing the " salaries" of particular officers, does not prevent the legislature from enacting, that such salaries shall be paid in United States legal tender notes, although such notes are depreciated with respect to coin.* Nor does it prevent an allowance for expenses. ° Nor does it prevent a change of compensation, where the compensation is a percentage or commission upon money received or dis- bursed by an officer." And it has been held, that a consti- tutional provision, forbidding an increase or reduction of the "compensation" of any officer during his term, does not apply to sheriffs, clerks, constables, and other officers, who are compensated by fees, or to treasurers and other officers, who are compensated by percentages or commis- sions.' § 467. The same ; ordinance passed before, but in effect after, commencement of term. — In order that a consti- ' Weeks v Texarkana, 50 Ark. 81. « State v Rliodes, 3 Neva. 240. ^ Larew v Newman, 81 Gala. 588. ' Kirkwood v Soto, 87 Gala. 894. a -nr ± ivf „ rra TT„ oivf . Soc also, antfi, § 443. " Montague V Massey, 76 Va. 307; Neal V Allen, 76 Va. 437, and cases cited » Thompson v Phillips, 12 Ohio St. 617. in the preceding notes. See also, , Milwaukee County « Hackett, 31 Wis. post, oh. 31. g]^3_ 448 Chap. XIX. j COMPENSATION GENERALLY § 467. tutional or statutory provision, forbidding the increase or diminution of an officer's compensation, should apply to a particular officer's compensation, it is necessary that such compensation should have been definitely fixed, before the passage of the statute, ordinance, or resolution, purporting to make the change/ Thus in Pennsylvania, where a statute gave to the court of quarter sessions, authority to fix the sheriff's compensation for boarding prisoners, and the court had never before permanently fixed it, but had allowed the preceding sheriff a certain rate, at the close of his office, and on the settlement of his accounts; it was held, that a constitutional prohibition against increasing or diminishing the "salary or emoluments" of an officer, after his election or appointment, did not apply to an order, fixing the new sheriff's compensation for that service, at a lower rate, since the former action related to the allowance to the preceding sheriff, and was not general." So, such a constitutional prohibition does not prevent the fixing by ordinance of the salary of a muni- cipal officer, where, at the time when he was elected, there was no ordinance fixing his compensation, and such an ordinance was passed afterwards. ° And where a statute, applicable to a municipal corporation, contains such a prohibition, respecting the salaries of the municipal officers; if, after the passage of an ordinance fixing the salary, a person is elected to the office, his salary is fixed thereby, although the ordinance did not take effect until after the beginning of his term, in consequence of a requirement that it should be published a certain length of time, before it could take effect." Rucker v Supervisors, 7 W. Va. 661. = State v McDowell, 19 Nebr. 443 ; Wheelock v McDowell, 20 Nebr. 160. Accord, PurceU v Parks, 82 111. 346. - Peeling u York County, 113 Pa. St. 108, approving and distinguishing Apple V Crawford County, 105 Pa. St. 300; * Sttihr v Hoboken, 47 N. J. L. 147. cited ante, § 441. 449 § 470. PUBLIC OFFICERS [Book IV. § 468. The same ; imposition of additional duties ; duties belonging to office. — Where the legislature enacts a statute, imposing upon the attorney-general, the duties of a member of the board of examiners, and he performs them, a statute awarding him a compensation for the performance of such duties, in addition to his salary as attorney-general, is not within a constitutional prohibition of the increase or diminution of an officer's compensation, because this was not a duty pertaining to his office.' But such a prohibition applies to an attempt of a city council, to pay a committee of its members, for services which have been ordinarily rendered without compensation.'' § 469. As to absence of certaili judges, and judge holding another's term. — A constitutional provision, for- bidding the increase or diminution of the compensation of judicial officers, during their respective terms, renders unconstitutional a statute, authorizing a certain deduction from the salary of a judge, by reason of his failure to attend, and hold the courts to which he was assigned. ^ But a statute, providing that where a special judge holds a court, he shall receive no compensation, unless the regular judge orders his compensation to be paid out of his own salary, is not unconstitutional within such a provision.' § 470. Application to city ordinances, county officers, and officer holding under good behavior. — A constitutional provision that no "law" shall be passed, increasing or diminishing salaries during the terms of officers, does not apply to a city ordinance, making such an increase or diminution. ' Nor does it apply to county commissioners or county auditors, authorized to regulate the salaries of ' Love V Baehr, 47 Gala. 364. (Ky.) 150. ' Garvie v Hartford, 54 Conn. 440. ' Piokardo) Henderson, 15 Lea(Tenn.)430. 3 Garrard v Nuttall, 2 Met. (Ky.) 106. ^ee also, post, 89 500, et se<7. See also. Auditor v Adams, 13 B. Mon. » Baldwin v Philadelphia, 99 Pa. St. 164. 450 Chap. XIX.] COMPENSATION GENERALLY § 473. county officers." But it applies to an officer holding during good behavior.' § 471. Application to a chartered city reorganized under a general law.— Where a general statute forbade the increase or diminution of the salary of any officer, dur- ing his term of office, and a city, organized under a special charter, abandoned its organization and reorganized under the general law, as it was provided in that law, that such a city might do; and the marshal, holding under the old charter, was elected under the new charter, and so> continued to discharge the duties of his office without interruption; it was held, that the new council had no power to diminish his salary, for the term for. which he was first elected." VI. Times of the beginning and the ending of an officer's compensation § 472. An officer is entitled to salary from beginning of term, after qualification. — An officer is not entitled to his salary, until he has taken the oath of office, and given the oflScial bond, if a bond is required." But, although the law requires a government officer (in this case an internal revenue collector) to give a bond and take an oath, before entering upon his official duties, he may have his compen- sation from the time when he entered upon his duties, and his services were accepted by the government, although the oath was taken and the bond was given afterwards. The court said: "We are of opinion, that the statute was satisfied by holding that his title to receive, retain, or hold, or appropriate, the commissions as compensation, does not arise, until he takes and subscribes the oath or affirmation; but that, when he does so, his compensation ' Crawford County v Nash, 99 Pa. St. 253. ' Cox v Burlington, 43 Iowa 612. ' Wright V Hartford, 50 Conn. 646. ♦ Williams v United States, 23 Ct. of CL (U. S.) 46. 461 i§ 474. PUBLIC OFFICERS [Book IV. is to ;be computed .... from the tiine when, under his -appointm^ent, he began to perform services." ' The .effect of a failure to take the official oath, and to give the official bond has been fully considered in a former chapter." Where an officer is nominated for promotion, on condition of passing an examination, he is not entitled to the salary of the new office, until he passes the requisite examination, as, until that time, he is not an officer, either dejure or de facto.' § 473. Entitled only while he is actual incumbent of office. — As a general rule, an officer is entitled to his official compensation, only for the time during which he was the incumbent of the office." "A person is not entitled to the salary of a public office, unless he both obtains and exercises the office." " The exceptions to this rule, as where an officer is unlawfully removed, and procures a restoration by legal proceedings, and the cases where a rightful officer is kept out of office by a usurper, will be considered in a subsequent chapter." § 474. Compensation ends when term ends. — An offi- cer's compensation ends, when his term of office ends, whether that event occurs by expiration of time, or by death, removal, or resignation. Where the charter of a city empowered the head of each department of the city government, to "nominate, and by and with the consent of the board of aldermen to appoint," subordinates, and contained no provision for their removal, or for their terms of office; it was held, that a subordinate might be removed by the head of the department, and another person 1 United States v Flanders, 113 U. S.'88. See also, Dillon Mun. Corp., 4th ed. s ^nt« eh. U. ^ ^^ (*174) note on p. 318, citing also. Queen i) Atlanta, 59 Ga. 318 ; ' Crygier d United States, 25 Ct. of 01. jj^^y^,^^ g^^;^ ^ ^^^^^ ^ q.^_ igg . (U. S.) 268. Nolan « New Orleans, 10 La. Ann. 106. ■> Auditors, etc., i; Benoit, 20 Mich. 170. e pggf gji_ gi_ •* .Earrell v Bridgeport, & Conn. 191. 452 Chap. XIX. J COMPENSATION GENERALLY §476. nominated in his place; but that, until the consent of the board of aldermen had been given, the removal and appointment did not take effect, and until then the incumbent was entitled to his salary." There is no rule of law, that an officer, whose salary is payable quarterly, who is removed during a quarter year, is entitled to his salary for the entire quarter.^ § 475. Where office abolished, compensation ends. — "Where an office is abolished, the incumbent is not entitled to compensation for his unexpired term; his right thereto ceases with the cessation of his incumbency.' And this is the rule, although the money to pay the salary for a longer time has been appropriated. * § 476. An exception, where officer, whose office was abolished, was allowed a year's salary. — One exception only to this rule has been recognized, and that was presented in a case, decided by the supreme court of Ohio. Where the relator, the reportet for the supreme court, was required to attend the sessions of the court, and report the cases decided, and was allowed by law an annual salary; and only one term of the court was held during the year, the court itself, as well as the relator's office, having been abolished during the year; at which term the relator attended, and he faithfully reported all the cases decided thereat; it was held tha,t he was entitled to his full salary for the year. Bartley, Ch. J. , delivering the opinion of the court, said: "Where the duties of a public officer, entitled to an annual salary, continue through the entire year, the salary accrues and becomes payable for the space of time only, djiring which the duties are required to be performed; and a repeal of the law ' White V Mayor, etc., 4 E. D. Smith ' Jones v Shaw, 15 Tex. 577. (N. Y.) 563. Accord, Bailey V State, 50 Miss. 637 ; « UmtedStatesi;Smlth,lBond(U.S.)68. ^tate v Gaines, 2 Lea (Tenn.) 316. * Hall V State, 39 Wis. 79. 453 § 476. PUBLIC OFFICERS [Book IV. creating the office, before the expiration of the year, would stop the accruing compensation, at the time when the duties of the office ceased. But where the duties of an officer, entitled to an annual salary, are of such a nature, that all his duties for the year may be performed and completed within less time than the year, the compensa- tion for the entire year would be payable, in case the duties required by law for the year are performed, although the office might be abolished before the end of the year; and, in such a case, where there is only a partial performance before the abolishment of the office, the compensation should be apportioned to the duties performed, and not to the lapse of time." ' ^ Ex parte Lawrence, 1 Ohio St. 431. 454 Chap. XX. j EXTRASTATUTORY COMPENSATION CHAPTER XX WHEN AN OFFICER MAY OR MAY NOT HAVE COMPENSA- TION, IN EXCESS OP THAT FIXED BY LAW CONTENTS I. General rules respecting additional compensation to a public officer. Sec. 477. Common law rule, that promise to pay money to officer for official services is void. 478. Compensation given by law is in full of officer's official services, and he cannot receive anything more, or any fee for which the law does not allow a fee. 479. Additional duties, imposed by law, do not entitle officer to additional compensation, nor do extraordinary risks. 480. Clerk in department of interior, sent as U. S. agent to London exhibition; secretary of territory, acting as gov- ernor; no extra compensation. 481. Extraordinary services do not vary the rule; constable making arrest under promise of special compensation. 483. Sheriff not entitled to anything for personal attention to prisoner; or for conveying prisoners to jail in another county, etc. ; nor can he delegate such compensation to another. 483. Auditor of public park, negotiating a loan, without promise of extra compensation. 484. Contract to reward officer for doing his duty void; officer of navy, agreeing to convoy ship; pilot agreeing for extra compensation, for aiding vessel in distress. II. Cases, where an officer is or is not entitled to a reward, offered for a special service, or to an informer's share in confiscated property. 485. Officers having police duties cannot have rewards offered for capture, etc., of offenders, within then- jurisdiction the rule illustrated. 455 PUBLIC OFFICERS [Book IV. Sec. 486. The same; but they and other officers may 'have such rewards, where they act without their jurisdiction; instances. 487. So for procurring evidence to lead to conviction of offenders. 488. Firemen entitled to reward, offered for entering a burning building, and bringing out a body. 489. Eule where officer claims informer's share of confiscated property. III. Other cases, where it has been held that an officer was entitled to compensation for exceeding his official duty. 490. Rule under United States statute, forbidding extra com- pensation. 491. The same subject. 492. City comptroller applying county bonds ; town agent acting as attorney; judge of probate acting for unqualified judge, etc.; member of legislature prosecuting his town's claim against the state; and other instances, where compensation was allowed. 493. Sheriff for compensation of keeper, by agreement; jailor for attending sick prisoner, by agreement. 494. Extra compensation allowed, where such appears to be the intent of the statute fixing compensation. 495. Cases where officers are entitled to be reimbursed for extraordinary expenses, etc. IV. Whether an officer, discharging the duties of his own and another office, can have any additional compensation, beyond the emolu- ments attached to the former. 496. Where two distinct offices are properly held by the same person, he may have the emoluments of each, and stat- ute forbidding extra compensation does not apply; but semble, that he cannot have two per diem compensations. 497. But if second office is only incidental to first, he can have compensation for one only; so where he was appointed to second without compensation. 498. Secretary of state, acting as governor under state consti- tution during vacancy, holds, and is entitled to salaiy, till vacancy filled, although his term as secretary expires before 45G Chap. XX.] EXTRASTATUTORY COMPENSATION § 478. I. General rules respecting additional compensation to a public officer. § 477. The common law rule as to promise to pay officer for official services. — At common law, it has been uniformly held, that a promise to pay money to a public officer, for doing that which the law would not suffer him to take anything for doing, or to pay him more than the law allowed, was void, however freely and volun- tarily made; for, as Sergeant Hawkins said, if it should be once allowed that such promises would sustain an action, the people would be quickly given to understand how kindly they would be taken; and happy would that man be, who could have his business well done without them.' § 478. Compensation given by lawr is in full of officer's official services. — It results from the proposition, stated and illustrated in the last chapter, that an officer is not entitled to compensation, unless it is given to him by the constititution or a statute, that where a compensation is thus given, whether by salary, or by fees, or by commis- sions, or otherwise, it is in full of all his official services; and he is not entitled to demand or receive any additional compensation, from the public or from an individual, for any service within the line of his official duty; although his duties have been increased, or entirely new duties have been added, since he assumed office; or, if his com- pensation consists of fees, although the service is one for which no fee is provided by law. And this proposition is declared and illustrated in numerous American authori- ties." » Hawk., P. C, ch. 68, g 4. Bridge v Cage, Cro. Jac. 103 ; See also, Morris i) Burdett, 1 Campb. Stotesbury v Smith, 2 Burr. 924 ; 1 218; W. Blackst. 204. Bilke V Havelock, 3 Campb. 374 ; j g^^^j^ ^ Brewer, 59 Ala. 130 ; Batbo D Salter, Latch 54 ; W. Jones, 65 ; Heslep v Sacramento, 2 Gala. 580 ; Lane v SeweU, 1 Chitty 175 ; Stockton v Shasta County, 11 Gala. 113 ; Dew D Parsons, 1 Chitty 295 ; 457 §479. PUBLIC OFFICERS [Book IV. § 479. Effect of imposition of additional duties and extraordinary risks. — Thus, to illustrate the application of the rule in a few special cases, where the legislature Eowe V Kern County, 1Z Cala. 353 ; Decatur v Vermillion, 77 111. 315 ; Sidway i) South Park Com'rs, 120 111. 496; Jay County v Templer, 34 Ind. 322 ; Stropes V Co. Com'rs, 84 Ind. 560 ; Nowles V County Com'rs, 86 Ind. 179 ; Bynum v County Com'rs, 100 Ind. 90 ; County Com'rs v Harman, 101 Ind. 551 j Vandercook v Williams, 106 Ind. 345 ; Williams v Segur, 106 Ind. 368 ; McDonald v Woodbury Co. , 48 lo wa404; Fawcett V Woodbury Co., 55 Iowa 154 ; Griffln v Clay Co., 63 Iowa 413 ; Owens V Gatewood, 4 Bibb (Ky.) 494 ; Wortham v Grayson Co. Court, 13 Bush (Ky.)53; Talbot V East Machias, 76 Me. 415; White V Levant, 78 Me. 568 ; Comm. V Cony, 2 Mass. 523 ; Briggs V Taunton, 110 Mass. 423 ; New Haven, etc., Comp'y v Hayden, 117 Mass. 433; Brophy v Marble, 118 Mass. 548 ; Walker ii Cook, 129 Mass. 577 ; People V Supervisors, 36 Mich. 10 ; Gerken v Sibley Co., 39 Minn. 433 ; State V Holladay, 67 Mo. 64 ; Raymond v County Com'rs, 5 Mont. 103; Territory v Carson, 7 Mont. 417 ; Bayha v Webster County, 18 Nebr. 131 ; Gilmore v Dodge, 58 N. H. 93 ; Rindge v Lamb, 58 N. H. 278 ; Evans v Trenton, 34 N. J. L. 764; Mallory i) Sup'rs, 2 Cow. (N. Y.) 531 ; People V Sup'rs, 1 HUl (N. Y.) 362; Palmer v Mayor, etc., 2 Sandf. (N. Y.) 318; Bruns v Mayor, etc., 6 Daly (N. Y.) 156 ; Wendell!) Brooklyn, 29 Barb. (N.Y.)204; Cowan V Mayor, etc., 6 T. & C. (N. Y.) 151; 3Hun(N. Y.)632; Lire N. Y. Cent. &c. R. R. Comp'y, 7 Abb.N. C. (N.Y.)408; Perkins V Proud, 63 Barb. (N. Y.) 420; Oakley v Mayor, etc., i Hun (N. Y.) 73 ; 6T. &C. (N.Y.)331; Poughkeepsie v Wiltsie, 36 Hun (N. Y.) 270; Haswell v Mayor, etc., 81 N. Y. 255 ; Sup'rs V Jones, 119 N. Y. 339 : State V Johnson, 101 N. C. 711 ; Andrews v United States, 2 Story (U. S.) 202; United States v Averill, 130 U. S. 335; Converse v United States, 31 How. (U.S.) 463; Jackson v United States, 8 Ct. of CI. (U.S.) 354; Gray v United States, 23 id. 323; Massing d State, 14 Wis. 502 ; Jones 1) Sup'rs, 14 Wis. 518. See also, Dillon Mun. Corp., 4th ed., g 233 (*172), citing, In addition to several cases cited in this note, Andrews v Pratt, 44 Cala. 309; Butler V Neosho County, 15 Kan. 178 ; Covington v Mayberry, 9 Bush (Ky.) 304; Bright 1) Sup'rs, 18 Johns. (N. Y.) 242; People V Sup'rs, 12 Wend. (N. Y.) 257 ; Gillmore V Lewis, 12 Ohio 281 ; Bussier v Pray, 7 Serg. & R. (Pa.) 447. But for services, without the line of his ofBcial duty, an officer may have additional compensation. See post, §§ 486-488, 490^95 ; Also, County Com'rs v Brewer, 9 Kan. 307; Huffman i) County Com 'rs, 23 Kan. 281 ; Detroit v Redfield, 19 Mich. 376 ; Contra, see post, I 483, A custom, fifty years old, to allow county commissioners an additional compensation "for incidental ex- penses," beyond the per diem allow- ance fixed by statute, is inadmissible. Albright v Bedford Co., 106 Pa. St. 582. See, however, Boyden V Brookline, 8 Vt. 284. 458 Chap. XX. J EXTRASTATUTORY COMPENSATION § 480. imposed upon the district attorney of the county of New York, the very onerous additional duty of prosecuting recognizances, and suing for the money of fines upon defaulting jurors; it was held, that for so doing he could have no compensation, in addition to his salary. The court said: "By charging the attorney with the duty of suing for fines, without making provision for the pay- ment of costs, the legislature has, in effect declared, that the salary of the oflBcer is to be deemed the compensa- tion for these, as well as for other services. It is impos- sible for a salary officer to make title to an increased compensation, on the sole ground that a new duty has been cast upon him by the legislature. . . . Whether the pay shall be increased with the burden, is a question which addresses itself to the legislature. The courts have nothing to do with it." ' So where the mayor of a city had received, in the course of the discharge of his official duties, injuries, from which he afterwards died; and the common council passed a resolution, to allow him $10,000 in addition to his salary, in consideration of the expenses of his illness, and as a testimony of their high appreciation of the manner in which he had dis- charged his duties; it was held that his administrator could not maintain an action for the money. The court said: " The mayor had assumed the performance of cer- tain duties; and the city had paid a certain salary, by way of compensation, equal to their supposed value, and could not be made morally responsible for the accidents which might occur in their performance." Hence the promise, contained in the resolution, was without consid- eration." § 480. Secretarj^ of territory acting as governor; clerk of department as government agent.— So, where a clerk ' People V Supervisors, 1 Hill (N. Y.) ' Heslep v Sacramento, 2 Gala. 580. 363, per Bronson, J., p. 367. 459 § 481. PUBLIC OFFICERS [Book IV. in tho department of the interior was appointed by the secretary of the interior, the agent of the United States to attend the industrial exhibition in London, and his certificate of appointment stated that his compensation for so doing "will be allowed;" and he attended accord- ingly, holding, during the time of his absence, his clerk- ship, and drawing his regular salary therefor; it was held that, under a statute of the United States forbidding an officer of the government from receiving extra pay, he could not have any compensation for his services as such agent. ' So where a statute of the United States provided, that where the office of governor of a territory should be vacant, the secretary of the territory should perform the duties of the governor, and a person appointed the secretary of a territory acted as governor, during a vacancy in that office, it was held that he was entitled only to his fixed salary as secretary." § 481. Extraordinary services; promise of special compensation. — It makes no difference in the application of the rule, that the services, for which the compensa- tion was promised, were of an extraordinary character. Thus, where a constable, who had declined to arrest a certain person in a civil action, was induced to undertake the service by the creditor's promise that he should be well paid, and thereupon employed a person to assist him, and the two went to the defendant's house at 3 o'clock in the morning, and watched till daybreak, when they succeeding in arresting him; it was held, by the court of errors of the state of New York, reversing the judgment of the supreme court, that an action would not lie upon the promise. The chancellor, after saying that specific provisions had been made by the legislature ' Stansbury v United States, 1 Ct. of 01. = United States v Smith, 1 Bond (U. S.) (U. S.) 123 ; aff'd 8 Wall. (U. S.) 33. 68. ^ See also, Wilson v United States, 1 Ct. See, however, post, 8 498. of 01. (U. S.) 206. 460 Chap. XX. j EXTRASTATUTORY COMPENSATION § 483. for a constable's fees on the service of a warrant, added: " The framers of these statutory provisions are not chargeable with the absurdity of supposing, that the compensation, provided in the fee bill, would be a full and adequate one for the performance of the service, in each particular case; but, to prevent extortion and oppres- sion on the part of the public officers, and the intermin- able litigation which must necessarily arise, if the amount of their compensation or the value of their services were dependent upon the circumstances of each case, a fixed allowance has been prescribed by law, which, taking one case with another, was deemed a fair compensa- tion The cases, in which extra allowances have been made to public officers, are cases where ser- vices were performed by them, for which no compensation was prescribed in the fee bill, or where the services were not rendered by them as officers, but in their private characters." Mr. Senator Tracy said: " In the language of honest Justice Wilmot, 2 Burr. 934, I say ' this is a most shameful and scandalous action.' .... That a public officer, whose fees are prescribed by law, may maintain an action to recover an additional sum, promised him by a party, for doing his official duty, is a monstrous proposition, fraught with every kind of mischief. The pretence that it is for extra services would cover any conceivable corruption or extortion." ' § 483. Instances where sheriff was not entitled to extra compensation. — So a sheriff is not entitled to any compensation beyond the statutory fees, and salary, if any, for his personal attentions to his prisoners.' Nor can he charge for the compensation of keeper for a schooner levied upon, such a fee not being allowed by Hatch V Mann, 15 Wend. (N. Y.) 44, ' Grubb v Louisa County, 40 Iowa 314 ; rev'g 9 Wend. (N. Y.) 262. County Com'rs v Kindt, 16 Kan. 157. 461 § 484. PUBLIC OFFICERS [Book IV. statute.' So, where there was no jail in his county, and he took the convicted prisoners to the jail of another county, as the statute prescribed, it was held, that he could not have any additional compensation therefor, even for his expenses." A sheriff cannot delegate to another any right to extra compensation, which he can not himself claim.' § 483. Auditor of public park negotiating a loan.— Where the auditor of a public park, having a fixed salary, was directed by the park commissioners to pro- cure a loan, but no promise of additional compensation therefor was made; it was held that, although the service was extra oflHcial, he was not entitled to any additional compensation.' § 484. Contract to reward for doing duty; instance of officer of navy, and of a pilot. — It has been well said, that a contract to reward an officer for doing his duty is void. ° This doctrine was extended to an officer of the United States navy, in a case in the court of chancery of New York. A bill for a discovery and accounting was filed, upon an agreement between the complainant, a lieuten- ant in the navy, and the defendants, owners of a mer- chant ship, whereby the defendants undertook to pay the complainant a certain proportion of the profits of a voyage; and the complainant undertook that a ship of war, to which he was attached, which was about to proceed ' Townsend v Ross, 45 N. Y. Super. Ct. ' O'Connor v O'Connor, il N. Y. Super. «7. Ct. 498. » County Com'rs i> Honn, 23 Kan. 256. , gj^^^y „ g^^^-^ p^^^ ^om-rs, 120 lU. As respects the disallowance of the ^gg_ •sheriff's expenses, this case is con- g^^^j.^^ j^^j,,^^ Detroit v Redfield, 19 trary to those cited in § 495, post. Mich 376 For other cases, ruling that a sheriff cannot charge fees, for a service ' Placket D Gresham, 3 Salk. 75 ; Putnam which he is required by law to per- « Woodbury, 68 Me. 58 ; form, beyond the statutory fee, Carroll t, Tyler, 2 Har. & G. (Md.) 54 ; see the note to 8 478, ante. ^-^^^ " M^'""'' «'=- ^ ^arb. (N. Y.) 340. 462 Chap. XX. J EXTRASTATUTORY COMPENSATION § 484. to the same port, should give the merchant ship special protection, etc. The bill was dismissed on the ground that the contract was unlawful, the chancellor saying: "The idea that an officer, employed by the public for the performance of a public trust, and paid by his country for his services, may take additional and private com- pensation for the discharge of his official duties, is wholly inadmissible. A distinction, between bribes for doing a duty, and bribes for violating a duty, may exist in casu- istry; and a bribe, which has produced a violation of duty, may, when viewed in connection with its effect, be more criminal than a bribe not followed by such a result. But the idea now suggested, that bribes for doing a duty are lawful, is a conception which has never yet found a place in any code of law, or in any system of morals." ' So, where a statute provided for the licensing of pilots, fixed their fees for pilotage, and made it the duty of all pilots to render all aid in their power, under a penalty; and further provided, that where a pilot should have dis- tinguished himself by his activity and readiness to aid a vessel in distress, he should receive from the master extra compensation, to be fixed, if the parties did not agree, by the master and wardens of the port; it was held, that where a special agreement was made between the plaintiffs, pilots of the port of New York, and the master of a vessel in distress, for the payment of a specific sum to the plaintiffs, for bringing her safe into that port, an action could not be maintained upon such an agreement. The court said : " It being made the duty of the pilots to assist the defendants' vessel, it was oppression in them to exact the stipulation in question. It would lead to abuses of the most serious nature, if such contracts, founded upon such considerations, were held to be legal. There are several cases in the books, tend- 1 Weaver v Whitney, Hopk. (N. Y.) 11 463 § 485. PUBLIC OFFICERS [Book IV. ing to show the leaning of courts of justice against tne oppressions of persons in public trust, and the illegality of exacting previous reward for doing their duty. The law allows them sufficient compensation for extraordi- nary exertion, after the service is performed, which shows it was an object with the legislature to prevent undue advantages being taken." ' II. Cases where an officer is, or is not, entitled lo a reward offered for a special service, or to an informer's share of confiscated property. § 485. Where officers having police duties cannot have rewards. — It is evident, from what has been hereto- fore said, that where a reward has been offered, by the public authorities or by an individual, for a service which is within the line of the officer's duty, he cannot claim the reward, although he may have performed the service. Thus, a city watchman cannot have a reward, offered by the city, for the detection of an offender.'' And where a state detective, who is prohibited by law from receiving any reward, detected an incendiary, for whose detection and conviction a town had offered a reward, and communicated his information to the plain- tiff, upon whose advice the criminal confessed his guilt to the plaintiff, and the officer, and was convicted; it was held that the plaintiff could not recover the reward.' The overseer of a county poor house and asylum, cannot claim a reward, offered by the county authorities, for the capture and return of an insane patient, who has escaped from his asylum, although he was placed there only temporarily, having escaped from another asylum." ' Callagan v Hallett, 1 Caines {N. Y.) s Dunham v Stookbridge, 133 Mass. 233. 104. As to the general rule, see also, Dav- » Pool « Boston, 5 Cush. (Mass.) 219. f^^ " B™>is. 5 Allen (Mass.) 349. * Ring B Devlin, 68 Wis. 384. 464 Chap. XX.] EXTEASTATUTORY COMPENSATION § 486. And a policeman is not entitled to a reward, offered by a citizen, for the detection of a burglar, although he effected the detection, while he was not on duty.' So, a police officer, appointed by a city, but paid by a railroad com- pany, cannot have a reward offered by the company for the arrest of an offender, where the arrest was within the line of his duty." § 486. Where they and other officers may have rewards. — The rule that a public officer, whose duty it is to detect or arrest offenders, cannot have a reward, offered by the public or by an individual, for the detection or arrest of a particular offender, has been declared and applied in several other cases. And in one case it has been held, that a deputy sheriff is not entitled to compensation, offered by an individual, for procuring the return from another state of a fugitive from justice from his own state, where the statute fixed the compensation of a state agent employed for such a purpose, and forbade any public officer from receiving any additional compensa- tion for such service." But, in the absence of such statu- tory provisions, the contrary ruling has been made elsewhere, on the ground that it was not the officer's duty to go out of the state to arrest a criminal; and this ruling is more in accordance with the principle govern- ing this class of cases, and with the weight of the authorities.' And where the bail of an escaped felon offered a reward for his capture, and safe lodgement in 1 In re Russell, 51 Conn. 577. Murphy v New Orleans, 11 La. Ann. 323 ' Thornton v Mo. Pac. Railway Comp'y, 43 Mo. App. 58. ' Day v Townsend, 70 Iowa 538. ' Ex parte Gore, 57 Miss. 251 ; » Morrell v Quarels, 35 Ala. 544. City Bank v Bangs, 2 Edw. Ch. (N. Y.) See also, Pilie V New Orleans, 19 La. 95 ; Ann. 274 ; Rea V Smith, 2 Handy (Ohio) 193. Smith v Whildin, 10 Pa. St. 39 ; Gillmore v Lewis, 12 Ohio 281 ; Stamper V Temple, 6 Humph. (Tenn.) See also. Means V Hendershott, 24 113. Iowa 78 465 § 488. PUBLIC OFFICERS [Book lA'. jail; and the sheriff of the county obtained a requisition from the governor, pursued the felon to another state, brought him back, and lodged him in jail; it was held, that he might recover the reward, and that a statute prohibiting a sheriff from taking any compensation, except that allowed by statute, did not affect his right to recover. ' § 487. So for procuring evidence to lead to convic- tions. — So, it has been held, that an agreement by private persons to compensate a deputy sheriff, for procuring evidence, which would lead to the conviction o , persons implicated in the commission of a crime, where the offence was committed and the trial had in a county, other than that of which the deputy sheriff was an offi- cer, was valid, and that an action could be maintained thereupon. The court said : " The plaintiff had no legal duty to perform, by virtue of his office as deputy sheriff, in procuring the evidence, and causing it to be produced; having no writ to execute, and the offence having been committed and the trial had out of his county, we do not think the policy of the law forbade his receiving the compensation. It was not compensation for the per- formance of any duty enjoined upon him by law." " So a city officer, charged with the apprehension of offenders within, but not without, the city, was allowed to recover upon an agreement with an individual, to compensate him for leaving the city, to detect and apprehend a per- son, who had committed an offence. ° § 488. Fireman entitled to reward for entering burn- ing building. ^Where the defendant, while his house was burning, offered $5,000 to any person who would bring out his wife, dead or alive; and a member of the fire 1 Gregg 1) Kerce, 53 Barb. (N. Y.) 387 ; ' Bronnenberg V Cobum, 110 Ind. 169, at Accord, Brown v Godfrey, 33 Vt. 120. p. 174. ■ Harris v More, 70 Gala. 502. 460 Chap. XX. J EXTRASTATUTOKY COMPENSATION § 489. department, on the faith of the offer, but without expressly accepting it, entered the building and brought out her body, at great risk of his own life; it was held that he was entitled to recover. The court, after express- ing a doubt, whether it was part of the duty of a fireman to save property or persons from a burning building, said that it was clearly not his duty to do so, at the imminent hazard of his own life. § 489. Rule where officer claims informer's share of confiscated property. — The same general rule governs, where an officer claims an informer's share of confiscated property. In a case, which arose under the United States internal revenue statute, where the question was, whether certain officers of the United States revenue service were entitled to participate in the informer's share of the pro- ceeds of confiscated property, Lowell, J., said: "If the point were new, it might, perhaps be open to argument that an inspector or other officer owes his whole time to the government, and that there is no consideration for a promise to pay him a further reward for the zealous dis- charge of his duty. But the treasury department and the courts have acquired in thedecision of Judge Ware, in Hooper v. Fifty-One Casks of Brandy, Daveis, 370, and it naust be taken as settled, that an officer of the revenue may, in some cases, be an informer. And the practice has been similar under the internal revenue laws, and rightly, as the statutes themselves show. Still it is clear, that an officer cannot always be considered an informer, merely because he, as officer, acquires information useful to the government. If this knowledge is acquired in the ordi- nary discharge of his duty, touching the very subject ruatter, or under a special retainer to investigate that matter, I cannot hold him entitled to a gratuity. . . In my view, the cases, where an officer may be an in- ' Relf 1) Paige, 55 Wis. 49"- 467 § 490. PUBLIC OFFICERS [Book IV. former, are where he incidentally, and not in the direct prosecution or course of his duty, or of any special retainer for that purpose, makes a discovery; as if an inspector, put on board a vessel merely to keep the cargo safely, discovers smuggled goods concealed; or where an oflBcer, sent to inquire into a particular charge, discovers something entirely different, and before unsuspected; or where he is told by some one, as a friend and not as an officer, of facts which his informant, not wishing to be known, refuses to bring forward himself, but tells him for the very purpose of enabling him to give information in his own name. In these cases, an officer may be an informer. I do not at present think of any others." ' III. Other cases, where it has been held, that an officer was entitled to compensation for exceeding his official duty. § 490. Rule under U. S. statute forbidding extra compensation. — Several of the cases upon this subject turned upon a statute of the United States, forbidding officers or employees of the United States, having a fixed compensation, to receive any additional compensation from the government." The former statutes on the same subject were construed by the supreme court of the United States, as meaning that no compensation for extra services can be allowed to an officer of the govern- ment, beyond that fixed by law, "except for the per- formance of certain duties, required by law to be performed, for which the law grants a certain compen- sation, and which have no connection with the duties of the office he holds." ' But for the performance of such • United States v 100 Barrels of Distilled (U. S.) 421. Spirits, 1 Low. Dec. {U. S.) 244. ^ U S R S 8 1765 See also. Fifty Thousand Cigars, 1 Low. Dec (U S ) 22 • ° Converse v United States, 31 How. United States v Clir.ssell, 6 Blatchf. <^- ^-^ ^'^■ 468 Chap. XX. J EXTKASTATUTOEY COMPENSATION § 491. duties, he may have an additional compensation.' It has been held by the supreme court of the District of Columbia, that the statute above cited " applies only to cases, where the regular and the extra compensations are given for the discharge of duties or rendition of services, incompatible with each other." The court said: " There is nothing disclosed .... that intimates that these duties were incompatible with each other, and must be carried on at the expense of the one or the other. There is nothing averred .... that the separate duties discharged by this person, were derivative, one from the other, a protraction of the other, or correlative with each other; a distorting, for the purposes of pay- ment, of one oflSce into two. It was this evil that congress had in contemplation, and provided against." And accordingly the court allowed a person, who was super- intendent or foreman of the work of constructing public buildings, at a fixed salary, commissions upon the dis- bursement of money, appropriated for the construction of public buildings, pursuant to an appointment as agent for that purpose, by the secretary of war. ' § 491. The same subject.— So it has been held, that where a salaried public officer of the United States, at the request of the head of the department to which he belongs, performs public duties, other than those pertain- ing to his office, he is entitled to additional compensation therefor.' Thus, a salaried chemist in the department of agriculture, rendering services to the government, with his superior's consent, in defence of importers' suits, is entitled to additional compensation." And a collector of ' United States v Brindle, UO U. S. 688. See also, Evans v Trenton, 24 N. J. L. See Stansbury v United States, 8 Wall. 764. (U. S.) 33, cited ante, 8 480; s United States u Duval, Gilpin (U.S.) 358. CoUier v United States, 33 Ct. of CI. (U. S.) 135. * Collier v United States, 23 Ct. of CI. » United States v Evans, 4 Mackey {D. C.) (U. S.) 125. 281. 469 § 493. PUBLIC OFFICERS [Book IV. customs, performing, under the direction of the depart- ment, "extra services outside of his own district," which have "no aflSnity or connection with the duties of his office," may be allowed compensation therefor. ' §492. Various instances where extra compensation was allowed. — The comptroller of a city, who is appointed the agent of the city to receive bonds of the county, and apply them as directed by statute, is entitled to the same compensation as any other agent, that is, to a quantum meruit." The rule, that an officer can have no extra com- pensation, applies only to official services; and if a town agent is an attorney, and acts as such by the direction of the town authorities, the town is liable for his services.' So a county attorney, who goes beyond the limits of his county, to do business for the county, is entitled to a rea- sonable compensation for such services, in addition to his salary.' The representative of a town or city, in the state legislature, is under no official obligation to attend to the prosecution of the claims of the town or city for disbursements, nor is the city solicitor; and either is entitled, for such services, to a reasonable extra com- pensation, if he is employed for that purpose by compe- tent authority." A police justice of a city, who was employed by the city authorities to revise the city ordi- nances, may recover a reasonable sum for his services, unless it appears that they were to be rendered gratuit- ously. ' § 493. Instances where sheriff and jailor were allowed extra compensation by agreement. — Although a sheriff is prohibited by statute, from receiving any compensation ' United States v Austin, 2 Cliff. (U. S.) ■■ County Com'rs v Brewer, 9 Kan. 333 ; 325. Huffman v County Com'rs, 23 Kan. 281. ' Detroit v Redfield, 19 Mich. 376. » Calais v AVhidden, 64 Me. 249. » Langdon v Castleton, 30 Vt. 285. ° McBride v Grand Rapids, 47 Mich. Accord as to the mayor of a city, Niles 236 ; s. c. 49 Mich. 239. V Muzzy, 33 Mich. 61. 470 Chap. XX. J EXTRASTATUTOET COMPENSNTION § 495. not allowed by law, still an agreement by a judgment debtor, with a sheriff, holding an execution against him, to pay for the services of a keeper, to prevent the debtor's store from being closed, is valid, and will sustain an action." Where a prisoner, who was sick, promised the jailor, if the latter would attend altogether to the prisoner, instead of devoting his spare time to his business as a blacksmith, to pay him therefor twice as much as he could earn by his work, it was held that the contract was valid." § 494. Allowed where such appears to be intent of statute fixing compensation. — Although, where a statute prescribes the duties to be performed by an officer, and the mode of fixing his salary, the general rule is, that the salary so fixed is a full compensation for the officer's services, and supersedes all previous statutes, providing for special compensation for any of such services; yet the rule does not apply, where there are special enact- ments, showing that the legislature intended that the officer should receive compensation, in addition to salary, for particular services, and that such compensation would be payable ultimately from a different source. " § 495. Reimbursement for extraordinary expenses, etc. — A public officer is entitled to receive from the public authority which he represents, reimbursement for extraor- dinary expenses, necessarily incurred by him, in the course of, or in consequence of, the discharge of his official duties, and not intended to be covered by the compensation allowed to him, the rule in this respect being the same as in cases of private agency. Thus, the trustees of a village may maintain an action against the village, or their successors, to recover the costs of an action » Murtagh v Conner, 15 Hun (N. Y.) 488. » Trundle v Riley, 17 B. Mou. (Ky.) 396. Recognized and explained, McKeon v 3 o'Gorman v Mayor, etc., 67 N. Y. 486. Horsfall, 88 N. Y. 429. 471 § 495. PUBLIC OFFICERS [Book IV. against them, brought in consequence of an act done in the faithful discharge of their duty. ' So an Indian agent of the United States is entitled to reimbursement, for the amount paid by him for freight on supplies, in a sudden emergency." And a city or town may lawfully agree to indemnify, or actually indemnify, its officer against liabilities incurred by him in the discharge in good faith of his official duties;' as where an officer is sued for a libel, by reason of matters contained in his official report;* or for malicious prosecution, for bringing an action to recover public money. " So a city may lawfully reimburse to its officer his expenses, incurred in an investigation into his official conduct, upon charges which were found to be groundless.' And the mayor of a city is entitled to reimbursement from the city, for money expended by him, in successfully resisting a legal proceeding, brought in the name of the city, to compel him to do an illegal and injurious act. ' But where a certain sum is appropriated by the legislature for the travelling expenses of an officer, the comptroller cannot lawfully draw his warrant for any additional sum for that purpose, within the time covered by the appropriation.' ' Powell V Newburgh, 19 Johns. (N. Y.) 389. 284. Hadaell v Hancock, 3 Gray (Mass.) 526; Pike V Middleton, 12 N. H. 278. Sherman v Carr, 8 R. I. 431. " United States v Stowe, 19 Fed. Rep. (U. S.) 807. ' Minot V West Roxbury, 112 Mass. 1. See also, Nelson v Milford, 7 Pick. ■> Fuller ti Groton, 11 Gray (Mass.) 340. (Mass.) IS ; s gj^^^g ^ Hammonton, 38 N. J. L. 430. Bancroft v Lynnfleld, 18 Pick. (Mass.) 566; ' Lawrence v McAlvin, 109 Mass. 311. Babbitt v Savoy, 3 Cnsh. (Mass.) 530 ; ' Barnert v Paterson, 48 N. J. L. 395. Gushing V Stoughton, 6 Gush. (Mass.) « Marshall v Dunn, 69 Gala. 223. 472 Chap. XX. j EXTRASTATUTORY C0MPENSATI015 § 497. IV. Whether an officer, discharging the duties of his own office, and also of another office, can have any com- pensation, in addition to the emoluments attached to the former office. § 496. Instances where statute forbidding extra com- pensation does not apply; per diem allowances. — Some of the cases, involving this question, have already been cited in this chapter. ' The cases, where the same person may or .may not hold two or more offices, were considered in a former chapter." Where he holds two incompatible offices, he forfeits the compensation attached to the first, from the time of his acceptance of the second, and that without judgment of ouster.' But where the offices are compatible, he may have the compensation attached to each office." And the statutory prohibition against the receipt of additional compensation, by an officer or employee of the United States, does not prevent the receipt of such double compensation.' But it has been said, that where the compensation is a per diem allow- ance, the officer cannot have such an allowance for the same day's service, in each of two or more offices held by him." § 497. Incidental offices and appomtments without compensation. — But where the second office is incidental to, and is necessarily held by the same person as the first, and the statute does not provide for any additional com- pensation, the officer is confined to the compensation 1 Ante, %% 480, 40(M92. Saunders, 120 U. S. 126; i ^Tite Ch i Hartson v United States, 31 Ct. of CI. (U.S.) 451; 3 State V Comptroller General, 9 S. C. |-„ „ Conrad, 15 Fed. R. (U. S.) 641. ^^- See also, Pennie v Reis, 80 Cala. 266, ■" State V Harrison, 116 Infl. 300; aff'd 132 U. S. 464. State V Walker, 97 Mo. 163, overruling , j^ . ^^^ Collins v United States, 15 Statei) Holladay, 67Mo. 64; q^. ^^^ qj ,q g ) 22 Saunders v United States, 21 Ct. of 01. (U. S.) 408; afl'd, United States ■» ' County Com'rs u Bromley, 108 Ind. 158. 473 § 498 PUBLIC OFFICERS [Book IV. attached to the principal office, and cannot have any additional compensation for the discharge of the duties of the subordinate office.' Thus, where the sheriff is made by law also the tax collector of the county, and the county board or the county court, being emoweredp by law so to do, fixes the compensation of the sheriff, he cannot have any additional compensation as collector." So: where a poundmaster was appointed a special police- man, and was informed at the time that he would receive no pay in the latter capacity; it was held that he could not have compensation for his services in that capacity." § 498. Secretary of state acting as governor. — Where a state constitution provides, that on the removal, death, etc. , of the governor, the secretary of state shall discharge the duties of the office, this empowers him to discharge the duties, until a new governor enters, although mean- while his term as secretary of state expires; and he is entitled to the salary of the governor, from the time when he enters upon the duties of that office, until he ceases to discharge them.* ! Upton D United States, 19 Ct. of CI. » Decatur b Vermillion, 77 111. 315. (U. S.) 46. 4 chadwick v Earhart, 11 Oreg. 389. i " Broadwell v People, 76 111. 554 ; But see cmte, § 480. Hughes V People, 82 lU. 78. 474 Chap. XXI.] REMEDIES FOR COMPENSATION CHAPTER XXI RIGHTS AND REMEDIES OF AN OFFICER, RESPECTING HIS COMPENSATION CONTENTS I. Bight of an officer to receive his fixed compensation, without deductions. Sec. 499. References to oases cited elsewhere. 500. General rule; officer's right derived from statute, and not affected by absence, neglect of duty, etc. 501. The same subject; power to deduct for absence, etc., derived from statute, and does not arise by implication. 503. Provision for acting by and payment of lieutenant gov- ernor, in governor's absence, not applicable to temporary absence. 503. Statute, authorizing discipUnary rules, etc., for police, does not confer ijower to deduct from salary, when officer absent from sickness, etc. ; but if rule requires a physician's certificate, he must produce it. 504. Police officer, arrested for crime, and afterwards acquitted, entitled to salary for time of confinement. 505. Large discretion in such cases to superior officers; but if abused, courts will review; as where removal was dated back to cover absence from sickness. So where officer had good reasons to suppose he had leave of absence. 506. Members and officers of legislature entitled to pay per diem , may have pay during short recesses, but not during a month's adjournment; and resolution of one house cannot give officers their pay. 507. In this country, an officer cannot have compensation while suspended. 508. The same subject; instance of constructive suspension; the rule is different w^here he was enjoined. II. Officer's remedies against thepublic authorities for his compensation. 509. Remedies against the government and its officers. 475 PUBLIC OFFICERS [Book IV. Sec. 510. What are the requisites, to enable an officer to maintain an action for compensation, against the municipality, etc., liable. 511. The same subject; rule as to possession during tlietime in question. 513. Question whetlier he can in any event recover fees or commissions. 513. Rule established in New York, that he may recover; but not where the municipality has paid an officer de facto, while plaintiff was not in possession. 514. The same subject; also he cannot recover damages for wrongful removal by board, etc. 515. But where no person specifically appointed or paid in his place, he may lecover; no deduction allowed for what he might have earned. 516. Cases elsewhere, recognizing these rules; also cases holding that rightful ofiicer may recover, even if muuicipality, etc., has paid the officer de facto. 517. Although municipality, etc., is protected by payment to officer de facto, it may defend an action by him, on the ground that he has no right. 518. Or that he was ineligible, or obtained office by force or fraud, etc. 519. City, having treasurer entitled by law to commissions on disbursements, cannot defeat his right by empowering mayor to disburse. 580. Where appropriation in gross for specified services, suc- cessor cannot recover against predecessor, proportion for work left undone by him. III. Officer's remedies against an intruder for his compensation. 521. Where title is contested, incumbent is entitled to fees pending contest, but not where he voluntarily surren- dered office. 522. After judgment of ouster and restoration, officer dejure may recover against intruder, salary received by him without deductions; so in case of removal; or he may recover upon supersedeas bond. 523. So he may recover fees received by intruder, less expense of earning them; one case contra. 476 Chap. XXL] REMEDIES FOR COMPENSATION §500. I. Right of an officer to receive his fixed compensation, without deductions. § 499. Reference to cases cited elsewhere. — Some cases, where this question was involved, have been cited in a former chapter. ' Cases, where it was held that an offi- cer, wrongfully kept out of his office, was entitled to his full compensation, without any deductions for what he might have earned, or actually did earn, while thus kept out, will be cited in subsequent portions of this chapter.' The principal question, to be considered here, is whether an officer's compensation can lawfully be made subject to deduction, by reason of his failure to discharge the duties of his office. § 500. The general rule. — The general rule, applicable to this class of cases, is well stated in a case in the com- mon pleas of the city and county of New York, in the following language: " The right of an officer to his fees, emoluments, or salary, is such only as is prescribed by statute; and while he holds tKe office, such right is in no way impaired by his occasional or protracted absence from his post, or neglect of his duties. Such derelictions find their corrections in the power of removal, impeach- ment, and punishment, provided by law. The compensa- tions for official services are not fixed upon any mere principle of a quantum meruit, but upon the judgment and consideration of the legislature, as a just medium for the services which the officer may be called upon to per- form. These may in some cases be extravagant for the specific services, while in others they may furnish a remuneration which is wholly inadequate. The time and occasion may, from change of circumstances, render the service onerous and . oppressive, and the legislature ' Ante, g§ 456, 469. and other cases in divisions II and ' MoVeany v Mayor, etc., 80 N. Y. 185 ; ^^^ °* ^■^^^ Chapter. 4rr § 501, PUBLIC OFFICERS [Book IV. may also increase the duties to any extent it chooses; yet nothing additional to the statutory reward can be claimed by the officer. He accepts the office ' for better or for worse;' and whether oppressed with constant and overburdening cares, or enabled, from absence of claims upon his services, to devote his time to his own pursuits, his fees, salary, or statutory compensation, constitutes what he can claim therefor, and is yet to be accorded, although he performs no substantial service, or neglects his duties The fees or salary of office are ' quicquid honorarium,' and accrue from mere possession of the office." ' § 501. The same subject; power to deduct for absence. — This question is generally presented, where the officer is a subordinate, and has been absent from duty for a por- tion of the time; and an attempt has been made by his superior to deduct a proportionate part of his compensa- tion for the time during which he is so absent. There is no power to make such a deduction, unless it is expressly granted by statute. And *the grant of a power to a board of fire commissioners, to impose a penalty, not exceeding $50, for a breach of the by-laws, does not empower them to sentence a subordinate to forfeit a month's pay, being $100, for such a breach." " The incumbent of an office is prima facie entitled to the law- ful compensation thereof, so long as he holds the office, though he may be disabled by disease or bodily injury from performing its duties. If it be an office held at the will of the appointing power, and that power does not see fit to have the compensation go on, while the incum- bent is so disabled, the only remedy, in the absence of express law or regulation authorizing the stoppage of the compensation during the disability, is to remove the ' People V Green, B Daly (N. Y.) 25i, per but not on this ground, 58 N. Y. 295. Robinson, J., pp. 268, 269 ; reversed, j rj^^ ^ Boston, 133 Mass. 372. 478 Chap. XXI.] REMEDIES FOE COMPENSATION § 503. incumbent, and so end his rights to the compensation. This right may be cut off by law or by regulation author- izing it, but not by the act of the appointing power, without the authority of law or regulation." ' § 502. Lieutenant-governor in governor's absence.— It has also been held that a provision, in the constitution of a state, for the service and payment of the lieutenant- governor as governor, during the governor's " absence from the state," does not apply to the governor's tem- porary absence, in discharge of an official duty." § 503. Statute authorizing disciplinary rules for police. — A statute, authorizing a board of police to provide by rules and regulations for the government of the police department, and the discipline of their subordinates, does not confer the power to make a regulation, that deductions, shall be made from the salary of a policeman, while detained from duty, by reason of sickness or injury, caused by the discharge of his official duty. Such provi- sions, said the court, " relate to instances of misconduct, or omission of duty, to those acts of the officer which may be termed offences, or conduct calculated to impair the efficiency of the force, and therefore deserving of punishment, and not to the involuntary failure of the officer to meet the requirements of the law, by reason of sickness or disability, caused by an unusual effort, or by the performance of duty assigned to him So long as the relator possesses the office, we think he is entitled to the salary." ' But if an ordinance provides that a policeman shall forfeit his pay, for the time dur- ing which he is absent without leave, except in case of sickness, properly certified to by a physician, he must ' Sleigh V United States, 9 Ct. of 01. Ct. 106. ^- ^"^ ^®- » State V Walker, 78 Mo. 139. See also, Bryan v Cattell, 15 Iowa, 538 ; Whitney « Mayor, etc.,39N.Y. Super. ' People v French, 91 N. Y. 265, reVg 84 Hun (N. Y.) 263. 479 § 505. PUBLIC OFFICERS [Book IV. produce a physician's certificate, in order to avoid such a forfeiture, in case of his absence without leave." § 504. Police officer arrested for crime and afterwards acquitted. — Where a police officer was placed under arrest by his superior officer, and committed to prison, upon a charge of burglary, and remained m prison more than seven months, at the expiration of which time he was tried and acquitted; and on the day of his acquittal he reported for duty, and was afterwards dismissed from the force by the police commissioners pit was held, that he was entitled to recover his salary, for the time during which he was confined in prison. The court said : " There is no doubt of the general rule, that an officer is not entitled to compensation, unless he has rendered the ser- vice incidental to his office. But this rule can have no application to a case, where the officer is prevented by the exercise of a superior power, residing within the sovereignty of the state, which unjustly deprives him of his liberty It cannot be said, with any pro- priety, that he was absent without leave, which implies and necessarily involves an omission to appear or present himself for duty voluntarily, when he had the oppor- tunity to do otherwise." " § 505. Large discretion in such cases to superior officers. — Where a statute, or an ordinance passed or a regulation made pursuant to a statute, provides for deductions by the principal officers from the compensa- tion of their subordinates, a large discretionary power is necessarily vested in the principal officers, to determine when and to what extent the subordinate shall be excused, by reason of sickness or other temporary disability; and unless it is clear that such discretion has been abused, the courts will not interfere with its exercise. But where ' Wilkes- Barrf v Meyers, 113 Pa. St. 395. = People u Police Com'rs, 27 Hun (N, Y.) 261. 480 Chap. XXI. J REMEDIES FOR COMPENSATION § 500. the plaintiff, an officer, subordinate to a board of officers having power to remove their subordinates, and to con- trol the compensation of the latter, was absent for several months, by permission of the board, on account of sick- ness; and while he was so absent, and in the month of September, the board remioved him, by a resolution direct- ing that his removal should take effect on the first of May preceding; it was held, that so much of the resolu- tion, as purported to date back the removal to the pre- ceding May, was void; and that the plaintiff was entitled to recover the salary attached to his office, until the removal in September. ' Where, in an action to recover a salary, it appeared that the plaintiff was absent upon leave during the latter part of the year 1878, but never- theless was paid his salary without deduction; and, during the years 1879 and 1880, he was occasionally absent, in con- sequence of illness, but his name appeared upon the pay rolls for his full salary; that the sum was erased by order of the head of the department, and on the margin of the pay roll a memorandum was made, that he was absent without leave, but no information thereof appeared to have been given to the plaintiff; it was held, that the failure to give him notice was a circumstance, from which the plaintiff might infer that his leave of absence had been continued, and so that a recovery was proper."' § 506. As to members and officers of legislature paid: per diem.— "Where the members and officers of the legis- lature of a state were paid for their services at a specified rate for each day, and during the regular session the> legislature adjourned for one month; it was held that; they were not entitled to their daily compensation duringr the recess; although the court said, that if the adjourn- ment had been for a few days only, "for some special ■ O'Leary v Board of Education, 93 ' Devlin v Mayor, etc., 41 Him.(N. Y.). N. Y., 1 rev'g 9 Daly (N. Y.) 161. 281. 481 § 508. PUBLIC OFFICERS [Book IV. purpose," the daily pay would go on. ' And that a resolu- tion of the senate, requiring the president and secretary to certify to the accounts of its officers, for their jjer diem compensation during the recess, was not a law, within a provision of the constitution that no money shall be drawn from the public treasury, except pursuant to an appropriation made by law.'' § 507. Officer cannot have compensation while sus- pended. — In England, there is at least one authority for the doctrine, that an officer's right to his salary is not affected by his suspension from office by the crown.' But a different rule has been established by the Ameri- can courts. Where an officer has been suspended by the president of the United States, under U. S. R. S. , § 1768, the United States courts hold that he is not entitled to his salary, during the period of his suspension.' The state courts have established the same rule, with respect to officers suspended under the constitution or the statutes of the state.' Where an officer was wrongfully suspended without pay, by a board having authority to fix the compensation of its subordinates, it was held, that ho was entitled to his compensation during the suspen- sion; but where he had agreed that his pay should cease during his suspension, that constituted a waiver of his right to compensation, and was binding upon him." § 508. The same subject; constructive suspension; injunction. — Where a judicial controversy arose between a city and the county, as to the right to appoint the ' Moren V Blue, 47 Ala. 709. in his place, Howard t! United States, 2 Reynolds v Blue, 47 Ala. 711. ^ ^'- °' ^^- 'U- S.) 305 ; MoAUiBter v United States, 22 Ct. of '. Slingsby's Case, 3 Swanst. 178, per Lord CI (U S ) 318 Chancellor Nottingham, cited ante, .^■^ ' Westberg v Kansas City, 64 Mo. 493. See also. Shannon i) Portsmouth, 54 ;« Barbour v United States, 17 Ct. of Cl. N H 183 (U. S.) 149. ^COCd, Where another was appointed ' ^mmitt v Mayor, etc., 38 N. Y. St. Rep'r 907 ; to appear in 128 N. Y. 483 Chap. XXI. J REMEDIES FOR COMPENSATION § 509. resident physician of an insane asylum, and an agree- ment was made between the contending parties, that the plaintiff, who was in office under the city, should remain in the building, without acting, and the person appointed by the county authorities should act, and the mayor accordingly directed the plaintiff not to act; and the agreement was carried out, and the person appointed by the county acted, and received the salary from the county, until the determination of the controversy in favor of the city; it was held, that the plaintiff had been, in fact, sus- pended by the mayor, who had the power to suspend a city officer, and so was not entitled to any salary, between the time of the agreement and the decision of the contro- versy.' A police officer, suspended by the mayor of a city, is not entitled to his pay, during the suspension, although the cause of the suspension was afterwards declared to be insufficient." But where an officer has been prevented from exercising his official duties by an injunction, his salary does not cease, during the time while the injunction is in force.' II. Remedies of an officer against the public authorities for his compensation. § 509. Remedies against the government and its officers. — An officer is entitled to compel payment of his salary, by a mandamus against the disbursing officer of the government, who, without legal excuse, refuses to pay him; but not where an appropriation therefor has not been made, or a lawful warrant therefor has not been issued;* or where there is a dispute respecting his title, and he is not in possession. ' The rules of law, relating to a mandamus, will be fully considered in a subsequent chapter." There can be no remedy for an officer's com- ' Howard v St. Louis, 88 Mo. 656. * Post, % 824. " Steubeuville v Culp, 38 Ohio St. 18. ' Post, §§ 825-83T. s Savage v Pickard, 14 Lea (Tenn.) 46. » Chapter 31, division III. 483 § 510. PUBLIC OFFICERS [Book IV. pensation, except by mandamus, against an officer of the state or national government, and of course no remedy whatever against the government itself. But an officer may maintain an action for his compensation against the county, city, village, or town, liable to pay it, or against a board or officer of the municipal government charged with the duty of paying it, or made liable therefor by statute.' This right is subject to certain rules and lim- itations, which we will now proceed to consider. § 510. Requisites of action for compensation against municipality. — An officer of a city, wrongfully removed or discharged before the end of his term, cannot maintain an action for his salary against the city, for the time sub- sequent to his removal or discharge; but he must first proceed by mandamus, certoriari, or otherwise, to procure himself to be reinstated. ' And where the municipal authorities have fixed the salary of an officer at a smaller sum than that which the law allows, he cannot maintain an action against the city for the larger sum, or the differ- ence between the two sums; he must first procure the correction of the error by mandamus.^ An, officer who has abandoned his office, cannot maintain an action for his compensation.^ In order to maintain such an action, the plaintiff must be an officer de jure; for one who is an officer de facto only cannot recover." Where he is such an officer de jure, and has an unqualified right to receive his lawful compensation, he can, in general, recover the ' Ex. gr. the board of education, in the Hagan v Brooklyn, 126 N. Y. 643. case cited in 8 505, ante. So, by stat- , jjolan v Brooklyn, 55 Hun (N. Y.) 448. ute, many local officers are made ,. T_i ^ J.. J. J J * Phillips 1) Boston, 150 Mass. 491, cited liable to actions, to recover demands i±uiiy= ^ uo=i,uu, ..^ ± A.aa=. toi, ^ilcu against the pubUc body which they ""**' * ^ ' esent Dickerson v Butler City, 37 Mo. App. 9. o t. -1 TT /-!■* oi nT., A „- xao . ' Matthews v Supervisors, 63 Miss. 715 ; ' Riley D Kansas City, 31 Mo. App. 439; ^ „„\t ^ i™ \, 1IT J 1.1 i cc vr TT a„«o« Darby V Wilmington, 76 N. C. 133, and Wood II Mayor, etc., 55 N. Y. Super. ' . . . „. , . , ' . _ eases cited post, § 517, and in ch. 27. Ot. 2i30t 484 Chap. XXI.] REMEDIES FOR COMPENSATION § 511. same by an action. ' Some exceptions, however, to this principle may be found; as where the sheriff of a county brought an action against the county, on the ground that the statute, under which his account had been settled, had been adjudged to be unconstitutional, and he was therefore entitled to a more favorable fee bill under a former statute. There the court held that he could not recover, because the former statute created a special tri- bunal, namely, the county auditors, for the settlement of county officers' accounts.'' But the plaintiff in such an action cannot recover for a period, during which no ser- vices were rendered by him, without establishing that his appointment was of such a character, or for such a time, that he is entitled to his compensation, whether the ser- vices appertaining thereto were or were not performed by him." § 511. The same subject ; rule as to possession. — And it has been held, in several cases, that such an action does not lie, where the plaintiff has not obtained possession of the office; and in some cases, even after he has obtained possession, for the time during which he was out of pos- session.* A case, decided by the court of appeals of the state of New York, presented these features. There had been contesting claimants for the' office of street com- missioner of the city of New York; and after it had been adjudicated that D was entitled to the oifice, an action was brought against the city by a deputy collector under D, to recover the commissions on assessments allowed by law to the deputy collector. The plaintiff had not served, because the city authorities had recognized one of the ' People V Mayor, etc., 25 Wend. (N. Y.) cited ante, S 96, and numerous other ego • cases cited in this chapter. Devoy v Mayor, etc., 39 Barb. (N. Y.) , Schuylkill Co. v Boyer, 125 Pa. St. ^6. 169; Cannifl v Mayor, etc., i E. D. Smith (N. Y.) 430 ; DiUon Mun. Corp., 4th ed., i 235 (*174). * Ante, 8 473. See also Kip v Buffalo, 123 N. Y. 152, 485 ' Brandt V Mayor, etc., 48 N. Y. Super. Ct. 293. § 513. PUBLIC OFFICERS [Book IV. other contestants; and the assessments had been collected by a deputy collector under the latter. The court of appeals held that the plaintiff could not recover. Hunt, Ch. J., delivering the opinion of the court, after saying that an office is not property in this country, nor are the prospective fees of an office the property of the incum- bent; that the legislature, or, if the office is municipal, the municipal authorities, may diminish or abolish the compensation, in the absence of any constitutional restric- tions; and that consequently the plaintiff had no con- tract with the city; added: "If a corporation employ or appoint an officer to perform certain duties, at a compen- sation agreed, the services being performed, the corpora- tion is liable to an action for the compensation. The action before us goes upon the ground of a contract to give the office to the plaintiff, or to permit him to per- form its duties; and that, not having given it to him, or not having allowed him to perform its duties and receive its fees, the defendant is liable for this breach of contract. There is no analogy or similarity in the cases." ' § 512. As to recovery of fees or commissions. — And even where an officer, kept out of possession, is entitled to recover his salary, some of the authorities hold that where his compensation is either by commissions, as in the last case cited, or by fees, payable by the municipality, he cannot recover such compensation, on the ground that fees or commissions are merely incident to services act- ually rendered, not to the right to the office." 1 Smith V Mayor, etc., 37 N. Y. 518, afE'g citing County Com'ra v Anderson, 20 1 Daly (N. Y.) 219. Kan. 298 ; Approved and followed. Auditors v Auditors v Benoit, 20 Mich. 176 ; Benoit, 20 Mich. 176 ; Hadley « Mayor, etc., 33 N. Y. 603, per Westberg ti Kansas City, 64 Mo. 493. Denio, J., p. 607 ; See also, Butler v Pennsylvania, 10 Smith D Mayor, etc., 37 N. Y. 618 ; How. (U. S.) 402. per Daniel J., pp. Dolan v Mayor, etc., 68 N. Y. 274. 415, 416. See also, Hoboken v Gear, 27 N. J. L, a DUlon Mun. Corp., 4th Ed., g 335 (*174) 265. Chap. XXI.] REMEDIES FOR COMPENSATION § 513. § 513. Rule as established in New York.— The correct rule upon this subject, and also in the case where the municipality has paid the compensation attached to the office, to a person who had wrongfully obtained ppssession of it, is stated in a case in the New York court of appeals, decided in the year 1880. There an action was brought against the city of New York, to recover the salary for the year 1869, attached by law to the office of assistant alderman of the city. It appeared that at the election held in 1868, the plaintiff and one C were candidates for that office, and the certificate of election was given to 0. By the charter, the board of assistant aldermen had the power to judge of the election and qualification of its members. The plaintiff presented to the board a claim to the seat, but the board decided that C was entitled to the seat; and the latter accordingly took the oath of office, and served as assistant alderman during the year 1869. Thereupon an action in the nature of a quo warranto was brought against C, upon the plaintiffs' relation; and in that action it was adjudged, in June, 1869, that the plaintiff was entitled to the office, and that C be ousted therefrom. The plaintiff then gave notice to the fiscal officers, and appeared again before the board of aldermen, and claimed the seat; but the board, claim- ing the exclusive right to decide as to the right of the seat, refused him admission, and continued to serve and draw the salary during the remainder of the year. The court held, that the provision of the charter was cumula- tive only; that the judgment on the quo warranto estab- lished, for the purposes of this case, that the plaintiff was dejure the assistant alderman for the year 1869; that C was de facto in the office under color of title; that if the fiscal officer of the city had paid C the entire salary, in ignorance of the plaintiff's better title, and while had color of title, the action could not be maintained; that as to the sum paid before the judgment on the quo warranto, ' 487 § 514. PUBLIC OFFICERS [Book IV. the plaintiff could not recover; but that after that judg- ment, the payment by the fiscal officer to was made "of his own will, not in ignorance, not free from duty to obey the judgment, but with knowledge. He knowingly paid to a pretender. He was not, nor was the city, any longer protected in the payment to C, and were bound to retain the arrears of salary, as they accrued due and pay- able for the rightful officer, if there was a rendition of the services required of the officer by law;" that the services were in fact rendered by C, but in the behoof of the plaintiff, who was entitled to the salary thereafter acci-u- ing and unpaid therefor, and was entitled to recover the same. The court also said, that there was no difference in the application of the rule, where the compensation of the. officer consisted of fees or commissions, payable by the municipality out of the moneys collected by the officer; for then " the difference would be only that" the compen- sation " by salary was a fixed and certain sum, and that by fees uncertain;" but where it was by "a specific fee, payable to the officer for each particular official act done, or service rendered for any private person, there could be no basis for an action against the corporate body, for it could not be said that the service was rendered for it, or that it received the money from the private person for the use of the officer dejure."^ § 514. The same subject; damages for wrongful removal. — In a subsequent case in the same court, the plaintiff had been unlawfully removed from his office in the fire department, by the board of fire commissioners, and another person appointed in his place; and upon his application to the supreme court, the proceedings for his removal had been reversed, and he had been restored to > McVeany v Mayor, etc., 80 N. Y. 185, Smith v Mayor, etc., 37 N. Y. 518; and rev'g 1 Him (N. Y.) 35, and explain- other cases decided elsewhere, ing and distinguishing Conner v See also, Monroe v Mayor, etc., 28 Mayor, etc., 5 N. Y, 285 ; Hun (N. Y.) 258, and post, §8 861, et seq. 488 Chap. XXI.] REMEDIES FOR COMPENSATION §515. his office. The court held that the doctrine, laid down in the case last cited, applied where the plaintiff had been thus removed, and his place filled by one to whom the salary of the office had been paid, during the interval between the removal and the restoration of the plaintiff; and that the plaintiff could not recover against the city, either the salary for the time while he was kept out of office, or damages for his wrongful removal; the latter ruling being placed upon the ground that the fire com- missioners were public officers, and not the agents of the city." § 515. The same subject. — But the rule is different, if it does not appear that another person has been specifi- cally appointed, to fill the place of the officer wrongfully removed. Thus, where a policeman of Brooklyn, entitled by law to a fixed salary, was unlawfully removed by the police commissioners, and, upon a certiorari, the order of removal was reversed, and he was restored to his place; whereupon he brought an action against the city to recover his salary, for the time intervening between his removal and his restoration; it was held, that he was entitled to recover the full amount of his lawful salary, and that the city was not entitled to any deduction, by reason of wages, which it was proved that he had earned in another capacity, during the same time. Finch, J., delivering the opinion of the court, after saying that the rule of damages, contended for in behalf of the city, which would take the earnings of the plaintiff into account, was that applicable to master and servant and to landlord and tenant, continued : ' ' But this rule of damages has no application to the case of an officer suing for his salary, and for the obvious reason that there is no broken contract, or damages for its breach, where there is no contract. We have often held that there is no contract 1 Terhune v Mayor, etc., 88 N. Y. 347. 489 § 516. PUBLIC OFFICERS [Book I \^ between the officer and the state or municipality, by force of which the salary is payable. That belongs to him, as an incident of his office, and so long as he holds it; and, when improperly withheld, he may sue for and recover it. When he does so, he is entitled to its full amount, not by force of any contract, but because the law attaches it to the office; and there is no question of breach of contract or resultant damages, out of which the doctrine invoked has grown." ' § 516. Rulings elsewhere on these questions. — The rules thus declared by the court of last resort in New York have been recognized, in their essential features, by decisions in several other jurisdictions.'' But in some cases a different rule has been declared. Thus it has been held, that inasmuch as the salary is but an incident to the title to the office, the right thereto of the person having the rightful title is not affected by the fact, that the usurper has discharged the duties of the office, and received the salary; but that he may nevertheless recover the salary, for the time during which he was kept out of the office.' And the supreme judicial court of Maine has ruled, that a city marshal de jure, after a decision in his favor, may recover his salary, in. an action against the city, although it was paid by the city to one 1 Fitzimmons v Brooklyn, 103 N. Y. 536. ' Dillon Mun. Corp., 4tli ed., S 235 (*174) citing Shaw v Mayor, etc., 19 Ga. 468 ; s. c. 16 Ga. 172; 21 Ga. 280; s. u. as Mayor, etc., v Hays, 25 Ga. 590. See also, Gorman « Co. Com'rs, 1 Idaho 655; Wheatly V Covington, 11 Bush (Ky.) 18; County Com'rs v Anderson, 20 Kan. 298; Stadler v Detroit, 13 Mich. 346 ; Auditors v Benoit, 20 Mich. 176 ; Comstock V Grand Rapids, 40 Mich. McAffee v Russell, 29 Miss. 84; Hannon v Grizzard, 96 N. C. 293. People V Smyth. 28 Cala. 21 ; People V Oulton, 28 Cala. 44; Carroll v Siehenthaler, 37 Cala. 193 ; People V Potter, 63 Cala. 127 ; Meagher v Storey Co., 5 Neva. 244; Memphis v Woodvrard, 12 Heisk. (Tenn.) 4S9. It is to be noted, how- ever, that in California there is a statutory provision that no warrant shall he drawn for the salary of an office, pending a contest therefor. 490 Chap. XXI.] REMEDIES FOR COMPENSATION § 617. who was the marshal de facto, the payment having been made with notice of the contest. In this case it was also held, that the city is not entitled to any deduction for money earned by the plaintiff, during the same period, from other sources. ' § 517. Where municipality may defend action by offi- cer de facto. — Although, under the rule laid down by the courts in New York, a voluntary payment by the muni- cipality of the salary of one who is merely an officer de facto, protects the municipality, yef if it refuses to pay the salary, he cannot recover it by action. As was said, in one of the cases, establishing the former rule, "the right to the salary and emoluments of a public office attaches to the true, and not to the mere colorable title; and, in an action brought by a person claiming to be a public officer, for the fees and compensation given by law, his title to the office is in issue, and if that is defective, and another has the real right, although not in possession, the plaintiff cannot recover. Actual incum- bency, merely, gives no right to the salary or compensa- tion." ' So, where a person claiming to be rightfully entitled to a municipal office, on the ground that he held over upon the failure of the appointing power to appoint his successor, applied for a mandamus, to compel the mayor to countersign a warrant of the city comptroller for his salary; and it appeared that the applicant's right to hold over was questionable; the court denied the application, saying: " The salary and fees are incident to the title, and not to the usurpation and colorable > Andrews v Portland, 79 Me. 484. People i; Nostrand, 46 N. Y. 375 : » Dolan V Mayor, etc., 68 N. Y. 274, at p. M^^"''' etc, v Flagg, 6 Abb. Pr. (N. Y.) 279 ^^' Seealso,McCue7)WapeUoCo.,56Iowa "^j'"' " Wilmington, 76 N. C. 133; „j,j,. Riddle v Bedford Co., 7 Serg. & R. (Pa.) 386. Matthews v Supervisors, 53 Miss. 715 ; People V Hopson, 1 Denio (N. Y.) 574 ; 491 § 519. PUBLIC OFFICERS [Book IV. possession of an office It does not follow" (because the acts of an officer de facto are valid) " that a right can be asserted and enforced, on behalf of one who acts merely under color of office, as if he were an officer de jure. When an individual claims by action an office, or the incidents to the office, he can only recover upon proof of title. Possession under color of right may well serve as a shield for defence; but cannot, as against the public, be converted into a weapon of attack, to secure the fruits of the usurpation and the incidents of the office." ' § 518. The same subject; where office is obtained by force or fraud. — So it was held, that a suit for the com- pensation attached to an office puts in issue the title to the office, and the plaintiff cannot recover, if he was con- stitutionally ineligible, although he was apparently rightfully elected, and has served without ouster; in such a case, his services are regarded as those of a volunteer." And that one, who obtained his office by force and with- out authority, cannot recover the compensation attached thereto.' Nor can an officer, chosen under an unconstitu- tional statute, recover his compensation." And a person, who merely claims to be a rightful officer, cannot recover the salary of an office, until his title to the office has been judicially determined; and, in advance of such a deter- mination, the court cannot render a judgment for the salary, without passing upon the title.' § 519. Instance where city cannot defeat action. — A city having a treasurer duly appointed, and who is allowed by law a commission upon the money of the city disbursed by him, cannot defeat the treasurer's right ' People D Tleman, 30 Barb. (N. Y.) 193; ' Meehan v Hudson Coimty, 46 N. J. L. 8 Abb. Pr. (N. Y.) 359. 276. " Matthews v Snp'rs, 53 Miss. 715. ^ Darby v Wilmington, 76 N. C. 133. ' Baxter v Brooks, 29 Ark. 173. 493 Ohap. XXI.j REMEDIES FOE COMPENSATION §531. to his commissions, by placing the money in the hands of the mayor for disbursement.' § 520. Gross appropriation for specified services. — Where, by statute, a sum of money was appropriated for certain services, to be performed by the secretary of state, and part of such services were performed by the secretary then in office, and the remainder by his suc- cessor, but the former received the entire appropriation; it was held, that the latter could not maintain an action against the former, for a proportionate part of the money; that his remedy was against the state; and that the state could compel the former incumbent to refund the excess.'' III. Remedies of an officer against an intruder for his compensation. § 531. Fees pending contest. — Where the title to an office is contested, the fees appurtenant thereto, and payable by individuals, and, subject to the qualification stated in the last preceding division,' the salary, fees, or commissions, payable by the public authorities, belong to th6 person in possession of the office, pending the con- test; and, in an action therefor, the plaintiff's title to the- oflBce is not in issue." But where the plaintiff, after holding the office for five months, surrended it to the contestant, and no further proceedings were taken to determine the title, it was held, that the plaintiff's prima facie title was destroyed by the contestant's prima facie title, so that the plaintiff could not recover for the five months during which he held the oflBce. ° » Beard v Decatur, 6i Tex. 7. State v Clark, 62 Mo. 508 ; » .T. L „ /-I T, 11 o ni cno state 1) John, 81 Mo. 13 ; ' Trumbull tJ Campbell, 8 111. 502. „ \ „. . r.^ -^ „^ Luzerne County v Trimmer, 85 Pa. St. ' Ante, 9 517. 97. * Hunter v Chandler, 45 Mo. 452; s Dickerson v Butler City, 27 Mo. App. 9. state V Draper, 48 Mo. 213; 493 § 523. PUBLIC OFFICERS [Book IV. § 523. Action- by officer de jure against intruder for salary. — But, after judgment of ouster against the intruder, and of restoration in favor of the person rightfully entitled to the office, the latter may recover from the former, be action, the compensation received by the latter while he held the office. For, as it was said in a case in the supreme court of Michigan, an official salary belongs to the' office itself, without regard to the amount of work done by the officer; and where a person has obtained judgment of ouster against one having the certificate of the returning board, he is entitled to the salary from the beginning of the term, although he did not qualify until after the judgment, and without deduction for the ser- vices of the defendant, or for what the plaintiff might have earned while he was kept out.' But where the incumbent of an office was ousted upon quo warranto, and appealed; and, pending the appeal, the claimant resigned, and another person was appointed to fill the vacancy; and the judgment of ouster was reversed upon appeal, and the original incumbent restored; it was held, that the latter could not recover from the person appointed to fill the vacancy the fees received by him, while he was in possession, because the plaintiff had made no demand upon him to surrender the office, or any attempt to per- form its duties." Where the plaintiff was unlawfully removed by the mayor of New York from the office of police commissioner, and the defendant was appointed by the mayor for the unexpired term, and was recognized by the other members of the board, and assumed the duties of the office, and drew the salary; but, upon a cer- tiorari, sued out by the plaintiff against the mayor, the proceedings of the mayor were reversed and annulled; whereupon the plaintiff was recognized by the board, and 1 People V Miller, 24 Mich. 458. But see, Mayfield v Moore, 53 HI. 428. Accord, Farwell V Adams, 113 111. 57 ; a Nichols V Branliam, 84 Va. 923. People u Nolan, 101 N. Y. 639. 494 Chap. XXI.] REMEDIES FOR COMPENSATION § 533. resumed the duties of the office; it was held that an action for the salary received by the defendant lay in favor of the plaintiff, and that the record on the certiorari was evidence in the action; but whether it was conclusive or not, or whether it ipso facto worked a reinstatement of the plaintiff, the court did not decide. ' The right of the officer de jure to recover the salary of the office received by the officer de facto, as stated in the foregoing cases, has been recognized and applied in several other adjudi- cations. ° And, after judgment upon quo warranto, he may have the same remedy by an action upon the bond for a supersedeas.' The right of the person who has been reinstated, to recover from the usurper the emoluments of the office, is not affected by the fact that the latter was put into possession by a judgmert, which was after- wards reversed, as the doctrine protecting rights acquired under a judgment, notwithstanding the reversal thereof, is not applicable to this case." § 523. Recovery of fees received by intruder. — The rule is the same, with perhaps a slight qualification, as to the fees of the office received by the intruder. It was said in a case in the supreme court of Illinois, that the legal right to an office confers upon the person having sucri right, the right to receive the fees and other emoluments legally incident to the office. And if a person, without legal right, assumes to perform the duties of the office, and receives accordingly the fees and emoluments thereof, ' Nichols V MaoLean, 101 N. Y. 526, aff'g Allen v McKeen, 1 Sumn. {U. S.) 276 ; 63 Hov/. Pr. (N. Y.) 448 ; 19 Week. Bier v Gorrell, 30 W. Va. 95. Dig. (N. y.) E6. See also, Howard v Wood, 2 Lev. 245 ; » Mayfield v Mooro, a III. 423. • ^^''^^ " ^«"""' ^^^'^^ ^- ^- ^^^ ' „, , r on r ,1 1 . Boyter v Dodsworth, T. U. (D. & E.) Glascock V Lyons, 20 Ind. 1 ; Rule V Tait, 38 Kan. 705; Comstock V Grand Rapids, iO Mich. 397; ' United States v Addison, 6 Wall. Hunter v Chandier, 45 Ko. 453 ; ('J. S.) 291. Dolan V Mayor, etc., C8 N. Y. 2-i : 4 Kessel v Zeiser, 1C3 1'. Y. 114. Currey v Wright, 9 Loa (reun.) 247. 495 C81; ISelw. N. P. 81; Lawlor v Alton, 8 Ir. R. Com. L. 100. § 523. PUBLIC OFFICERS [Book IV. he is liable to the person having the legal right for the money so received by him; but, where he acted in good faith and under the apparent right, he may be allowed the reasonable expenses of earning the fees.' The same ruling, without reference to the right to deduct the expenses, has been made in other cases." But in one case, it was ruled that the rightful officer cannot recover the fees of the office, although after ouster, against the officer de facto who has received them in good faith. ^ > Mayfleld v Moore, 53 111. 428. Explained, Meehan v Hudson Co., 46 Accord, Bier v Gorrell, 30 W. Va. 95. N. J. L. 276. ' Stoddard V Williams, 65 Gala. i72 ; ^he decision is placed upon the ground Sigur V Crenshaw, 10 La. Ann. 297 ; *l^^"li« ^^l^''^' ^^ Siven as a compen- Petit V Rousseau, 15 La. Ann. 239. ^^'t*"" '<«■ services ; and it is said, that the cases holding the other way " Stuhr I) Curran, U N. J. L. 181. depended upon statutory provisionD. See U N. J. L. 188-191. 49G Cliap. XXII.] EXTORTION § 534. CHAPTER XXII EXTORTION CONTENTS Sec. 534. Extortion defined. 525. Punishable criminally by statute, here and in England; but it is a common law offence. Not, however, where money paid voluntarily or according to usage. 526. Attorney guilty where he receives unlawful fees; justice of the peace may take fees for warrant in advance; officer receiving money in good faith to settle with com- plainant not guilty; revenue officer guilty for receiving money to procure discharge. 527. Corrupt motive essential to offence, or to liability for statu- tory penalty; aliter in Nebraska; officer liable to penalty, whether he takes excessive fee, or a fee where none is provided; but not where he is not entitled to any fees. 528. Officer liable, though excessive fee taxed and collected by party; cannot defend because he omitted to charge other lawful fees, or tendered restitution. 529. Rulings as to liability of clerk to county for excessive charges. 530. Independently of statute, unlawful charge may be recovered back, although paid without protest, etc. § 524. " Extortion " defined. — " Extortion, in a large sense, signifies any oppression under colour of right; but in a more strict sense, signifies the unlawful taking by any officer, by colour of his office, of any money or thing of value that is not due to him, or more than is due, or before it is due. . . . And generally, no public officer may take any other fees or rewards for doing anything relating to his office, than some statute in force gives. 497 §525. PUBLIC OFFICERS [Book I V. him, or such as have been anciently and accustomably taken; and if he do otherwise, he is guilty of extortion." ' § 525. The statutes and the common law. — In England, extortion was first made a statutory offence, by the statute of Westminster, 3 Edw. I., ch. 26, which defined it to be "to take any reward whatever, except what he received from the king." ' And in this country it is made punishable by statute, in every state of the union. But the statute of Westminster was only in affirmance of the common law. ' " As to extortion by officers, it is so odious (being more heinous, as nay Lord Coke says, than robbery, as it is usually attended with the aggravating sin of perjury), that it is punishable at common law by. fine and imprisonment, and also by a removal from the office in the execution whereof it was committed." ' So the statute W. I, ch. 10, forbidding coroners to take fees for doing their office, was in affirmance of the common law, and a coroner taking fees shall be fined; but a coroner may take the customary payment from each town that comes to the eyre, for that is a payment due in respect of his office, and not for doing his office. ° " Also, it seems that an officer who takes a reward, which is vol- untarily given to him, and which has been usual in cer- tain cases, for the more diligent or expeditious perform- ance of his duty, cannot be said to be guilty of extortion; for without such a praemium it would be impossible, in many cases, to have the laws executed with vigor and success." ° ' 1 Russell on Crimes, 5tli Bng. ed., 303, = 1 Russell on Crimes, ubisupra. 304; 5tli Amer. ed., 142. « tj tt , ■ t^ /-, ... uu», u.,ii ^liiioi. ovi., ii». s jij_ . jja^jjjjjg p_ Q „^j supra. See also, Hawkins P. C, Book I, ch. 6S; Bac. Abr., tit. Offices and Officers, N ; ' ^^°- ^'^•^ *"• Offices and Officers, N ; Sliattuck V Woods, 1 Pick. (Mass.) 171 ; Hawkins P. C, wW supra. Comm. V Bagley, 7 Pick. (Mass.) 279 ; » com. Dig., tit. Officers, G., 15 a, citing State V Pritchard, 107 N. C. 921 ; 2 Inst., 176. Wniiams V State, 3 Sueed (Tenn.) m . ^^ ^j^_^ ^^ ^^^^^ ^^^ 0^^^^^^ jj_ 498 Chap. XXII.] EXTORTION § 537. § 526. Cases relating to particular officers.—" An attorney must be regarded as receiving his fees officially, as much so as a sheriff or any other officer; and if so, then the act of an attorney, in receiving illegal fees, is one of official misconduct." ' Under the New Jersey statute, it has been held that a justice of the peace is not guilty of extortion for demanding his fee, before issuing a warrant in a criminal cause." It is not extortion, where an officer, holding a process for assault and battery, receives money from the defendant, not for his own use, but to be used in good faith in settling the prosecution.' But U. S. R. S. § 3169, punishing extortion by revenue officers under color of law, applies to such an officer, who takes a reward from a person arrested for a breach of the revenue laws, upon a promise to procure his discharge.' § 537. Whether corrupt intent requisite to constitute extortion. — Upon the trial of an indictment for extor- tion, the motives of the officer, as whether they were corrupt, or whether he acted in ignorance of the law, are a proper question for the jury." And an officer, who takes a fee not authorized by law, under the belief that he is entitled to it by law, and without corrupt intent, is not guilty of extortion." So, in an action to recover a penalty, imposed by statute for extortion, the plaintiff cannot recover, unless the jury find that the unlawful compensation was taken knowingly and corruptly. ' And an officer who takes a fee, not allowed by law, but which it has been the custom to charge, believing it to be law- ' Waters e Whittemore, 28 Barb. (N. Y.) (U. S.) 595. 593, per Mason,' J. « People v Whaley, 6 Cow. (N. Y.) 661. ' Lane V State, 49 N. J. L. 673, rev'g 47 b Leeman v State, 35 Ark. 438 ; N. J. L. 362. Brackenridge v State, 27 Tex. Ct. App. ' White V State, 56 Ga. 385. 513. T^ lAT^A Tj„„ ' Triplett D Munter, 50 Cala. 644, « United States v Deaver, 14 Fed. Rep. 499 § 539. PUBLIC OFPICEKS [Book IV. ful and proper so to do, is not liable to a statutory penalty. ' But in another case, it was ruled, that a mis- take or ignorance of the law was not a defence to an action for a statutory penalty." An officer, who know- ingly and corruptly receives an unlawful fee, is liable to the statutory penalty, whether the fee was received for services, for which a fixed compensation is given by law, or for a service for which the fee bill provides no compen- sation." But it has been held, that where a statute affixes a penalty, for taking "greater or other fees" than as pre- scribed in the statute, an action for the penalty will not lie against an officer who has no right to any fees.' § 538. Excessive fees taxed by party; tendering resti- tution. — An oflScer, charging and receiving from the plaintiff in an action, a greater amount of fees than the law allows, for serving a writ, is liable to the plaintiff for the statutory penalty, although the plaintiff recovered judgment in the action, taxed the fees as charged in the costs, and collected the judgment from the defendant." In an action to recover the statutory penalty, the defend- ant cannot set up his omission to charge fees, to which he was lawfully entitled, or a tender of restitution before the action was brought." § 539. Rulings as to liability of county clerk for exces- sive charges. — Where a statute provides that a clerk, charging excessive fees, shall forfeit ten times the amount of the excess "to the party injured," the county may recover the penalty, where excessive fees were charged by him to it, and allowed by the board of county com- missioners, and their allowance does not bar the action. ' Haynes v Hall, 37 Vt. 20. See also, Ferkel v People, 16 HI. App. See also, Wheelock v Sears, 19 Vt. 559. 310. 2 Cobbey v Burks, 11 Nebr. 157. » Johnson v Burnham, 23 Vt. 639. ' Henry v Tilson, 17 Vt. 479. • Turner v Blount, 49 Ark. 361. • Garber i) Conner, 98 Pa. St. 551. 500 Chap. XXII.] EXTORTION §530. But where the clerk is allowed by law, for attendance on the board, a compensation, not exceeding three dollars a day, "to be fixed by the board," the county cannot recover back the amount so fixed, upon the ground that the clerk charged for more days than the board was in session.' § 530. Independently of statute, unlawful charge may be recovered back. — Independently of any statute, where a sheriff claims, as of right, a larger fee than he is allowed by law, and the attorney pays it in ignorance of the law, the attorney may maintain against the sheriff an action for the excess.' Or the person injured may be redressed summarily upon motion to the court.' The American cases fully sustain the doctrine, that money, exacted by and paid to a public ofiicer, under a claim of right, for his official services, may be recovered back, if he was not lawfully entitled thereto.^ Such a payment is not regarded as voluntary, and it may be recovered back, although the unlawful charge was paid without protest, or notice of an intention to reclaim the money.' > KicMand County v MiUer, 16 S. C. ZU. ' Dew V Parsons, 3 B. & Aid. 563 ; 1 Chitt. 295. See also, Longdlll v Jones, 1 Stark. 276; Holmes v Sparks, 13 C. B. 342 ; 31 L. J., C. P. 191; ISJur. 975. 3 Watson V Edmonds, 4 Price 309. * American Exchange F. Ins. Com'py r Britton, 8 Bosw. (N. Y.) 148. Accord, Shattuck V Woods, 1 Pick. (Mass.) 171 Ripley v Gelston, 9 Johns. (N. Y.) 301 Clinton ii Strong, 9 Johns. (N. Y.) 370 MiUer v Lockwood, 17 Pa. St. 348 ; Smith V Smith, 1 Bailey (S. C.) 70; Ogden V Maxwell, 3 Blatchf. (U. S.) 319. ' American Steamship Comp'yi> Young, 89 Pa, St. 186. 501 PUBLIC OFFICEBS [Book V. BOOK V POWERS AND DUTIES; AND THE EXERCISE THEREOF CHAPTER XXIII NATURE AND EXTENT OF OFFICERS' POWERS AND DUTIES; WHEN THEY ARE COINCIDENT; GENERAL RULES RESPECTING THE EXERCISE THEREOF CONTENTS /. Preliminary observations ; political powers and duties. Sec. 531 Classification in ch. 3 based upon general nature of official functions; now the particular functions to be classified. Reference to political powers and duties. II. Legislative powers and duties. 533. Defined and distinguished. III. Judicial, quasi judicial, and ministerial powers and duties. 533. Origin of words "judicial" and "ministerial;" general scope thereof; what is meant by quasi judicial powers. 534. General rule as to liability of officer for ministerial or judicial acts- definitions relating thereto. 635. Other definitions of judicial and ministerial acts, and cases illustrating the same. 536. The same subject. 537. The same subject. 538. An act may be ministerial, although its performance requires a decision, or the exercise of judgment; instances. 539. Where a judicial oflScer performs a ministerial act, the power is ministerial; instances. 503 Chap. XXIII.] POWERS AND DUTIES Sec. 540. Instances of judicial acts by ministerial officers; clerk of court; supervisors, etc. 541. When assessors' acts are judicial; their liability if their jurisdiction is exceeded. IV. Officers' implied and incidental powers. 542. General rule, that officer has all implied powers necessary for performance of his duty; iustances of implied powers granted or withheld. 543. Power to contract debts, when not implied; implied power to issue county orders; to loan money in hand. 544. Extent, etc. , of implied power to bring suits, and to settle controversies. 545. Public officer cannot be deprived of his powers by impli- cation. V. When an officer's power and duty are or are not coincident. 546. Generally, this question belongs to the subject of statutory construction. 547. Where officer has power, by statute, to do an act required by public interest, exercise of power is imperative, although permissive words are used; otherwise per- missive words give discretionary power. 548. Person, interested in the exercise of a power, has a right to demand its exercise, although permissive words are used. 549. But a mere incidental benefit, without a legal right, does not entitle an iadividual to such exercise. 550. Other instances of the application of this rule. VI. Effect of an exercise of power by an officer. 551. A contract by officer empowered, binds the state or a municipality, which is liable like an individual there- upon. Otherwise, where power exceeded. Munici- paUty, etc., hable for officer' s acts, in discharging a duty imposed upon it; but not where duty is specifically imposed upon the officer. Eules as to estoppel and ratification. 553. Generally, judicial and quasi judicial acts are conclusive; such as allowances of accounts by supervisors, etc. 553. Exercise of discretionary power governed by the same rule ; acts of supervisors, etc. 503 PUBLIC OFFICERS [Book V. Sec. 554. Excess of power vitiates; cases where allowances of accounts by supervisors, etc. , are ministerial acts. 555. Exercise of discretionary power reviewable by courts, in cases of illegality, abuse, injustice, etc. VII. Power given by statute must be strictly pursued; presumptions in support of regularity of exercise thereof. 556. Statutory power must be strictly pursued, especially where a forfeiture results; person claiming under it must prove such pursuance. 557. Supervisors, etc., acting at special session, where call thereof does not specify the business. 558. Presumption is in favor of correct performance, and every reasonable intendment made accordingly; as that powers were not exceeded; that naught omitted, etc. 559. But presumption will not sustain a vital jurisdictional fact; this must be proved; as where common council's act requires a two-thirds vote. 560. Presumption does not apply to agents, appointed by legis- lature to sell debtor's land; nor to titles made under tax laws; nor to proceedings of commissioners of high- ways to lay out roads. 561. Nor to actions against sheriflfs, etc., for not paying over money. OfiBcer's certificate, if evidence, must show compUance with the law; no presumption admitted in favor of one officer's acts against another's. 563. Party, invoking jurisdiction of equity, must show affirm- atively invalidity of act. VIII. Miscellaneous rulings respecting officers' powers and duties. 563. Whether power conferred is continuous, or exhausted by one act. 564. Rule as to exercise of qu,asi judicial powers. 565. Policeman presumed to have common law powers of peace officer; so with respect to United States officers. 566. Justice of U. S. supreme court not required to perform patrol duty, under state law. 567. Officer's good faith presumed; and his lawful acts not affected by his motives, or motives of party, or collusion between parties. 568. Officer's lawful acts not affected by intent to act under a void statute; or not to bind the town, etc. 504 Chap. XXIII. ] POWERS AND DUTIES § 533. /. Preliminary observations; political powers and duties. § 531. Particular functions to be classified; reference to political powers and duties. — The scanty, and not very well defined rules for the classification of public ofiicers, according to the general nature of their func- tions, were considered in a former chapter.' In this chapter, we shall consider the rules of classification of the functions themselves; and, as will presently be shown, in many instances an officer, whose general functions are those of one class, exercises also particular functions, belonging to another class. In aid of the solu- tion of questions, arising upon the nature of particular functions, we refer the reader to what was said in the former chapter, respecting the general classification. The loosely defined class of officers, possessing political powers and duties, sometimes styled political officers, and at others executive, administrative, or governmental officers, calls for no special consideration here. The rules of law, concerning the liability of such officers to a private action, and the powers of the courts to control their official conduct, will be considered in subsequent chapters." But the powers and duties of such officers are essentially either of a ministerial, or of a quasi judicial character. II. Legislative powers and duties. § 532. Defined and distinguished.— With respect to legislative powers and duties, it has been well said, that "the distinction between a judicial and a legislative act is well defined. The one determines what the law is, and what the rights of parties are, with reference to transactions already had; the other prescribes what the ' AnU, oh. 3. ' Post, ch. 39, 31. 505 \ § 533. PUBLIC OFFICERS [Book V. law shall be, in future cases arising under it." ' In a literal sense, legislative powers are exercised, in this country, only by the legislatures of the nation and of the different states. The extent and effect of such powers, and the exercise thereof, present questions, which belong to the subject of constitutional law, and are fully con- sidered in various treatises devoted to that subject. But, in a broader sense, legislative powers are exercised by various local officers, such as the council or other legisla- tive body of a city or village, and the officers, hav- ing the general control of county affairs, styled, in some of the states, supervisoi's, in others, county commis- sioners, in others, chosen freeholders, police jury, etc." These bodies also perform executive or ministerial duties. Thus, a power conferred upon the mayor of a city to approve or disapprove all proceedings of the common council, which " take effect as an act or law of the cor- poration," does not extend an appointment to office, which is an executive, not a legislative act.' And it has been said, that the powers and duties of supervisors, county commissioners, and similar officers, are sometimes judicial, and sometimes legislative, and executive. They cannot be " reconciled to any particular head; and so those officers are allowed to perform duties enjoined upon them by law, without any nice examination into the character of the powers conferred." ' Questions, arising respecting such powers, belong to the subject of constitu- tional law, or statutory construction, according to the source from which they are derived. » Sinking Fund Cases, 99 U. S. 700, per ' Aohley's Case, i Abb. Pr. (N. Y.) 35. Field, J., p. 761. 4 gj^^j^ ^ County Com'rs, 7 Neva. 392. Accord, Mabry v Baxter, 11 Heisk. Accord, People t) El Dorado County, 8 (Tenn.)682. Cala. 5«. » Waugh V Cbauncey, 13 Cala. 11. See also, g§ 23-85, ante. 506 Chap. XXIII.] POWERS AND DUTIES § 534 III. Judicial, quasi judicial, and ministerial powers and duties. § 533. General scope of "judicial," " ministerial," and "quasi judicial" powers.— The questions arising, respect- ing the division line between judicial and ministerial pow- ers and duties, are numerous, and often difficult to solve. The derivation of the word "judicial" from "judex," a judge, and that of "ministerial" from "minister," a servant, would, if strictly adhered to, confine the scope of each expression within very narrow limits: but the signification of each has been largely extended. But where a power rests in judgment or discretion, so that it is of a judicial nature or character, but does not involve the exercise of the functions of a judge, or is conferred upon an officer other than a judicial officer, the expression used is generally " quasi judicial." ' The importance of a correct designation, in each case, arises from several rules of law, marking broad distinctions between each class of functions; such as the difference in the remedies which may be resorted to, for the purpose of procuring a review by the courts of the exercise of the power, accord- ing as the power is deemed judicial or ministerial; the conclusiveness and effect of such exercise; the liability to a private action, of an officer exercising a ministerial power, and the exemption from such an action, of one exercising a judicial power, or a quasi judicial power. § 534. Liability for ministerial or judicial acts ; definitions. — The rules, relating to the personal liability of an officer for his official acts, will be fully considered ' " Quasi judicial functions are those duty of looking into facts, and act- which lie midway between the judi- ing upon them, not in a way which cial and the ministerial ones. The it specifically directs, but after » lines, separating them from such as discretion in its nature Judicial, the are on their two sides, are necessari- function is termed quasi judicial." ly indistinct ; but in general terms. Bishop on Non-Contract law, 8§ 785, when the law, in words or by impli- 786. cation, commits to any officer the 507 § 534. PUBLIC OFFICERS [Book V. in a subsequent chapter. ' At present, for the purpose of illustrating our remarks respecting the importance of the classification under consideration, and as preliminary to our attempt to distinguish the two classes, we reproduce the remarks of a distinguished judge upon those two subjects: ''Public officers, of every grade and description, may be impeached or indicted for official misconduct and corruption. To this there is no exception, from the highest to the lowest. But the civil remedy for misconduct in office is more restricted, and depends exclusively upon the nature of the duty which has been violated. Where that is absolute, certain, and imperative, and every mere ministerial duty is so, the delinquent officer is bound to make full redress to every person, who has suffered by such delinquency. Duties, which are purely ministerial in their nature, are sometimes cast upon officers, whose chief functions are judicial. Where this occurs, and the ministerial duty is violated, the officer, although, for most purposes, a judge, is still civilly responsible for such misconduct. But where the duty alleged to have been violated is purely judicial, a different rule prevails; for no action lies, in any case, for misconduct and delin- quency, however gross, in the perfornaance of judicial duties. And although the officer may not in strictness be a judge, still, if his powers are discretionary, to be exerted or withheld according to his own view of what is necessary and proper, they are in their nature judicial, and he is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed." ^ And for these reasons, and upon the authority of this opinion, it was held that the issuing of a habeas corpus by a judicial officer, is a purely ministerial act, inasmuch as the statute vests no ' Post, ch. 89. ^ Wilson v Mayor, etc., 1 Denio (N. Y.) 595, per Beardsley, J., p. 599. 508 Chap. XXIII.] POWERS AND DUTIES § 535. discretionary power in the officer, to whom the application for the writ is made in due form; and consequently that a statute, conferring upon a newly created judge, " all judicial powers " of a judge under the former statutes, did not give him the jurisdiction to issue a writ of habeas corpus, which the latter possessed." ' § 535. Other definitions of judicial and ministerial acts. — So it was held, that commissioners, appointed by statute to receive subscriptions to the capital stock of a corporation, and to distribute the stock among the sub- scribers, "in such manner as they shall deem most con- ducive to the interests of the corporation," act ministeri- ally in receiving subscriptions to the stock; and that act may be performed by an agent, or by any one of them, being afterwards ratified by the board: but the power to distribute the stock is a judicial power, because it involves the exercise of discretion, and the decision is, in its nature, beyond the reach of appeal." A distinguished chief justice of the United States supreme court said : "A ministerial duty, the performance of which may, in proper cases, be required of the head of a department by judicial process, is one in regard to which nothing is left to discretion. It is a simple definite duty, arising under conditions, admitted or proved to exist, and imposed by law." ' Substantially the same definition has been given by several other judges. Thus it has been said: "Judicial power is authority, vested in some court, ofiicer, or person, to hear and determine, when the rights of persons or property, or the propriety of doing an act, are the subject matter of adjudication. Official action, the result of ■ Naah v People, 36 N". Y. 607, aflf'g In re (N. Y.) 229 ; Nash, 16 Abb. Pr. (N. Y.) 281 ; 25 People v CoUms, 19 Wend. (N. Y.) 56 ; How. Pr. (N. Y.) 307; 5 Park. Cr. Babcock u Lamb, 1 Cow. (N. Y.) 238 ; (N. Y.) 473. Ex parte Rogers, 7 Cow. (N. Y.) 526. " Crocker v Crane, 21 Wend. (N. Y.) 311, » Mississippi v Jobnson, 4 Wall. (U. S.) citing Walker v Devereaux, i Paige 475, per Chase, Ch. J., p. 498. 509 § 536. PUBLIC OFFICERS [Book V. judgment and discretion, is a judicial act. The duty is ministerial, when the law exacting its discharge pre- scribes and defines the time, mode, and occasion of its performance, with such certainty, that nothing remains for judgment or discretion. Official action, the result of per- forming a certain and specific duty, arising from fixed and designated facts, is a ministerial act." ' Other cases, wherein the test of the ministerial character of a power is said to be the absence of judgment or discretion in the exercise thereof, are cited in the note." § 536. The'same subject. — Where a question arose, as to the character and effect of an order of the president of the United States, calling out the militia, in time of war, and of the order of the governor, made pursuant thereto, it was said: "It is a general and sound principle, that whenever the law vests any person with a power to do an act, and constitutes him a judge of the evidence on which the act may be done; and, at the same time, contemplates that the act is to be carried into effect through the instru- mentality of agents; the person thus clothed with power is invested with discretion, and is quoad hoc a judge. His mandates to his legal agents, on his declaring the event to have happened, will be a protection to those agents; and it is not their duty or business to investigate the facts, thus referred to their superior, and to rejudge his deter- mination." ' "By judicial action is meant, in legal understanding, that which requires the exercise of judg- ment or discretion by one or more persons, or by a corpo- rate body, when acting as public officers, in an official 1 Grider v Tally, 7T Ala. 4SZ, per Clop- South v Maryland, 18 How. (U. S.) ton, J., pp. 4Zi, 425. 396 ; ■> Morton v Comptroller General, i S. C. -^^ P"^^ Virginia, 100 U. S. 339 ; 430 . Conner D Long, 104 U. S. 228, at pp. 236 RainavSimpson, 50Tex. 495; "*^- KendalluStokes, 3How. {U. 9.)87; " Vanderheyden v Young, 11 Johns. (N. Y.) 150, per Spencer, J., p. 158. 510 Chap. XXIII.] POWERS AND DUTIES § 538. character, as ... . shall seem to them to be equita- ble and just. " ' § 537. The same subject. — In the foregoing citations, the definitions of judicial powers or acts relate to those, which, as we have already said, are often styled quasi judicial. In a case, where the court was considering strictly judicial powers, and distinguishing them from ministerial powers, it was said: "Judicial acts, within the meaning of the constitution of Indiana, are such as are performed in the exercise of judicial power. But the judicial power of the state is vested in the courts. A judicial act, then, must be an act performed by a court, touching the rights of parties or property, brought before it by voluntary appearance, or by the prior action of min- isterial officers, in short, by ministerial acts. . , . The acts done out of court, in bringing parties into court, are, as a general proposition, ministerial acts; those done by the court in session, in adjudicating between parties, or upon the rights of one in court ex parte, are judicial acts. And the act is none the less ministerial, because the per- son performing it may have to satisfy himself, that the state of facts exists, under which it is his right and duty to perform the acts. ... A ministerial act may per- haps be defined to be one, which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act done." ' § 538. When an act, requiring exercise of judg- ment or discretion, may still be ministerial. — The proposition, stated at the conclusion of the foregoing 1 People V Sup'rs, 35 Barb. (N. Y.) 408, Batesville, etc., R. R. Conip'y, 39 per Potter, J., p. 414. Ark. 83 ; « Flournoy v JeffersonviUe, IT Ind. 169. Pennington v Strelght, 54 Ind. 376. Approved and followed. Ex parte See also, Evans vEtheridge, 96 N.C. 42. 511 § 538. PUBLIC OFFICEKS [Book V. extract, that an act is not necessarily taken out of the class styled ministerial, because the officer performing it is required to judge, whether the contingency has occurred, in which he is empowered or bound to jact, may be extended, so as to include cases where his duty is plainly pointed out, but he is nevertheless vested with a discretion, respecting the means or the method of per- forming it. A learned judge, whose remarks in this connection have already been quoted, says forcibly that "such is not the judgment or discretion, which is an essential element of judicial action." ' This proposition may be illustrated by several cases. Thus an officer aiuthorized, upon certain conditions, to issue or revoke licenses to foreign insurance companies, enabling them to transact business within a state, acts ministerally, not judically, in issuing or revoking such a license, although he is required, in each case, to ascertain the existence of the facts upon which his authority is founded." And issuing and delivering a patent to land, after the right thereto is complete, is a ministerial act.' County offi- cers, in bringing a suit for the benefit of the county, and executing an injunction bond therein, act ministerially, not judicially." An order by county commissioners to sell county property, is a ministerial act. ° The decision of inspectors or judges of election, as to the admission of a vote; or of county canvassers as to the result of an election; and the making of returns by election officers; are all ministerial acts." The power of a collector of the ' Grideru TaUy, 77 Ala. 422, per Clopton, « People u Van Slyck, 4 Cow. (N. Y.) 297 ; J., p. 426. Exparte Heath, 3 Hill (N. Y.) 42 ; See also, Crane v Camp, 12 Conn. 484. Morgan v Quackenbushi 23 Barb. " State V Doyle, 40 Wis. 174. '^- ^'^ ''^ ' People V Pease, 27 N. Y. 45; 25 How. = Simmons D Wagner, 101 U. S. 260. p^, {N.Y.)49oiafE'g30Barb.(N.Y.)588. " Washington County V Boyd, 64 Mo. 179. See also, ante, g§ 153, 156; Hndmon v ' Platter v County Com'rs, 103 Ind. 360, Slaughter, 70 Ala. 546, and post, §S at p. 373. 746-750. 513 Chap. XXIII. J POWERS AND DUTIES §539. United States internal revenue to seize and sell property is ministerial; and a sale, in a case not within the statute, confers no title.' § 539. Judicial officer performing ministerial act. — A judicial officer may be required by law to perform minis- terial acts, and these do not become judicial, because performed by him." Thus, the admission of a petitioner to take the poor debtor's oath is a ministerial, not a judi- cial act. "Every selectman, before the appointment of an overseer, and every sheriff, previous to taking bail, makes inquiry to aid him in the legal performance of his duty."' In executing a writ of inquiry, the officer acts ministerially, not judicially.' The clerk of a court, in granting an order for the seizure of property, in the pro- visional remedy of claim and delivery, acts ministerially, not judicially; and therefore his deputy may make the order." A justice of the peace acts ministerially, in appointing freeholders to assess damages for taking land for a highway, although it is necessary that he should pass upon their fitness." A justice of the peace, in receiving and filing papers and making docket entries, acts ministerially; but the entry of the dates, when the appeal papers were presented, involves the determination of a question of fact, and is therefore quasi judicial, so that it cannot be. controlled by mandamus.' A justice of the peace, in making up and completing his rcords, acts ministerally, and may do so after the expiration of his term." Although the United States circuit court commissioners are magistrates, the chief supervisor of > Tracey v Corse, 58 N. Y. 143, aff'g 45 63, per Kent, Ch. J., pp. 70 et seq. How. Pr. (N. Y.) 316. s Jackson v Buchanan, 89 N. C. 74. See also, First Nat. Bank v Waters, 19 BlatcM . (U. S.) 242. " People V Bush, 40 Cala. 344. ' Betts V Dimon, 3 Conn. 107. ^ Tillotson u Cheetham, 3 Johns. (N. Y.) 513 " Crane v Camp, 12 Conn. 464. See also, Baldwin v Hewitt, 88 Ky. 673. ' State V Edwards, 51 N. J. L. 479. * Matthews v Houghton, 11 Me. 377. § 540. PUBLIC OFFICERS [Book V, elections, who must be one of their number, does not per- form judicial duties. ' A j udge, entering an order of refer- ence by consent, acts ministerially, and may do so although his relation is a party." So, the entry of a default by the clerk of a court is a ministerial act, and the disquali- fication of the judge of the court does not disqualify the clerk from doing so." So, as we have already shown, it has been held in New York, that the granting of a writ of habeas corpus was a ministerial and not a judicial act. * Numerous other cases in the same state, to examine which in detail would consume more space, than can be conveniently devoted to this question, establish similar distinctions between particular official acts.' § 540. Instances of judicial acts by ministerial officer. — The act of a clerk of the court in taxing costs is judicial." The act of g, board of supervisors is judicial, when it requires new bonds from a county officer,' or approves an official bond;' or apportions a tax among the towns and wards of the county;" or allows or rejects an account against the county. " The act of a board of supervisors, dividing a town, and forming a new town from the portion set off, is legislative." ' Dennlson v United States, 25 Ct. of People v Supervisors, 26 Barb. U8 ; 13 01. (U. S.) 304. How. Pr. 20i ; ' Bell V Vernooy, 18 Hun (N. Y.) 125. ^^°^^^ "= Supervisors, 43 Barb. 232 ; People V Sohoonmaker, 13 N. Y. 238, ' People D De Carrillo, 35 Gala. 37. rev'g 19 Barb. 657 ■ <■ Nash V People, 36 N. Y. 607, cited ante, j-„ ^^ Cooper, 22 N. Y. 67 ; 11 Abb. Pr. § 534, per Davies, J., p. 615. 3q^ . ' All the following cases were decided Metropolitan Board of Health v Hels- In the courts of New York : ter, 37 N. Y. 661. Tompkins u Sands, 8 Wend. 463 ; . Williams i) Jones, 2 Hill (S. C.) 555. Easton v Calendar, 11 Wend. 90 ; People V Collins, 19 Wend. 56 ; Folsom V Streeter, 24 Wend. 266 ; " Miller v Sup'rs, 25 Cala. 93. People V Taylor, 1 Abb. Pr., N. S., 200 ; , People v Sup'rs, 35 Barb. (N. Y.) i Foster v Van Wyck, 4 Abb. Pr., N. S., ,„„ ' ' 10 Post §§ 552, 553. Parrott v Knickerbocker Ice Comp'y " People v Carpenter, 24 N.Y. 86. 8 Abb. Pr., N. S., 234 ; ' People 1) Sup'rs, 10 Cala. 344. 514 Chap. XXIII. J POWERS AND DUTIES § 543. § 541. When assessors' acts are judicial ; their liabil- ity. — The acts of assessors, in determining what property is liable to, and what is exempt from taxation; whether a person is or not a minister of the gospel, or other exempt person ; the value of taxable property ; and otherwise in m ak- ing up the assessment roll; are essentially judicial in their character, and the assessment roll, when finally completed by the supervisors, stands as a judgment.' And, conse- quently, a court of equity has no power to restrain them by injunction, when they are proceeding unlawfully under a claim of right, as it may do in the case of minis- terial acts." But where they assess, for a tax upon per- sonal property, one who was not a resident of the county, on the day fixed for that purpose, they are liable to an action, for in that case they act without jurisdiction.' IV. Officers' implied and incidental powers. § 543. General rule and instances. — The rule respecting such powers is, that in addition to the powers expressly given by statute to an officer or a board of officers, he or it has, by implication, such additional powers, as are necessary for the due and efficient exercise of the powers expressly granted, or as may be fairly implied from the statute granting the express powers.' Thus, a statute, ■ Barhyte v Shepherd, 35 N. Y. 238, cit- ' People v Sup'rs, 11 N. Y. 563 ; ing Weaver v Devendorf , 3 Denio Mygatt v Washburn, 15 N. Y. 316. (N. Y.) 117 ; * Haynes v Butler, 30 Ark. 69 ; Vail V Owen, 19 Barb. (N. Y.) 2S ; Pennington v Gammon, 67 Ga. 456 ; Brown v Smith, 2i Barb. (N. Y.) 419. Sherlock v Winnetka, 68 HI. 530 ; Acoord.Swift v Poughkeepsie, 37 N. Y. Holten v County Com'rs, 55 Ind. 194 ; gll . County Com'rs v Bunting, 111 Ind. 143 ; Buffalo, etc., R. R. Comp'y » Sup'rs, 48 Bass Foundry, etc.. Works v Co. jj. Y. 93 ; Com'rs, 115 Ind. 234 ; County Com'rs v Barnett, 14 Kan. 627 ; Western R. R. Comp'y v Nolan, 48 N. Y. 513. Mitchell V Co. Com'rs, 18 Kan. 188 ; Slotts V Rockingham County, 53 N. H. '' Western R. R. Comp'y v Nolan, 48 598 ; N. Y. 513. Todd v Birdsall, 1 Cow. (N. Y.) 260 ; See also, post, ch. 31. Jackson v Brown, 5 Wend. (N. Y.) 590 ; 515 § 543. PUBLIC OFFICERS [Book V. authorizing the board of supervisors of a county to " examine, settle, and allow" all accounts chargeable against the county, necessarily implies the right to reject an account. ' And a statute, creating a board of commis- sioners for the erection of a public building, containing no limitation of their powers as to the mode of so doing, authorizes them either to enter into a contract for the work, or to construct the building under their immediate supervision.'' But where a city charter defines the mode of conducting an election, and directs the mayor to declare the result, the mayor has no implied power to hear and determine protests.' § 543. As to debts ; issuing orders and loaning money. — And supervisors, county conunissioners, and similar officers, have no power to issue negotiable securi- ties, to raise money for the purposes of transacting the business confided to them by law, which may not be impeaphed in the hands of subsequent bona fide holders." And it seems, that an interest bearing security cannot be lawfully issued in any case by such officers, in the absence of special statutory authority to do so. " But it was held, in one case, that a county board, with power to make a building contract, may provide for payment of the sums payable thereupon, in county orders bearing interest. ° Marsh V Chamberlain, 2 Lana. (N. Y.) ' Police Jury v Britton, 15 Wall. (U. S.) 287; 566. Hubbard v Sadler, 104 N. Y. 223 ; See also, Stewart v Otoe County, 2 Spalding v Preston, 21 Vt. 9 ; Nebr. 177. Stevens v Kent, 26 Vt. 503 ; . Hardin County v McFarlan, 82 111. 138 ; Culpeper County v Gorrell, 20 Gratt. Citizens Bank v Police Jury, 28 La. (^^•)*8*: Ann. 263; State V Hastings, 10 Wis. 518. jj^^i,^ ^ Plaquemines Parish, 28 La. ■ People V Sup'rs, 9 Wend. (N. Y.) 508. Ann. 77 ; ' Danolds V State, 89 N. Y. 36, afE'g 26 Smith v Madison Parish, 30 La. Ann. Hun(N.Y.)24L Part I, 461. 8 Maxwell v Tolly, 26 S. C. 77. ' Jackson County D Rendleman, 100 111. S. P., Johnston D Corporation, etc., 1 ^79 ; aff'g s. c, p. r. 8 111. App. 287. Bay (S. C.) 441. 516 Chap. XXIII.] POWERS AND DUTIES § 544. Commissioners of highways, and other officers having public money in their hands, are so far authorized to loan such money, and to enforce the securities taken therefor, that no defence growing out of their official chararter can be sustained; although, semble, they are liable to the town or other municipality therefor. ' § 544. As to bringing suits and settling controversies. — Every public officer, although not expressly so authorized by statute, has implied authority to bring any suit, which may be required for the proper discharge of his official duties;' or, as a learned judge has expressed the doctrine, " all public officers, although not expressly authorized by statute, have a capacity to sue, commensurate with their public trusts and duties." ' But this implied power is subject to the exception, that where the statute pre- scribes the means, by which a remedy may be obtained to enable them to discharge their trusts or execute their duties, that remedy only can be pursued.' So a foreign officer, authorized to sue in his own country for property vested in him, may sue here.' The power to sue for penalties for encroachments on the highways, conferred upon commissioners of highways by statute in New York, gives them implied authority to settle controversies touching such encroachments; and for that purpose they may take security, for the payment at a future day, of the sum agreed upon, and enforce the same." ' Com'rs, etc., v Peck, 5 HiU (N. Y.) 215. ^^^'y " Slack, 19 Wend. (N. Y.) 50 ; Denton v Jdckson, 2 Johns. Ch. (N. Y.) 2 Overseers, etc., v Overseers, etc., 18 ggo Johns. (N.Y.) 407; Todd V Birdsall, 1 Cow. (N. Y.) 260 and ' Supervisor v Stimson, 4 Hill (N. Y.) 136, note. per Brouson, J. See also. Grant v Fancher, 5 Cow. * Cornell v Guilford, 1 Den. (N. Y.) 510, (N. Y.) 309 ; per Jewett, J., p. 515. Armlne T Spencer, 4 Wend. (N. Y.) e peel v Elliott, 7 Abb. Pr. (N. Y.) 433; *^'' 16 How. Pr. (N. Y.) 481; afif'd, 28 Silver v Oiunmings, 7 Wend. (N. Y.) Barb. (N. Y.) 200. 181; » Com'rs, etc., v Peck, 5 Hill (N. Y.) 215. 517 § 547. PUBLIC OFFICERS [Book V. § 545. Public officer cannot be deprived of powers by implication. — A public officer cannot be deprived, by implication, of powers conferred upon him for public purposes. ' V. When an officer's power and his duty are or are not coincident. § 546. Generally this question belongs to statutory construction. — The question now to be examined, to state the same in other words, is, when an officer has a discretion, whether or not to exercise a power conferred upon him, and when such exercise is obligatory. As the powers of officers are almost invariably conferred, by con- stitutional or statutory provisions, this question generally pertains to the subject of constitutional law or of statutory construction; but a few general observations thereupon will be appropriate in this place. § 647. The effect of the use of permissive words. — It is a well known rule of- statutory construction, that where a public officer, or a board of officers, or other public body, is clothed by statute with power and furnished with means, to do an act required by the public interests, the exercise of such power is imperative upon such per- son or persons, although the word "may," or other permissive or discretionary words, are used in the grant of power. ° But where neither the public interests, nor the rights of individuals are concerned, a statute with permissive words is not imperative, but merely confers a discretionary power;' and such is the rule generally, wherever there is nothing in the connection of the > Anderson v Van Tassel, 53 N. Y. 631. See also, Phelps v Hawley, 52 N. Y. 23, 2 stamper v Millar, 3 Atk. 211 ; **^'S 3 Lans. (N. Y.) 160 ; and numer- Rex V Barlow, 2 Salk. 609 ; Garth. 293 ; °"» °*er American cases. Backwell's Case, 1 Vern. 152 ; » Newhurgh Turnpike Company v Mil- Rex V Derby, Skinner 370 : ler, 5 Johns. Oh. (N. Y.) 101 ; Galena v Amy, 5 Wall. (U. S.) 705. Maloom v Rogers, 5 Cow. (N. Y.) 188. 518 Chap. XXIII.] POWERS AND DUTIES § 548. language, or in the sense and pohcy of the provision, requiring that the provision should be construed as imperative. ' § 548. Right to demand exercise of power, when per- missive words are used. — With respect to that class of cases, where an individual has an interest in the execution of the power, the rule was stated by the supreme court of Pennsylvania, as follows: "'Where any person has the right to demand the exercise of a public function, and there is an officer or set of oificers, authorized to exercise that function, there the right and the authority give rise to the duty; but where the right depends upon the grant of authority, and that authority is essentially discre- tionary, no legal duty is imposed." '^ And the supreme court of New York stated the rule substantially to the same effect, adding that it was not altered by the fact that the statute used permissive words, as follows: " The officers of the corporation had a public duty to discharge. And, in general, where such a duty is imposed by statute, whether by words peremptory in themselves, as here, or merely permissive, as in the case of New York, they have no discretion to refuse its performance, as against a party having an interest in such performance." ' So the supreme court of the United States held, that words in a statute of Illinois, providing that a board of supervisors, "may, if deemed advisable, levy a special tax," etc., were peremptory and not permissive. Mr. Justice Swayne, after reviewing the adjudicated cases, concluded as follows: " The conclusion to be deduced from the authori- ties is, that where power is given to public officers in the language of the act before us, or in equivalent language, • Williams v People, 24 N. Y. 405 ; 324, per Lowrie, Ch. J., p. 330. People V Grant, 58 Hun (N. Y.) 465. s Martin v Mayor, etc., 1 Hill (N. Y.) See also, Dillon Mun. Corp., 4th ed. g^^ pg^ Cowan, J., p. 547 ; citing § 98 (* 62). Malcom v Rogers, 5 Cow. (N. Y.) 188. " Carr v Northern Liberties, E5 Pa. St. 519 § 549. PUBLIC OFFICEKS [Book V. whenever the public interest or individual rights call for its exercise, the language used, although permissive in fcrm, is in fact peremptory. What they are empowered to do for a third person, the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless." ' §549. The rule qualified; instances. — But the interest, which entitles a private person to insist upon the execu- tion by an officer, of a power conferred upon him, must be a definite and absolute legal right; a mere incidental benefit, to accrue to him therefrom, will not suffice. Thus, where the trustees of the then village of Brooklyn, pursuant to a statutory power, took proceedings to lay out certain streets, and continued the same to the point where the damages were assessed, but failed to file and procure the confirmation of the report; it was held that a person, whose land was to be taken and to whom damages had been awarded, could not maintain an action against the village, founded upon their failure to proceed, although the statute provided that the trustees "shall" cause the report to be filed at the next term of a designated court, and the court "shall" by order confirm it. The court, after stating the general rule,' continued: "It will be seen by these cases, however, I apprehend, that whatever the words of the statute may be, we must look to the party for whose benefit the proceeding is to be had. . . . For whose benefit is this? Clearly for that of the public; more immediately for the benefit of that portion of the public, who were residents of the village of Brooklyn. Neither make any complaint that nothing " Supervisors V United States, 4 Wall. 512 ; (U. S.) 435. Smith v State, 1 Kaa. 365. Accord, Logansport v Wright, 23 Ind. , ^^^ j g^_ 530 Chap. XXIII.] POWERS AND DUTIES § 549. was done. In that respect, so far as the public interest and public duty of the trustees were in question, every thing is right. Did they owe any public duty, as officers, to the plaintiff? Can he complain that they have omitted to lay out streets that the public do not want? ... As an individual, he can have no interest, except in obtain- ing payment for his land; and he accordingly complains, that the trustees would not put the corporation in such a position, that he could compel them to pay. They say: ' We prefer, for reasons satisfactory to ourselves, to stay proceedings, at least for the present." It is the same thing to the plaintiff. He does not, to be sure, get the money for the land; but he holds an equivalent, the land itself. He is deprived of nothing in this respect, and can have no such interest, as to give the statute a manda- . tory operation in his favor as a mere individual. But he complains that a cloud has been brought over his title; that he has been prevented from raising money on his land, and incurred other disadvantages by the delay; . . . that on the faith of the proceedings being consummated, he had pulled down his rope-walks and stone building on the land, and built in another place; that he has erected three new buildings, in reference to one of the contem- plated streets; and that the opening of the streets would have benefited his other lands, etc. The speculative dis- advantages, arising from such proceeding being kept pending for a long time, may be considerable; but we cannot recognize them as the subject of an action against the officers, commissioned to prosecute such proceedings, or the corporation which they represent. In the nature of things, such officers must exercise a discretion on the question whether the public shall be finally committed; and courts must hold such consequences as are here complained of to be damnum absque injuria." ' ' Martin v Mayor, etc., 1 Hill (N. Y.) Com'rs, 56 N. Y. 144. 545. See also, People v Common Council, Accord, In re Washington Park 78 N. Y. 56. 531 § 551. PUBLIC OFFICERS [Book V. § 550. The same subject; other instances.— So it was held, that a statute, empowering a trust company to become the administrator of certain decedents' estates, and authorizing the surrogate to issue letters accord- ingly, conferred no absolute right on the trust company to the administration, under the rule that permissive words in a statute may be construed, as imposing an imperative duty upon the officer referred to. The court said, that if the refusal of the surrogate to grant such letters would result in the absolute omission of adminis- tration, a different question would be presented; but the result to the public and to the individuals interested is the same, in whatever mode the power of appointment may be exercised; so that neither the next of kin nor tha public are interested, "in the sense that any legal right of theirs is impaired," by the omission of the surrogate to appoint the trust company.' VI. Effect of an exercise of vower by an officer. § 551. Effect of exercise oy officer empowered. — A contract, entered into in behalf of the state, by public officers, empowered by statute, either expressly or by implication, to make the same, binds the state, as a con- tract by an individual, made through his authorized agent, binds him; and the provision in the constitution of the United States, forbidding a state to pass a law impairing the obligation of contracts, prevents the state from avoiding or destroying the obligation of the con- tract by legislation; and if the state thus refuses to per- form, and arrests the performance by the contractor, it is liable to the latter, to the same extent as an individual is liable for the breach of such a contract, including for prospective profits." But the rule is different, where an > In re Goddard, 94 N. Y. 5M, per Ruger, Hun (N. Y.) 241. Ch. J., at p. 552. S. P., Boyers 1) Crane, 1 W. Va. 176. ' Danolds v State, 89 N. Y. 36, aff'g 26 ^ee also, People v Stephens, 71 N. Y. 52T, afl'B 6 Him (N. Y.) 390. 533 Chap. XXIII.] POWEES AND DUTIES §551. officer exceeds his powers; in such a case, the body for which he acts, whether it is the state, a municipal cor- poration, or other public organization, is not bound by his acts; and every person dealing with an officer must, at his peril, ascertain the extent of his powers. ' In this respect, the rule is more stringent, respecting public offi- cers and agents, than it is respecting private agents; the former are held more strictly within the limits of their prescribed powers, than the latter; and a contract, made by a public agent, relating to a subject within the general scope of his powers, does not bind his principals, if there was a want of specific power to make it.^ With respect to cities, and other municipal corporations, the general rule is, that the body is liable for the acts or omissions of its officers in the lawful discharge of a corporate duty, imposed by law upon the body itself; but not where the act is for the general public interest, or where the statute specifically imposes the duty upon the officer." The gov- ' Tamm v Lavalle, 93 111. 263 ; Mitchell V County Com'rs, 24 Minn. 459; Cheeney v Brookfleld, 60 Mo. 53. Accord, Barton v Swepston, 44 Ark. 437; Dorsey Co. v WMtehead, 47 Ark. 205 ; Butler V Bates, 7 Gala. 136 ; Sutro V Pettit, 74 Cala. 332 ; Dement v Rokker, 126 111. 174 ; Rlstine v State, 20 Ind. 328 ; s. c. p. r. id. 345; Bloomlngton, etc., v National School F. Company, 107 Ind. 43 ; Burchfield v New Orleans, 42 La. Ann. 235; Lowell F. C. Savings Bank v Win- chester, 8 AUen (Mass.) 109 ; Spitzer v Blanchard, 82 Mich. 234 ; Bemis v County Com'rs, 23 Minn. 73 ; National Bk. of Chemung v Ehnira, 53 N. Y. 49 ; McDonald v Mayor, etc., 68 N. Y. 23 ; Davis V Co. Com'rs, 74 N. C. 374; Daniel v County Com'rs, 74 N. C. 494 ; State V Bevers, 86 N. C. 588 : Citizens' Bk. v Terrell, 78 Tex. 450 ; Floyd Acceptances, 7 Wall. (U. S.) 666 ; Merch'ts Bk. v Bergen Co., 115 U. S. 384. State 1! Hastings, 12 Wis. 596; and numerous other cases. ' Parsel v Barnes, 25 Ark. 261 ; Parsel v Merchants' Nat. Bank, 25 Ark. 272. Prince v Lynn, 149 Mass. 193 ; Detroit v Blackehy, 21 Mich. 84, at p. 113; Asbestine TUing, etc., Comp'y ii Hepp, 39 Fed. (U. S.) 324. See also, post, § 593, where the subject Is further considered, togpther with the liability of coimties, etc., in sim- ilar cases. 523 § 552. PUBLIC OFFICERS [Book V. ernment is never estopped, on the ground that its agent is acting under an apparent authority, which is not real;' but a county, city, or other municipal body is thus estopped, in like manner as an individual, subject to the exception that the act must be within its corporate pow- ers;" and either the state, or, subject to the same excep- tion, a municipal body, may ratify the act of its officer, in excess of his actual power/ § 553. Generally judicial and quasi judicial acts are conclusive. — As a general rule, judicial and quasi judicial acts are conclusive, except where a method of reviewing the same is given by statute; and then they are conclu- sive for every purpose, except for the purpose of such a review. Thus it was held, that the commissioners of public parks in Chicago, in making assessments for bene- fits upon property, act in a quasi judicial capacity; and their decision, as to what property shall be omitted from or included in such an assessment, cannot be questioned, except for fraud. " So it lias been ruled in several cases, that county commissioners, supervisors, and other similar bodies, in deciding upon claims against the county, parish, or other municipality, act judicially, and their decision thereupon is conclusive, except in case of fraud, or where a direct review thereof is given by statute." So, where ■ Bishop on Contracts, revised ed'n., See also, Detroit v Jackson, 1 Dougl. 9§ 3]0, 993, and cases cited. (Mich.) 106 ; - Davies t) Mayor, etc., 93 N. Y. 250, and ^tate « Torinus, 26 Minn. 1 ; oases cited. ^^'^^^ " C!ape May, 41 N. J. L. 45 ; See also. Cook Co. v Harms, 108 lU. ™''°is ■« Delafield, 8 Paige (N. Y.) 151: 527; Detroit V Jackson, 1 Dongl. (Mich.) Peterson v Mayor, etc., 17 N. Y. 449 ; 106: O'Hara v State, 112 N. Y. 146. Clay Co. V Savings Soc, 104 U. S. 579 ; « Elliott v Chicago, 48 HI. 293. Sherman Co. v Simons, 109 U. S. 735 ; , Babcock v Goodrich, 47 Gala. 488, 513 ; s Nelson v Mayor, etc., 63 N. Y. 535, as Colusa County v De Jarnett, 55 Gala. explained in McDonald u Mayor, 373; etc., 68 N. Y. 23, and Smith V New- County Com'rs v Graham, 4 Colo. 201 ; burgh, 77 N. Y. 130. Fitzgerald u Harms, 92 111. 372 ; 534 Chap. XXIII.] POWEKS AND DUTIES § 353. county commissioners, in the exercise of the judgment and discretion confided to them, have acted in the matter of regulating a grade crossing of a highway by a railroad, their decision is conclusive upon every one. ' § 553. Exercise of discretionary power, governed by same rule. — As was stated in a former part of this chap- ter," where, in the exercise of a power, an officer is vested with a discretion, his act is regarded as quasi judicial. So the rule is, that where power or jurisdiction is dele- gated to a public officer or tribunal, over a subject matter, and its exercise is confided to his or its discretion, an act in exercise thereof is binding as to such subject matter.' "The board of supervisors is a special tribunal, with mixed powers, administrative, legislative, and judicial. ... Its judgments or orders cannot be attacked in a collateral way" (where it has jurisdiction) "any more than the judgments of a court of record." "Where the statute con- fers upon it a discretion "its judgment is conclu- sive. ... Its judgments or orders cannot be collater- ally impeached, whether it acted upon sufficient or insufficient proof, regularly or irregularly." * And where a board of supervisors, county commissioners, or similar officers, have a discretionary power^ the exercise thereof state V Buckles, 39 Ind. 273 ; Comp'y, U3Mass. 52. County Com'ra v Gregory, 42 Ind. 32 ; , j^^^^ g 533 County Com'rs i! Rioliardson, 54 Ind. 153; Maxwell v Co. Com'rs, 119 Ind. 20 ; Brown v Otoe County, 6 Nebr. to ; ^^^^"^ ^ ^1"'^'' ^ Story (U. S.) 742 ; State V Buffalo County, 6 Netr. 454 ; ^ee also, Oswego Falls Bridge Comp'y United States v Arredoudo, 6 Pet. (U. S.) 691, at p. 729 ; Dixon County v Barnes, 13 Nebr. 294 ; V Fish, 1 Barb. Ch. (N. Y.) 547; Sup'rs«Brigg8,2Denio(N.Y.)26; ^^"""^^^^ ^^^"^ bridge Comp'y v Chase V Saratoga Co., 33 Barb. (N.Y.) ^^'''•^'^ bridge Comp'y, 11 Peters 603; (U. S.) 420. People 1) Stocking, 50 Barb. (N. Y.) " Waugh D Chaunoey, 13 Gala. 11. 573 ; Accord, Martin v Sup'rs, 29 N. Y. 645 ; People i> Sup'rs, 62 Hun (N. Y.) 446. State v MoGarry, 21 Wis. 496; and Contra, see i 554. cases cited in note (5) to the last pre- 'Brewer v Boston, etc., Railroad ceding section. 525 § 554. PUBLIC OFFICERS [Book V. cannot be reviewed, even upon a statutory appeal, unless the statute expressly allows such a review. ' § 554. Excess of power ; allowance of accounts by supervisors, etc. — But, of course, if the officer or board attempts to exercise a power, either judicial or ministerial, in a case to which his or its jurisdiction does not extend, the act is either absolutely void, or voidable by judicial proceedings, as the case may be. And it has been held, in some cases, that this rule applies, where county com- missioners, supervisors, or other similar officers, allow a claim which is not legally chargeable, on the ground that such an act is an excess of power.' Indeed, in some of the cases, the proposition, that the allowance or disallow- ance of accounts by such officers is a judicial act, is denied; and it is holden that such an act is ministerial. Thus, in a case in Indiana, it was held that the annual settlement of the treasurer's accounts by the county com- missioners is not a judicial act, and is no more conclusive than a settlement between private persons.' So, in Miss- issippi, it was held, that in examining and approving the reports of the county treasurer, the duties of supervisors are ministerial; they cannot fix any liability upon him, or discharge him from any, by their decision. If they allow him items, appearing upon the face of the reports to be illegal, that is not a conclusive adjudication, which will protect him and his sureties in, a suit upon his official bond." But in each of these cases, the decision appears to have turned upon the language of the statute, or the ■ Brown v Porter, 37 Ind. 206 ; = State v County Com'rs, 14 Neva. 66 : Sims V County Com'rs, 39 Ind. 40 ; RioMand County v Miller, 16 S. C. 244. County Com'rs V Elliott, 39 Ind. 191 ; See also, Rothrook v Carr, 55 Ind. 334 ; Dudley v BlouutsviUe, etc.. Turnpike State v blarke, 73 N. C. 255 ; Comp'y, 39 Ind. 288 ; Davis D County Com'rs, 4 Mont. 292. County Com'rs v Barnett, 14 Kan. 627 ; , g^p,^.^ ^ ^^^^^^^^ 86 Va. 158. State V County Com'rs, 12 Nebr. 6 ; Long V County Com'rs, 76 N. C. 273, * ^^'^^ " S^^^< 93 Ind. 311. See also, ante, §8 393-396, 398. » Howe v State, 53 Miss. 57. 526 Chap. XXIII.] POWERS AND DUTIES § 556. peculiar character of the auditing officers' duties, with respect to the particular accounts in question, without impairing the general rule, that the allowance of a claim is a judicial act, and so conclusive.' § 555. Where exercise of discretionary power review- able by courts. — But the exercise of a discretionary power is always subject, in some respects, to review by the courts. The exception, where it was tainted with fraud, has been stated in some of the foregoing citations, and is a well established rule of law. So it may be reviewed, where it has violated some rule of public policy, as where it has been exerted for the benefit of the officer exercising it." And of course it will be violated by any illegality or excess of jurisdiction. And a court of equity has power to review the exercise of a discretionary power, vested in a public officer, whenever its interfer- rence is necessary, in order to prevent abuse, injustice, oppression, or the violation of a trust, as well as in a case of fraud.' VII, Rule that a power given by statute must he strictly pursuedj presumptions in support of the regular- ity of the exercise thereof. § 556. Statutory power, and rule as to claims under it.— The general rule has already been incidentally stated, in some of the cases cited in the foregoing sections of this chapter." A ministerial officer or board of officers has only such powers as are conferred on him or it by statute, either expressly or by necessary implication; and he or it must comply strictly with the provisions of the statute, regulating the exercise of those powers, otherwise the ' See Wolfe v State, 90 Ind. 16. See also, Davia u Mayor, etc., 1 Duer (N. Y.) 451, affi'd as People V Sturte- 8 Post, oh. 26. s Hill D Thompson, 48 N. Y. Super. Ct. 481 vant, 9 N. Y. 263. * Ante, §§ 541, 551, 554. 537 § 558. PUBLIC OFFICERS [Book V. act or decision will be a nullity.' A naked power, con- ferred by law upon an oflBcer or a private person, must be strictly followed, especially if its execution will result in a forfeiture; and one, claiming a right under the exercise of such a power, must show that it was strictly pursued, in accordance with the directions of the law." § 557. Where call of special session of supervisors does not specify business. — Thus, if a statute requires a board of supervisors, or of county commissioners, or other similar officers, to transact business only at a regu- lar and stated meeting, or at a special meeting called by a notice, specifying the business to be transacted; any act done at a speciad meeting, not pertaining to the business specified in the notice calling the meeting, is a nullity.' But a statute, requiring the supervisors to act upon a par- ticular matter at a particular term, does not prevent them from taking final action thereupon at a subsequent term,' if the business was entered upon at the specified term.* § 558. Presumptions and intendments. — And the per- sumption is always in favor of the correct performance of his duty by an officer; and every reasonable intend- ment will be made in support of such presumption. " So, ■ Glass V Ashbury, 49 Cala. 571 ; Accord, Bloom v Burdick, 1 Hill Green d Beesou, 31 Ind. 7 ; (N. Y.) 130. Wiseman v Lynn, 39 Ind. 250, at p. 258 ; « ei Dorado County v Reed, 11 Cala. 130 ; Hull V Marshall Co., 12 Iowa, 143 ; Vmcennes v Windman, 72 Ind. 218 ; Vose V Deane, 7 Mass. 280 ; Paola, etc., R. R. Comp'y v Co. Com'rs, State V Bank, 45 lio. 528; 16 Kan. 302 ; State V Hays, 52 Mo. 578 ; Goedgen v Manitowoc County, 2 Hiss. Waldron v Berry, 51 N. H. 136; (U. s.) 328. Stearns t) Wright, 51 N.H. 600; Contra, in part. County Com'rs v State V Bevers, 86 N. C. 588 ; Kent, 5 Nebr. 227. Whiteside v United States, 93 U. S. 247; * Hoxie V Shaw, 75 Iowa, 427. Silliman v Fredericksburg, etc., R. R. ' Brandon v Suowg, 2 Stew. (Ala.) 255; Comp'y, 27 Gratt. (Va.) 119 ; Vaughn v Biggers, 6 Ga. 188 ; People V Auditor, 3 HI. 667; Washington v Hosp, 43 Kan Y^ncVy ; Hopki;;, rMu"nt'(v'a7419. ^''■^"" " ^"'""' "^ ^^""^ ™ ' OsbornevTunis, 25N. J. L. 633; •,,,,,. . ,t ,„ „ ™. Nalle V Fenwick, 4 Rand. (Va.) 585 ; Washmgton . Hosp 43 Kan 324, 538 Chap. XXIII. J POWERS AND DUTIES § 559. it will always be presumed, that in any official act, or act purporting to be official, the officer has not exceeded his authority; and, if he had power to act only in a certain contingency, that the contingency has happened; where there is no evidence on either side with respect thereto.' "The presumption is that no official person, acting under oath of office, will do aught which it is against his official duty to do, or will omit to do aught which his official duty requires should be done." " § 559. Do not include ^ vital jurisdictional fact ; cases. — ^The application of this rule, and the exceptions and qualifications to which it is subject, constitute an important part of the law of evidence, and could not be exhaustively treated here, without departing from the plan of this work, and greatly increasing its bulk. It will suffice to state here, generally, the principles upon which the exceptions and qualifications rest, and to cite a few examples of their application. The ordinary pre- sumption, that an officer has done his duty, will not be allowed to sustain a vital jurisdictional fact;' but if the fact itself is made out by independent proof, and the Terry v Bleight, 3 T. B. Mon. (Ky.) 270 ; Tenn. (Overt.) 378, at pp. 285, 286 ; Davany u Koon, 45 Miss. 71 ; Downing v Rugar, 21 Wend. (N. Y.) 178 ; Owen V Baker, 101 Mo. 407 ; Thurman v Cameron, 24 Wend. (N. Y.) BaileyvWinn, lOlMo. 649; 87; Hartwell v Root, 19 Jolins. (N. Y.) 345 ; Miller v Lewis, 4 N. Y. 554 ; Farr v Sims, Rich. Eq. Gas. (S. C.) 122, United States v Hayward, 2 Gall. atpp. 131, 132; (U.S.) 485; Henderson's Lessee v Robertson, Adams v Jackson, 2 Aik. (Vt.) 145. Cooke (Tenn.) 207, at p. 210 ; , j^^^ „ j^^^^ g p^j^ gj . Blount V Ramsey, Cooke (Tenn.) 489 ; ^oweU v Flint, 20 Me. 401 ; Rogers v Jennings's Lessee, 3 Yerg. j^ju^j. ^ Lewis, 4 N. Y. 554. (Tenn.) 308; Barry's Lessee v Rhea, 1 Tenn. (Overt.) " Mandeville v Reynolds, 68 N. Y. 528,. 345, at p. 348 ; **'S ^ ^""^ <^- '^•' ^' P^^ Folger, Philip's Lessee v Robertson, 8 Tenn. J-' P- ^' <=i"°e hazier v Westcott, (Overt.) 399, at p. 421 ; ^ N- ^- ^'^ '< Polk's Lessee v Hill, S Tenn. (Overt.) ^ank of United States v Dandridge, 118, at p. 154; 12 Wheat. (U. S.) 64, at pp. 69, 70. Williamson's Heirs v Buohannan, 2 ' Albany u MoNamara, 117 N.Y. 168. 529 § 560. PUBLIC OFFICBKS [Book V. jurisdiction depended upon the time when it occurred, the law will presume that it occurred at the proper time.' "To found the power to act against a private right of property, there must be affirmative proof of a compli- ance with the prerequisites; it is a jurisdictional fact, which may not be presumed or inferred." Hence, where a statute empowers the common council of a city to take lands for streets, provided the resolution for that purpose is adopted by a vote of two thirds of the members, it will not suffice to prove the passage of the resolution; there must be affirmative proof that it received a vote of two thirds.' § 560. Instances where no presumptions ; tax sales, etc. — The rule, that officers will be presumed to have done their duty, does not extend to agents, appointed by the leg- islature pro hac vice, to sell lands for the payment of the owner's debts; the correctness of their proceedings must be affirmatively proved, in order to sustain a title under a sale by them.' 'Not does it extend to a case where a title is made under a tax sale; there the party is held to peculiar strictness in proving all the facts which confer jurisdiction toniake th'e sale, and show the sale to have been regularly made. "When a person seeks, by a pur- chase of a valuable property for a trifling sum, at a tax sale, to cut off the title of the owner, it behooves him to see to it, that the proceedings have all been in sub- stantial accordance with the requirements of law, and that the proper evidence of the same has been pre- served. . . . Courts will not aid in supplying funda- 1 Sheldon v Wright, 7 Barb. (N. Y.) 39. See also, Sharp v Speir, i Hill (N. Y.) 76 ; 2 In re Buffalo, 78 N. Y. 362, per Fol- Dyckmau v Mayor, etc., 5 N. Y. 434 ; ger, J., at p. 366 ; afl'g s. o. sub nom., ■^» « Marsh, 71 N. Y. 315. In re Carlton Street,-16 Hun (N. Y.) ' Pitman v Brownlee, 2 A. K. Marsh. 497. (Ky.) 210. 530 Chap. XXIII. J POWERS AND DUTIES 561. mental defects in such a case by presumptions." ' So commissioners of highways, in laying out highways, act under a special statutory authority; and it must appear, on the face of the proceedings, or by proof aliunde, that they acquired jurisdiction in the particular case; and a record, purporting to be a record of a highway laid out by them, which fails to show aflBrmatively that juris- diction was acquired, cannot be helped out by intend- ment or presumption, based upon the fact that the commissioners were public officers, acting in discharge of a public duty." § 561. Other instances. — And the presumption does not apply, in actions against a sheriff or other ministerial officer, for the recovery of money collected by him upon > Hilton V Bender, 69 N. Y. 75, per Church, Ch. J., at p. 83 ; See also, Cooley on Taxation, 2d ed. 470, 471 ; Pope V Headea, 5 Ala. 433 ; Lyon V Hunt, 11 Ala. 295 ; Elliott i; Eddins, 24 Ala. 508 ; Lachuaan v Clark, 14 Cala. 131 ; Keane v Cannovan, 21 Cala. 291 ; Brooks V Rooney, 11 Ga. 423 ; Garrett^Doe, 2111. 335; Lane v Bommelmaun, 21 111. 143, Perry v Burton, 126 111. 599 ; Anderson v McCormick, 129 111. 308 ; Gavin v Shuman, 23 InS. 32 ; Ellis V Kenyon, 25 Ind. 134 ; Gaylord v Scarff, 6 Iowa 179 ; McGahen v Carr, 6 Iowa 331 ; Brown i; "Veazie, 25 Me. 359 ; Matthews v Light, 32 Me. 305; Worthing v Webster, 45 Me. 270 ; Bonham v Weymouth, 39 Minn. 92; West V St. Paul, etc., R. R. Com'y, «> Minn. 189: Annan v Baker, 49 N. H. 161 ; Hubhell V Weldon, Hill & Deuio (N. Y.) 139; Hoyt V DDlon, 19 Barb. (N. Y.) 644; Bunner v Eastman, 50 Barb. (N. Y.) 639; Beekman v Bigham, 5 N. Y. 366 ; Jewell V Van Steenburgh, 58 N. Y. 85 ; People V Cady, 51 N. Y. Super. Ct. 316, afl'd 99 N. Y. 620 ; Eastern Land, etc., Comp'y v State B'd Education, 101 N. C. 35; Kellogg V McLaughlin, 8 Ohio 114 ; Thompson v Gotham, 9 Ohio 170 ; Emery v Harrison, 13 Pa. St. 317 ; Kelly V Medlin, 26 Tex. 48 ; Telfener v Dillard, 70 Tex. 139 ; Dawson v Ward, 71 Tex. 72 ; McClung V Ross, 5 Wheat. (U. S.) 116 ; Ronkendorffi v Taylor, 4 Pet. (U. S.) 349; Stead V Course, 4 Cranch (U. S.) 403 ; Parker v Rule, 9 Cranch (U. S.) 64 ; Little V Herndon, 10 Wall. (U. S.) 26 ; Brown v Wright, 17 Vt. 97 ; Judevine V Jackson, 18 Vt. 470 ; Townsend v Downer, 32 Vt. 183 ; Allen V Smith, 1 Leigh (Va.) 231 ; Nalle I) Fenwick, 4 Rand. (Va.) 585. ' Miller v Brown, 56 N. Y. 383. 531 § 563. PUBLIC OFFICEES [Book V. an execution. ' And although, where an officer is required to do a certain thing, and, upon his certifying that he has done it, the certificate will be taken to be true, he must certify to having done all that the law requires him to do; otherwise the certificate will not suffice, for there is no presumption which will supply an omission in that respect. " Nor will the law allow a presumption in favor of the per- formance of his duty by one officer, for the purpose of establishing that another officer has failed in the perform- ance of his duty.' § 562. Proof where equity is invoked.— Where a party invokes the aid of a court of equity to set aside official proceedings, conducted under a statutory power, the rule that the proof must show that the power was strictly pursued, in order to support the proceedings, does not apply; and the plaintiff is bound affirmatively to prove the facts which show invalidity of the proceedings." VIIL Miscellaneous rulings respecting officers' powers and duties. § 563. Whether power is continuous, or exhausted by one act. — The question,'Whether a power conferred by the legislature upon one or more officers, to do a particular act, is to be deemed a continuous power, to be exercised by the officers named, or their successors, as often as an emergency arises of the same character as that provided for, or whether it is exhausted by a single exercise of it, is often one of no little difficulty. The considerations, upon which the answer to the question depends, were stated in a case in the court of appeals in New York, ' O'Brien v McCann, 58 N. Y. 373, per * Tingue t! Port Chester, 101 N. Y. 294. Grover, J., at p. 375. See also. In re Bassford, 50 N. Y. 509 ; ' Lawson v Pinokney, 40 N. Y. Super. Heinemann v Heard, 62 N. Y. 448 ; Q{ 187. •^'^ '■^ Ingraham, 64 N. Y. 310 ; „ „ , „„,.,.«„ ''I ^6 Hebrew Benevolent Asylum, 70 ' Weimer v Buntiury, 30 Mich. 201. N Y 4''8 • ' "^ ' See also, Sup'rs >' Bees, 34 Mich. 481. j„ ^^ Voorhls, 90 N. Y. 668. 532 Chap. XXIII.] POWERS AND DUTIES § 563. where a controversy arose respecting the effect of a stat- ute, providing for the designation of a state paper by the secretary of state, the state comptroller, and the state treasurer, and directing them to enter into a contract with the proprietors of the newspaper so designated for the publication of legal notices, etc. The officers so named designated a state paper, and entered into such a contract with the proprietors, for the term of four years, or until the designation of a new paper; no time for the dura- tion of the contract being specified in the statute. At the expiration of the four years, the successors of the oflScers named designated a different paper, and entered into a contract with the proprietors thereof for another term of four years; whereupon this action was brought, by the proprietors of the paper first designated, to establish their right to continue to be the state paper, and for an injunction. The court, in an extended opinion, reviewed the history of previous legislation on that subject, and con- cluded that the act was to be regarded, as "a permanent measure, to secure the publication of the legal notices, not temporarily, for the life of one man, or of a single firm of business men, or the continuance of a .particular business enterprise; but as an arrangement which was to exist in perpetuity;" and in view of those facts, and the consequences which would ensue, in case of the death or failure of the contractors, if the power should be regarded as exhausted by one act, that the legislature intended that the notices should be published "under contracts to be made with the state officers as occassion may require;" and thereupon directed judgment for the defendants." ' Weed V Tucker, 19 N. Y. 423, per Denlo, Pr. (N. Y.) 203. J., at p. 429; See also, People V Allen, 42 Barb. Adistinctionlstakeii,l)et\.eeiiapower (N. Y.) 203; to make contracts, and a power to Daily Register, etc., Comp'y i) Mayor, appoint to office, in People V Wood- etc., 52 Hun (N. Y.) 642. ruff, 32 N. Y. 355, at p. 369 ; s. c. 29 How. 533 § 566. PUBLIC OFFICERS [Book V. § 564. Rule as to exercise of quasi judicial powers. — Obviously no general rule can be laid down, which will cover all cases of this character; for each must depend upon its own peculiar circumstances. It has been held, in several cases, that where a quasi judicial power has been exercised, upon which a private individual has acquired rights, the rule is the same, as where a judg- ment has been rendered by a court of inferior and limited jurisdiction; that is, that the officer or body can exercise the power only once, and cannot afterwards alter his or its decision.' "We have considered the same question, with reference to the exercise of the power of appointment to office, in a proceeding chapter." § 565. Presumption as to policemen, and U. S. officers. — Where it did not appear that any ordinance was enacted by a municipal council, defining the powers and duties of policemen, hut it appeared that policemen were appointed, pursuant to a statute providing for such appointment; it was held that they had presumptively the common law powers of peace officers.' There is no difference in powers of the same character of officers, whether they perform their duties under the national or the state government; the common law applies to both. Thus a provost marshal of the United States possesses the same powers, with respect to the military courts, that peace officers possess with respect to the civil courts.* § 566. Justice U. S. supreme court and patrol duty.^ It has been held, that a justice of the supreme court of the United States is not bound to perform duties, imposed by a statute upon citizens of the state, which are inconsistent 1 People v Sup'rs, 35 Barb. (N. Y.) 408. People v Ames, 19 How. Pr. (N. Y.) 551. Seealso,Siip'r9rBriggs,2Demo(N.Y.) Compare People v Stocking, 50 Barb. 26 ; (N. Y.) 573. Jermalne v Waggener, 1 Hill (N. Y.) 5 ^^^ gg g8_g(, ^^^ 3^g_ 279; Woolsey v Tompkins,-23 Wend. (N. Y.) " Doering v State, i9 Ind. 56. 32i ; * Hawley v Butler, 54 Barb. (N. Y.) 4S0. 534 Chap. XXIIL] POWERS and duties § 568. with the performance of his judicial duties; and this, although the statute allows him to perform the duties by a substitute. Accordingly, a writ of prohibition was granted, against the enforcement of a statutory penalty against such a judge, for his failure to perform patrol duty." § 567. As to officer's good faith and motives. — It is always to be presumed, that a public officer has acted with ordinary caution and in good faith." And where an officer is justified by law in doing an act, his motives cannot be inquired into, for the purpose of affecting the validity of his act, or of founding an action against him on the allegation of malice in its performance.' So the unlawful or malicious motives of the party, in suing out legal process, although known to the officer, will not excuse him from executing it, or prevent its affording him protection, if it is lawful and regular upon its face, and upon the face of the accompanying papers, if any such are required;* and such is the rule, although there was fraud and collusion between the parties. ' § 568. Effect of officer's lawful acts and intent. — And if an officer's act is valid, under a statute in force, it is valid, although, in executing it he was guided by, and undertook to act under, some other statute which was invalid or insufficient." The effect of a town officer's act, in pursuance of his official duty, cannot be obviated by proof of his private intent not to bind the town, as where a highway commissioner's acts amount in law to an acceptance of a bridge, dedicated to the public' ■ state I! Martindale, 1 Bailey (S.C.) 163. Taylor v Alexander, 6 Ohio, 144. » Smyth V Munroe, 84 N. Y. 354, at p. 360, ' State V Weed, 21 N. H. 262. afl'g 19 Hun (N. Y.) 550. , g^^^^^ ^ pje^„g_ ^ Vt. 325. = Wehster v Washington County, 26 « Davis i> Brace, 82 111. 542. Minn. 220; Moran v McClearns, 4 Lans. (N. Y.) ' D^y*"" "^ ^'^^^'^'i' ^ ^^ ^79. 535 PUBLIC OFFICERS [Book V. CHAPTER XXIV DELEGATION OF POWERS; DEPUTIES CONTENTS I. What official powers may or may not he delegated. Sec. 569. Common law rules. 570. American cases; ministerial powers may, and judicial powers may not, be executed by deputy. So where officer's powers are partly judicial and partly ministerial. 571. Strictly judicial powers not transferable; person cannot be made a judge by consent; rule extends to justice of the peace. Instance of judge telegraphing clerk to dis- charge jury. 572. Rule extends to quasi judicial powers; mayor of city can- not delegate power to approve, etc., ordinances; effect of ratification; but commissioners may be appointed to procure lands, etc. 573. Common council of city cannot delegate to an officer power cast on it; nor to its committee; so, as to township board of health, and other officers. 574. So, prosecuting attorney cannot transfer his authority to another. 575. Deputy cannot appoint deputy, though authorized by principal officer, but the latter may ratify; deputy may empower clerk to sign name; undersherifE may appoint a special bailiff. 576. Employee of officer, not authorized to appoint a deputy, is a mere servant; superintendent may empower a person to close gates of state dam. 11. Appointment of a deputy; validity and effect of agreements upon such an appointment; tenure of deputy's office. 577. Deputy may be appointed by parol. 578. English rule, that agreement by deputy to pay principal less than fixed salary, or portion of uncertain profits, is good; but to pay absolutely a certain sum is void. 536 Chap. XXIV. J DELEGATED POWERS Sec. 579. American cases establish tiie same rule; but if deputy entitled by law to certain perquisites, an agreement to pay part of them to principal is void; so agreement for a salary, where statute fixes a portion of the profits as the deputy's, is void; so to pay principal more than his statutory proportion. 580. Application of rule does not depend upon a corrupt intent, etc. ; agreement to appoint a deputy, made in advance, is against pubUc poUcy, and so void. 581. Bond of indemnity against deputy's acts voi4, where appointment is made upon unlawful contract; qu. if good when made afterwards. 583. Deputy's term ends with principal's; if sheriff's office devolves upon undersheriflE, deputy of former sheriff must be reappointed; sheriff may remove deputy at any time, notwithstanding a contract not to remove him. III. Powers of a deputy. 583. Deputy has all the powers of principal, and they cannot be restricted by agreement. 584. Deputy may perform all ministerial acts of principal; so where sheriff is also tax collector, etc. 585. When deputy must act in principal's name; when in his own name. 586. Where statute authorizes him to act, during vacancy or absence, he is full officer during vacancy, but only deputy during absence. 587. Cases where sheriff or deputy sheriff may not serve, etc., process, where the other is a party. IV. Liability of the principal for his deputy's nets and omissions. 588. Principal liable civilly, but not criminally; not liable where party has made deputy his agent. 589. Not hable to civil action for deputy's criminal act. 590. Party injured by official act has remedy against principal only. 591. Principal not liable for deputy's unofficial act; instances. Cases where principal ratifies unlawful act. 592. Public officers not responsible for defaults of their subor- dinates. 593. Liability of municipal corporations for officers' acts, etc. 537 § 569. PUBLIC OFFICERS [Book V. * V. Deputy's bond of indemnity to his principal, and liabilities of sure- ties therein. Sec. 594. General subject of liabilities of sureties considered in chapter 13. 595. Where statute prescribes form, etc. , of bond, no other may be taken ; otherwise parties may agree upon security, etc. 596. Cases holding that any bond thus given is lawful. 597. Whether bond covers past, or only future defaults. 598. Liability of deputy and sureties generally coextensive with principal's; but principal may recover expenses of successful suit. 599. If principal's own misconduct contributed to injury, he cannot recover; so if he consents to deputy's mis- conduct. 600. Principal's failure to remove deputy on request, or to notify sureties of default, no defence; sheriff paying • execution may recover from sureties, amount subse- quently collected by deputy. 601. Sheriff, who is also tax collector, may recover for taxes on deputy's general bond. I. What official powers may or may not be delegated. § 569. Common law rules. — Upon this question, we will first cite the old English authorities. Bacon says: "As to the execution of an office by deputy, we must observe that there are some offices, which, in their nature and constitution, imply a power or right of exercising them by deputy; some that, in their nature, cannot be exercised by deputy; and some that, by having such a power annexed to the grant or institution, may be so exercised, though without such an express provision they could not Offices of inheritance, for years, and those which require only a superintendency, and no particular skill, may be regularly exercised by deputy; such as that of the earl-marshal of England, forester, parkkeeper, etc."' "A judicial officer cannot, it is said, make a deputy, unless he hath a clause in his " Bac. Abr., tit. Offices ami Officers, L. 638 Chap. XXIV.] DELEGATED POWERS §570. patent to enable him, because his judgment is relied on in matters relating to his office, which might be the reason of making the grant to him; neither can a minis- terial officer depute one in his stead, if the office be to be performed by him in person; but where nothing is required but a superintendency in the office, he may make a deputy." ' So the judges of Westminster Hall, " as well as all others having judicial authority, must hold their courts in their proper persons, and cannot act by deputy, or in any way transfer their power to another." ' And a coroner or escheator cannot make a deputy, for these are judicial officers. ^ To which Comyn adds, that where the officer holds in fee by personal service, he may make a deputy, for the estate may descend to a woman, or an infant, etc., who is incapable to do it in person." " So, if an office of labour of small regard be granted to a peer, he, in respect of the dignity of his person, may make a deputy; as if a peer be made steward of a court baron, parker," etc.° § 570. American cases ; what powers may and may not be executed by deputy. — These principles have been declared and applied, as far as they are adapted to our institutions, and expanded, in the American authorities. Thus, the rule is well settled here, that ministerial powers may generally be executed by deputy, but judicial pow- ers may not." The distinction between judicial and min- ' Id., giving In the note instances of ' Com. Dig., tit. Officer, D, 1. ministerial officers, who cannot See also, on this subject, ante, §8 67, make deputies, as the esquire of the et seq. king's person, and carver. , ^^^ njg_^ ^J^^ ^^^^ Accord, Com. Dig. , tit. Officer, D 1 ; D 2. ^ Abrams tiErvln, 9 Iowa 87 ; a Bac. Abr., tit. Offices and Officers, L. ^^^ ^ Hardin, 8 B. Mon. (Ky.) 648, at " But " a note adds, " the nudges of p 663 • the ecclesiastical courts may act by ^ewis v Lewisi 9 Mo. 183 ; deputy, as the ancient custom hath Edwards v Watertown, 24 Hun (N. Y.) been." 426 ■ Accord, Com. Dig., tit. Officer, D 2. p^^pj^ ^ g^^^ ^^ jj America, 75 N. Y. ' Bac. Abr., ubi supra. Com. Dig., tit. 547 ; Officer, D 1 ; D 2. Kirkwood v Smith, 9 Lea (Tenn.) 228. 539 § 571. PUBLIC OFFICERS [Book V, isterial powers, as recognized in this country, was considered in the last preceding chapter. ' It was there said, that the rules of law, applicable to such powers, are applied in accordance with the particular nature of the power in question, without regard to the general charac- ter of the functions of the officer. And this principle applies, with respect to the power of delegation. Thus, where an officer's powers are partly ministerial and partly of a judicial nature, the exercise of the former may be given to a deputy, but not that of the latter. ° §571. As to strictly judicial powers. — With respect to judicial powers, strictly speaking, that is, pow- ers exercised by a judge in the course of regular judicial proceedings, it has been held, not only that a judge cannot delegate his power to another, but that a person cannot be thus authorized to act as a judge, by the agreement of the parties, except in a case where special provision to that effect is made by statute; and the rule applies to a justice of the peace, or a judge of any other inferior tribunal, as well as to a judge of a court of record.^ This rule has been even extended to a case, where the act authorized by the judge, although it related to judicial business, was purely of a ministerial character, as it did not involve the exercise of any dis- cretion or judgment, on the part of the person empowered to act; as where a judge, being absent from the place of holding court, telegraphed to the clerk to discharge a jury, and, the clerk having done so, it was held that this was error and the prisoner must be discharged." 1 Ante, §§ 533-541. Borrodaile v Leek, 9 Barb. (N. Y.) 6U ; » Powell V Tuttle, 3 N. Y. 396. ^'^'■""S D GUI, Wright (Ohio) 73 ; Ex parte Kellogg, 6 Vt. 509 ; ■' Wright V Boon, 2 Greene (Iowa) 458 ; yan Slyke v Trempealeau, etc., lus. Smith V Frisbie, 7 Iowa 486 ; Comp'y, 39 Wis. 390. Morrow v State, 5 Kan. 563 ; „, ,, „ Jaoquemine v State, 48 Miss. 280 ; ' State v Jefferson, 66 N. C. 309. 540 Chap. XXIV. J DELEGATED POWERS §573, § 573. Quasi judicial powers ; mayor ; effect of ratifica- tion, etc. — The rule extends also to cases where the power is of a quasi judicial character, as stated in the last pre- ceding chapter, that is, wherever it involves the exercise of judgment or discretion. Such a power cannot be del- egated to another.' Thus, where the charter of a city made it the duty of the mayor to examine and pass upon the ordinances and resolutions of the common council, before they should take effect, it was held, that where that power was delegated by him to a subordinate, an ordinance approved in his name by the latter did not take effect; but it was also held that the mayor's subse- quent personal approval would validate it; and that, although the publication of an advertisement for the work was begun, before his personal approval, the pro- ceedings were not vitiated by that fact; but that it was an irregularity only.' But a statute, permitting munici- pal authorities to appoint commissioners to procure land necessary to be taken for streets, by purchase or condem- nation for public use, subject to the approval of the council, is not unconstitutional, as delegating to invidu- als the power to perform municipal functions. ° § 573. As to common council ; board of health ; other officers. — So, the common council of a city cannot devolve upon a city officer the performance of duties, which the law casts upon the council itself. Thus, where the char- ter of a city requires certain work to be done by contract, or otherwise, as the common council shall determine; or that, if the expense of the work exceeds a certain sum, it ' Abramg v Ervin, 9 Iowa 87 ; municipality a power, which the State V Shaw, 64 Me. 363 ; constitution forbids the legislature Sheehan v Gleeson, 46 Mo. 100 ; to exercise. State I! Paterson, 34 N. J. L. 163 ; Farrell v Sacramento, 85 Cala. 408. Crocker v Crane, 21 Wend. (N. Y.) 211, , ^y^j^ ^ Buffalo, 48 Hun (N. Y.) 175. cited anU, g 535. Nor can the legislature delegate to a ' Davies v Los Angeles, 86 Cala. 37. 541 §573. PUBLIC OFFICERS [Book V. shall be done by contract, unless the common council shall otherwise determine; an ordinance, directing the work to be done by the street commissioner, or other officer of the city, in such manner as he shall determine, is unauthorized, and an assessment for work so done cannot be collected. The court said': " This is eminently a discretionary power, which cannot be delegated. It is their judgment which the law requires, and not that of any officer they may designate. There is no provision in the law itself, authorizing them to delegate this power; and the case falls within the settled principle, that pow- ers of this description, involving the exercise of judg- ment and discretion, cannot be delegated; a principle which applies to public bodies and officers, as well as to private individuals." ' Nor can the common council of a city confer upon a committee of its members a power, vested in the council, to accept a bid or award a contract for grading a street.^ So, a board of health cannot delegate to a committee its power to employ a physician.' So, the power of the trustees of the Brooklyn bridge, to appoint policemen, cannot be delegated to one of their officers." Other cases, establishing the same rule, upon similar states of facts, and applicable to various public bodies, are cited in the note.' But, although a board of ' In re Emigrant Industrial Savings » Supervisors v Brush, 77 111. 59 ; Banis, 75 N. Y. 388, per Rapallo, J., 393. Accord, Thompson v Schermerhorn, 6 N. Y. 93 ; Birdsall w Clark, 73 N. Y. 73 ; Phelps V Mayor, etc., 112 N. Y. 216. See also, Richardson v Heydenfeldt, laCala. 68; Thomson v Boonville, 61 Mo. 283 ; Matthews v Alexandria, 68 Mo. 115. ' Stockton V Creanor, 45 Gala. 643. 3 Young V Blackhawk County, 66 Iowa 460. « Hannon D Agnew, 96 N. Y. 439. State V Hauser, 63 Ind. 155 ; Indianapolis v Indianapolis Gaslight, etc., Comp'y, 66 Ind. 396, at p. 403; Franke B Padueah Water, etc., Comp'y, 88 Ky. 467 ; Gale V Kalamazoo, 33 Mich. 344 ; Maxwell v Bay City B. Comp'y, 41 Mich. 453 ; Darling v St. Paul, 19 Minn. 389 ; Ruggles V Collier, 43 Mo. 353 ; State V Paterson, 34 N. J. L. 163; State V Fiske, 9 R. I. 94 ; Lauenstein v Fond du Lac, 28 Wis. 336; Lord u Oconto, 47 Wis. 386.. 543 chap. XXIV.J DELEGATED POWERS § 574. supervisors, as far as it exercises governmental func- tions, for instance, in the imposition of a tax, can only act as a board, it may, as a business corporation, dele- gate its " mechanical and physical work " to its agents." And where the common council of a city, empowered to regulate certain trades, and fix fees for licenses therefor, fixed the fees, and empowered the mayor to grant the licenses; it was held that this was not an unlawful dele- gation of power, and that a license, issued by direction of the mayor, and signed by the city clerk, was valid," § 574. Prosecuting attorney cannot transfer his authority. — The same principle was applied, where an action was brought by a lawyer, to recover compensation for services rendered to the defendant, the prosecuting attorney of a county, upon an employment of the plaintiff by the defendant to prosecute certain criminal causes, in which the defendant declined to act. The court held that the plaintiff could not recover, on the ground that the agreement was unlawful. Campbell, J., delivering the opinion of the court, said: "No doubt a prosecuting attorney may employ assistants in various ways, not involving his official discretion or responsibility. . . But the law has very carefully guarded the criminal interests of the state, from any interested or unauthorized inter- meddling. The prosecuting attorney is a very responsible oflBcer, selected by the people, and vested with personal discretion, intrusted to him as a minister of justice, and not as a mere legal attorney. . . . This discretion is official and personal; and our laws have only allowed its delegation on special grounds, where an assistant has been provided for by carefully guarded legislation. It is directly contrary to public policy, to allow any general delegation of a prosecutor's powers, and the courts cannot ' People V Supervisors, 53 Hun (N, Y.) " BradleyvRocliester,54Hun(N.Y.)140. m. 543 § 576. PUBLIC OFFICERS [Book V. recognize any such arrangement, as forming a basis for personal compensation." ' § 575. Authorities as to power in this regard, of deputy sheriffs. — So the familiar maxim, delegata potestas non potest delegari, will prevent a deputy from delegating his own power to another. " Regularly, a deputy cannot make a deputy, because it implies an assignment of his whole power, which he cannot assign over." ^ So, a sheriff cannot delegate to another the power to appoint a deputy sheriff; nor can he ratify the illegal act of a per- son so appointed.' But if a deputy sheriff empowers his clerk to sign, in the s.heriflf's name, a certificate which the deputy may lawfully so execute, and the deputy takes the certificate and uses it officially, it is adopted by him, and becomes to all intents and purposes his own act." And a deputy sheriff may appoint a bailiff, to do a partic- ular act, as to summon jurors, although he has no power to appoint a bailiff to do the general business of the office. ' § 576. The same subject ; closing gates of state dam. — A person, employed by a state officer, not authorized to appoint a deputy, is a mere servant, and his acts do not bind the state." The rule, against delegation of an officer's power, does not apply to the act of the superintendent of public works, authorizing a person to close the gates of a dam, where the state had appropriated the right to main- tain the dam, and to detain the water held back by the gates. ' 1 Engle V Chipman, 51 Mich. 524. 87, aff'g 49 N. Y. Super. Ct. 429. See » Bao. Abr., tit. Offices and Officers, L. ^^^ -Rugfiv, Ch. J., p. 96. ' Perkins v Reed, 14 Ala. 636. ° McGnffle v State, 17 Ga. 497. ' Gibson V National Park Bank, 98 N. Y. ' State v Buffalo, 2 Hill (N. Y.) 434. ' Wright 'J Eldred, 46 Hun (N. Y.) 13. 544 Chap. XXIV.] DEPUTIES § 579. 11. Appointment of a deputy; validity and effect of agreement, between him and his principal, upon such appointment; tenure of his office. § 577. Deputy may be appointed by parol.— Many deputies are statutory officers, whose appointment, official tenure, powers, and duties, are regulated by statutory pro- visions, and whose compensation is fixed by law or muni- cipal ordinance, and paid out of the public treasury. With these we have no concern now. At common law, a sheriff may appoint a deputy by parol, and one so appointed may execute a deed in his principal's name." § 578. English rule as to bargains upon appoint- ments. — With respect to bargains for a deputation, it has been held in England, that under the statute 5 and 6 Edw. VI, against the sale of offices, where the office was within the statute, and the salary certain, if the princi- pal made a deputation, reserving a lesser sum, it was good. So, if the profits were uncertain, arising from fees, if a certain sum was reserved out of the fees and profits, that was good; for the deputy was not to pay, unless the fees amounted to enough; but where the reservation or agreement was not out of profits, but generally to pay a certain sum, that contract was void by the statute.' And that the rule is the same under the statute, 49 Geo. Ill, ch. 126.' § 579. The American cases as to same subject— The courts in the United States have recognized and applied > McGee 1! Eastis, 3 Stew. (Ala.) 307 ; ' Chitty Contr. 1015, citing Aston v State V Allen, 5 Ired. L. (N. C.) 36. Gwinnell, 3 Younge & J. 136 ; ' Chitty Contr., 9 Eng. ed., nth Am. ^^'^'^^'^ '" ^^^^' ^ ^'^°^- * B., 673; 6 ed.,1014; J. B. Moore, 28; Godolphin V Tndor, 2 Salk. 468, afl'd 1 ^''^^^'^ " ^^^^^^ 9 B. & C. 462 ; 4 Bro.P.C.135; Man. & R. 372. Gulllford ,, De Cardonell, 2 Salk. 466. ^ee also, Campbell v Hewlitt, 16 Q. B. 545 § 579. PUBLIC OFFICERS [Book V. the same rules, in several cases. ' They were declared and followed, under a statute of the state of New York, sub- stantially identicial with the English statute of 5 and 6 Edw. VI, by the court of chancery, in a case where it was further held, that where the deputy is entitled by law to certain fees or perquisites, in virtue of his character as deputy merely, if he agrees to give the officer appoint- ing him a portion of such fees or perquisites, that is a purchase of the deputation, and both parties are guilty of a violation of the statute against buying and selling offices.' And it was held, in the same state, and under the same statute, that an agreement, upon which an officer appointed the plaintiff his deputy, providing that the plaintiff should perform his duties at a fixed salary, whereas the statute, creating the office, required the officer to pay the deputy a certain proportion of his profits, was void, although it could not be certain, that the stipulated sum would be less than the percentage allowed by law; and that the plaintiff could not recover, either his propor- tion of the fees, or the unpaid balance of the stipulated salary.' So, also, it was held in Massachusetts, where the deputies of the sheriff were entitled by law to three fourths of the fees upon writs, etc. , executed by them, that a bond from the deputy to the sheriff, to secure to the latter the payment of more than one fourth of such fees, was 1 Martin v Royster, 8 Ark. 74 ; See also, De Forest v Brainerd, 2 Day Hall V Gavltt, 18 Ind. 390 ; (Conn.) 528 ; State V Peck, 30 La. Ann., Part 1, 280 ; Grant v McLester, 8 Ga. 553 ; Pioneer Pr. Comp'y d Sanborn, 3 Minn. Sailing v MoKinney, 1 Leigh (Va.) 42. *^^' Generally, as to the sale of deputa- Meredith v Ladd, 2 N. H. 517 ; tions, see Waldron v Evans, 1 Dak. Carleton v Whitcher, 5 N. H. 196 ; 11 ; Cardigan v Page, 6 N. H. 182 ; stout v Ennis, 28 Kan. 706 ; Tappan v Brown, 9 Wend. (N. Y.) 176 ; O'Rear v Kiger, 10 Leigh (Va..) 622 ; Mott V Bobbins, 1 Hill (N. Y.) 21 ; Sohloss « Hewlett, 81 Ala. 263. Ferris v Adams, 23 Vt. 136 ; . „ Noel V Fisher, 8 Call (Va., 215 ; ^^"^^'^ " '^^" ^^''^^ " ^^'^e (N. Y.) 68. Addington v Sexton, 17 Wis. 337. ' Tappan v Brown, 9 Wend. (N. Y.) 175. 546 Chap. XXIV.] DEPUTIES § 581. void.' And in another case in New York, the assistant vice chancellor of the first circuit ruled, that a deputy's agreement to serve without salary, if the profits of the office fell short of a fixed sum; and that, if they should exceed it, he should have part of the excess; was legal, and not an evasion of the statute, since the agreement to pay the principal was not absolute, but contingent. ' § 580. Corrupt intent ; agreement to appoint deputy made in advance. — In this class of cases, as in the others, the application of the rule does not depend upon the exist- ance of actual corruption, or even of a reward or gift, received by the promisor. Thus, it was held, that a prom- ise by a sheriff, made in February, to appoint a particular person a deputy sheriff and jailor on the first of April, although not founded upon any reward or benefit to the sheriff, but resting for its consideration solely upon incon- venience and loss to the promisee, was void, on grounds of public policy. The court said: "It is the duty of the officer, having a power of appointment, to make the best appointment in his power, according to his judgment at the time he makes the appointment. The public have a right to demand this. And it is against public policy, that he should be deprived of the exercise of his besi judgment, by a contract previously made." ' § 581. When bond of indemnity against deputy's acts void. — The familiar rule of law, that the courts will not help either party to enforce an illegal contract, or any other contract, founded upon and growing out of the illegal contract, although resting upon a separate consid- ation, avoids a bond of indemnity, given by the deputy to the principal, to secure him against any injury by the ' Farrar u Barton, 5 Mass. 395. ' Hager v Catlin, 18 Hun (N. Y.) 448, per See also, Mattoon v Kidd, 7 Mass. 33. Learned, P. J. o e,i _t /-.I * -fv, 1 -NT V T -f See also, Jackson City v Bowman, 39 >* Stewart v Glentwortn, 1 N. Y. Leg. Miss. 671. Obs. 317. 547 § 583. PUBLIC OFFICERS [Book V. deputy's acts or omissions, where there has been an illegal sale of the deputation. ' But it has been said, that where the bond is executed, after the contract is past, and the deputy constituted, being no part of the vicious contract, it is as valid as if there had been no sale of the deputation." Such abend, where it is not a part of an unlawful contract, is recognized as valid, and is ordinarily taken, wherever the principal officer is liable for the deputy's acts or omissions.' § 582. Term and removal ; undersheriff and* sheriffs deputies. — A deputy's commission, in the absence of any statutory provision to the contrary, runs only while the principal's term lasts; if the principal is reelected or reappointed, the deputy must be appointed anew.' And where the office of sheriff devolves, under the statute, upon the undersheriff, by the death, resignation, or removal of the sheriff, a general deputy of the former sheriff cannot continue to exercise his office, without a new appointment from the undersheriff, upon whom the office has devolved, which must be executed with the for- malities required by law, in the case of an original appointment, and a new oath of office must be taken.' A sheriff may remove his deputy at any time, although he has entered into a contract with the deputy, that the lat- ter should hold during his entire term, and the deputy has given full bonds; but it has been said that an action would lie upon the agreement." ' Love V Buckner, 4 Bibb (Ky.) 506 ; Banner v McMurray, 1 Dev. L. (N. C.) Lewis i; Knox, 2 Bibb (Ky.) 453 ; 218 Davis V Hull, 1 Litt. (Ky.) 9. Ante, i 304. See also. Gray v Hook, 4 N. Y. 449. » Boardman v Halliday, 10 Paige (N. Y.) = Bald win D Bridges, 2 J. J. Marsh. (Ky.)r. 223. > See post, §§ 594 et seq. • Hoge v Trigg, 4 Munf . (Va.) 150. * Greenwood t! State, 17 Ark. 332 ; ^^° t^« 1^"^'^ proposition, qu. See ante, S 580. 548 Chap. XXIV.] DEPUTIES § 584. III. Powers of a deputy. § 583. Deputy has all the powers of principal, and they cannot be restricted by agreement.— It has been said, that a deputy is " one, who occupieth in right of another, and for whom regularly his superior shall answer." A deputy has not any estate or interest in the oflBce; but he is servant to the officer, and does everything in the name of the officer, and nothing in his own name, and for whom the grantor shall answer (9 Co. 49). But per Holt, Ch. J., it is said that a deputy cannot regularly have less power than his principal; cannot be restrained from exercising any part of the office, by covenant pr other- wise; must regularly act in his own name, unless it be in the case of an undersherifE, who acts in the name of the high sheriff, because the writ is directed to him. {Parker V. Kelt, 1 Salk. 95.)' A deputy has power to do every act, which his principal might do, and cannot be restrained to some particulars of his office, "for that would be repugnant to his being deputy." " So an arrangement, between a sheriff and his deputy, that the latter shall not serve process from the district court, is of no effect as to the public. " § 584. The same subject ; when sheriff is tax collector ; county clerk. — " The authority of the deputy sheriff, to per- form all necessary ministerial acts, required in the service and execution of legal process addressed to the sheriff, is unquestionable." ' And where the sheriff is also tax collector, the undersheriff possesses all his powers and duties, with respect to taxes, and his acts bind the sheriff ' Bac. Abr., tit. Offices and Officers, L. Jackson v Davis, 18 Johns. (N. Y.) 7. ^ r^ T^- *-t riffi^,... r. q Seealso, Hope D Sawyer, U 111. 254; ' Com. Dig., tit. Officer, D, 3. tt. ■ n t »■» Abrams v Brvin, 9 Iowa 87 ; » Albrecht u Long, 27 Minn. 81. Comm. v Arnold, 3 Litt. (Ky.) 309, at « Gibson i) National Park Bank, 98 N. Y. p. 316 ; 87, aff'g 49 N. Y. Super. Ct. 439 ; per Ellison v Stevenson, 6 T. B. Mon. (Ky.) Ruger, Ch. J., p. 96, citing Livings- 271. ton I) Cheetham, 2 Johns. (N. Y.) 479 ; 649 § 586. PUBLIC OFFICERS [Book V. and his sureties. ' So the deputy county clerk may per- form all the duties of the county clerk, respecting the collection of the taxes.'' § 585. The name in which deputy must act. — Ordi- narily, a deputy must act in the name of his principal, aud his acts in his own name are invalid.' But where a statute empowers a deputy, eo nomine, to perform par- ticular acts, he may lawfully act in his own name; and the courts will not disturb a long settled practice in a public office, of using the deputy's name, instead of the principal's.* § 586. Effect of statute, authorizing deputy to act dur- ing vacancy or absence. — Where a statutory provision declares, that a deputy shall Jbe clothed with the powers, and subjected to the duties of the principal, during a vacancy in the latter's office, or in case of the latter's absence or inability; if the principal office becomes vacant, the deputy at once becomes the acting officer; his acts are, to all intents and purposes, those of a principal officer, and he is entitled to the salary of the office, while he so continues to act: but in case of the absence or inability of the principal, the powers conferred and the duties imposed upon the deputy are only those, which are necessary for the transaction of the public business, dur- ing the principal's temporary disability; and the deputy does not become the acting principal officer, but he acts only as deputy. " ' People u otto, 77 Gala. 45. People « Johr, 32 Mich. 461 ; ^ Whitford V Lynch, 10 Kan. 180. Westbrook v Miller, 56 Mich. 148 ; fol- 4«te, 8 583; lomng Calender v Olcott, 1 Mich. 344; Lewes v Thompson, 3 Gala. 266 ; Wheeler v Wilkins, 19 Mich. 78. Joyce V Joyce, 5 Gala. 449 ; g^^ ^^^^ ^^^^ ^ Barhour, 58 Mich. 49 ; Rowley v Howard, 23 Gala. 4fll ; p^ ^^^^^ ^ j,^^^ 2 ^^^^^^ g_ Gleucoe D People, 78 111. 382 ; ^^ Evans v Wilder, 7 Mo. 359 ; Anderson t) Brown, 9 Ohio, 151. ° Peovie v Hopkins, 55 N. Y. 74, rev'g 1 Eastman v Curtis, 4 Vt. 616 ; T. & C. (N. Y.) 195. 550 Chap. XXIV. J DEPUTIES § 588. § 587. Service of process upon principal by deputy, and vice versa. — There are numerous rulings, many of which depend upon the statutory provisions of the different states, respecting the power of a sheriff or a deputy sheriff to act in a case where the other is interested. These are fully considered in the treatises relating to sheriffs and coroners; and a full examination of these questions is foreign to the plan of this work. It suffices to say here, in general terms, that, unless a statute otherwise pro- vides, a sheriff, although the writ is directed to him, cannot, nor can his deputy, serve a writ upon, or other- wise execute a writ against a deputy sheriff; nor can a deputy sheriff serve a writ upon, or execute a writ against the sheriff, or in a case where the sheriff is a party;' and this, although the sheriff or a deputy sheriff is a party as administrator, or otherwise without personal interest." And it has been held, that where a corone^;, who is also deputy sheriff, is sued for neglect of duty as a coroner, the process cannot lawfully be served by another deputy sheriff.' IV. Liability of the principal officer for his deputy's acts and omissions. § 588. Liable civilly ; cases where party has made deputy his agent. — " Upon the rule of respondeat superior, regularly all oflBcers shall answer for their deputies, in the same manner as if the act were done by themselves, > Sewall V Bates, 2 Stew. (Ala.) i62 ; Barker v Rerniok, 43 N. H. 235 ; Pope V Stout, 1 Stew. (Ala.) 375 ; May v Walters, 2 McCord (S. C.) 470 ; Woods V Gilson, 17 111. 218 ; Miller v Yeadon, 3 McCord (S. C.) 11 ; Chambers v Thomas, 1 Litt. (Ky.) 268 ; Stewart v Maguess, 2 Coldw. (Tenn.) Samuel V Comm., 6 T. B. Mon. (Ky.) 310. 173 ;■ 2 Johnsoii v McLaughlin, 9 Ala. 551 ; Dane v Gilmore, 51 Me. 5a ; Knott V Jarboe, 1 Met. (Ky.) 504. Ford V Dyer, 26 Miss. 243 ; a Brown i> Gordon, 1 Me. 165. Ingraham v Oloock, 14 N. H. 243 ; 551 § 589. PUBLIC OFFICERS [Book V, unless it be in criminal cases." ' " The sheriff is answer- able civiliter for the acts of his deputies; and it is no objection that the act is of a criminal nature, for which the deputy might be answerable criminaliter." " The rule, that an officer is answerable for any act or omission of his deputy, subject only to the exceptions hereinafter stated, has been established by very many authorities, some of which are given in the note." But where the deputy is a special deputy, nominated by and appointed, at the request of the injured person, for a particular ser- vice to be performed for his benefit;' or where the injured person has so undertaken to instruct the deputy as to his conduct, that the former has in fact made the deputy his own agent,' he cannot recover against the principal officer. § 589. When not liable civilly for deputy's criminal act. — Although it was said, in the opinion, from which an extract is given the. last preceding section, that it is no objection that the act, for which the pi-incipal is holden to be liable, was of a criminal nature, it has been held, that where a deputy sheriff killed a prisoner, the sheriff > Bao. Abr., tit. Offices and Officers, L ; Van Schaick v Sigel, 60 How. Pr. (N. Y.) Accord, Com. Dig., tit. Officer, D 4. 122 ; = Mclntyre v TrumTjull, 7 Jolins. (N. Y.) R°^« " Campbell, 19 Hun (N. Y.) 615 ; 35_ Hazard v Israel, 1 Binn. (Pa.) 240 ; Seaver v Pierce, 42 Vt. 325. ' Wood « Parnell, 50 Ala. m ; ^^^ however, Russell « Lawton, 14 Forsythe v Ellis, 4 J. J. Marsh. (Ky.) ~^^ g^g 298; Whitney v Farrar, 51 Me. 418 * Skinner v Wilson. 61 Miss. 90. Norton i) Nye, 56 Me. 211 ; » Armstrong v Garrow, 6 Cow. (N. Y.) Draper v Arnold, 12 Mass. 449 ; 465 ; Mansfield v Sumner, 6 Met. (Mass.) 94 ; Mickles v Hart, 1 Denio (N. Y.) 548 ; King V Rice, 12 Gush. (Mass). 161 ; Sheldon v Payne, 7 N. Y. 458. Robinson v Ensign, 6 Gray (Mass.) 300 ; See also, Odom « Gill, 59 Ga. 180 ; First Ward Nat. Bk. v Thomas, 185 Smith v Berry, 37 Me. 298 ; Mass. 278 ; Stevens v Colby, 46 N. H. 163 ; Blunt V Sheppard, 1 Mo. 219 ; Eastmdn v Judkins, 59 N. H. 576 ; Rider v Qhick, 69 N. H. 50 ; AcUer v Ledyard, 8 Barb. (N. Y.) 614 ; Smith V Judkinc, 60 N. H. 187 j 552 Chap. XXIV.] DEPUTIES § 591. was not liable, under a statute, giving a civil action to the executor or administrator of a deceased person, against one who caused his death by a wrongful act.' § 590. Party injured by official act has remedy against principal only. — Where a deputy sheriff fails to pay over money collected by him, the judgment creditor's remedy is by action upon the official bond of the sheriff; which is holden for the acts or omissions of the deputy, although it does not contain an express condition to that effect; for the act or omission of the deputy is the act or omis- sion of the sheriff." § 591. Deputy's unofficial acts ; instances ; ratification by principal. — An officer is not liable for an unofficial act of his deputy. Thus, it has been held by the supreme court of New York, that although a statute requires every distress to "be made by the sheriff or one of his deputies, or by a constable or marshal of the city or town," yet in making a distress for rent, which, at com- mon law, might be made by the landlord in person, or by any one empowered by hiui to make it, the officer acts as the private bailiff of the landlord; so that, if he is sued for the distress, he must go back of his warrant, and prove the demise and the rent due; and that, if the distress is made by a deputy sheriff, the sheriff is not responsible for his acts, and the sheriff and the deputy cannot be sued jointly therefor." So it has been held that a sheriff is not liable for the unofficial act of his deputy, although the latter believed it to be within his official power, and the sheriff, upon being informed thereof, approved it and acted upon it, in the same erroneous belief.* Thus, a 1 Hendriok v Walton. 69 Tex. 192. (N. Y.) 20 j ami disapproving dictum » Crawford u Howard, 9 Ga. 314 ; Brayton v Town, 13 Iowa 346 ; State V Moore, 19 Mo. 369. ' Dorr v Mickley, 16 Minn. 30. of Bronson, J., in Van Rensselaer o Quackenboss, 17 Wend. (X. Y.) 34. « Monlton v Norton, 5 Barb. (N. Y.) 286, following Webber D Shearman, 6 Hill See also, Harrington V Fuller, 18 Me. 277; 553 § 593. PUBLIC OFFICERS [Book V. sheriff is not liable to the purchaser at a sale under an execution, for his deputy^s representations, respecting the title to the property sold. ' For further instances of the application of this rule, the reader is referred to the many treatises upon sheriffs and coroners. § 593. Public officer not responsible for default of sub- ordinate. — The rule is now well settled, by numerous adjudications, "that public officers and agents are not responsible for the misfeasances, or positive wrongs, or for the nonfeasances, or negligences, or omissions of duty of the sub-agents, or servants, or other persons, properly employed by and under them, in the discharge of their official duties." " And the rule applies, not only to the heads of departments, as the postmaster-general, who, as it has been often held, is not liable for any act or omis- sion of a deputy postmaster; but to the deputy postmas- ters, and all other subordinate officers, acting under the head of a department, who are compelled to employ sub- agents, clerks, and servants, in the public service; and "to other public officers and agents^ engaged in the public service, or acting for public objects, whether their appoint- ments emanate from particular public bodies, or are derived from general laws, and whether those objects are of a local or general nature." The reason for this rule was thus stated, in a case in the supreme court of the United States, holding, that the collector of customs of the port of New York was not liable for the tort of his subordinate, with respect to the examination of a passenger's trunk: "Competent persons could not be found, to fill positions of the kind, if they knew they would be held liable for all the torts and wrongs, committed by a large body of subordinates, in the discharge of duties, which it would Knowlton V Bartlett, 1 Pick. (Mass.) ' Lewark v Carter, IVT Ind. 206. 271 i a Story on ABOUoy, 9th ed., § 319 ; State V Moore, 19 Mo. 389^; g^^y ^^ Bailments, 9th ed., §§ 161, 162 ; Welddes v Edsell, 2 McL. (U. S.) 366. ^^^^ ^^^^ ^j^^^^ 554 Chap. XXIV.] DEPUTIES 593. be utterly impossible for the superior officer to discharge in person." ' The only recognized exceptions to this rule are, where the injury was indirectly attributable to the chief officer's own fault; as where he appointed or retained improper persons as his subordinates, or so negligently managed the affairs of his office, as to fur- nish an opportunity for the injury, or where he coopera- ted in the wrongful act.'' But it has also been held, that the rule extends only to cases, where the person employed by the principal officer is an officer recog- nized by the law; otherwise he is the mere servant of the principal officer, who is responsible for his acts.' § 593. Liability of municipal corporations for officers' acts, etc. — The same rule has been applied to the officers c f a municipal corporation, where their duties are speci- fied by statute, or by ordinance made pursuant to a statute, although they are appointed by the corporation, if the corporation has no power to remove them at pleasure. " If the act of the officer or subordinate of the officer thus appointed, is done in the attempted perform- ance of a duty, laid by the law upon him, and not upon the municipality, then the municipality is not liable for ' Robertson v Sichel, 127 U. S. 507, per Blatchford, J., p. 515. « Story on Agency, 9ttL ed., Sg 319 a to 321. See also, 3 Kent's Comment., 610 ; Rowning v Goodohild, 8 Wils. 443 ; 2 W. Blaokst.906; Stock V Harris, 5 Burr. 2709 ; WMtfleld V Le Despencer (Lord), 8 Cowp. 754 ; Lane v Cotton, 1 Salk. 17; 1 Ld. Bay. 646 ; 12 Mod. 472 ; Maxwell v Mcllvoy, 2 Bibb (Ky.) 211 ; Bishop V WiUiamson, 11 Me. 495 ; Keenan v Southworth, 110 Mass. 474 ; Foster v Metts, 55 Miss. 77 ; Hutohins V Brackett, 22 N. H. 252 ; Wiggins V Hathaway, 6 Barb. (N. Y.) 632; Conwell V Voorhees, 13 Ohio 523 ; Ford V Parker, 4 Ohio St. 576 ; Schroyer v Lynch, 8 Watts (Pa.) 453 ; Bolan V Williamson, 1 Brev. (S. C.) 181; 2Bay(S. C.)551; Dunlop V Munroe, 7 Cranoh (U. S.) 243; Brissao i) Lawrence, 2 Blatchf. (U. S.) 121; Booth V Lloyd, 33 Fed. R. (U. S.) 593 ; Robertson v Sichel, 127 U. S. 507; Tracy v Cloyd, 10 W. Va. 19. Ely 1) Parsons, 55 Conn. 83 ; Foster v Metts, 55 Miss. 77. 555 593. PUBLIC OFFICEKS [Book Y. his negligence therein." ' And it has been held, that in the absence of a statute creating a liability, a municipal corporation is not liable for its officer's act or omission, where he discharges a duty, performed purely for the public service and the general welfare, and not for the local or corporate advantage of the municipality/ But the municipality is liable for its officer's negligence or want of skill, where the duty is performed for its local or corporate advantage.' With respect to counties, and also townships, school districts, road districts, and the like, which are only quasi corporations, the prevailing rule, as deduced from the modern cases, is that they are not liable for their officers' acts or omissions, unless they are made liable by statute; for they are political subdivisions of the state, and thus exempt, as is the state, from private actions." For a fuller examination of this subject, which often presents nice and difficult questions, the reader is ' Maxmilian v Mayor, etc., 62 N. Y. 160, aff'g a Hun (N. Y.) 263; per Folger, J., p. 164, citing Martin v Mayor, etc., lHiU(N. Y.)545: EusseU V Mayor, etc., 3 Denio (N. Y.) 461; LoriUard v Monroe, U N. Y. 392; Bank of Comm. v Mayor, etc., 43 N. Y. 184. See also, Hafford « New Bedford, 16 Gray (Mass.) 297; Walcott V Swampscott, 1 Allen (Mass.) 101; Buttrick u LoweJl, 1 Allen (Mass.) 172; Barney v Lowell, 98 Mass. 570 ; Fisher i) Boston, 104 Mass. 87 ; HaskeU v New Bedford, 108 Mass. 208; Dunbar v Boston, 112 Mass. 75 ; McCarthy v Boston, 135 Mass. 197 ; Prince v Lynn, 149 Mass. 193 ; Detroitu Blackeby, 21 Mich. 84, at p. 113; Dannat v Mayor, etc., 6 Hun (N. Y.) 88 ; McKay « Buffalo, 9 Hun (N. Y.) 401; Caspary v Portland, 19 Oreg. 496. See also, ante, §§ 514, 5S1. Curran v Boston, 151 Mass. 505. See also, Tindley v Salem, 137 Mass. 171 ; Dmon Mun. Corp., 4th ed., § 974 (*772), and oases cited ; Atwater v Trustees, 124 N. Y. 602, aff'g 56 Hun (N. Y.) 293. s Dillon Mun. Corp., 4th ed., §8 9 980 (*778), and oases cited. See also, Sullivan v Holyoke, 135 Mass. 273; Hill V Boston, 122 Mass. 344 ; Appleton V Water Com'rs, ? HiE (N. Y.) 432; New York & Brooklyn S. M. & L. Comp'y !) Brooklyn, 71 N. Y. 580, aff'g 8Hun(N. Y.)37; Ehrgott V Mayor, etc., 96 N. Y. 264; Asbestine, etc. Comp'y v Hepp, 39 Fed. B. (U. S.) 324. « Dillon Mun. Corp., 4th ed., S 963; Soper D Henry Co., 26 Iowa 264 ; Hamilton Co. v Mighels, 7 Ohio St. 109; Fry V Albemarle Co., 86 Va. 195. 556 Chap. XXIV.] DEPUTIES § 595. referred to the numerous excellent treatises upon agency and municipal corporations, wherein it is fully discussed and illustrated. V. Deputy's bond of indemnity to his principal, and lia- bility of the sureties therein § 594. General subject considered in chapter XII. — The subject of the liabilities of the sureties in an official bond was extensirely treated in a former chapter. ' A few of the cases therein cited relate partic- ularly to the species of bonds now under consideration," although the general subject of inquiry was the liabili- ties of sureties in the bonds of principal officers. But some of the rulings and doctrines therein stated, are important to be considered, in connection with this exami- nation; not only because questions, which arise upon the bonds -of deputies, are often closely analogous to those which arise upon the official bonds of principals, but also because the liability of the deputy and his sureties, to the principal, generally depends upon the liability of the principal and his sureties, to the public authorities, or to a private person entitled to enforce the principal's official bond. § 595. The form of the bond. — Where a statute prescribes the species of bond, which an officer may require from his subordinate, a bond, with a condition essentially dif- ferent from that prescribed by the statute, or which is not allowed by the statute, is void.' But where a statute does not prescribe the bond which a principal may take, he may require any reasonable bond or other security, for his protection against the acts or omissions of his deputy, as a condition of the latter's appointment ' Ante, ch. 13. United States v Humason, 6 Sawyer » Ante, §§ 207, 268, 274. <^- ^'^ ^^ ' United States v Mynderse, 11 Blatohf, " United States v Tingey, 6 Pet. (U. S.) (u. S.) 1. 115, per Story, J.; 567 § 597. PUBLIC OFFICERS [Book V. § 596. The same subject and cases.— Thus, the supreme court of North Carolina, in an action by a sheriff upon his deputy's bond, said: "The defendants insist that their bond shall be interpreted by the rules, which govern the construction of the official bonds of a high sheriff, drawn in pursuance of the statute, specifying what bonds shall be given, and the conditions of the same. But there is a wide difference between them, in almost every respect. The one is an official bond of a public officer, the form and conditions of which are fixed by law; the other is the private bond of an individual, for which no form is prescribed, and in which any conditions may be inserted, which will carry out the intents of the parties. . . . The high sheriff appoints his deputies, and is responsible for their action. He appoints them generally or specially, with or without bond, as he sees fit; and if he takes a bond, it is a matter between him and his deputy, with which the public has no concern." ' So, it has been held, that a bond, given by a deputy sheriff and his surety to the sheriff, upon the appointment of the deputy, to save the sheriff harmless from liability on account of the deputy's conduct, and to pay over to the sheriff one half of the fees arising from business done by the deputy, is not within the statute against the taking of bonds colore officii, or within the statute against selling offices, and is a valid and lawful bond;' and that where there is no stat- utory provision, fixing the terms and conditions of the bond, it may be made as the parties shall agree;' and this, although it was held, in one case, that such a bond is an official bond." § 597. As to past and future defaults. — A bond given by a deputy sheriff to the sheriff, to indemnify him > Mullen D Whitmore, 74 N. C. i77. Lucas v Shepherd, 16 Ind. 368. = Mott V Robbins, 1 Hill (N. Y.) 81. « Hubert v Mendheim, 64 Gala. 213. » Gradle v Hoffman, 105 111. 147 ; 558 Chap. XXIV.] DFPUTiES § 598. against any default of the deputy, which was dated, executed by the surety, and handed to the deputy for delivery, several days before the expiration of a term, which the deputy was serving, and was delivered to the sheriff on the first day of a new term; is not, as matter of law, confined to a default occuring during the second term; the question of intention is one of fact. But where the words of the condition fairly imply, that the intention of the bond is to secure the sheriff against future defaults, the surety is not liable for those which have already occurred.' The principles upon which the solution of this question depends, are evidently those whiqh govern the liability of the sureties of a principal officer, for acts and omissions, which occurred before his official bond was given, which have been considered in a former chapter." § 598. As to liability of deputy and sureties generally ; expenses of suit. — In general, the liability of the deputy and his sureties, with respect to the condition in the bond, to indemnify the principal against the acts or omissions of the deputy, or generally, for faithful performance of the deputy's official duties, is coextensive with that of the principal to the public authorities or to a third person. Thus, it has been held, that the sheriff and his sureties are liable for wrongful acts of either the sheriff or his deputy, done colore officii; and so that the deputy's sureties are liable to the sheriff, for such acts done by the deputy.' But there are some exceptions to the rule, that the two liabilities are coextensive. There are cases where, although the principal is not liable to a third person, upon an allegation of a breach of official duty, in the course of official business transacted by the deputy, yet he is 1 Thomas v Bleakie, 136 Maes. 568'; » Lucas i> Locke, U W. Va. 81. Thomas u Blake, 126 Mass. 830. As to the liability of the principal's sureties for such acts, see ante, §§ 238-311. 559 » AnU, § 204, et 86?. § 598. PUBLIC OFFICERS [Book V. entitled to maintain an action on the, deputy's bond to recover his expenses, and other damages which he has sustained, in defending himself against an attempt to hold him liable therefor. Thus, in a case in the supreme court of Maine, the court, after saying that a sheriff has a right to indemnity upon his deputy's bond for all acts and omissions in his official character, continued: "This right of indemnity does not depend upon the success of a suit against the sheriff, for the doings, wrong doings, or neglects of the deputy, or the right to maintain an action therefor; provided he is called upon to defend a suit, instituted on account of his deputy's official doings or omis- sions. There may be numerous instances, where the sheriff may be called upon in a suit for the alleged default of his deputy, and such action may fail, as having no valid foundation in law or fact, and he may have a perfect claim upon the deputy and his sureties for his expenses in the defence of the action, because those expenses accrued by reason of the doings, wrong doings, or neglects of the deputy, in the execution of some of the conditions of the bond. . . . The sheriff cannot be holden for the breach of a contract, made by his deputy in his pri- vate, and not official capacity, although the contract may arise on account of some duty done by the deputy in his office; consequently, he has no claim upon his deputy's bond, for the expense to which he may be subjected in the defence of the groundless suit; for the deputy alone is liable for the failure to fulfil his private obligation." It was then said, that the deputy's bond is holden for the defence of an action by a third person against the sheriff, alleging a levy upon his goods by the deputy, under an execution against another, "whether well founded or not, successful or otherwise." "But," continued the court, "the contracts, which the deputy may make with his servants or agents, for the safekeeping and restora- 560 Chap. XXIV.] DEPUTIES § 699. tion of that property, are not official acts; and for a breach of those contracts, the sheriff is in no respect holden, and he has no claim upon the deputy for any costs, damages, or expenses arising from the defence of the suit." ' § 599. Contribution and consent of principal to the misconduct. — Another exception ^to the general rule, that the principal's liabilities, and those of the deputy's sure- ties, are coextensive, arises where, notwithstanding the deputy's misconduct, the principal himself has done or omitted to do some act, by reason of which the conse- • quences of the misconduct, which would otherwise have been avoided, have become irremediable. Thus, where a deputy sheriff received from the sheriff an execution against the body of a judgment debtor, and returned the same to the sheriff, with a false statement that the debtor could not be found, whereupon the sheriff returned the execution "not found;" and after the false return, and before any action had been brought therefor, the judg- ment debtor was surrendered by his bail to, and taken into custody by the sheriff; but before the bail could take the necessary proceedings to exonerate themselves from liability on the bail bond, the sheriff wrongfully discharg-ed. the prisoner, in consequence of which they were com- pelled to pay the judgment, and thereupon recovered, against the sheriff; whereupon he brought an action, upon the deputy's bond; it was held that he could not recover. The court said: " The fault of the deputy in not making the arrest having been remedied by the surrender,, and the damages, sustained by the sheriff, having been, occasioned by his own subsequent wrongful act in dis- charging his prisoner, he should not be permitted to fall' back upon the original fault of the deputy, for the purpose of rendering him and his sureties liable for those dam- ages. " = So, if an officer consents to the use in the deputy's: • Smith V Berry, 37 Me. 298. Walter v Mlddleton, 68 N. Y. 605. . 561 § 601. PUBLIC OFFICERS [Book V. business, of public money in the deputy's hands, the sure- ties of the deputy are discharged from any liability to the otfioer, for the loss of the money so used. ' § 600. Paying execution afterwards collected; certain matters no defence. — It is no defence to an action, against the sureties in the bond of a deputy sheriff to the sheriff, that before the def ault, he became insolvent, and the sure- ties requested the sheriff to remove him, which the sheriff failed to do.° A sheriff, who has taken a bond from his deputy, conditioned for the faithful performance of his duties, is not bound to notify the sureties in the bond of the deputy's default, before suing on the bond; and evi- dence of the deputy's ability to pay, when the default occurred, and of his afterwards fleeing the state, is not admissible for the defendants, in an action on the bond. And where the sheriff pays to the judgment creditor the amount of an execution in his deputy's hands, and the deputy afterwards collects the execution, his sureties are liable upon his bond to the sheriff, for the amount so col- lected, since no one but the judgment debtor could object to the collection of the execution, on the ground that the judgment had been paid.° § 601. Bond of deputy to sheriff who is tax collector. — A sheriff, who is made by law the collector of the taxes in his county, may recover, for the deputy's default with respect to the taxes, against the sureties in a bond given by his deputy, and conditioned for faithful perform- ance of his duty as deputy sheriff." > Pickering v Day, 3 Houst. (Del.) 474. ' McGehee v Gewin, 25 Ala. 176. ' Andrus v Bealls, 9 Cow. (N. Y.) 693 ; < Wood v Cook, 31 111. 271 ; Barnard •uDarling, 11 Wend. (N. Y.) 28. Mullen v Whitmore, 74 N. C. 477. Seealso,Oranei)Newell,2Piok.(Mass.) See alBO, Jarnagin v Atkinson, i 612 ; and for analogous cases respect- Humph. (Tenn.) 470. jjigaaofflpial .LQn4, mte, §§ 283, et aeq. ,563 Chap. XXV.] POWER VESTED IN TWO §603. CHAPTER XXV EXERCISE OF POWER, GRANTED TO TWO OR MORE OFFICERS, WHERE ONE OR MORE VACANCIES EXIST CONTENTS Sec. 602. General subject of exercise of power, granted to two or more, considered at length in chapter 8; principal propo- sitions there established. 603. English rule, that if an office is granted to two, and one dies, the ofSce is detei'mined. 604. American rule, stated generally, that the power sur- vives, in case of death, disqualification, etc., of some of those empowered. 605. The same; but where the context of the statute shows that it was to be exercised by all, it does not survive. 606. Where the power is conferred upon two, or two only sur- vive, it must be executed by both. § 602. Questions considered in chapter 8 ; proposi- tions there established. — In a former chapter,' while considering the subject of the exercise of a power of appointment to a public oflBce, conferred, by a constitu- tional or statutory provision, upon two or more officers or bodies of officers, it became necessary, in order to fully elucidate the subject then under examination, to state the rules, relating to the exercise of all powers of a public nature thus conferred, and to cite the numerous authori- ties establishing such rules. It was there shown, that although in matters of private concern, it is necessary, in order to validate the exercise of a power conferred upon several, that all should unite in the act, yet in matters of public concern, requiring the exercise of judg- ment and discretion, it suffices that all the persons ' Aiite, ch. 8. 563 § 603. PUBLIC OFFICERS [Book V. empowered shall meet for consultation; and upon such a meeting, the power may be exercised by a majority of the entire body;' that the English authorities have estab- lished an exception to the rule, with respect to the acts of corporations, including municipal corporations,, to the effect that it is not necessary that all the members of the body authorized to act should meet for consultation; it suffices that notice of the meeting be given to all, and thereupon a majority of the whole body may act, not- withstanding the absence of the minority;" and that the same rule had been extended, by many of the American authorities, to the acts of all public officers or public bodies/ The sufficiency of the notice, the rules govern- ing where the power is conferred upon two or more bodies, and various other matters pertaining to the sub- ject, were fully considered in that chapter, to which the reader is now referred. The only matters, remaining to be considered in this chapter, are the rules which govern, where the power is conferred upon two officers, or where a vacancy exists in one or more of the offices, upon the incumbents of which the power was conferred. § 603. English rule as to survivorship. — The English rule, where one of several officers dies, has been thus stated: "The king granted the office of comptroller of the customs in the port of 'E:^etev durante heneplacito to two; one died; and the question was whether the other should have the whole by survivorship. Et per cur.: he shall not; for there shall be no survivorship of an office of trust, if it is not granted to them and the survivor." * So it has been held, that "if an office be granted to two or more, and one die, the office does not survive, but determines; as if two sheriffs, and one dies, the other ■ Ante, §S 105 107. ' Ante, 88 112-114. " Ante, 8 HI. « Bac. Abr., tit. Offices and Officers, K, citing Arris v Stuliely, 2 Mod. 260. 564 Chap. XXV.] POWER VESTED IN TWO § 604. cannot act; otherwise if granted to two and the survivor of them." ' § 604. American rule. — The general rules, applicable to this class of cases, are thus stated by a learned Ameri- can judge, in a case where the question was, whether the act of a public board, consisting of ten officers, was valid, where it was performed at a meeting of nine only, the tenth place having become vacant: "Where, in matters of a private nature, a power is to be exercised by certain designated individuals, all must concur in its exercise; and the death, absence, or inability of any one of them, will not make the execution of the power by the remainder of them valid. But where powers, to be exer- cised as a continous public trust or duty, are confided to designated persons, the discharge of the public duty or trust is not to be interrupted or fail, through the death, absence, or inability of any of the persons, to whom the exercise of it is intrusted, provided there is a sufficient number to confer together, deliberate, and, in view of the possibility of division of opinion, to decide upon what course is to be adopted; and if the power or duty is con- fided only to two persons, and one of them dies or is incapable of discharging it, the other cannot act alone, because there can be no conferring together in such a case. But, where to prevent a failure of justice, it is indispensable that one should act alone, without conferring with the other, he may do so, and the act will be valid. (Citing Rex V. Warrington, 1 Salk. 152; Naylor v. Sharpless, 2 Mod. 33; Bich v. Player, 3 Show, 386; Vin. Ab. Coroner, 7.) If the public duty is intrusted to three, and one dies or is disqualified, I doubt if the others can act alone, as, in the event of a division of opinion, there can be no decision; but if there are more than three remaining, the majority can decide, and if all qualified to act are notified, as 1 Jones V Pugh, 2 Salk. 465. 565 § 605. PUBLIC OFFICERS [Book V. was the case here, an act, done by the majority of them, is in my judgment valid. In this view, as there were only nine trustees entitled to act, a resolution, in favor of which five voted, was a resolution passed by a majority of the whole body, as it then existed."' ' And it has been held, by the United States supreme court, that where a power to appoint to an office is conferred upon three officers, and one dies, the other two, the vacancy remain- ing unfilled, may make the appointment.' § 605. The same. — So it was held, by the New York court of appeals, where a statute conferred certain powers of a public nature upon five commissioners, designated therein, of whom one afterwards died, and another ceased to be a resident of the state, and there was no provision in the statute for filling a vacancy; that the three remaining commissioners were empowered to act. The court said: " A grant of power, in the nature of a public office, to several, does not become void upon the death or disability of one or more. Such a grant of power is not in the nature of a private franchise, which, when granted to two, without words of suvivorship, might not, by the rules of the common law, survive the death of one. But the policy of the law is to guard against the failure of a public service. . . . By death or disqualification of a portion of the commission, the number of its members is reduced; and all do meet, when all who are living and qualified to act come together." " "Where, however, a public power was granted by statute to ' Gildersleeve d Board of Education, 17 ° Oregon v Jennings, 119 U. S. 74, at p. 90. Abb. Pr. (N. Y.) 201, per Daly. F. J., . p^^^j^ „ p^j^^^^ gg ^ ^ gg ^„,g ^ ^^ P' mb nnm. People o Bradley, di Barb. Approved, In re Merriam, 84 N. Y. 596, (N Y ) 228 P- '^- S. P., People V Mayor, etc., 63 N. Y. 291, See also, Peoples Harrington, 63 Gala. j,gy,g g jj^^ (j^^ Y,) 433; 5 T. & 0. ^■^ = (N. Y.) 61. Hartshorn V Schoff, 58 N. H. 197; Sullivan v Speights, 14 S. C. 358. 566 Chap. XXV.] POWER VESTED IN TWO § 606. three persons, and the statute provided, that whenever the number should be reduced below three, the vacancy should be filled in a particular manner; and, upon consid- eration of the whole statute, the court thought that it was "quite evident, that the legislature intended to intrust the powers conferred to three persons, and that the judgment of that number should be requisite to the discharge of their duties;" it was held, that where one of them vacated his office, by the acceptance of an incom- patible office, the powers of the other two were suspended, until the vacancy was filled. ' So it has been held, that two assessors of faxes, the third not having qualified, are not authorized to assess a tax, it being evident, upon a consideration of the statute, that the legislature intended that the power should be exercised by the three;'' nor can two issue a warrant for the collection of taxes, while the office of the third is vacant.' § 606. Power conferred upon two, or two survivors, executed by both. — It is well settled, that where the power is conferred upon two persons, or where by death or vacancy a power originally conferred upon a larger niunber has been devolved upon two only, and they are authorized to act, both must join, in order to validate the execution thereof.' But it has been said that where the authority is of a public nature, in order to prevent a failure of justice, one alone may act, where the other is dead, interested, or absent.' And where the right to sue, appeal, or bring a writ of error is given to two or ' People V Nostrand, 46 N. Y. 375, at p. Downing v Rugar, 21 Wend. (N. Y.) 383, as explained in People v Palmer, 178 ; 52 N. Y. 83, at p. 87. Pell v THmar, 21 Barb. (N. Y.) 500 ; New York Life, etc., Ins. Comp'y u Staats, 21 Barb. (N. Y.) 570 ; Perry v Tynen, 22 Barb. (N. Y.) 137 ; = Sanfason V Martin. 55 Me. 110 ; Powell v Tuttle, 3 N. Y. 396. = Williamsburg i' Lord, 51 Me. 599 Machiasport v Small, 77 Me. 109, Machiasport v Small, 77 Me. 109. Ex parte Rogers, 7 Cow. (N. Y.) 526 ; » Downing v Rugar, 21 Wend.(N. Y.) 178, at p. 183. And see ante, § 604. 567 § 606. PUBLIC OFFICERS [Book "V. more public oflBcers, they may depute one of their number to use their names, employ counsel, and do any other act necessary to the regular prosecution of the proceeding." 1 People V Com'rs of Canal TTund, 3 Hill (N. Y.) 86, rev'd, on another point, 7 (N. Y.) 599. N. Y. 9. See also. People v Newell, 13 Barb. 568 Chap. XXVI. J OFFICER INTERESTED CHAPTER XXVI EXERCISE OF POWER BY AN OFFICER INTERESTED CONTENTS I. General rule. Sec. 607. An interested officer is disqualified, where his action is judicial or quasi judicial, but not where it is ministerial. II. Particular cases, wherein an interested officer may not act. 608. Rule that a judge cannot act in his own cause. 609. Exception, where his interest is small, and he is the only- judge authorized to act. 610. Quasi judicial power; where several exercise it, some cases hold, that interest of one always invalidates. 611. Other cases hold, that such interest invalidates, only where the vote of the interested officer is necessary to complete the transaction; ruling where officer became interested afterwards. 612. Various instances, where exercise of quasi judicial func- tions by an interested officer was held unlawful. 613. Rule applies, although officer interested with another, or acts in the name of another, or completes the trans- action after expiration of his term. III. Particular cases, wherein an officer, although interested, may act. 614. Officer interested not disqualified, if duty purely minis- terial; thus clerk may issue an attachment, or enter judgment, in his own favor. 615. Judge of a court may buy property sold under execution; but not property sold under his order, where he is to confirm the sale; when judge may perform formal duties, although he has been counsel, etc. 616. Where lands to be sold for the state, by an officer, at a fixed sum, he may purchase. 617. Rule that officer, acting in matter of public interest, is not disqualified by private interest, where he alone can act; as where officer taking land for public use, assessing taxes, etc. , owns land affected. 569 § 607. PUBLIC OFFICERS [Book V. IV. Effect of unlawful action by an officer interested. Sec. 618. General principles. 619. Statute, allowing contract with member of city council to be declared void, at the instance of the city, does not restrict the city to equitable relief; but tax payer cannot have such relief. 620. Mayor, taking lease of city park, lease cannot be ratified by council of which he is a member; but he may be allowed improvement^: when act is absolutely void, and incapable of ratification; mayor approving officer's bond, in which he is surety, notice to him of invalidity does not charge the city. 621. Purchase by officer at tax sale voidable only, and bona fide purchaser protected; if sale set aside on application of land owner, lien of tax not discharged, and money forfeited. I. General rule. § 607. Disqualification where action judicial or quasi judicial; aliter where ministerial. — As shown by the cases, hereafter cited in this chapter, the general rule, respect- ing the exercise of power by an officer interested, is that he shall not act where the power is judicial, but he may act where it is ministerial. The prohibition to act includes, not only cases where he exercises a strictly judicial power, that is, where he is a judge acting in judicial proceedings, but also cases where the power is of a quasi judicial character, as explained in former chapters. Of this character are all powers, the exercise of which involve discretion ; or that degree of judgment, which gives them the character of judicial or quasi judicial powers; but a power is none the less ministerial, within this rule, because the person exercising it is required to satisfy himself, that the conditions have occurred, wherein he is authorized by law to act, or other- wise to decide as to the mode of its exercise. ' > Evans v Etheridge, 96 N. C. 43. See also, ante, 89 533-538 . 570 Chap. XXVI. J OFFICER INTERESTED § 609. //. J'articular cases, wherein an interested officer may not act. § 608. Judge cannot act in his own cause.— The class of cases, which first claims our attention, consists of those where a judicial power, strictly so termed, is exercised. The common law merely declares that no man can be judge in his own cause; and at common law consanguinity to either of the parties, although good cause for a chal- lenge to a juror, does not disqualify a judge.' The sub- ject of the competency of a judge, to sit in a cause, where he is interested, or related by consanguinity or affinity to a party, has been universally regulated in this country, by statute; and the rulings upon the statutes, and upon the common law rule, have been numerous, and have often involved the solution of diffcult questions, and the establishment of nice distinctions. It is not within the plan of this work to consider these questions at length; they belong rather to treatises on jurisdiction and pro- cedure. § 609. Exception; his interest small, and he the only judge authorized to act. — We must, however, notice here one exception to the common law rule, as it applies also in cases where the power to be exercised is of a quasi judicial character. It relates to the case where a judge, although interested, is the only one who can administer justice between the parties. The rulings on this subject were fully reviewed, by a distinguished judge of the court of appeals of New York, who declared his deduction therefrom as follows: " That where a judicial officer has not so direct an interest in the cause or matter, that the result must necessarily affect him, to his personal or pecuniary loss or gain; or where his personal or pecuni- ary interest is minute, and he has so exclusive jurisdiction > In re Dodge & Stevenson Mairaf. Comp'y, 77 N. Y. 101, per Rapallo, J., p. ll^i 571 § 610. PUBLIC OFFICERS [Book V. of the cause or matter, by constitution or by statute, as that his refusal to act will prevent any proceeding in it; then he may act, so far as that there may not be a failure of remedy, or, as is sometimes expressed, a failure of justice." '■ § 610. Quasi judicia. power ; where several exercise, rulings that interest of one invalidates. — As was stated in a former chapter, a power, the exercise of which is committed to the judgment or discretion of the officer, is in the nature of a judicial power, and is styled some- times simply a judicial power, and sometimes, a quasi judicial power.'' Where such a power is committed to several officers, to be exercised jointly by them, the rule has been extended so far, in some cases, that an exercise of power, in which either of them is interested, is deemed void. Thus, it was held, that the employment by the board of health of a city of one of its members, a physician, to vaccinate the pupils in a public school, at a specified sum for each pupil vaccinated, was void, and created no liability against the city. The court said: "The board and its ' In re Ryers, 72 N. Y. 1, per Folger, J., Peck v Freeholders, etc., 20 N. J. L. 4573 p. 15; afE'B 10 Hun (N. Y.) 93, and Mooers » White, 6 Johns. Ch. (N. Y.) citing 360 ; Anon., 1 Salk. 396 ; Washington Ins. Comp'y v Price, Mayor, etc., v Markwiok, 11 Mod. 164 ; Hopk. (N. Y.) 1 ; In re Great Charte, etc., 2 Str. 1,173 ; Ten Eick v Simpson, 11 Paige (N. Y.) Dimes « Grand Junction Can. Comp'y, 177 ; 3 H. of L. Cas. 759 ; In re Leefe, 2 Barb. Ch. (N. Y.) 39 ; Ranger v Great West. Railway Wood v Stoddard, 2 Johns. (N. Y.) 194 ; Comp'y, 5 H. of L. Cas. 72 ; Stuart v Mechs. & Farm. Bk., 19 Johns. Thellusson u Rendlesham, 7 H. of L. (N. Y.) 496 ; Cas. 4ie9; Wood u Rice, 6 Hill (N. Y.) 58 ; Day u Savadge, Hohart, 85 ; People v Sup'rs, 11 N. Y. 663 ; Heydenf eldt v Towns, 27 Ala. 423 ; Swift v Poughkeepsie, 37 N. Y. 511 ; Comm. V Ryan, 5 Mass. 90 ; People v Edmonds, 15 Barb. (N. Y.) Pearce v Atwood, 13 Mass. 324 529 ; Hill V Wells, 6 Pick. (Mass.) 104 ; Richardson v Boston, 1 Curtis (U. S .) Comm. V Emery, 11 Cush. (Mass.) 406 ; 250; Coram. V Burding, 12 Cush. (Mass.) 506 ; State v Collins, 5 Wis. 339. Hanscomb v Russell, 11 Gray (Mass.) See also, post, § 617. ^^'' »^nfe,9 533. 573 Chap. XXVI. J OFFICER INTERESTED § 611. members held positions of trust and confidence towards the city. Their responsibilities, in reference to the services for which the appellee" (the plaintiff) "claimed compehsa- tion, were at once important and delicate. It was for them to decide, whether an emergency had arisen, and what children were entitled to be treated at the public expense. . . . The antagonism between the appellee's private interest and his public duty, it is manifest, was very great, and calculated to cast suspicion upon his dis- charge of duty, no matter how fs,ithfully and conscien- tiously it was done. Let it be understood, that such personal advantage may result to a member of the board, and suspicion not only attaches to his selection of those who may be served at public expense, but it extends to and taints the original decision and declaration of the board, that an emergency existed, which required the work to be done." Then, after referring to the rule, that an agent cannot put himself in a position adverse to that of his principal, the court continued: "As agent he can- not contract with himself personally. He cannot buy what he was employed to sell. If employed to procure a service to be done, he cannot hire himself to do it. This doctrine is generally applicable to private agents and trus- tees, but to public officers it applies with greater force, and sound policy requires that there be no relaxation of its stringency, in any case which comes within its reason. " ' So it has been held, that county commissioners cannot make a contract, with one of their own number, which will bind the county." § 611. Other cases narrowing the rule.— But other decisions "have narrowed the rule, where several officers act, to the case where the interested oflBcer's vote or presence was necessary to the completion of the trans- ■ Fort Wayne v Rosenthal, 75 Ind. 156. See also, Comm. v Douglass, 1 Binn. ' Waymire v PoweU, 105 Ind. 328. ^^'^ '^• 573 § 612. PUBLIC OFFICERS [Book V. action.' Thus, the supreme court of Michigan held, that the proceedings to remove an officer of a school district, by the township board, are the nature of a judicial inves- tigation; and if one of the board is interested in the sub- ject of the complaint, and his presence is essential to make a quorum of the board, the removal is void; that every special tribunal, appointed by law, is subject to the maxim, that no person can sit as a judge in a case to which he is a party, or in which he is interested; which princi- ple extends beyond the statute relating to judicial officers, and applies wherever judicial powers are exercised by a body empowered by law." So, where a power of appoint- ment to office was given to three of the four justices of the peace of a town; and, the four justices having con- vened for the purpose, three of them voted for one of their own number, and the fourth voted for another, and refused to sign the warrant for the appointment; where- upon the other three, including the person chosen, signed the warrant; it was held, that inasmuch as his vote and his signature were essential to make up the statutory number, the appointment was void.' Where the com- missioners, appointed by the state to perform a public work, entered into a contract with another person respect- ing the work, and, after the contract had been executed, and while the work was in progress, under the superin- tendence of the commissioners, one of their number took an interest in the contract; it was held, that the agreement, by which he was let into an interest, was against public policy, and a fraud upon the state, and that it could not be enforced.^ § 612. Instances where interest held tc invalidate quasi judicial functions. — A clerk of a chancery court, ' San Diego V San Diego, etc., R. R. See also, State v Hoyt, 2 Greg. 846; Cqmp'y, H Cala. 106. and ante, § 130. ' Stockwell V White Lake, 23 Mich. 341. * McGehee v Lindaay, 6 Ala. 16. People V Thomas, 33 Barb. (N. Y.) 387. 674 Chap. XXVI. J OFFICER INTERESTED 613. who exercises quasi judicial functions in many of his ofHcial acts, cannot act as agent for a litigant in his court, even if he receives no compensation for his ser- vices. ' A tax collector, county treasurer, or other officer, authorized to sell property for taxes, cannot purchase at his own sale property so sold." So a sheriff, or other sim- ilar officer, selling goods under an execution or attach- ment, cannot act as agent for either party, except by con- sent of all the parties." The rule, forbidding a sheriff to serve process on his deputy, or vice versa, has been stated in a former chapter.* A county auditor, who publishes in a newspaper of which he is the owner, the delinquent tax list, without directions from some other county officer, cannot enforce payment for the service from the county treasurer. " A city judge cannot collect from the city the rent of a court room which he owns.° Other cases, recog- nizing and applying the same rule, are cited in the note.' § 613. The same subject ; wide scope of the rule.— It is immaterial, for the purpose of the application of the rule, that an indifferent person is associated with the officer in the unlawful transaction. Thus, where an act of parliament forbade any of the officers of a local board of health to be interested in a contract made by the authority of the board, a contract made with such an Kirkland D Texas Express Comp'y. 67 ' Mayor, etc., v Huff, 60 Ga. 221 ; Miss. 316. ' McLeod V Burkhalter, 57 Miss. 65. Accord, Ellis v Peck, 45 Iowa, 112 ; Haxton v Harris, 19 Kan. 511. ' Knight u Herrin, 48 Me. 533. See also, Jones ti Loftln, 2 Hawks (N. C.) 199 ; Chambers v State, 3 Humph. (Tenn.) 237. * AnU, i 587. ' Stropes V County Com'rs, 72 Ind. 42. ° McGregor v Logansport, 79 Ind. 166. Pierce u Benjamin, 14 Pick. (Mass.) 356; Walton V Torrey, Harr. Ch. (Mich.) 259; Ingerson u Starkweather, Walk. Ch. (Mich.) 346 ; Clute V Barron, 2 Mich. 192 ; People V Township Board, 11 Mich. 222; Currie V School Dist., 35 Minn. 183; Perkins v Thompson, 3 N. H. 144 ; Pickett V School Dist., 25 Wis. 651. 575 § 614. PUBLIC OFFICERS [Book V. officer and another, is unlawful. ' Nor does it affect the application of the rule, that the officer acts in the name of an indifferent person. Thus, the county surveyor, who is one of the agents of a state for the sale of its swamp lands, cannot lawfully, either receive and file his own appli- cation for the purchase of certain lands, and make a survey thereupon, or do the same acts on the nominal appli- cation of another, but wholly or partly for his own benefit." Nor can a deputy surveyor of a land district lawfully con- tract for the purchase of land in his district, from one, having a certificate to locate such land, although the public dues therefor were paid, after the expiration of his terin of office.' III. Particular cases, wherein an officer may act, although he is interested. § 614. Interest no disqualification where function purely ministerial ; instances. — As already stated, the rule, excluding an interested officer, does not apply to the exercise of a purely ministerial power, with some excep- tions, chiefly those relating to cases, where an officer, or his deputy, or his principal, is a party. But even in such a case, if the duty is purely ministerial, the officer is not dis- qualified. Thus, it has been held, that the clerk of a court may issue an attachment, in a cause wherein he is plaintiff, inasmuch as this is a purely ministerial act.' So, it has been held, that the clerk of a court may enter a judgment by confession in his own favor, partly because no other officer can act, and partly because the act is of a minis- terial character." 1 Melliss V Shirley Local Board, 16 L. R., = Wills i' Abbey, 27 Tex. 202. Q. B. D. 446 ; 55 L. J. Q. B. 143 ; 53 See, however. People i) Force, 100 ni. L. T. 810 i 34 W. R. 187 ; 50 J. P. 214. 549, cited poet, 8 616. See also, ante, § 611. 4 ^^^^^ ^ Etherldge, 96 N. C. 43. ' Edwards V Estell, 48 Gala. 194 . Trimmier v Winsmith, 23 S. C. 449. t 576 Chap. XXVI. J OFFICER INTERESTED § 616. § 615. The same subject ; further instances. — It has also been held, that the judge of a court, from which an execution is issued, may lawfully purchase property sold under the execution.' This ruling was put upon the ground, that he has no judicial authority to exercise respecting the sale. But where a judge orders a sale of land, and has power to confirm or set aside the sale, he cannot become the purchaser." A circuit judge, who had been counsel in a cause, may execute an order of a higher court, directed to the circuit judge;' and where both of the judges of a circuit court of the United States have been counsel, or are interested in the cause, they may make an order certifying the cause to another circuit." § 616. The same subject ; further instance. — Where the treasurer of the board of canal commissioners, who was authorized by law to sell certain lands of the state, at the fixed sum of $1.25 per acre, purchased certain of the lands himself, and executed to himself the proper certificate of sale, paying the price so fixed; it was held, that the sale was valid, or, if any question as to its validity could arise, it had been ratified by the receipt by the state of the price, and by returning the land as sub- ject to taxation, and collecting taxes thereupon. As respects the validity of the sale, the court said: "The price, at which the land could be sold, was fixed by law at $1.25 per acre; it could not be sold for more nor less than that sum. Whether Campbell" (the treasurer), "or a stranger, became the purchaser of a tract of land, could in no manner affect the state. If the price provided by law was paid, the state could not be injured." ° ■ Cooper V Galbraith, 3 Wash. (U. S.) * RioliardsoiiuBoston,lCurtis(U.S.)250. 5^; People v Force, 100 lU. 549. ' Tracy v Colby, 55 Gala. 67. Compare this case with Edwards V Estell, 48 Gala. 194, and Wills V ' State V Gollins, 5 Wis. 339. Abbey, 27 Tex. 202, cited ante, % 613. 577 § 617. PUBLIC OFFICERS [Book V. § 617. The doctrine extended ; officer acting in a matter of public interest, where he alone can act. — The exception to the rule, forbidding an officer to exercise a judicial or quasi judicial power, in a case wherein he is interested, which arises where no other officer has power to act, and consequently his action is necessary to pre- vent a failure of justice, has already been stated.' Partly upon that ground, and partly because the public interest is deemed to be paramount to any private interest, or to any objection to official action, founded upon the exist- ence of a private interest, it has been held, that an officer, charged with the performance of a duty for the benefit of the public, and the performance of which affects the interests of several private persons, is not disqualified from acting, by the fact that he is one of the persons so affected. Thus, a commissioner of highways, although his action is quasi judicial, is not a judicial officer, within the statute prohibiting such an officer from acting, where a relative is interested, where his relative is the applicant for the opening or discontinuance of a highway. In such a case, the public is the real party in interest. And this rule extends to assessors, and other quasi judicial officers of the same description." So, the legislature having empow- ered the board of supervisors to audit the expenses, chargeable upon a party appealing from them to the state board of equalization, the members of the board, in so doing, discharge a duty of public administration, cast upon them by law, and are not within the rule forbidding a judge to sit in his own case.' So, it has been held, that a commissioner, appointed by a special statute to award damages for land, taken in laying out a highway, is not rendered incompetent by the fact, that he owns land, which has been taken for the improvement. The court > Ante, % 609. ' People v Kingston Common Council, » People V Wheeler, 21 N. Y. 83. ^"^ ^' ^' ^■ 578 Chap. XXYI.] OFFICER interested § 618. said, that the maxim that no man shall be judge in his own case " applies to judicial officers, but not to officers whose duties partake of an administrative character, and are only quasi judicial. ... If this objection should prevail, assessors, highway conxmissioners, tax commis- sioners, and many other boards of public officers, would be incompetent to act, and it would be impracticable to exercise some of the most important functions of the government. The public interest is supreme. When- ever compatible with this, officers like the one in question should be disinterested." ' So an assessor of taxes is not disqualified, because his son owns land assessed." Nor is a county judge disqualified from appointing commis- sioners, under the general drainage act of New York, because he is the owner of land to be affected by the proceedings." IV. Effect of unlawful action, by an officer who is interested. § 618. General principles. — The general rules, applica- ble to this subject, as that an unlawful contract or trans- action cannot be made the foundation of an action; the rules of equity jurisprudence, respecting relief in equity against unlawful transactions; those respecting the cases where an action will or will not lie, in disaffirmance of an unlawful transaction; and the like, pertain to the general principles of law, applicable to this particular class of cases, only in common with all others presenting the same features. But a few cases, relating specially to the effect of this particular violation of law, may properly find places here > In re Southern Boulevard, 3 Abb. Pr. ' O'Reilly v Kingston, 39 Hun (N. Y.) 285. N. S. (N. Y.) 447. , j^ j.^ jjygjg^ ,^2 j^r y^ j^ a^g,g ^q Huh Accord, Foot v Btiles, 57 N. Y. 399. (N Y ) 93 579 § 630. PUBLIC OFFICERS [Book V. § 619. Right to avoid illegal contracts of municipal officers. — Where a statute forbids any member of the common council of a city, to become a contractor, under any contract ordered by the common counciji, and pro- vides that any contract, in violation of that prohibition, " may be declared void at the instance of the city;" the statute does not have the effect of restricting the city to an equitable action to avoid the contract, and the statu- tory prohibition may be set up by the city as a defence to an action upon such a contract; inasmuch as the statute is merely declaratory of the common law.' But, in the absence of a statute allowing such relief, a mere tax- payer cannot maintain an action to set aside such an illegal contract.' §620. The same subject ;. ratification. — Where the mayor of a city, who was ex officio president of the coun- cil, contracted with the council to lease the city park for five years, and, for an annual sum to be paid to him, to fence and drain it, and keep it in repair during that time; it was held, that inasmuch as it was his duty as mayor to see that a contractor with the city fulfilled his contract, the contract was illegal; and that, although such a contract might be ratified by a council of which he was not a member, no act of the city, through a coun- cil of which he was a member, could operate as such ratification; and no act done or left undone, while he continued to be mayor, could, by deed or acquiescence, have the effect of legalizing the contract: but that, upon a bill in equity by the city, to annul and set aside the contract, the city must do equity, by repaying him the money expended by him in good faith, in fencing, drain- 1 Smith V Albany, 7 Lans. (N.Y.) U; (N. Y.) 137. Sucli a statute now aflf'd 61 N. Y. HA. exists in New York, and some other > Roosevelt v Draper, 33 N. Y. 318, aff'g ^*^*®=- 7 Abb. Pr. (N. Y.) 108 ; 16 How. Pr. ^ee Ziegler v Chapin, 126 N. Y. 343. 580 Chap. XXVI.] OFFICER INTERESTED § 631. ing, etc., the land, of which the city had the benefit.' Where a statute made it a misdemeanor, for any council- man to be interested in a contract with the borough, it was held, that an ordinance of the borough, contracting with a water company, adopted when a majority of the councilmen were stockholders in the company, was abso- lutely void, and for that reason could not be ratified by payments upon the contract, made when none of the councilmen were such stockholders.' Where the statute provided, that the official bond of a city officer might be approved, by either the mayor or the recorder, and the mayor became the surety in the bond of a city officer, and approved the same himself; it was held that he had no power so to do, and that, as he acted without author- ity, notice to him of a fact, tending to invalidate the bond, was not notice to the city.' § 621. The same subject ; purchase by officer at tax sale. — Under a statute, forbidding a county treasurer or his deputy, from having an interest in land, sold for taxes, where the deputy county treasurer entered a sale of certain lands, as made to a person who was not present, and who subsequently assigned the certificate to him; it was held, that the sale was voidable, not void, and that a subsequent purchaser would be protected, except in a direct proceeding to vacate it." Under a similar statute, where the county treasurer purchased, it was held that the sale might be set aside, at the instance of the owner; that it did not operate as a payment of the tax, or dis- charge the lien of the tax upon the land; that the money, paid into the treasury therefor, did not belong to the owner of the land, but belonged to the treasury, and was forfeited to the public' ' Mayor, etc., v Huff, 60 Ga. 331. = Stevenson v Bay City, 36 Mich. U. ' Millord V Milford Water Comp'y, 124 * Ellis v Peck, 45 Iowa U3. Pa. St. 610. 5 Haxton v Harris, 19 Kan. 511. 581 PUBLIC OFFICERS [Book V. CHAPTER XXVII EXERCISE OF POWER BY AN OFFICER DE FACTO CONTENTS I. Who is an officer de jure, and who is an officer de facto; and the general rules governing the exercise of power by an officer de facto. Sec. 622. General definition of officer de facto, and officer de jure; general rule, that power exercised by the former is valid, as to the public and " third persons." 623. Officer de facto must have color of authority, to distinguish him from usurper, whose acts are void; distinction between color of authority and color of title; held, in some cases, that he must have at least a colorable title; origin and fallacy of that proposition. 624. Two rules stated, which are irreconcilable with the doctrine, that color of title is necessary, viz. : (1) title cannot be questioned collaterally; (2) evidence of pos- session of office suffices to show that one was an officer, where question arises collaterally. Cases establishing these rules. 635. Lord Ellenborough's definition of an officer de facto; fol- lowing which, modern authorities require only color of authority; possession, acquiesced in by the public, suffices for that purpose. 626. The same subject. 627. The same subject. 628. The four heads, under which exercise of power by officer de facto is sustained, as stated by Butler, Ch. J., in 38 Conn. 449. II. Rulings in particular cases, as to whether one is or is not an officer de facto, upon the facts presented. (1.) Where the officer has failed to give an official oath or bond, or has given one that is insufficient. 639. References to chapter 11, where kindred subjects are treated. 583 Chap. XXVII.] OFPICEE DE FACTO Sec. 630. Such an officer is a good officer de facto, and his acts are valid, as to the public and "third persons;" instances, and authorities on the general proposition. (2.) Where the offleer has forfeited his office, or his term has expired. . 631. Such an officer is still an officer de facto, within the rule; thus, where a justice of the peace has removed from the county; or has accepted an incompatible office, or the like; his acts are still valid; otherwise, semble, where he was thus disqualified when appointed. 632. So a judgment, rendei-ed by a justice of the peace, or other official act of any officer, after the expiration of his official term, is valid, without regard to the question whether he lawfully holds over. (3.) Where the appointment or election, under which the officer holds, was irregular or invalid- 633. The same rule holds in such a case; thus, where a person was appointed, when there was no vacancy, by one whose power extended only to cases of vacancy, his acts are valid; other instances. 634. So, where municipal officers were appointed without authority; or town officers were elected at an irregular town meeting; or county commissioners were, or a mag- istrate was, irregularly elected. 635. A state de facto is unknown; but the acts of officers of a state government de facto in rebellion are valid; and so are those appointed by the military atithorities during war. (4.) Where the officer was disqualified from holding the office. 636. This fact cannot be shown, for the purpose of impeaching the validity of the acts of an officer de facto; instances; exceptions. (5.) Where the statute, under which the officer acted, was unconstitutional. 637. Where the office is dejure, the fact that the incumbent thereof was chosen under an unconstitutional statute, does not prevent him from being an officer de facto. 583 PUBLIC OFFICERS [Book V. Sec. 638. But where the statute creating the office itself was uncon- stitutional, the person assuming to fill it is not an officer de facto. (6.) Where the office had teen abolished. 639. An officer de facto, presupposes an office de jure, and if it has been abolished, there can be no officer de jure; if "third person" has notice he is not protected; if town- ship is abolished, there can be no township officer de facto. 640. But where an officer was entitled to preside at the chosen freeholders' meeting, and his office is abolished, but he continues to preside, that does not vitiate the proceed- ings of the meeting. (7.) What acts constitute or do not constitute suffi- cient possession of an office, to render a person an officer de facto. 641. Possession constitutes officer de facto; there cannot be two in possession, one de jure and one de facto, or two in possession de facto, where there is but one office. 643. Where officer dejure in possession, another claimant can- not constitute himself officer de facto, by any official act; instances. 643. Where two persons claim the office of governor, and each is partly in possession, neither is de facto, and court must decide who is de jure; governor de facto may vali- date bill by approval, although afterwards ousted. 644. An intrusion into an office by a claimant, during tempor- ary absence of the one in possession, does not render him the officer de facto. 645. Officer de facto must act under claim of title. 646. Perjury cannot be assigned upon an affidavit, before a notary public, where he was disqualified when appointed ; conflicting reasons given in N. Y. court of appeals. 647. Act of exercise of power must be such, as officer could law- fully perform, if rightful holder of office. 648. Where a judicial decision is made, that a person is not entitled, he is no longer officer de facto; and, pending an appeal from such a decision, the successful party will be put into possession. 584 Chap. XXVII. J OFFICER DE FACTO III. Rulings, respecting the validity and effect of acts of officers de facto in particular cases. Sec. 649. The general rule, as to validity of exercise of power by an officer de facto, restated, with numerous authorities establishing it. 650. Disbursing officer protects himself and his principal by payment to officer de facto. 651. A person, convicted of crime, cannot, even in a capital case, question the authority of a judge de facto, before whom he was tried. 652. General proposition as to exercise of judicial power; judge appointed by military governor; judge assuming office before his term begins; or holding over after it ends. 653. Perjury will lie upon an oath, taken before an officer de facto, unless, perhaps, where he was ineligible. 654. Resistance to officer de facto punished criminally; so officer de facto, indicted for killing person resisting him, deemed officer de jure. ■ 655. Question whether an officer de facto can confer a better title than he has, upon one appointed to office by him; English cases. 656. American cases. 657. The same subject. 658. Question whether the persons, making an unlawful appoint- ment, are liable for acts of the person appointed. IV. Where the officer seeks to maintain his own rights or interests, ho must show that he is an officer dejure, as well as de facto. 659. The general proposition; illustrations and exceptions. 660. Officer de facto, and not de jure, is a trespasser, and cannot justify, when sued for seizure, etc.; but he may show that he was de facto, to make out prima facie case; and those acting in his aid may justify. 661. One, who sues for salary or fees, cannot recover, unless he is dejure. 662. Officer cannot recover statutory penalty, unless he is dejure; but town, etc. , may recover penalty imposed by officers de facto. 663. Whether title can be tried, in a suit by oflScer de jure against officer de facto, for emoluments; possession of court oflBcer may be determined on motion. 585 § 632. PUBLIC OFFICERS [Book V. V. Miscellaneous rulings, as to the rights and liabilities of an officer de facto and an officer dejure. Sec. 664. Officer de facto liable in civil action for malfeasance, mis- feasance, or nonfeasance, as if he was officer dejure. 665. So sureties in official bond of officer de facto liable, as if he was de jure. 666. Officer de facto cannot be restrained by injunction; but may be compelled to perform by mandamus, as if he was dejure. But he may withdraw entirely from the office, and then he is not liable to an individual, or for a statutory penalty for nonfeasance. 667. Where mandamus is brought against officer de facto, and officer de Jure is substituted, proceedings not defeated. 668. Officer de facto is liable criminally for misfeasance or mal- feasance, as if he was dejure; instances. I. Who is an officer de jure; who is an officer de facto; general rule governing the exercise of power by an officer de facto. § 632. General definition ; and general rule as to power of officer de facto. — In examining the numerous, and often difficult questions, which have arisen upon the exercise of the powers of an office by one who is only de facto an officer, it is necessary, in the first place, accurately to state what is meant by the expressions " officer de jure," and "officer de facto," and the general rule which governs cases, where an official power has been exercised by an officer de facto. Manifestly one, who is in full possession of an office to which he has an unquestioned lawful right, is an officer de jure and an officer de facto; and even the fact that his right is disputed, if he really has the right, as well as the possession, will not prevent his filling both characters, as well before as after a judicial decision in his favor. There is not, therefore, any neces- sary repugnancy between the two expressions; but^ in the common parlance of the law, they are regarded as designating persons, who have not only distinct but con- flicting rights. The precise definitions of these two 586 Chap. XXVII.] OFFICER DE FACTO §623. classes of officers will presently receive a critical exam- ination, and an extended explanation. In general, it may be said, that where the question arises, as to the validity of the exercise of a particular power, the officer de jure is one who, at the time of such exercise had the right to the office, but was kept out of possession thereof, and who has since established his right; while the officer de facto is the one, who exercised the power, being then in possession of the office under color of authority, but without actual right thereto. And the general rule is, that the exercise of a power by the officer de facto, which lawfully pertained to the office of which he had posses- sion, is valid and binding, where it is for the interest of the public, or of any individual, other than the officer himself, to sustain the officer's act; but where the officer himself founds a right upon such exercise, either person- ally or officially, it is not valid in his favor. The indi- vidiials, whose interests are thus protected, are styled in the books " third persons," which is an inaccurate term, because usually there is no second person concerned in the transaction. This rule will also be considered more at length, and the authorities supporting the same will be cited, in a subsequent portion of this chapter. ' § 623. Distinction between officer de facto and usurper ; color of authority and color of title. — We have said, that in order to constitute a person an officer de facto, he must be in possession under some " color of authority;" for this is what distinguishes him from a mere intruder or usurper. The acts of an intruder or usurper are said to be absolutely void." But color of title is a very differ- ent thing from color of authority; for the former expres- 1 Post, § 649. Tucker v Aiken, 7 N. H. U3 ; Hamlin v Kassaf er, 15 Oreg. 456 ; ' Plymouth v Painter, 17 Conn. 585; State V Carroll, 38 Conn. 449 ; Hooper v Goodwin, 48 Me. 79 ; McCraw v Williams, 33 Gratt. (Va.) 510; Sed gu. See per Devens, J., quoted in S 626, poat. 587 § 633. PUBLIC OFFICERS [Book V. sion implies, that the person must be in by virtue of an election or appointment, which is at least colorable. In some cases it has been held, that such an election or appointment is requisite, in order that the exercise of power by an officer de facto should be valid; and it has been even said, in some cases, although never actually decided,' that it is necessary that such election or appointment should have been made by the only body authorized by law to fill the office." In a leading case on this subject, which is often quoted in this chapter, the learned chief justice, who delivered the opinion of the court, traced the origin of the doctrine, that color of title is necessary, to an " inaccurrate and deceptive report " of an English case, wherein it was said, that " in order to con- stitute a man an officer de facto, there must be at least the form of an election, although that, upon legal grounds, may afterwards fall to the ground;" ' and he showed the fallacy of the doctrine by an examination of the particu- lar case, and the citation of numerous other English and American authorities.' state V Carroll, 38 Conn. 449, per Butler, Carleton v People, 10 Mich. 250 ; Ch. J., pp. 464, 465, examining all the People v Collins, 7 Johns. (N. Y.) 549; cases. Mclnstry v Tanner, 9 Johns. (N. Y.) Douglass V Wickwire, 19 Conn. 4S9 ; 135: State V Brennan's Liquors, 25 Conn. Rochester, etc., R.R.Comp'yi, Clarke 278; Kat. Bk., 60 Barb. (N. Y.) 234 ; Elliott « Willis, 1 Allen (Mass.) 461 ; ^omTs v McDaniel, 7 Jones L. (N. C.) People V Albertson, 8 How. Pr. (N. Y.) ^^^ ' ggo McGargell v Hazleton Coal Comp'y, Generally, that color of title is requis- 4 W. & S. (Pa.) 424 ; ite to constitute an officer de facto ^fregg v Jamison, 55 Pa. St. 468 ; within the rule validating his acts. Aulanier « Governor, 1 Tex. 653 ; See Plymouth v Painter, 17 Conn. 585 ; '^""'^^ "^ Yl^lsey, 16 Pet. (U. S.) 71. Rice D Comm. 3 Bush (Ky.) 14 ; ' Rex v Lisle, 2 Strange 1,090 ; more fully Brown •!) Lunt, 37 Me. 423 ; and accurately reported in Andrews Hooper V Goodwin, 48 Me. 79 ; 163. Fitchburg Railroad Comp'y a Grand * Statei;Carroll,38 Conn. 449, per Butler, Junction, etc.. Railroad Comp'y, 1 Ch. J., pp. 463-465. Allen (Mass.) 652; 588 Chap. XXVII.] OFPICEB DE FACTO 624. § 634. Rules conflicting with the doctrine that color of title needed. — The doctrine, that color of title is necessary, in order to constitute an officer de facto, seems to be irreconcilable with two well settled rules, namely, first, that the title of one, in possession of an office, can be questioned only in a direct proceeding against him for that special purpose, and cannpt be questioned collater- ally;' secondly, that evidence that a person was in posses- sion of an office, notoriously acting as such, suffices to show, that at a particular time he was an officer, when- ever the question arises collaterally.'' The cases, cited in the notes, constitute a portion only of those establishing ' Eaton V Harris, 42 Ala. 491 ; Kaufman i; Stone, 25 Art. 336 ; People V Sassovioh, 29 Gala. 480 ; Plymouth v Painter, 17 Conn. 585 ; Douglass V Wickwire, 19 Conn. 489 ; Creigliton v Piper, 14 Ind. 183 ; Gumberts v Adams Express Comp'yi 28 Ind. 181 ; Rogers v Beauohamp, 102 Ind. 33 ; Schwartz v Flatboats, 14 La. Ann. 240; State V Lewis, 32 La. Ann. 33 ; Mayor, etc., v HoflEman, 29 La. Ann. 651; FitohburgR. R. Comp'yi) Grand Junc- tion R. R. Comp'y, 1 Allen (Mass.) 552; Sudbury i) Heard, 103 Mass. 543; Brewer u Boston, etc., R. R. Comp'y, 113 Mass. 52; CahiU V Kalamazoo M. Ins. Comp'y, 2 Doug. (Mich.) 124; Carleton v People, 10 Mich. 250 : Facey v FuUer, 13 Mioh. 527 ; Ballou V O'Brien, 20 Mich. 304; Jhons V People, 25 Mich. 499 ; Stockle V SUshee, 41 Mich. 615; Cooper V Moore, 44 Miss. 386 ; Ex parte Parks, 3 Monta. 426 ; Morse u Galley, 5 N. H. 222 ; Bean v Thompson, 19 N. H. 290 ; Hall V Luther, 13 Wend. (N. Y.) 491- Mayor, etc., i) Tucker, 1 Daly (N. Y.) 107 j Crosier v Cornell Steamboat Comp'y, 27Hun(N. Y.)315; People V Orleans County Court, 28 Hun(N. Y.)14; Culver D Eggers, B3 N. C. 630: Ex parte, Strang, 31 Ohio St. 610 ; Hagner v Heyberger, 7 W. & S. (Pa.) 104; Gomm. V McCombs, 56 Pa. St. 436 ; State V Pierpont, 29 Wis. 608. Thus title cannot be tried upon man- damus, although the ofiacer is a party. Rex v Mayor, etc., 2 T. R. (D. & E.) 259; Rex u Bankes, 3 Burr. 1,452 ; 1 W. Black. 445, 452 ; Duane v McDonald, 41 Conn. 517 ; People V New York, 3 Johns. Gas. (N. Y.) 79 ; People V Stevens, 5 Hill (N. Y.) 616. People I! Clingan, 5 Gala. 389 ; Bryan v Walton, 14 Ga. 185 ; Allen V State, 21 Ga. 217 ; Carter ii Sympson, 8 B. Mon. (Ky.) 155 ; Druse i) Wheeler, 22 Mich. 439 ; Northwood u Barrington, 9 N. H. 369 ; State V Butman, 42 N. H. 490 ; Potter V Luther, 3 Johns. (N. Y.) 431 ; Wilcox D Smith, 5 Wend. (N. Y.) 231 ; Snyder B Schram, 59 How. Pr. (N. Y.) 404; 689 § 636. PUBLIC OFFICERS [Book V. these two well known propositions; we shall have occasion to cite others to the same effect, in the next succeeding division of this chapter. § 635. Lord Ellenborough's definition of officer de facto. — The general definition of an officer de facto, which is accepted in the modern cases, is that given by Lord EUenborough, as follows: "One who has the reputation of being an officer he assumes to be, and yet is not a good officer in point of law." ' And, as a corollary from this definition, it has been held, that "there must be some color of an election or appointment, or an exercise of the office, and an acquiescence on the part of the public for a length of time, which would afford a strong presumption of at least a colorable elec- tion or appointment." '' § 636. The modern rule. — But the more recent decis- ions recognize even a broader rule; and tend to hold that actual possession of the office, without regard to the mode in which possession was acquired (unless, perhaps, where it was by a forcible usurpation), suffices to consti- tute the incumbent a good officer de facto. This question was fully considered in a decision of the supreme judicial court of Massachusetts, rendered in 1876, wherein the former decisions of that court upon the subject were examined and criticized. The question was, whether notice of intention to take the poor debtor's oath'was sufficiently Hamlin v Dingman, 5 Lans. (N. Y.) 61 ; ' Rex v Bedford Level, 6 East 356, at p. Burton t) Patten, 2 Jones L. (N. C.) 368; generalized from Lord Holt in lat ; Parker v Kett, 1 Ld. Ray. 658, 660. Johnson v Stedman, 3 Ohio 94 ; Approved in State u Carroll, 38 Conn. Eldred -e Sexton, 5 Ohio 215 ; 449 ; Tomlinson v Darnall, 2 Head (Tenn.) Petersilea u Stone, 119 Mass. 465, and 538: other cases cited in the next suo- Callison ii Hedrick, 15 Gratt. (Va.) 244. oeeding three sections. The rule is the same, where the ques- , ^^^^^^ ^ g^i^j^^ 5 ^^^^_ ,jj_ y.) 231, tionarisesastoanofflcerinaforeign per Sutherland, J., p. 234. country. Spaulding v Vincent, 24 g^^ ^j^^^ cary i, State, 76 Ala. 78 ; ^*- ^^- People V Tieman, 30 Barb. (N. Y.) 193. 590 Chap. XXVII. ] OFFICER DE FACTO § 636. served by one, who had been a constable of the city of Boston, but whose term of office had expired. The court held, that the service was sufficient, on the ground that the constable was an officer de facto. Devens, J., deliv- ering the opinion, after quoting the definition given by Bigelow, Ch. J., in Fitcliburg Eailroadv. Grand Junction Railroad, 1 Allen (Mass.) 552, 557, that "the exact dis- tinction between an usurper or intruder and an officer de facto is this: the former has no color of title to the office; the latter has, by virtue of some appointment or election," commented upon it as follows: " If this rule were intended as a general definition of an officer de facto, it would be incomplete; but the inquiry, there pre- sented to the court, was as to the validity of certain acts, done by one who acted under a commission, prima facie valid .... and it is to be limited to the case then before the court. The reason of public policy, upon which it is held, that the acts of an officer de facto are not to be called into question, but are valid as to third persons, may apply even to the case where such officer is a usurper and intruder. This principle has been applied in England to the most important office; after Edward IV obtained the crown, the kings of the line of Lancas- ter, who had preceded him, were spoken of as ' nuper de facto et non de jure reges Angliaej' but although Henry VI had been declared a usurper by act of Parliament, attempts against his authority (not having been in aid of the rightful king), were capitally punished. Third per- sons, from the nature of the case, cannot always investi- gate the right of one assuming to hold an important office, even so far as to see that he has color of title to it, by virtue of some appointment or election. If they see him publicly exercising its authority; if they ascertain that this is generally acquiesced in; they are entitled to treat him as such officer, and, if they employ him as 591 § 627. PUBLIC OFFICERS [Book V. such, should not be subjected to the danger of having his acts collaterally called in question. If the party, thus recognizing the officer de facto, were aware that such officer had some appointment or election, it would strengthen his belief; but without this, he would be justified in believing, that an authority, publicly exercised and assented to, was rightfully assumxed The principle, upon which the acts of officers de facto have been held valid, has sometimes been extended so far, as to protect them, under certain circumstances, when they have been directly proceeded against. The question then presented is not the same, as that where the rights of third persons only are involved; and in such cases, it would not be sufficient that they had publicly exercised such office, but they might properly be called upon to show they did so, by virtue of some appointment or elec- tion, which they had a right to believe valid, even if it were otherwise." ' § 637. The same subject. — A recent opinion of the supreme court of North Carolina lays down substantially the same doctrine, although less forcibly and directly, as follows: " I scarcely think it necessary to cite authorities, to show the difference between mere usurpers, and officers de facto and de jure. A usurper is one who takes posses- sion without any authority. His acts are utterly void, unless he continues to act for so long a time, or under such circumstances, as to afford a presumption of his right to act. And then his acts are valid as to the public and third persons. But he has no defence in a direct proceeding against himself. A de facto officer is one, who goes in under color of authority .... or who exercises the duties of the office so long, or under such circumstances, as to raise a presumption of his right; in which cases his necessary official acts are valid, as to the ' PetevsUea v Stone, 119 Mass. 465, per Devens, J., pp. 46", 468. 592 Chap. XXVII. ] OFFICER DE FACTO §637. public and third persons, but he may be ousted by a direct proceeding. A de jure oflBcer is one, who is regu- larly and lawfully elected or appointed, and inducted into office, and exercises the duties as his right. All his necessary official acts are valid, and he cannot be ousted. The only difference, between an officer de facto and an officer de jure, is that the former may be ousted in a direct proceeding against him, while the latter cannot be. So far as the public and third persons are concerned, there is no difference whatever. The acts of one have- precisely the same force and effect as the acts of the other." ' So it was said, in the supreme court of the state of New York : "The distinction between an officer de facto, one de jure, and a mere usurper, is recognized by the law for the benefit of the public and of third persons, and of the officer only in suits to which he is not a party. A person unquestioned, claiming, entering upon, and exer- cising the duties of an office, under the forms or color of an appointment or of an election; or a person, without even the color of an election or appointment, permitted by the government for a length of time, unquestioned, to perform the duties of an office, acquires the reputation of being .an officer in fact, although he may not be an officer in point of law. The public and third persons cannot be supposed to know or to investigate his title to the office; whether he has complied with the forms of law, taken the oath of office, filed a bond, etc. ; or even whether, if appointable, the governor or the mayor has the appointment. The public and third persons, in their dealings with each other, and with him as such acting officer, have therefore a right to act upon such reputa- tion; and as to them he is a good officer, whether he has a legal title to the office or not, so far as they are inter- - People V Staton, 73 N. C. 648, per Reade, J., p. 550. . 593 § 638. PUBLIC OFFICERS [Book V. ested in his acts." ' It is noteworthy, however, that, although there are many definitions, in the cases, of a usurper, the courts almost invariably find some reason for sustaining the act of one, who appears to be a usurper, within these definitions, where the public or third persons are interested. § 638. The same subject ; the doctrine as stated by Butler, Ch. J., in 38 Conn. 449. — Other cases, wherein the question arose, whether a person was or was not an officer de facto, under the particular circumstances of each case, which are cited in the next division of this chapter, illustrate this modern doctrine. The authorities, English and American, from the earliest times, as to the requisites to constitute a good officer de facto, were examined, at great length and with great care, by Butler, Ch. J., in an opinion delivered by him in the supreme court of Connecticut, in which he reached the following conclu- sions, which are now generally accepted, as constituting a correct exposition of the modern doctrine on that sub- ject: " An officer de facto 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 office were exercised: " First. — Without a known appointment or election, but under such circumstances of reputation or acquiescence, as were calculated to induce people, without inquiry, to submit to, or invoke his action, supposing him to be the officer he assumed to be. "Second. — Under color of a known and valid appoint- ment or election, but where the officer has failed to conform to some precedent requirement, or condition, as to take an oath, give a bond, or the like. ■ ' People D Peabody, 6 Abb. Pr. (N. Y.) See, however, Foot v Stiles, 57 N. Y. 228, per Sutherland, J., pp. 233, 234; 399 ; ^j3.a5_How.Pjc. (N. Y.) 470. Lamberta)People,76N.Y.220,po8t,8646. 594 Chap. XXVII.] OFFICER DB FACTO § 639. "Third. — Under color of a known election or appoint- ment, void because the oflficei was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise; such ineligibility, want of power, or defect, being unknown to the public. " Fourth. — Under color of an election or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such." ' JL Rulings in particular cases, as to whether one is or is not an officer de facto, upon the facts presented. § 629. References to Chap. XI, ante. — The requisites, to constitute an officer de facto, may best be explained arid illustrated, by considering some of the rulings upon that subject, made in particular cases, upon the facts presented. And as these are various, and not always harmonious, they will be most conveniently considered under different heads, according to their characteristic features. (1.) Where the officer has failed to give an offi- cial OATH OK BOND, OR HAS GIVEN ONE THAT IS INSUFFICIENT In a former chapter, we have stated the rules as to the sufficiency of an official oath or bond, and the general consequences of the failure to give either, in the mode or within the time prescribed by statute." Such a failure does not, as was there stated, ipso facto vacate the office, unless the statute expressly so provides; and words in the statute, to the effect that such a failure shall forfeit the office, will be construed as meaning only that ' state V Carroll, 38 Conn. M9, per Butler, Ch. J., p. in, 473. Followed, state t) Lewis, 107 N. C. 967. For a criticism upon, and explanation ' Ante, ch. 11. 595 of the fourth head of this enumera- tion, see N )rton v Shelby County, 118 U. S. 425, as cited post, § 638. § 630. PUBLIC OFFICERS [Book V. it shall expose the officer to a judicial sentence of for- feiture. In some cases, it has been held, that after the commencement of judicial proceedings to procure a forfeiture, the officer may still supply, the oath or bond, and thus defeat the proceedings. ' It has therefore been said, that one who has failed to give the statutory oath or bond, is not properly an officer ds facto; but rather a rightful officer holding by a defeasible title." § 630. Officer's acts valid as to the public and as to third persons. — Such officers are, however, usually treated in the books as officers de facto. Thus one, elected a justice of the peace, and entering upon the duties of the office, without having taken the official oath, is neverthe- less a justice of the peace de facto, and his official acts are valid, as far as they concern the public and third persons, until a forfeiture is judicially declared.' So, an officer is an officer de facto, although his official bond is fatally defective;* or although he has refused to qualify in any way;" as by failing to file an acceptance, an omis- sion which the statute declares shall forfeit the office;' or although he has taken his official oath before an officer who had no authority to administer it.' Indeed the cases are practically uniform, to the effect, that the want of, or a defect in, an official oath or bond, does not prevent a person from being a good officer de facto, whose acts are valid, with respect to the public and third persons.' ' Ante, §S 173. et aeq. ' Adams v Tator, 42 Hun (N. Y.) 384. See also, De Turk v Comm., 129 Pa. St. 6 Coles County v Allison, 33 111. 437. 151. « Bentley v Phelps, 27 Barb. rN. Y.) 524. ' Foot V Stiles, 57 N. Y. 399, per Dwight, „ , .' , ' State V Perlcins, 24 N. J. L. 409. Com'r, p. 403. See also, Creigliton v Comm., 83 Ky. ' Murphy v Shepard, 52 Ark. 356 ; 142. Hull V Super. Ct., 63 Gala. 174 ; 3 Weeks ,, Ellis, 2 Barb. (N. Y.) 320. Soudant v Wadhams, 46 Conn. 218 ; Accord, Greenleaf . Low, 4 Denio ^^*^'°'^ "f?™'' ' ' t^' '^* = „ „\,„o Gunn ■« Tackett, 67 Ga. 725 ; -,7^^ A„„, aa+^nv,!, lii Ciw- Bliss 1) Day, 68 Me. 201 ; Kottman D Ayer, 3 Strobh. (B. C.) 9!J , " ,„„„,„„ Ex parte Bollman, 4 Cranch (U. S.) 75. Lisbon v Bow, 10 N. H. 167 ; 696 Chap. XXVII. J OFFICER DE FACTO § 631. (3.) Where the oppicee has forfeited his office, oe his term has expired. § 631. Instances illustrating the rule. — It follows from the rule, that title to an office cannot be tried collaterally/ that an officer, who has done some act, or committed some default, which creates in law a forfeiture of the office, or whose official term has expiredj but who never- theless remains in possession of the office, exercising the functions thereof, is an officer de facto, within the rule that such an officer's acts are valid as respects the public and third persons. Thus, where a justice of the peace has removed from the county, whereby, under the statute, he has vacated his office, but he nevertheless continues to exercise the same; he is a justice of the peace de facto, until ousted by legal proceedings, and his acts as such are valid within the rule." So, where a judge or a justice of the peace has accepted an incompatible office, or has been elected to and taken a seat in the legislature, whereby his former office is vacated, and he still acts as a justice or a judge, his right to hold the office can be tried only by information, or perhaps by an action against him; it cannot be impeached collaterally; and his warrant protects the officer who executes it. ° But it Merrill v Palmer, 13 N. H. 184 ; for a statutory penalty, as an officer Clark D Ennis, 45 N. J. L. 69 ; de jure, see Horton v Parsons, .37 In re Mohawk & H. R. R. Comp'y, 19 Hun (N. Y.) 42, cited fully, ante, S Wend. (N.Y.) 135; . 181. People V Cook, 8 N. Y. 67 ; i _^^{g g 624. In re Kendall, 85 N.Y. 302; „ ' ' „ ., „ , Cronin v Gundy, 16 Hun (N. Y.) 520 ;. ' Lexington, etc.. Turnpike Comp'y V Duntley v Davis, 42 Hun (N. Y.) 229 ; McMurtry, 6 B. Mon. (Ky.) 214. _ . . . 10 AVI, -KT n /w V \ See also, Case 1) state, 69 Ind. '" ■ Dews t) Irvmgton, 13 Add. N. C. (JN. Y.) ,^_.,^._ „ ,V, 162; Barret v Reed, 2 Ohio 409 ; Douglas V Neil, 7 Heisk. (Tenn.) 437. ' Fowler v Bebee, 9 Mass. 231 ; See also, Cronin 1; Stoddard, 97 N. Y. Comm. v Kirby, 2 Cush. (Mass.) 577 ; 271, cited post, § 642. Sheehan's Case, 122 Mass. 445 ; For a peculiar case, where it was held, Comm. v Taber, 123 Mass. 263. that one, entering upon his office See also, Coolidge v Brigham, 1 Allen after taking an official oath, which (Mass.) 333; was defective, was entitled to sue Woodside v Wagg, 71 Me. 207. 597 McKim V Somers, 1 Penn'a R. (Pen- rose & Watts) 297. § 633. PUBLIC OFFICERS [Book V. has been held, in one case, that where a notary public was not a resident of the state, at the time of his appoint- ment, he cannot be regarded as an officer de facto, at least not for the purpose of sustaining an indictment for perjury.' § 632. The same subject. — So, a judgment, rendered by a justice of the peace, holding over after the expiration of his term of office, and before the commencement of his successor's term, cannot be questioned collaterally for that reason, he having been in undisputed possession of the office." And the same rule holds, with respect to the official acts of other officers, holding over after the expir- ation of their respective terms, without regard to the question, whether the particular officer is authorized by law thus to hold over.' But it has been held, that a deputy county clerk, appointed during the county clerk's first term of office, who continues to act, without a reappointment, during the same person's second term, is not even an officer de facto.* (3.) Where the appointment or election, under which the officer holds, was irregular or invalid. § 633. Instances illustrating the rule. — The same rule prevents any impeachment of the acts of an officer, in possession of an office, by reason of any objection to his appointment or election. Thus, where a person had been regularly appointed overseer of a road, by the commis- sioners' court, and afterwards, another was appointed such overseer by the judge of probate, who had by law ' Lambert ii People, 76 N. Y. 220, cited Wapello County v Bigliam, 10 Iowa fully post, §648. 39: « Read V Buffalo, i Abb. Ct. App. Deo. Norton v Lee, 28 Kan. 286 ; (N Y)33- 3Keyea(N. Y.)447. Threadglll i) Carolina, etc., R. R. Accord, Petersilea v Stone, 119 Mass. ^ Company, 13 N. C. 178 465, cited ante, § 626. "--.-^ --^^ - -^^-^ 8 People V Beacb, 77 lU. 52; Galbralth v MoFarland, 3 Coldw. Wenn.) 267. * Smith V Cansler, 83 Ky. 367, at p. 372. 698 Chap. XXVII.] OFFICER DE FACTO § 633. power to appoint only in case of a vacancy; and the lat- ter entered into possession of the office; it was held, that he was an officer de facto, and that his acts in opening a road were valid, although the fornaer was the officer dejure. The court, after saying that the power of the judge of probate, in this case, was analogous to that of the governor to appoint a sheriff to fill a vacancy,, continued: ''An" appointment, made by the governor, when a vacancy was supposed to have existed, when in fact, none had really occurred, confers upon the appointee such right to exercise the functions of the office, as to render his acts done therein valid, so far as they concern the public and the rights of third persons. Such an appointment, emanating from the proper authority, and being regular on its face, will constitute the appointee a sheriff de facto, even although there be another, who dejure is entitled to the office; and where the latter has ceased to perform the duties of the office, and the former does perform them, his acts are not void. Such an appointment is not absolutely void, but irregular, and voidable only. The true distinction, between these irreg- ular appointments to office which are void, and those which are voidable only, I apprehend to be this : where the authority, under which the officer acts, 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 refer- ence 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 reference to such appointment, are void for every purpose; while in the latter, they are valid as to the public and third persons ; and this, for the rea- son, as it has well been said, that the affairs of society 699 § 634. PUBLIC OPPICEES [Book V. cannot be carried on upon any other principle." ' So, the appointment of a sheriff by a county judge, although without authority, suffices to render him a good officer de facto, within the rule validating such an officer's acts.'' So, a tax sale confers a good title, although made by a county treasurer, appointed by the county commissioners, when in fact there was no vacancy in the office.' So, where one, elected the intendant of a town, assumed to act as justice of the peace, although, under the statute, his election did not make him a justice of the peace; it was held that such election constituted a valid foundation for a claim to be a justice of the peace ex officio, and thus rendered him a justice of the peace de facto." § 634. The same subject — So, where a justice of the peace was appointed by the trustees of a village, without authority, but under the assumption that the village charter gave them the authority to make the appoint- ment, it was held that he was a justice de facto, whose process protected the officer executing it. ° So, where a town meeting was invalid, in consequence of a defective return of the warrant calling it, the selectmen then chosen are officers de facto, and the tov/n is bound by their official acts. ° So, the members of a village board of health are good officers de facto, notwithstanding irregu- larities in the passage of the ordinance creating the board. ' So, county commissioners, where the office is created by law, who enter upon the discharge of their duties, are officers de facto, whose acts cannot be impeached, by rea- son of any irregularity in the manner of their election.* ' Thompson « State, 21 Ala. 48, per (Shephard) 296. Ligon,J.,pp.54,55 approving Flour- 6 Laver D McGlaoMin, 28 Wis. 364. noy V Clements, 7 Ala. 533. ' People V Roberts, 6 Gala. 214. s Watkins v Inge, 24 Kan. 613. " Williamson v Woolf, Ala. Sel. Cas, » Cusliing V Frankfort, 57 Me. 541. ' Smith V Lynch, 29 Ohio St. 261. 8 Waller v Perkins, 52 Ga. 233. 600 Chap. XXVII.] OFFICEK DE FACTO § 636. So a party, even where he has been convicted in a crim- inal cause, cannot avail himself of any defects in the ballots, whereby the magistrate de facto, before whom he was convicted, was elected. ' § 635. The same subject ; state government de facto.— There is no such thing, under the constitution of the United States, as a state de facto.'' But the officers of, appointed by, and acting under, a state government de facto, but which is in rebellion against the United States, are officers de facto.'' And so are those appointed by the military authorities, while occupying a state, the government of which is thus in rebellion." (4.) Where the officer was disqualified from hold- ing THE OFFICE. § 636. Such officer's acts cannot be impeached ; instances ; exception. — With one exception, the authori- ties are uniform and direct, that where a person is dis- qualified, by constitutional or statutory provision, from holding an office, as where he is an infant;' or a priest;" or an alien;' or one who has borne arms against the United States, after having taken an official oath to sup- port the constitution thereof;' or for any other reason; the fact cannot be shown, for the purpose of impeaching the validity of any act, done by him as an officer de facto.' ' People V Terry, 108 N. Y. 1, rev'g 43 Hawver « Seldenridge, 2 W. Va. 274. Hun (N. Y.) 273. , Cooper v Moore, 44 Miss. 386. 2 Thompson v Mankin, 28 Ark. 586. 5 (jreen v Burke, 23 Wend. (N. Y.) 490. See also, Peun v Tollison, 26 Ark. 545 ; Mississippi, etc., R. R. Comp'y v State, ° Mclnstry v Tanner, 9 Johns. (N. Y.) 46 Miss. 157. 135. See, however, Hawver v Seldenridge, ' Morrison v Sas're, 40 Hun (N. Y.) 465 ; 2 W. Va. 374, per Maxwell, J., p. 283. Fancher v Stearns, 61 Vt. 616. a Estls 1) Prince, 47 Ala. 269. ' Lookhart B Troy, 48 Ala. 579. See also, Hildreth v Mclutire, 1 J. J. » g^^te „ Anderson, 1 N. J. L. 318 , Marsh. (Ky.) 206 ; Bg^tgg ^ Pyej.^ 9 Humph. (Tenn.) 162. Ward V State, 2 Coldw. (Tenn.) 605; 601 § 638. PUBLIC OFFICEES [Book V, The exception occurs in a ruling of the court of appeals of New York, which is fully cited in a subsequent section. ' (5.) Where the statute, under which the officer acted, was unconstitutional. § 637. Officer de facto, where statute unconstitu- tional. — Although a statute creating a board of super- visors is unconstitutional, yet the acts of those chosen to the -office, and acting as such, are valid as the acts of officers de facto." So, if an officer is appointed under a statute, where the constitution requires that he shall be elected.^ Where a statute provided, that in case of the sickness or absence of a judge of a certain court, estab- lished and regulated by the constitution, a justice' of the peace should be called in by the clerk to hold the court, during such sickness or absence; it was held, that a jus- tice so called in was an officer de facto, if not de jure, and that, whether the statute was or was not constitutional, a judgment rendered by him, even in a criminal cause, was valid." § 638. Exception ; where office itself unconstitu- tional.— It has been held, however, by the supreme court of the United States, that where the office itself is created by an unconstitutional statute, the person filling it is not an officer de facto, whose acts are valid within the rule heretofore stated. Mr. Justice Field delivered the opinion of the court, containing a long and elaborate citation and review of the authorities, in the course of which he made ' Lambert v People, 76 N. Y. 220, post, although chosen under an uncon- 9 646. stitutional statute, is a good officer ' Leach v People, 122 Ul. 420. ^ f"^^^ Meagher d Storey Co., 5 Neva. 244 : = Chicago & N. W. R W. Con>p'y . E. p^te Strang, 21 Ohio St. 610 ; Langlade County, 56 Was. 614. comm. v McCombs, 56 Pa. St. 436 ; « State V Carroll, 38 Conn. 449, following Taylor v Skrine, 3 Brevard (S. C.) 516: Brown v O'Connell, 36 Conn. 432. 2 Brev. new ed., 568. See also, upon the general proposition. State v Bloom, 17 Wis. 521 ; that one acting in a lawful office, Cole v Black River Falls, 57 Wis. 110. 003 Chap. XXVII.] OFFICER DE FACTO § 638. these remarks: " The idea of an oflficer implies the exist- ence of an office which he holds. It would be a misapplica- tion of terms to call one an officer who holds no office; and a public office can exist only by force of law. . . An unconstitutional act is not a law; it confers no right; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." Then, after referring to numerous cases, "in which expressions are used, which, read apart from the facts of the cases, seemingly give support " to the contrary opinion; but which, when read in connection with the facts, " will be seen to apply only to the invalidity, irregularity, or unconstitutionality of the mode, by which the party was appointed or elected to a legally existing office," he continued: "None of them sanctions the doctrine, that there can be a de facto office, under a constitutional government, and that the acts of the incumbent are entitled to consideration as valid acts of a de facto officer." Referring to the opinion of Chief Justice Butler, in State y. Carroll, 38 Conn. 449,' which he characterized as "an elaborate and admirable statement of the law," and the definition of an officer de facto, as contained therein, the learned justice said: " Of the great number of cases, cited by the chief justice, none recognizes such a thing as a de facto office, or speaks of a person as a de facto officer, except when he is the incumbent of a de jure office. The fourth head refers, not to the unconstitutionality of the act, creating the office, but to the unconstitutionality of the act, by which the officer is appointed to an office legally exist- ing. . . . Where no office legally exists, the pretended officer is merely a usurper, to whose acts no validity can be attached." ' But, in a recent case, it was held that one 1 _^nte, § 638. See also. People v Toal, 85 Gala. 333 ; o -VT _*' ex. 1^ r^ * iioTT o ioii ExporteReilly.SSCala. 632; » Norton D Shelby County, 118 U. S. 435, t^ ,, t *• i t t tit i, Tn.- ij T AAo AAA AAR AAo HUdretli V Mcliitire, 1 J. J. Marsh, per Field, J., pp., 443, 4M, «6, 449. 603 § 639. PUBLIC OFFICERS [Book V. may be an oflBcer de facto, where the statute creating the office is unconstitutional, before its unconstitutionality has been judicially declared. (6.) Where the office had been abolished. § 639. Officer de facto presupposes an office de jure. — Upon the principle, which governed the decision of the case last cited, an office, which had no legal existence at the time of the transaction upon which a question arises, cannot confer upon a person, claiming to act by virtue thereof, the character of an officer de facto. As was said, in a decision by the Missouri supreme court, the rule sustaining the acts of an officer de facto does not apply, where the objection is, that the office does not exist; it presupposes an office which the law recognizes." Thus, where an oflBcer is elected for a term certain, and, before the expiration of the term, the oflfice is abolished by statute, he is thenceforth neither an officer de jure, nor an officer de/acfo.' And it was held, in one case, that the rule protecting a third person, who has relied upon the official act of a person apparently in possession of a jQunicipal oflfice, and has made a contract with him as such, does not bind the municipality, where the contrac- tor had notice that the officer's powers had ceased.' Where a township has been abolished by statute, the oflfices of the township are also abolished, and after such abolition there can be no township officer de facto.^ Other cases to the same effect, some of which have been already cited, are given in the note.° Carleton v People, 10 Mich. 250, per ' Conway x> St. Louis, 9 Mo. App. 483. Manning, J., p. 259 ; s j^ ^^ Hinkle, 31 Kan. 712. State V Fritz, 27 La. Ann. 689, cited posf,§645,ana cases cited in thenext ' Leach D People, 122 111. 420 ; succeeding suMivision. Carletonu People, 10 Mich. 250, atp.259; Burt V Winona & St. P. R. R. Comp'y, ' Donough V Dewey, 82 Mich. 309. 3j jjj^^ 472 ■ 2 Ex parte Snyder, 64 Mo. 58. Cole v Black River Falls, 57 Wis. 110 ; • Long V Mayor, etc., 81 N. Y. 425. ^orty v Paine, 62 Wis. 154. 604 Chap. XXVII. J OFFICER DE FACTO § 641. § 640. The same subject ; exception. — But where a person held the office of director, which by law entitled him to preside at the meetings of the chosen freeholders of a county, and the legislature abolished the office of director, but he nevertheless took the chair and presided at a meeting of the chosen freeholders, with their acquies- cence; it was held, that he was the presiding officer de facto, and an appointment of a person as county col- lector, made at that meeting, was valid. ' (7.) What acts constitute, or do not constitute, suf, ficient possession of an office, to render a person an officer de facto. § 641. Possession as constituting an officer de facto. — "Where there is but one office, there cannot be an officer de jure and an officer de facto, both in possession of the office at the same time. " ' In order to constitute a person an officer de facto, he must be in actual possession of the office, and have the same under his control. If the officer de jure is in possession — if he is officer de jure and also officer de facto — no other person can be an officer de facto, with respect to that office; nor can two persons be officers de facto for the same office, at the same time.' There cannot be two incumbents at once; if one is in, the other is not.' Where two officers are acting at the same time, he, who is not the officer de jure, can have no benefit from the rules applicable to officers de facto, although he claims under color of title.' Where there were two con- flicting claimants to an office, and one had been in pos- session three days, and had performed one official act, ' state V Farrier, 47 N. J. L. 383. » McCahon v County Com'rs, 8 Kan. 437. ' Boardman r Halliday.lO Paige (N. Y.) ^ee also. Jester v Spurgeon, 27 Mo. 223, per Walworth, Cli'r, p. 232. -^-PP- *" • Seealso,Hallgren«CampbeU,C2Mich. ^"^san v QuackenDush, 23 Barb. 255; (N.Y.)72i Cohn D Beal, 61 Miss. 398 ; nsmlm v Kassafer, 15 Ore. 456. Cronln v Gundy, 16 Hun (N. Y.) 520, at * Auditors v Benoit, 20 Mich. 176 P- 624. State v Blossom, 19 Neva. 312. 605 § 643. PUBLIC OFFICERS [Book V. when the other took possession and held three days, the court decided that neither of them had had sufficient pos- session to entitle him to sustain the claim, that he was the officer defacto.^ § 643. The same subject : where officer de jure is in possession. — It follows, from these principles, that the actual possession of an office by an officer de jure, renders it impossible for another claimant to constitute himself an officer de facto, by any performance of official acts, however unequivocal they may be. This is well illus- trated by a ruling in the court of appeals of New York, in an action to recover penalties for selling ale and beer, without a license, as required by the excise law. The defendant justified under a license, granted by Bliss and Kinne, as two of the three excise commissioners of the town. It appeared, that at the town meeting in March, 1876, one Bellinger was elected excise commissioner for the term of three years, and immediately thereafter filed his oath of office and his official bond, but the bond was not approved, as required by law, until after the town meeting in 1877. Bellinger, nevertheless, met with the other two commissioners, Lewis and Bliss, as a board of excise in May, 1876, and continued thenceforth to per- form the duties of the office. At the town meeting in March, 1877, on the supposition that the failure of Bel- linger to procure the approval of his bond created a vacancy, votes were cast for Kinne, as excise commis- sioner, and he was declared to be elected to fill the vacancy "if any existed;" and immediately thereafter filed an oath of office and an official bond; whereupon he and Bliss notified Lewis to meet with them as a board of excise, which Lewis refused to do. Bliss and Kinne met accordingly, and granted a license to the defendant. It was held, that the defendant was liable for the pena,lties, > Conover v Devlin, 16 How. Pr. (N. Y.) 470. 606 Chap. XXVII.] OFFICER DE FACTO § 643. on the ground that the license was void. The court said " The difficulty with the appellant's (the defendant's) case is, that when Kinne assumed to act as excise commis: sioner, the office was already full. Bellinger .... 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 omis- sion, at the utmost, afforded cause for the forfeiture of the office, but did not create a vacancy. That could be effected only by a direct proceeding for the pur- pose It follows, that Kinne had not even an apparent authority or color of title, to act as excise com- missioner, and the license granted by him furnishes no defence to the action." ' § 643. Rival claimants for governorship, each in partial possession ; acts of de facto governor. — Where a contro- versy arose as to the validity of a pardon, granted by one of two persons, each of whom claimed to have been elected governor of the state, it was held, by the supreme court of South Carolina, that to constitute an officer de facto, the person claiming the office must have a pre- sumptive or apparent right thereto, resulting from either a full and peaceable possession of the powers thereof, or reasonable color of title, with actual user of the office; that where each of two persons is in possession of the office, claiming by an apparent title, and the question, as to which one of them is entitled to discharge the func- tions of the office, arises collaterally, the court must determine which one has the better apparent right; that where the incumbent, being a candidate for reelection, was defeated, but nevertheless claims that he was elected, procures himself to be inaugurated, and takes > Cronin v Stoddard, 97 N. Y. 271. 607 § 644. PUBLIC OFFICERS [Book V. possession in part of the office, he is not entitled to be recognized as governor holding over, nor as governor de facto, against the person who received the largest number of votes, and who has also entered upon the discharge of the duties of the office. ' In Wisconsin, where the gover- nor of the state continued to hold, after the expiration of his term of office and the qualification of his successor, claiming that he had been reelected, and holding the certifi- cate of the state canvassers that he had been so reelected, but he was afterwards ousted by judicial proceedings; it was held, after the ouster, that his approval of a bill passed by the legislature, while he was so holding over, rendered it a valid statute, as the act of a governor de facto." § 644. Absence of officer de jure ; intrusion of claimant does not render him officer de facto. — Where there is a contest between two persons, respecting the title to an office, and the one in actual possession leaves, tempo- rarily, and without intention to abandon possession of the office, the place where the business of the office is trans- acted; and thereupon the other, with full knowledge of the facts, enters such place, and proceeds to transact the business of the office, as though he was the officer; as between those persons, the former is the officer de facto.' In a another case, where the contest was for the office of county treasurer, and one of the claimants, in the absence of the other, wrongfully took from the latter's office the tax duplicate, it was held, that restoration thereof might be enforced by mandamus." § 645. Officer de facto must act under claim of title. — In order to entitle a person to be considered an officer de facto, he must not only act as such, but he must act under the claim that he is the rightful officer. As we ' Ex parte Noma, 8 S. C. 4D8. » Braidy v Theritt, 17 Kan. 468. See also, Ex parte Smith, 8 S. C. 495. . Runion v Latimer, 6 S. C. 126. 2 State V Williams, 5 Wis. 308. 608 Chap. XXVII.] OFFICER DE FACTO § 646. have shown, in a preceding portion of this chapter, an officer, appointed unconstitutionally to a lawful office, is nevertheless an officer de facto, if his acts otherwise satisfy the requirements of the law in that respect; but where they are insufficient for that purpose, the naked constitutional question is presented. This is shown by a decision of the supreme court of Louisiana, the constitu- tion of which state authorizes a judge, who is "recused" in any cause, to select a lawyer to try that cause. Upon the trial of an information for a criminal offence, the judge, being unable to preside, by reason of illness, appointed a lawyer to preside in his place, pursuant to a statute, authorizing such an appointment in case of the judge's illness; and the defendant was tried before him, and convicted. Upon appeal, the supreme court annulled the judgment, and directed a new trial, on the ground that the statute was unconstitutional, and the appoint- ment was a nullity. The court said: "As to the position that" the lawyer appointed "was de facto judge, and therefore his official acts were valid, we will remark that he had no color of title to the office of judge of the superior criminal court; held no commission from the governor; and set up no adverse title to the office. Indeed he never claimed or pretended to be a judge of that court. He recognized Judge A as the judge of the court, and, with his authorization, attempted to perform the duties of that officer, during his inability to act on account of sickness. The sole question therefore in the case, is a question of authority of a judge to appoint an attorney to perform his official duties, during his sickness, in view of the clause of the constitution quoted." ' §646. Perjury; where notary disqualified when appointed. — A peculiar case, decided by the court of appeals of the state of New York, which appears to form ' state V Fritz, 27 La. Ann. 689. 609 § 646. PUBLIC OFFICERS [Book V. an exception to the other cases under this subdivision, and also under other subdivisions, will now be examined. It arose upon a writ of error, from the supreme court to the oyer and terminer, brought by the defendant in an indict- ment for perjury, to review a judgment convicting him; and upon a writ of error, brought by him to the court of appeals, to review the judgment of affirmance, rendered by the supreme court. The charge of perjury was founded upon an affidavit, taken before a person purporting to be a notary public for the city and county of New York. To establish the notary's authority to act, the prosecution proved that he had a business office in the city of New York; that he had acted as notary for several years; and that his name, etc, were upon the official list of notaries for that city. The defence offered evidence, which was rejected, to the effect that the notary, at the time when he was appointed, was, and ever since had been, a resident of the state of New Jersey. A statute of the state of New York provided, that no one was capable of holding a civil office, who, at the time of his appointment, was not a citizen of that state. The supreme court sustained the conviction, on the ground that the notary was an officer de facto, whose title could not be assailed collaterally. The court of appeals reversed the judgment. Three opinions were delivered in the lat- ter court. Miller, J., thought that the rule, that the acts of an officer de facto were valid, and that his title could not be assailed collaterally, did not apply to a case "where an indictment is found for perjury, 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," he continued, "was one of the issues presented by the indictment in this case; and, upon principle, it would seem to be quite obvious, that the accused party had a right to show, that there was no such officer or tribunal in existence, as is alleged in the indict- 610 Chap. XXVII.] OFFICER DE FACTO § 646. ment. Such a rule only operates, where a charge of per- jury is preferred, while the acts of an officer cle facto, acting under color of authority, even if he had been illegally appointed, under ordinary circumstances would not be affected or impaired. No pernicious consequences or serious inconveniences would result to the public at large, by the enforcement of such a principle, as all acknowledgments made, or other acts of a notary public, tfr of any other officer de facto, done while in the per- formance of his duties except, in cases, where false swear- ing was directly charged, would be valid and lawful." And he disclaimed any intention to hold, that "where the appointment of the oflBcer was valid, a subsequent dis- ability can be made the subject of inquiry, in any other manner than by a direct proceeding for that purpose; or that his acts, as an officer de facto, are not valid, until he is lawfully declared to be disqualified." Earl, J., said, that in order to constitute an officer de facto, he must have " color of office, or some semblance of competent authority;" that an officer may, in some cases, have sufficient color without any appointment or election, "as when he takes possession of the public building or room, where the duties are to be discharged, and has possession of the public property pertaining to the office; and is thus clothed with all the indicia of official position, and has, for a considerable time, with the acquiescence of the pub- lic, and without dispute, openly and notoriously exercised the duties of the office." . . . "But," he continued, " a notary public, having no public office, clothed with none of the symbols or outward tokens of public position, being one of the thousands who may, anywhere in the same county, exercise the duties of the same office, cannot get color of office, by simply acting from time to time, as he might have opportunity. He can get color of office only by an appointment, emanating from the appointing power, or from some power having, at least, a colorable right to 611 § 646. PUBLIC OFFICERS • [Book V. make the appointment." Hand, J., while agreeing that the evidence as to the notary^s residence was improperly excluded, and that the judgment ought therefore to be reversed, said: "I am not prepared to assent to the doc- trine of the opinion, that perjury can only be committed before an officer dejurej and that, on the trial of an indictment for that crime, the title of such an officer can always be attacked. Nor, 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, the prisoner could have raised such a question as non- residence. I am inclined to think, that, in such a contin- gency, the question of residence being often a very nice one, the validity of the appointment could not be thus attacked. But here there was hardly any proof that the party who took the affidavit was a notary at all. . . But if it be conceded, that it" (the proof on the part of the prosecution) " tended in some degrees to show a de facto officer, or to raise a presumption or inference that he had been appointed; I think proof that the person was a non- resident, and therefore incapable of holding that position, was admissible, to rebut any presumption that he had ever been appointed, and was anything but a mere intruder. Of course, if legal proof, of any sort, of an appointment, had been made, there would be no longer any room for presumption upon this point, and nothing of that sort which could be rebutted; but not so, as the case now stands." Of the other four judges, one concurred with Miller, J. ; one concurred with Hand, J. ; one concurred with Earl, J., and the fourth gave no opinion upon this particular point.' ' Lambert v People, 76 N. Y. 220, rev'g laterally, by proof that the appoint- 14 Hun (N. Y.) 512. ment was unlawful. Thomson v The reasoning of Hand, J., finds sup- State, 21 Ala. 48, at p. 54. That a no- port in a ruling of the supreme tary public, by user of his office, be- oourt of Alabama, to the effect, that comes an officer de facto, see Gary v n. commission from the appointing State, 76 Ala. 78. power cannot be impeached col- 613 Chap. XXVII.] . OFFICER DB FACTO § 647. § 647. Act of exercise of power must be lawful. — In order that an act of exercise of power should furnish a foundation for deeming a person an officer de facto, it must be such an act, as he could lawfully perform, if he was the rightful officer which he assumes to be. Thus, where the people of the township of F, at a general elec- tion, elected an assessor of taxes for the township, and also elected one D, as assessor for the incorporated town of A, which was situated within the township limits; and D, following a custom which had existed for the preced- ing ten years, assessed land without the corporate limits of A; it was held, that the assessment was a nullity; and a sale thereunder for unpaid taxes was void. The court, after showing that D's election was irregular, said: "While the election of D was irregular, he may be regarded as the assessor de facto of the town of A, 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. . . . The question does not arise, whiether D was de facto assessor of F 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 A, which the law required another officer to do. The discussion upon the point, made by defend- ant's counsel, that D was the assessor de facto, and his acts are therefore valid, does not apply to the facts of the case. Had D made the assessment as the assessor of F township, the argument of counsel on this point would be applicable to the case. ... 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. . . . The fact that D made the assess- ment under a custom, extending his powers and duties, in 613 § 649. PUBLIC OFFICERS [Book V. a manner and to subjects unauthorized by law, which was acquiesced in by the officer charged with such duties, cannot make his act valid. Customs of this kind cannot abrogate the law. Neither can it be pretended, that a mistaken idea, as to the extent of the powers and duties of an officer, though honestly entertained by himself and the people, will validate acts done in excess of his authority." ' § 648. Officer de facto : his authority ; how termi- nated. — Where his color of authority ceases, the person claiming to be an officer is no longer an officer de facto; as where a competent tribunal, in a direct proceeding to determine his title, has adjudged that he has no title; and this, although no other person has been declared to be entitled to the office." And, pending an appeal from such a decision, the party, in whose favor it was given, is deemed the rightful officer, and will be put into posses- sion, if he is not already in, by summary legal proQeed- ings." III. Rulings respecting the validiiy and effect of acts of officers de facto, in particular cases. § 649. The general rule restated. — In stating the gen- eral rule, respecting the validity of the acts of officers de facto, at the beginning of this chapter, it was also stated, that the authorities establishing the rule would be cited, in a subsequent portion of the chapter. That citation is to be made here, and preliminarily we will restate the rule itself, which is as follows : The exercise of a power by an officer de facto, either judicial or ministerial, which lawfully pertained to the office of which he had posses- sion, is valid and binding, where it is for the interest of ' Bailey v Fisher, 38 Iowa 229. ' Nat. Bk., 60 Barb. (N. Y.) 234. 2 Petition of Portsmouth, 19 N. H. U5 ; = Honey V Davis, 38 Tex. 63. Rochester, etc., R. R. Comp'y v Clarke 614 Chap. XXVII. J OFPICBE DE FACTO 649. the public, or of any individual, except the officer him- self, to sustain the ofl&cer's act; but where the officer him- self founds a right upon such exercise, either personally or officially, it is not valid in his favor. " 1 2 Kent's Commentaries, 13th ed., 295 ; Leak v Howel, Cro. Eliz. 533; O'Brian v Knivan, Cro. Jac. 552 ; Harris v Jays, Cro. Eliz. 699 ; Knight i; WeUs, Lutw. 508, 519 ; Rex V Lisle, Andrews 163 ; 3 Stra. 1090 ; Knowles v Luce, Moore, 109 ; Margate Pier v Hannam, 3 B. & A. 266 ; Rex V Bedford Level, 6 East. 356 ; In re Dacres, Leonard 288 ; Eaton V Harris, 42 Ala. 491; Lockhart v Troy, 48 Ala. 579 ; Gary v State, T6 Ala. 78 ; Kaufman v Stone, 25 Ark. 336 ; Chiles V State, 45 Ark. 143; Satterlee v San Francisco, 23 Cala. 314 ; McCall V Byram Man. Comp'y, 6 Conn. 428; Plymouth v Painter, 17 Conn. 58o ; Douglass V Wickwire, 19 Conn. 489 ; State V Carroll, 38 Conn. 449; Pool V Perdue, 44 Ga. 454 ; Smith V Meador, 74 Ga. 416 ; Pritchett v People, 1 Gilm. (111.) 525; People V Ammons, 5 Gilm. (111.) 105 ; Sharp V Thompson, 100 111. 447 ; Golder v Brassier, 105 111. 419 ; People V Lieb, 85 111. 484 ; Leach v Cassidy, 23 Ind. 449 Gumberts v Adams Express Comp'y. 28 Ind. 181 ; Bailey v Fisher, 38 Iowa 229 ; Peiroe v Weare, 41 Iowa 378 ; Brady v Sweetland, 13 Kan. 41; Morton v Lee, 28 Kan. 286 ; Creighton v Comm., 83 Ky. 142; State V Lewis, 22 La. Ann. 33 ; Brown v Lunt, 37 Me. 423 ; Gushing v Frankfort, 57 Me. 541 ; Bliss I! Day, 68 Me. 201 ; Woodside v Wagg, 71 Me. 207 ; Johnson v McGinly, 76 Me. 433; Fowler v Bebee, 9 Mass. 231 ; Comm. V Fowler, 10 Mass. 290 ; Bucknam v Ruggles, 15 Mass. 180 ; Gilmore v Holt, 4 Pick. (Mass.) 258 ; Doty 1) Gorham, 5 Pick. (Mass.) 487 ; Sprague v Bailey, 19 Pick. (Mass.) 436; Coolidge V Brigham, 1 Allen (Mass.) 333; Elliott V Willis, 1 Allen (Mass.) 461 ; Fitchbnrg Railroad Comp'y v Grand Junction R. R. & D. Comp'y, 1 Allen (Mass.) 552 ; Sudbury v Heard, 103 Mass. 543 ; Petersilea v Stone, 119 Mass. 465 ; Carleton v People, 10 Mich. 250; Druse v Wheeler, 22 Mich. 439 ; Auditors v Benoit, 20 Mich. 176 ; Jhons V People, 25 Mich. 499 ; Stookle V Silsbee, 41 Mich. 615 ; Taylor v Taylor, 10 Minn. 107 ; McOormick v Fitch, 14 Minn. 252; Garli v Rhener, 27 Minn. 292 ; Shelby v Alcorn, 36 Miss. 373 ; Cooper D Moore, 44 Miss. 386 ; St. Louis County Court v Sparks, 10 Mo. 117 ; Ex parte Johnson, 15 Nebr. 512 ; Mallett V Uncle Sam, etc. Comp'y, 1 Neva. 188 ; Jones V Gibson, 1 N. H. 266 ; Johnston v Wilson, 2 N. H. 202; Merrill v Palmer, 13 N. H. 184 ; Bedford v Rice, 58 N. H. 446 ; Jewell V Gilbert, 64 N. H. 13; State V Tolan, 33 N. J. L. 195; State V Pierson, 47 N. J. L. 247 ; State V Farrier, 47 N. J. L. 383 ; Parker v Baker, 8 Paige (N. Y.) 428; People V Collins, 7 Johns. (N. Y.) 549 ; Mclnstry t; Tanner, 9 Johns. (N. Y.) 135; 'Trustees, etc.,D Hills, 6 Cow. (N. Y.) 23; Wilcox 11 Smith, 5 Wend. (N. Y.) 231 ; , 615 §651. PUBLIC OFFICERS [Book V. § 650. Instances ; payments to officer de facto valid. — The cases, cited under the last preceding division of this chapter, contain many illustrations of the force and eflfect of acts, done by an officer de facto, in the course of the discharge of the duties appurtenant to the office, which he claims to fill; only a few, presenting some special features, will be examined here. That a disbursing officer has the right to rely upon the apparent title of an officer de facto, and discharge himself, or the public body for which he acts, by payment to such officer of the salary or other emoluments of the office, was shown in a preceding chapter. ' § 651. Criminal law ; authority of judge de facto can- not be questioned. — The question whether a person, con- People V Bartlett, 6 Wend. (N. Y.) 432; In re Mohawk & Hudson R. R. Comp'y, 19 Wend. (N. Y.) 135, 145; People V Kane, 23 Wend. (N. Y.) 414 ; Green v Burke, 23 Wend. (N. Y.) 490 ; People V White, 24 Wend. Jacobs, 17 Ohio 143. Cited approvingly, Burditt v Barry, See also, Mallett v Uncle Sam G., etc., 6 Hun (N. Y.) 657 ; Comp'y, 1 Neva. 188. y^P^ ^ gyj^^^ ^.^ jj_ Y. 399, per Dwight, ■■■ Cumminga i) Cliark, 15 Vt. 653. Com'r, p. 403 ; See also, AUen v Archer, 49 Me. 346. Lambert v People, 76 N. Y. 320, per Earl, J., p. 237 ; 5 Hamlin v Dingman, 5 Lans. (N. Y.) 61, oimsted v Denjiis, Tt N. Y., 378, per rev'g 41 How. Pr. (N. Y.) 132. g^,,!^ j_^ p_ 387_ 623 Chap. XXVII.] OFFICER DE FACTO § 660. ating the acts of an officer de facto, occurs in cases, where the officer alone is concerned, either personally or offi- cially. It is recognized in several of the cases hereinbefore cited, and directly in those contained in the note, which hold, that where an officer claims any right, by virtue of his office, he must show that he is officer de jure, as well as officer de facto;' except that he is entitled to be allowed for public money, expended by him for lawful purposes, as if he was also an officer dejure.' Thus, as was said by a learned chief judge of the court of appeals of New York: " Where 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. It is not enough that he is an officer de facto, that he merely acts in the office; but he must be an officer dejure, and have a right to act. " ' § 660. The same subject. — Where an infant, elected constable, and acting as such, made a levy under an execution, and subsequently abandoned the levy, to relieve himself from the consequences of his unlawful attempt to act as an officer; it was held, that the constable, and also the plaintiffs, if they knew that he was an infant, were trespassers; that if the constable had pro- ceeded to sell under the execution, the transaction would have been valid; but, as he had abandoned the levy, and ' Miller 1! Callaway, 32 Ark. 666 ; subsequent sections of this division. People D Weber, 86 111. 283 ; s. o. 89 111. , McCracken v Souoy, 29 111. App. 619. 347; Patterson « Miller, 2 Met. (Ky.) 493 ; ' P«°Pl« " Nostrand, 46 N. Y. 375, per Kimball V Alcorn, 45 Miss. 151 ; Church, Ch. .J., at p. 382. Adams V Tator, 42 Hun (N. Y.) 384 ; ^<"'°'''i' ^°^'^^'' " ^^^^^^^ " ^^^- ^^ ' Dolan V Mayor, etc., 68 N. Y. 274 ; ^^°'e^<' ^ ^l^^^' ^ ^^^"'i- (N- Y.) 520 ; Dillon V Myers, Bright. (Pa.) 426 ; P«°Pl« " Hopson, 1 Denio (N. Y.) 574 ; Riddle V Bedford County, 7 Serg. & R. Hamlin v Dingman, 5 Lans. (N. Y.) 61 ; (Pa ) 386 • Nichols v MaoLean, 101 N. Y. 526, aff'g Venable v Curd, 2 Head (Tenn.) 582 ; 19 ^^^^I^- ^'S- (N. Y.) 96 ; 63 How. Shepherd i) Staten, 5 Heisk. (Tenn.) 79 ; ^''- <^- "^-^ ^ ' and cases cited in the notes to the 01msted.,Dennis,77N. Y.378, atp.387-, Keyser v McKissan, 2 Rawle (Pa.) 139. 633 § 661. PUBLIC OFFICERS [Book V. returned the execution, the levy was a nullity, and the plaintiffs might have a new execution. ' The rule, that an officer who is ineligible, or otherwise only an officer de facto, cannot justify as an officer, where he is sued for an official act, has been settled in several cases." But an officer justifying may always show, in his defence, that he was an officer de facto; for that is prima facie evidence that he was an officer dejure.' And it has been held, that one, acting by command and in aid of an officer de facto, may justify, although the latter was not officer de jure. § 661. Suit for fees or salary ; officer cannot recover, unless de jure. — A person, who sues to recover from a municipality, or other public body, the salary or other emoluments attached to an office, which he claims to hold; or who sues a private person, to recover fees allowed by law for official services; must, if his right to the sal- ary, fees, or other emoluments, is put in issue, show, not only that he has acted as such officer, but also that he did so as an officer de jure. ° So, where a statute forbade any person to exercise the office of pilot, until he had given a bond with two sureties in the penal sum of $1,000; • ' Green v Burke, 33 Wend. {N. Y.) 490. Contra, semUe, Johnston v Wilson, » Miller D Callaway, 32 Ark. 666 ; ^ ^- ^- ^^• People V Weber, 86 111. 283; s. v. 89 111. ' See ante, §§ 517, 518 ; also. People v 347 ; Potter, 63 Cala. 127 ; Patterson v Miller, 2 Met. (Ky.) 493 ; Plymouth u Painter, 17 Conn. 585 ; Rodman v Haroourt, 4 B. Mon. (Ky.) Mayfield v Moore, 53 ni. 428 ; 224 ; MoCue v Wapello Co., 56 Iowa 698 ; Colburn v Ellis, 5 Mass. 427 ; Kimball v Aloorn, 45 Miss. 151 ; Short V Symmes, 150 Mass. 298 ; Christian v Gibbs, 53 Miss. 314 ; Johnston v Wilson, 2 X. H. 202 ; Meagher v Storey County, 5 Neva. 244 ; Blake v Sturtevant, 12 N. H. Neale v Overseers, 5 Watts (Pa.) 538 ; Pearce v Hawkins, 2 Swan (Tenn.) 87 Comm. v Slifer, 25 Pa. St. 23 ; Cummings i) Clark, 15 Vt. 653 ; Philadelphia v Given, 60 Pa. St. 136. Courser v Powers, 34 Vt. 517. Thatpayment by a municipality to an « Willis vSproule, 13 Kan. 257. officer de/acto protects it from a sub- sequent claim of the oiflcer dejure, > Soudant v Wadhama, 46 Conn. 218. gg^ ^^^^ gg 5^3.513^ 634 Chap. XXVII.] OFFICER DE FACTO § 663. it was held, that this meant, that each of the sureties must be bound in the whole sum; and where a person had given a bond with two sureties, each in the penal simi of $500, upon which the commissioners of pilots had issued a commission to him, and he thereupon proceeded to act as pilot; it was further held, that, assuming that the oflBlce of pilot was a public office, he was only an officer de facto, and that, not being an officer de jure, he could not recover his pilotage. " § 66^. The same subject ; recovery of statutory pen- alty. — Y/here a statute annexes a pecuniary penalty to an offence, and empowers a particular officer to sue for it, a person suing for the penalty must show that he is the officer dejure, as well as de facto.' This results from the rule, that he must sue in his individual name, with the addition of his official title; and in pleading he must allege, that he is the officer he purports to be, upon which issue may be taken. ° But where a statutory penalty is given to a town, county, or other municipality, an action therefor may be maintained, by the municipality, although the penalty was incurred by the violation of rules estab- lished by officers of the municipality, who were merely officers de facto, ex. gr. a board of health." § 663. Rule as to trial of title, in suit between officers de jure and de facto, to recover emoluments. — It has been held, that the rule that the title to an office cannot be tried, when it comes in question collaterally, but that it can be tried only in a direct proceeding for that purpose, does not prevent a person, who had been in possession of an office, from maintaining an action against an intruder, to recover the emoluments of the office, where he had ' DoUiver l) Parks, 136 Mass. 499. » Gould v Glass, 19 Barb. (N. Y.) 179 ; ' Horton v Parsons, 37 Hun (N. Y.) 43, Supervisor v Stimson, i HiU (N. Y.) cited fully, anU, 8 181 ; ^^ ' People V Nostrand, 46 N. Y. 375. ^omTs V Peck, 5 Hill (N. Y.) 215. 4 Bedford v Rice, 58 N. H. 446. 625 § 664. PUBLIC OFFICERS [Book V. been ousted by the latter's act:' and semble, that such an action will lie, by a rightful officer, even if he has not previously been in possession." And where an office per- tains to a court of justice, the right to the possession thereof may be determined, at least prima facie, upon a motion by the rightful officer to be admitted.' The right of an officer de jure, to recover the emoluments of the office from the officer de facto, after ouster of the latter, has been considered elsewhere.* V. Miscellaneous rulings, as to the rights and liabilities of an officer de jure and an officer de facto. § 664. Liability of officer de facto in civil action for malfeasance, etc. — Under this head, we will cite a few cases, which could not be conveniently placed under either of the foregoing heads. An officer de facto, although he was not duly appointed, or holds by a defeasi- ble title, is nevertheless bound to perform all the duties of the office, which he professes to hold, and is liable to an action for any act of malfeasance, misfeasance, or non- feasance, in the same manner as if he was an officer dejure. Thus, if he is sued for money received colore officii, it is no defence that he was only an officer de facto. " So, where he is sued for any act of malfeasance or mis- feasance. ° Other cases, wherein the rule is declared, that he is liable in like manner as an officer de jure, are cited in the note.' A collector of taxes de facto is liable ' Glascock S) Lyons, 20 Ind. 1. See also, Bearee v Fossett, 34 Me. 575 ; Accord, Howard v Wood, 3 Leviuz 245. Longaore v State, 3 Miss. 637 ; " Id.; and Lightly v Olonston, 1 Taunt. ^°^^^ " Scanland, 6 Humpli. (Tenn.) 112, per Heath, J. ^^^' Borden v Houston, 2 Tex. 594. s Bruce V Fox, 1 Dana (Ky.) 447. Allen V Archer, 49 Me. 346 ; <■ Am, 88 521-523. Tresoott u Moan, 50 Me. 347 ; - " United States v Maurice, 2 Brock. Sandwich b Fish, 2 Gray (Maes.) 298 ; (U. S.) 96. Johnston v Wilson, 2 N. H. 202 ; ■ Neale v Overseers, 5 Watts (Pa.) 638. Horn v Whittier, 6 N. H. Wentworth v Gove, 45 N. H. 160. 626 Chap. XXVII.] OFFICER DE FACTO § 666. to the town for taxes actually collected, but not for taxes, the payment of which to him was refused, on the ground that he was not authorized to collect them.' § 665. The same subject ; extension of the rule to sure- ties of officer de facto. — So the sureties in the official bond of an officer de facto are liable, precisely as if he was an officer de jure; and are estopped from denying the principal's title to the office, or otherwise questioning his power to act therein." § 666. Officer de facto not liable to injunction ; liable to mandamus ; extent of the doctrine ; effect of with- drawal. — An officer de facto, who has assumed the duties of the office, cannot be restrained by injunction from con- tinuing to exercise the office.' Such a person may be compelled to perform the duties of the office, in like manner as an officer de jure, and a mandamus lies against him for that purpose.* But a person who is an officer de facto, but not de jure, may, at any time, with- draw entirely from the performance of the duties of the office, and is thenceforth not liable to an action by an individual, or to a statutory penalty, for any nonfeas- ance. But it is simply reasonable to assume, although the authorities do not so expressly declare, that, notwith- standing his withdrawal, he would be liable for whatever damages or other loss might result from his leaving, in an uncompleted state, the performance of any particular duty, which he had undertaken before such withdrawal. The principal authority on this subject is a decision of the supreme court of New York, made in 1858, in an ' Lincoln 1) Chapln, 132 Mass. 470. Jones V Scanland, 6 Humph. (Tenn.) Accord, Billingsley v State, 14 Md. 369. 195 ; • Case V State, 69 Ind. 46 ; Borden B Houston, 2 Tex. 594; and Billingsley « State, 14 Md. 369 ; "'I'^r "^^^^ "t«^ «"««' «§ ^88, et m- CountyCom'rsDBrisbin, 17 Minn. 451; ' HagneruHeyberger,7W.&S. {Pa.)104. Longacre D State, 3 Miss. 637 ; 4 jjgjjy ^ wimberly, 61 Miss. 548. McLean v State, 8 Heisk. (Tenn.) 32 ; g^^ ^-^^^ nmAou. « Latimer, 6 S. C. 126. 627 § 667. PUBLIC OFFICERS [Book Y. action to recover a statutory penalty, for the defendant's neglect of duty, as overseer of highways. The statute requ-red, that a person elected to that office should, within a specified time" thereafter, file a notice of his acceptance of the office, and declared that his neglect so to do should be deemed a refusal to serve. The defend- ant was elected overseer, at a town meeting; but failed to file any notice of acceptance. He accepted, however, the road warrant, issued by the conmaissioners of high- ways, and proceeded to act thereupon; but, about three months afterwards, he returned the road warrant to the commissioners, on the ground that he was not authorized to act; and they, after taking advice, returned it to him, and on his refusal to act further, begun this action. The court, after stating that his acceptance of the road warrant, and acting thereunder, made him the officer de facto, continued: " The defendant, having no lawful authority to act as overseer of highways, cannot be liable for omissions of duty. He might be liable to the penalty for not accepting the office, but not for omitting to act, when he expressly disavowed his authority, and omitted to act, because he was doubtful of his right so to do." Then, after showing that, within the authorities, he would be liable as a trespasser, if he should compel any person to work out his road tax, or otherwise enforce the payment thereof, the court held that the action could not be maintained.' In a similar action, it was held, in an earlier case, that the overseer of highways, who had exercised the office during the full term, was liable for the statutory penalty upon proof only that he was over- seer de facto.' § 667. The same subject ; mandamus ; where officer de jure is substituted. — "Where proceedings by mandamus • Bentley u Phelpa, 21 Barb. (N. Y.) 524. 378, per Earl, J., p. 387. Approved, Olmsted v Dennis, 77 N. Y. , j^^^^ ^ Gridley, 10 Wend?"(N. Y.) 254. 628 Chap. XXVII.] OFFICER DS FACTO § 668, had been commenced against a highway commissioner cle facto, to compel him to lay out a road, and, pending the proceedings, he was ousted by the commissioner de jure; and the latter was substituted as the defendant, under a statute allowing .such substitution; it was held, that the fact, that the original defendant was not the officer de jure, would not defeat the proceedings. ' § 668. Officer de facto ; criminal liability for malfeas- ance, etc. — An officer de facto is liable to indictment and punishment, for any act of misfeasance or malfeasance in office, in like manner as if he had been the officer de jure.'' An officer de facto, indicted for misconduct or negligence in office, is estopped from objecting in de- fence, that he was not officer dejure.' So, an officer de facto is indictable and punishable for embezzlement;' or for accepting a bribe. "It is," said the court, in pro- nouncing judgment in the latter case, " difficult for us to conceive of a more evil and dangerous proposition, than that one, who intrudes into or usurps a public office, assumes its duties, and exercises its powers, can shield himself from' punishment, by alleging that his crimes were only additions to his intrusions or usurpation."' ■ People 1) BrowB, 4,7 Hun (N. Y.) 459, at ' People v Bunker, 70 Gala. 312 ; p. 464. State u Stone, 40 Iowa, 547 ; People V Church, 3 N. Y. Crlm. R. 57 ; 1 How. Pr. N. S. (N. Y.) 366 ; Neale v Overseers, 5 Watts (Pa.) 538. Rexu Borrett, 6 Car. & P. 124; Fortenberry ■« State, 56 Miss. 286; State v Dierberger, 90 Mo. 369 ; State V MoEntyre, 3 Ired. L. (N. C.) 171 ; « State ■o Goss, 69 Me. 22. State D Cansler, 75 N. C. 442 ; t pjggs „ state, 49 Ala. 311, at p. 323, State V Long, 76 N. C. 254 ; State V Maberry, 3 Strobh. (S, C.) 141. 620 PUBLIC OFFICERS [Book V. CHAPTER XXVIII SECURITY TAKEN BY AN OFFICER UPON AN EXERCISE OF POWER CONTEN'TS /. General rules, relating to securities taken by an officer for ease and favor, or otherwise colore officii. Sec. 669. Provisions of the statute, 33 Hen. VI, ch. 9; rules respect- ing bail before that statute. 670. American statutes, prohibiting taking securities colore officii; whether they are declaratory of the common law. 671. Exception as to securities allowed by law, not confined to those allowed by statute. 672. . Whether it is necessary that there should be a corrupt intent, to render the prohibition applicable. 673. Case in New York, holding that corrupt intent not neces- sary, and that parties are not in pari delicto. 674. Stricter rule, where party was under constraint; but where ■ statute. applies, want of constraint does not validate the security. 675. Where security given to adverse party, not to officer, pro- hibition does not apply. 676. Security void, when statute prescribes terms, and an addi- tional term is added; but separate additional security does not avoid the valid one; void if bond for too large a sum; or where note given in place of bond. 677. Security to induce officer to violate his duty void; or to induce action contrary to statute. 678. Security void, where officer had no power or jurisdiction; when good at common law; when state may affirm officer's unlawful act, and recover. 679. Bond to highway commissioners, by persons interested in opening highway, to pay town aasessments therefor, void. 680. Certain securities by prisoner to arresting officer or jailor, not involving violation of duty, sustained. 630 Chap. XXVIII. J SECURITIES colore officii II. Contracts to indemnify officers. Sec. 681. Such contracts not within the statute against securities colore officii; principles upon which they are sustained. 682. They are valid, and officer may require indemnity, where he acts in good faith, and there is an honest doubt as to his right; but not where he knowingly commits a tres- pass. So, if directed to execute process in particular manner. But indemnity cannot exceed liability. Deputy's bontl to principal valid. 683. Indemnity against future act of misfeasance or malfeasance by officer void, although taken on false representations. 684. Indemnity void, where officer no lawful power to act, or where he is protected by law. 685. Courts wiU not construe an indemnity, so as to cover an unlawful act, if any other construction is possible. 686. Indemnity upon attachment will not cover detention, after attachment dissolved. 687. Indemnity against a past unlawful act is vahd ; so to induce officer to pay over money, where claim of title made after sale; so in replevin, where voluntarily given, and not forbidden by law. 688. Cases, where the law impUes a promise of indemnity, or does not imply it. 689. Officer's indemnitors are liable for his trespass; exception. 690. Officer accepting indemnity Uable, if he releases the prop- erty; liable for purchase money, although defendant did not own the property, and it was sold on credit. 691. Indemnity covers only due course of proceedings, accord- ing to statute; but if officer has sold goods, although not strictly according to statute, he is protected; his right against indemnitors not affected, by his consent to dis- continue a former action. 692. Officer cannot recover, if he fails to comply with a con- dition of the indemnity bond; no implied contract in such a case. 693. Officer may avail himself of security, in addition to the bond of indemnity. 694. Where the claimant recovers judgment against the officer, the latter may enforce the indemnity, without payment of the judgment. 631 § 669. PUBLIC OFFICERS [Book V. Sec. 695. In action on indemnity bond, ofBcer entitled to amount of judgment against him, and his expenses, including counsel fees. 696. He is also entitled to recover expenses of a successful defence, but damages not included in an indemnity against costs, etc. III. Contracts of receiptors. 697. Such contracts not deemed taken colore officii; when receiptor cannot reduce damages, by proving value of property. 698. Nature of contract; receiptor a bailee; liable only to the extent of officer's liability to the creditor; instances. 699. Sheriff liable, and receiptor liable to him, for loss, except by act of God or the public enemy; receiptor not exoner- ated, by producing other similar goods; or by offer to redeliver without demand. 700. Certain special circumstances, which do not discharge receiptor. 701. Eule, where property was exempt; where attachment was against a member of an insolvent partnership. 702. Conflicting rulings, as to whether receiptor is estopped from showing, that goods were his own, or a stranger's. 703. Whether officer is estopped, as against the ci-editor, from showing, that goods receipted for were not debtor's property. 704. Receiptor has lien upon the property for his charges ; effect thereof; rule where one having a lien became receiptor, and afterwards attached the property in his own suit. 705. Special instances of defects in the proceedings, which do not discharge the reciptor. 706. Necessity of demand to render receiptor liable; how demand made. I. General rules, relating to securities taken by an officer for ease and favor, or otherwise colore officii. § 669. Provisions of stat. 23 Hen. VI, ch. 9. — The rules of law, relating to securities of this description, are derived from the English statute, 23 Hen. VI, ch 9. Before the enactment of that statute, a sheriff, arresting 633 Chap. XXVIII. ] SECUKiTiES colore officii § 670. a party in a civil action, was not obliged to take bail, unless the party sued out a writ of mainprize, upon which he might be admitted to bail; "but he " (the sheriff) "might have taken bail of his own head; and if he had not the body ready according to his return, he was amerced, as he now is, if the plaintiff does not take an assignment of the bail bond." ' The statute, 23 Hen. VI, eh. 9, provides particularly for the taking of bail by the sheriff, or other officer making the arrest, and adds this provision: "If any sheriffs or officers aforesaid take any bbligation in other form, by colour of their office, it shall be void. " Many English decisions are found, especially in the earlier reports, to the effect that any security taken by an arresting officer from his prisoner, by way of bail, is void, unless it is strictly in accordance with the provisions of this statute." § 670. The same subject ; American statutes. — The prohibition, against taking securities colore officii, has been incorporated into the statutes of each of the states of the Union, either in the language of the statute, 23 Hen. VI, ch. 9, or, as the general rule is, in even more comprehensive language. The statute of New York on this subject, which is a fair representative of the statutes of the other states, reads as follows: "No sheriff, or other oflScer, shall take any bond, obligation, or security, by colour of his office, in any other case or manner, than such as are provided by law; and any such bond, obligation, or security, taken otherwise than as herein directed, shall be void." ' It would seem, from a ruling of the commis- sion of appeals of the state of New York, that this statute • Ba.c. Abr., tit. Sheriff, O. and cases cited in Bac. Abr. and See also, Com. Dig., tit. Bail, G 3, note. Com. Dig., under the heads specified » Scry ven v Dyther, Cro. Eliz. 672 ; '"^ ^^^ 1^^* preceding note. Hall V Carter, 2 Mod. 304 ; a r. g. of N. Y., Part 3, ch. 3, tit. 2, § 59 ; Rogers V Reeves, 1 T. R. (D. & E.) 418 ; 2 R. S., 1st ed. 286 ; 4 R. S., 8th ed. Fuller V Prest, 7 T. R. (D. & E.) 109 ; 2,646. 633 § 671. PUBLIC OFFICERS [Book V. merely embodies a principle of the common law; for the rule was applied to a transaction between an officer of the United States and his subordinate. The court said: "We are reminded, on the part of the appellant, that there is no law of the United States, prohibiting the taking of this pledge, and that our statute, as to securi- ties taken colore officii, is not applicable to officers of the United States. This is undoubtedly true; but the statute of our state mostly, if not to its full extent, embodies principles of the common law, and it is important in this case, only as indicating what the public policy is. My conclusion, upon this branch of the case, is based upon principles of public policy, as sanctioned by the common law, and expounded by the ablest jurists.'" § 671. Extent of exception of secureties allowed by law. — The statute, as we have shown, excepts from its prohibition only securities taken "in any other case or manner, than such as provided by law." This does not mean, that in order to be valid, a secu'rity must be expressly allowed by a statute. It was said, in a decision of the court of errors of the state of New York: "The counsel for the plaintiff in error is clearly wrong, in sup- posing that no public officer can take a- security, unless it is a security authorized by statute law. A vast num- ber of securities are taken, by the various public officers referred to in this article of the revised statutes, which the common law considers as valid, but which are not sanctioned by any statutory enactment. The words ' color of office ' .necessarily imply an illegal claim of right or authority to take the security, or to do the act in question, by virtue of his office, which claim is a mere color or pretence on the part of the officer. Or, as Tomlyn expresses it, ' color of office is when an act is evilly done, ' Richardson v Crandall, 48 N. Y. 348, cited at length, post, § 673. per Earl, Com'r., p. 362. The case is 634 Chap. XXVIII. j SECURITIES COLORE OFFICII §672. by the countenance of an oflBcer, and is always taken in the worst sense, being grounded upon corruption, to which the office is as a mere shadow or color.' Taking a security by a public officer, virtute officii, implies that the act is lawful, either by the common law, or by the authority of some statute. But taking it, by color of his office, necessarily implies that the act is unlawful and unauthorized, and that the legal right to take it is a mere color or pretence." ' Or, as was said in a later case, in the court of appeals in the same state, " where the agree- ment does not provide for an indemnity to the officer for a breach of duty, and does not necessarily produce an injury to the plaintiff or the defendant, and is not con- denmed by either the common or statute law, it cannot be held void, as taken colore officii.^ These definitions and conclusions have been reaffirmed and applied, under the same statute, and in the same state^ in several other adjudications;" ani the same result follows from the numerous adjudications, sustaining the validity of securi- ties, taken by sheriffs and other officers exercising similar functions, in cases where no provision therefor is made by statute, cited in the subsequent portions of this chapter § 672. Whether corrupt intent is necessary.— In some of the cases, are to be found expressions, indicating that an actual corrupt intent must exist, on the part of the officer, in order to bring a security taken by him, within the statutory prohibition. Thus it was said, in an early English case, that colore officii "is always taken in mcdam partem, and signifies an act badly done, under the countenance of an office, and it bears a dissembling > Burrallu Acker, 23 Wend. (N. Y.) 606, = Chamberlain v BeUer, 18 N. Y. US ; per Walworth, Ch'r.; aff'g 21 Wend. Griffiths v Hardenbergh, 41 N. Y. 464 : (N. Y.) 605. People v Lyons, 7 Daly (N. Y.) 182 ; „ ^ ' ' ' „ „ 1^ woo Turner v Hadden, 62 Barb. (N. Y.) 480. » Decker v Judson, 16 N. Y. 4i}9. 635 § 673. PUBLIC OFFICERS [Book V, visage of duty, and is properly called extortion." So, in an opinion delivered in the court of appeals of New York, it was said: "Color of office is a technical expression. It implies bad faith, corruption, breach of duty." " § 673. Corrupt intent ; ruling in New York. — This question was considered and passed upon, in a case in the commission of appeals of the state of New York, already cited, wherein other rulings were made upon the subject of securities taken colore officii; so that we will here cite the case somewhat in extenso. The action was brought to recover certain county bonds, and damages for the detention thereof. The defendant was a provost marshal of the United States, during the civil war, engaged in enlisting and mustering men into the service of the United States. The plaintiflE's assignor was engaged in furnishing men to fill the quotas of certain towns within the defendant's district; and the defendant, before enlisting and mustering in the men so furnished, required of the plaintiff's assignor the deposit of the bonds, as security that the men would not desert, before reaching the rendezvous; and it was orally agreed, that bonds to a fixed amount, for each man so deserting, should be for- feited. In fact, several of the men deserted. The court held, that the action was maintainable. Lott, Ch. Com'r, put his opinion upon the ground, that the agreement was void under the statute of frauds, and that it was not an exe- cuted agreement. Earl, Com'r, with whom the remainder of the court agreed, said, that under the act of congress, the defendant had no duty to perform, except to deter- mine whether the men presented were " physically or mentally unfit for service;" and that he was bound to receive all who were not so unfit; but even if he had a > Dive V Manlngham, Plowd. 60, per quoted In g 671, ante. Montague, Ch. J. a Chamberlain u BeUer, 18 N. Y. 115, per See also, the extract from Tomlyn, Roosevelt J. 636 Chap. XXVIII. ] SECURITIES COLORE OFFICII §674. discretion, and could reject men because he believed that they would desert, his duty was to exercise his discretion uninfluenced by any pledge; that if the pledge had any effect, it would merely make the defendant less vigilant to prevent desertion; so that, in either aspect, the pledge was taken colore officii. He then proceeded to consider the question, whether a security thus taken can be condemned, unless it was corruptly taken, that is, with a corrupt and illegal intent; and, after citing and commenting upon several cases, he concluded : "I think I may safely say, that no case, entitled to weight as authority, can be found, which decides that a security taken colore officii cannot be con- demned, unless it was taken with an evil or corrupt intent. The acts of public officers, in taking such securi- ties, are condemned, because they are against the general policy of the law. It matters not that the motives of the officer were good and humane, if the acts are of such a character, as tend, if countenanced, to oppression or a lax performance of duty." The question was next considered, whether, as the appellant insisted, the parties were in pari delicto, and the contract was executed. With respect to the former proposition, he said, that the law points out the offender, and in such a case the parties are not in pari delicto, " The oppressor and oppressed are never upon a footing of equality." Nor was it an executed contract; as the law implies, that before a pledge can divest the pledger of the legal title, the pledge must be foreclosed. The transaction was therefore yet in fieri. ' § 674. Application of the rule, where i>arty under con- straint. — The primary object of the prohibition of securi- ties, taken colore officii, as shown by the context of the statute in which it is found, was to prevent oppression > Richarclsoii v Crandall, 48 N. Y. 348. States, are quoted ante, 8 670. Judge Earl's remarks, in answer to See also. Cook v Freudenthal, 80 N. Y. the suggestion that the statute does SOS, cited post, § 675, not apply to an officer of the United 637 § 675. PtfBLIC OFFICERS [Book V. by an officer of a person in his custody as a prisoner; and the courts are more strict in applying the prohibition to such cases, than to others where the party was more nearly a free agent. Thus in a case, holding that a replevin bond taken by a sheriff, with only one surety, instead of two sureties, as the statute required, was valid at the election of the other party, it was said: " Sheriffs and other officers, who take bail bonds and jail liberty bonds, are held to a strict compliance with the statutes under which those securities are taken; but for a reason which does not apply to the present case. Those bonds are executed by persons who are under legal restraint, and for the purpose of avoiding confinement within prison walls. * The parties to those contracts do not stand upon equal grounds in making them. The party executing the bond is in the power of the officer; and a strict compliance with the statute is necessary, to prevent oppression and abuse of that power." ' But this rule will not save a security, which is not in accordance with the directions of the statute, and is therefore obnoxious to the statutory prohibition, although it was not executed under any moral compulsion. In the case of such a security, semble, that the question is immaterial, whether it was extorted or voluntarily given, or even tendered by the party." § 675. Rule does not apply, \vhere security given to adverse party. — But the voluntary character of the trans- action, and the fact that the party was not under moral compulsion, may have a tendency to validate a security, which is not given directly to the officer or for his bene- > Shaw D Tobias, 3 N.Y. 188, per Ruggles, ' Toles i) Adee, 84 N. Y. 223. rev'g 16 J., p. 192, following winter v Kinney, Hun (N. Y.) 46 ; 9 Week. Dig. (N. Y.) 1 N. Y. 385. 211 ; See also, Kesler v Haynes, 6 Wend. Haberatro u Bedford, 118 N. Y. 187, (N.Y.)647; afe'g43Huii(N.Y.)201. Morton u Campbell, 37 Barb. (N. Y.) 179. 638 Ghap. XXVIII.] SECUKITIES COLOilB OFFICII §675. fit; but to the party in whose favor the process was issued. Thus, in an action upon a bond, given to release from arrest a ship, which had been seized by summary proceedings under the New York statute, where the objection was, that the bond was broader than the statute prescribed, it was held that the plaintiffs were entitled to recover. Walworth, Chancellor, said: "It was not a bond taken colore officii, for, though taken by the oflBcer who issued the warrant, it was not a bond to himself; but was executed to and for the benefit of the parties suing out the warrant. Nor did the variance of the condition from the terms of the statute, render the bond void. It was voluntarily executed by the obligors, and, though broader in terms, than could have been required by the obligors, the latter had no right, on that account, to object to it; nor can the former, having had the full benefit of the proceeding, complain that they had bound themselves to do what could not have been required of them." ' So, it has been held, that although a. bond to an oflBcer for ease and favor is void, yet to render an instrument such a bond, it must be given to the arresting oflScer as obligee. ° But an undertaking in replevin,' containing a provision which the statute does not require, is void, although the officer did not intend to violate the law, since the undertaking enures to his bene- fit in the first place, although ultimately to the plaintiff's.' Where a defendant, who had been arrested, was permitted to go at large, on his depositing with a stranger to the suit a sum of money, under an agreement, that if he did not surrender himself within a specified time, the money > Ring V Gibbs, 26 Wend. (N. Y.) 502. Sandf. (N. Y.) 572. Accord, on the doctrine that the bond , winthrop v Doekendorfl, 3 Me. 156 ; wae saved, by not being for the bene- Kavanagh v Saunders, 8 Me. 422 ; fit of the officer, McGowen d Deyo, 8 gj^p ^ cofran, 7 Mass. 98. Barb. (N. Y.) 340. See also, Franklin v Pendleton, 3 ' ^°°^ " Freudenthal, 80 N. Y. 202, afl'g Cook V Horwitz, U Hun (N. Y.) 642. 639 § 676. PUBLIC OFFICERS [Book V. should be paid to the plaintiff; in an action by him against the depositary to recover back the money, it was held, that the question for the jury was, whether the agreement was made with the oflficer, or with the plaint- iff; if with the former, it was void, as having been taken colore officii; if with the latter, it was valid.' § 676. Effect of superadding provisions not required by the statute. — Where the statute prescribes the terms of a bond, to be taken by an officer in a particular case, if he takes a bond containing all that the statute requires, and also an additional provision, the bond is void in toto, and the additional provision cannot be rejected, so as to allow the remainder to stand.' But where a person gives to the sheriff the statutory bond for the liberties of the jail, and, as additional security, a warrant of attorney to confess judgment, although the latter is void, semble, that the bond is not affected thereby." A bail bond in a larger sum than the order directs, is a nullity.'' And the transfer of a note, taken instead of a ba,il bond, is unlaw- ful. " In proceedings under the statute, to compel a person to support his wife and children, whom he has aban- doned, if the magistrate's order requires the defendant to give §• bond for their support, in the penalty of |350, and the bond is taken by the officer in the penalty of $500, it is void." Winter v Kinney, 1 N. Y. 365. People v Mitchell, 4 Sandf . (N. Y.) 466; S. P., Toles V Adee, 84 N. Y. 222 ; Turner v State, 14 Tex. App. 168. Goodwin V Bunzl, 102 N. Y. 224 ; jj^jg „ Moulton, 1 Jolins. Cas. (N. Y.) Carr v Sterling, 114 N. Y. 558. 129: '^ Shuttleworth u Levi, 13 Bush (Ky.) S. P., Richmond v Roberts, 7 Johns. 195; (N. Y.)319. People V Meighan, 1 Hill (N. Y.) 298. , Roherts V State, 34 Kan. 151. See also, Barnard V Viele, 21 Wend. (N Y ) 88 • ° Strong D Tompkins, 8 Johns. (N. Y.) Sullivan v Alexander, 19 Johns. (N. Y.) ^^• 233 ; " Com'rs of Charities V Hammill, 33 People V Locke, 3 Sandf. (N. Y.) 443 ; Hun (N. Y.) 348. 640 Chap. XXVIII. ] SECURITIES COLORE OFFICII §678. § 677. Security to induce officer to violate his duty is void. — A security, given to induce an officer to violate his duty, is void; and if it is in the form of a negotiable note, it is void in the hands of a subsequent holder, unless he is a holder bona fide, and before maturity. ' So, a security given to an officer, to induce action by him, contrary to the statute, is void, irrespectively of his good faith or want of an intent to violate the law; as, for instance, where a magistrate takes a note for the fine and costs, imposed upon a person in a criminal cause, and thereupon suffers him to go at liberty." So, a security given to the arrest- ing officer, to deliver up a person arrested on a criminal charge, is void;" so, if such a promise is made, upon the officer's forbearance to arrest.* § 678. Effect of security, where officer had no power or jurisdiction ; when good at common law. — A security given to an officer, in a case where he had no power or jurisdiction, is void. ' But it has been held, that although an obligation, for the appearance of a person charged with a crime, taken by a magistrate who was not authorized to admit to bail, is invalid as a statutory recognizance, and cannot be enforced by statutory proceedings; yet it may be enforced by action, as a common law bond, volun- tarily given, where the accused has been set at liberty upon the faith of it. ° And where the keeper of an arsenal, appointed by, and responsible to the commissary -general of the state, loaned, without any authority of law, and consequently in violation of his duty, certain arms and military equipments of the state to a city, taking the city's ' Devlin v Brady, 36 N. Y. 531, afl'g 32 * Denny v Lincoln, 5 Mass. 385. Barb. (N. Y.) 518. b Benedict V Bray, 2 Gala. 251 ; See also, cases under the next succeed- CafCrey v Dudgeon, 38 Ind. 512. ing division of this chapter. « State V Cannon, 84 Iowa 322. » Bills u Comstock, 12 Met. (Mass.) 468 ; ggg ^^^^ Holbrook V Klenert, 113 Mass. Kingsbury v Ellis, 4 Gush. (Mass.) 578. 268. s Churchill v Perkins, 5 Mass. 541. 641 § 680. PUBLIC OFFICERS [Book V. bond to the state for the return thereof; it was held, that the state might waive the unlawfulness of the act, and recover upon the bond.' § 679. Bond to pay assessments, given by persons interested in opening highway, is void. — A bond, taken by highway commissioners, given to them by persons interested in an application for a new highway, and intended to relieve the inhabitants of the town, from the assessment for opening the highway, is void; because the commissioners have no authority thus to bargain, and are bound to decide the application, according to their opinion as to what the public interests require." § 680. Doctrine as to securities, given to arresting officer or jailor, by prisoner. — Although, as we have already shown, the courts apply the statute against secur- ities taken colore officii with special strictness, where the security is given by a person under the restraint of the officer taking the security; yet in some cases, they have allowed such securities to stand, although they were not of the character provided for by the statute, relating to taking bail. Thus, it has been held, that a bond to the sheriff, that one arrested will remain a true and faithful prisoner, given to induce a less rigorous confinement, the indulgence being such as the sheriff ntiight grant, con- sistently with his duty (allowing him to go at large within the walls of the prison), was not a bond for ease and favor, under 23 Hen. YI, ch. 9, as reenacted in New York." So, also, it has been held that a promise to a jailor to pay him for extraordinary services, during a prisoner's sickness, which it was not the jailor's duty to render, was valid. ' > state V Buffalo,- 2 Hill (N. Y.) 434. " Dole v Bull, 2 Johns. Gas. (N. Y.) 239. s T^r«llb V All)ertBon,;4 Barlp. (N. Y.) 51. * Trundle v Riley, 17 B. Mon. (Ky.) 396. C42 Chap. XXVIII.] INDEMNITY § 681. //. Contracts to indemnify officers. § 681. Such contracts not within the statute against securities colore officii. — There is no principle better settled, than that a contract to indemnify an officer, against liability to be incurred by him, in the execution of process in his hands, is not within the prohibition against taking securities colore officii, provided it is taken under the circumstances and within the limits, which have been established for that purpose, by the adjudications upon the subject. The case, in which such an indemnity is most frequently given, is that where a sheriff or other similar officer, holding process against A, takes, by virtue thereof, property which really belongs to B. Such an act is a trespass, for which the officer is liable. And it would seem, upon principle, that an indemnity against the consequences of committing it would be invalid, within the rule that all contracts, hav- ing for their object the commission of an unlawful act, are void. But the doctrine, sustaining indemnities of that character, rests upon the assumption, that the officer acts in good faith, and that the question, whether his act is lawful or unlawful, depends upon facts, which he has no means of ascertaining. As was remarked by a learned judge: "The action of trespass against sheriffs, for the seizure of property in the execution of legal process, is sui generis. It is regarded by the law, in many instances, as a means of determining the title to property, rather than in the light of an ordinary trespass. Good faith on the part of the officer is presumed, and he may conse- quently require and receive indemnity, before proceeding to the final execution of the writ." ' And, subject to the limitations and qualifications to which we have referred, such a contract of indemnity may be taken by the officer, as he shall deem to be best adapted for his protection." > People t) Schuyler, i N. Y. 1T3, per ' O'Donohue « Simmons, 31 Hun (N. Y.) Gardiner, J., p. 183. % 267. 643 § 682. PUBLIC OFFICERS [Book V. § 683. Validity of such contracts ; extent of officer's right to indemnity. — The rule, which extends to all cases within the general principle, as well as to those where a stranger's property is taken under process, is, that if the officer acts in good faith, and there is a room for an honest doubt, whether the facts exist, which will render unlawful the act which he is required to do, he may refuse to act, without an indemnity; and an indemnity, taken by him, against the consequences of such act, is lawful, and may be enforced by him; but if he know- ingly commits a trespass, an indemnity against the same is void.' So, the sheriff may require an indemnity, where he is directed to serve the process in a particular man- ner.' But an officer cannot demand a bond, in a penalty ' Arundel v Gardiner, Cro. Jac. 652 ; Blackett v Crissop, 1 Ld. Ray. 278 ; Merry weather v Nixan, 8 T. R. (D. & E.) 186; Pre Witt V Garrett, 6 Ala. 128 ; Collier v Windham, 27 Ala. 291 ; Starli V Raney, 18 Gala. 622; Long V Neville, 36 Gala. 455 ; Hardesty v Price, 3 Golo. 556 ; Porter v Stapp, 6 Golo. 32; Stanton v McMuUen, 7 111. App. 326 ; Nelson v Gook, 17 HI. 443 ; Anderson v Farns, 7 Blackf . (Ind.) 343 ;. AUwein v Sprinkle, 87 Ind. 240; Latnpton v Taylor, 6 Lltt. (Ky.) 273 ; Davis V Tibhats, 7 J. J. Marsh, (Ky.) 264; Board v Helm, 2 Met. (Ky.) 500; White V Waggaman, 36 La. Ann. 984 ; Gower v Emery, 18 Me: 79 ; JesBop V Brown, 2 Gill & J. (Md.) 404; Bond V Ward, 7 Mass. 123: Marsh v Gold, 2 Pick. (Mass.) 285 ;, Train v Gold, 5 Pick. (Mass.) 380 ; Avery t; Halsey, 14 Pick. (Mass.) 174 ; Foster v Clark, 19 Pick. (Mass.) 329 ; Jacobs V Pollard, 10 Cush. (Mass.) 287 ; Smith V Cieotte, 11 Mich. 383; Shotwell V Hamblin, 23 Miss. 156 ; Forniquet v Tegarden, 24 Miss. 96 ; Moore v Allen, 25 Miss. 363'; McCartney v Shepard, 21 Mo. 573 ; Smith V Osgood, 46 N. H. 178 ; Coventry v Barton, 17 Johns. (N. Y.) 142; Stone V Hooker, 9 Cow. (N. Y.) 154 ; Ball « Pratt, 36 Barb. (N. Y.) 402; People V Schuyler, 4 N. Y. 173, at p. 183 ; Chamberlain v Seller, 18 N. Y. 115; Griffiths i; Hardenbergh, 41 N. Y. 464 ; Ives V Jones, 3 Ired. L. (N. C.) 538 ; Cumpston v Lambert, 18 Ohio 81 ;, Acheson v Miller, 2 Ohio St. 203; Miller v Rhoades, 20 Ohio St. 494 ; Spangler v Comm., 16 Serg. & R. (Pa.) 68]; Shriver v Harbaugh, 37 Pa. St. 399 ; Patterson v Anderson, 40 Pa. St. 359 ; Jamieson v Calhoun, 2 Speers (S. C.) 19 ; Davis V Arledge, 3 Hill (S. C.) 170; Adair v McDaniel, 1 Bailey (S. C.) 158 ; Emory v Davis, 4 S. C. 23 ; Hunter v Agee, 5 Humph. (Tenn.) 57 ; Morgan v Hale, 12 W. Va. 713. In several of the states, the sheriff's right to Indemnity, where an ad- verse claim is made, is regulated by statute. » Ranlett v Blodgett, 17 N. H. 298. 644 Chap. XXVIII.] INDEMNITY 684. greater than the sum necessary to secure him; and an agreement to give such a bond cannot be enforced.' Nor can he lawfully take an indemnity, which will give him a remedy extending beyond his own liability.'- The bond of indemnity, given by a deputy sheriff to a sheriff upon the former's appointment, is not within the statutory prohibition against securities taken colore officii." § 683. Indemnity against future unlawful act void. — An indemnity against the consequences of a future unlawful act by an officer is void, whether it be an act of misfeas- ance, as a neglect of duty;* or an act of malfeasance, or violation of duty, such as making a false return;' permit- ting a prisoner to escape;" knowingly seizing exempt property;' levying under an execution after the death of the judgment debtor,* or selling property in violation of an order restraining him from so doing." And a promise to indemnify a sheriff, for discharging from custody, one whom he has arrested under an attachment against the person, is void, although it was induced by the promisor's representation, that the debt, to enforce the payment of which the process had been issued, was satisfied." § 684. Indemnity void, where officier no lawful power to act ; or where he is protected. — An indemnity is not valid, where the officer, to whom it was given, had no law- 1 Wadsworth v Walliker, 51 Iowa 605. Browning v Hanford, 5 Hill (N. Y 588, per Bronson, J., p. 498. = Ball V Pratt, 36 Barb. (N. Y.) «2 ' Mott V Robbins, 1 Hill (N. Y.) 21 ; Willett V Kipp, 12 Hun (N. Y.) 474. See also, ante, 8 596. < Hodsdon v Wilkina, 7 Me. US; Ayer i) Hutchins, i Mass. 370 ; Churchill v Perkins, 5 Mass. 541 ; Shotwell V Hamblin, 23 Miss. 156. " Knlpe V Hobart, 1 Lutw. 593. » Ligeart v Wlseham, 3 Dyer, 323 (b) ; Mosedel v Middleton, T. Raym. 222 ; 1 Vent. 237 ; Martyn v Blithman, yelv. 197 ; Love V Palmer, 7 Johns. (N. Y.) 159 ; Richmond v Roberts, 7 Johns. (N. Y.) 319. ' Prewitt V Garrett, 6 Ala. 128. 8 Comer V Windham, 37 Ala. 291. 8 Buifendeau v Brooks, 28 Cala. 641. i» Webbers v Blunt, 19 Wend. (N. Y.) 188. 645 § 685. PUBLIC OFFICERS [Book V. f ul authority to do the act, for which he was indemnified, as where an attachment, directed " to any constable," was received by the sheriff, who took an indemnity there- upon.' So, where it was given to induce the officer to for- bear to levy upon exempt property." And where, in a proceeding by attachment, an order of sale is regularly made, the sheriff cannot require an indemnity, before pro- ceeding to execute it, although the title to the property is disputed; for he is protected by the order, and his official bond would be holden for his failure to execute it.° § 685. Indemnity not construed to cover unlawful act. — However broad and general the terms of a contract of indemnity may be, the court will not construe it, so as to include an unlawful act, if any other construction can be placed upon it. This rule was well applied, in a case in the court of appeals of the state of New York, in an action brought by a marshal of the city of New York, upon a bond of indemnity, reciting the issuing of an execution to the marshal. The bond was a printed form, filled up in writ- ing, and the written part recited, that certain personal property, appearing to belong to the judgment debtor, was claimed by one D, and also by one H; the condition, which was printed, was to the effect, that the obligors would indemnify the marshal and his assistants, for levy- ing and selling, under the execution, "all or any per- sonal property, which he or they shall or may judge to belong to the said judgment debtor." It appeared that the obligors in the bond, who were also the judgment creditors, caused the execution to be delivered to the marshal, and indorsed thereupon, for his information, three addresses of the debtor, one on Sixth avenue, one on Broadway, and one on Third avenue; and that the marshal levied upon goods in the Sixth avenue store, and 1 Porter v Stapp, 6 Colo. 33. ' State v Manly, U Lea (Tenn.) 636. ^ Hennessey v Hill, 52 111. 281. . 646 Chap. XXVIII.] INDEMNITY § 685. also in the Broadway store, estimated to be worth twice the amount of the judgment; that the goods in the Sixth avenue store were claimed by D,and those in the Broadway store byH; whereupon the marshal notified the obligors of these claims, and required indemnity, and the bond in suit was given; that afterwards the property in the Sixth avenue store was eloigned, but that in fact it was not the property of the judgment debtor; that the judgment creditors thereupon notified the marshal, that they should hold him responsible for his levy; whereupon, without their knowledge, he levied upon the goods at the Third avenue store, and afterwards sold them, and paid over the proceeds to the obligors. The marshal.having been sued, and judgment recovered against him, for the last levy and sale, by the real owner of the goods, who was not named in the recital of the bond; he brought this action. A question arose, as to whether the attorney for the judg- ment creditors knew of the last levy and sale; but the court deemed that question immaterial, on the ground that the attorney's authority did not extend to authoriz- ing a trespass. On looking at the terms of the bond, regarding the written part as entitled to greater weight than the printed part, and considering the surrounding circumstances, the court held, that the evident intention of the parties was to indemnify the marshal for the levies which he had made, at the time when the bond was given; that where a bond of indemnity to an officer can be con- strued otherwise, it will not be construed so as " to make the obligors responsible for trespasses which they do not direct or authorize;" that in the levy upon the goods in the Third avenue §tore, the marshal " was acting at his own risk, for his sole benefit, and assuming a responsi- bility, which he well knew was beyond the purpose and intent, for which the bond was asked or given;" that he did not act on the faith of the bond, " as it is," but as he 647 § 686. PUBLIC OFFICERS [Book V. hoped it would prove to be; and that he was therefore not entitled to recover. ' § 686. Construction of indemnity upon attachment. — In another case, in the same court, a sheriff, having levied upon goods under an attachment, received a bond of indemnity in the ordinary form, executed by persons who were not the plaintiffs in the attachment suit. Sub- sequently, the attachment was set aside; whereupon, under the statute, it became the duty of the sheriff to redeliver the attached property. This he refused to do, upon the demand of the general assignee of the defendant in the attachment suit, for the benefit of the latter's creditors; but he retained possession of the goods, and subsequently sold them, under an execution in the attach- ment suit, and paid the proceeds to the plaintiffs in that suit. It appeared, that the obligors in the bond had no knowledge of the setting aside of the attachment, or the sheriff's refusal to deliver the goods, until after the commencement of an action by the assignee against the sheriff, based upon such refusal. But, upon being noti- fied by the sheriff, they defended that suit, the plaintiff in which recovered, on the ground that the sheriff's act was unlawful. The sheriff then commenced this action on the bond of indemnity. It was held, that he could not recover; that the bond of indemnity purported only to protect the sheriff upon the due execution of the attach- ment; that his refusal to surrender the property, after the attachment had been vacated, was an unlawful act, not covered by the bond, and which could not lawfully have been covered by it; that the obligors did not ratify such unlawful act, by undertaking the defence of the action against the sheriff; and that the payment to and receipt } Clark V Woodruff, 83 N. Y. 518, afTg 18 hue v Simmons, 31 Hun (N. Y.) 2W, Hun (N. Y.) 419. The bond in this where its validity was recognized, case was identical, as respects the the question in 83 N. Y., not having condition, with the bond in O'Dono- arisen in the latter case. 648 Chap. XXVIII.] INDEMNITY § 688. by the plaintiffs in the attachment suit, of the proceeds of the sale, having been made with the knowledge of their attorney whence the money proceeded, but not with their own knowledge, was not a ratification of the sheriff's unlawful act, and still less was it a ratification on the part of the indemnitors. § 687. Effect of indemnity against past unlawful act. — An indemnity to an ofiicer against his past unlawful act, if founded upon sufficient consideration, is lawful and valid;' as, for instance, against an escape, although it was voluntary;' or against the seizure under an execu- tion of exempt property.* And where a sheriff had sold, under an execution, goods, to which a third person laid claim, and, on being informed of the claim, refused to pay over the proceeds, unless indemnified; it was held that the indemnity was valid.' And although the statute does not authorize the sheriff to take a bond of indemnity from the plaintiff, before executing a writ of replevin, such a bond is good at conunon law, if voluntarily given; as it does not contravene the policy of the law, and is not repugnant to any statutory provision." § 688. Indemnity ; when the law implies a promise of.— If an officer, under an execution, or a general attachment, seizes particular property by direction of the plaintiff, the law implies a promise of indemnity; and the officer may recover thereupon, if he acted in good faith, and the property belonged to a third person, who recovers against him therefor.' But an implied indemnity to the officer • Bowe V Wllkins, 105 N. Y. 332. Doty v Wilson, li Johns. (N. Y.) 378. 2 Griffiths V Hardenbergh, 41 N. Y. 464 ; ' Hunter v Agee, 5 Humph. (Tenn.) 57. Hall V Huntoon, 17 Vt. 244 ; » Westervelt v Frost, 1 Abb. Pr. (N.Y.) 74. Hunter v Agee, 5 Humph. (Tenn.) 57 ; ^„ _ Atkins . Johnson, 43 Vt. 78 ; ' W°"« " ^"^^l^-' '' "'• "^ Kemper v Kemper, 3 Rand. (Va.) 8. ' Mullings v Bothwell, 29 Ga. 706 ; See also, ShaokeU v Rosier, 2 Bing. Levy v Shockley, 29 Ga. 710 ; N. C. 634. Gower v Emery, 18 Me. 79 ; " Given v Driggs, 1 Cal. (N. Y.) 450 ; 649 Ranlett v Blodgett, 17 N. H. 298. §689. PUBLIC OFFICERS [Book V. does not arise from merely delivering the writ, without special directions as to the levy,' nor from the fact that the judgment creditor bid in property seized by the officer unlawfully, and without his request." Where an officer, acting under a writ of replevin in favor of a mortgagee of chattels, suffers the agent of tht mortgagee to remove articles, not included in the writ, upon the agent's repre- sentation that they were included in the mortgage, this does not raise an implied promise on the part of the mortgagee, to indemnify him.' § 689. Liability of indemnitors for officer's trespasses. — Those who indemnify an officer, for seizing a stranger's property, become trespassers, and are liable accordingly to the owner of the property.* But where a sheriff, hav- ing been indemnified, levied under an execution upon a safe, which in fact did not belong to the judgment debtor, and which contained merchandise belonging to a stranger; and the sheriff removed the safe, opened it, took out the merchandise, deposited the same with an auctioneer, marked with his (the sheriff's) name, and sold the safe under the execution; it was held, that as the seizure of the safe was wrongful, the seizure of its con- tents was also wrongful; but that the indemnitors were not liable to the owner of the merchandise, in the absence of proof that they knew that it was in the safe. ' ' Farebrother v Ansley, 1 Campb. 343 ; Wilson V Milner, 2 Campb. 452; England v Clark, i Scam. (111.) 486 Nelson v Cook, 17 lU. 443 ; Weld V Chadbourne, 37 Me. 221 ; Marshall v Hoamer, 4 Mass. 60 ; Bond V Ward, 7 Mass. 123 ; Averill V Williams, 1 Denio (N. Y.) 501; Fitter v Fossard, 7 Pa. St. 540. » Russell V Walker, 150 Mass. 531. " Williams v Mercer, 139 Mass. 141. * Luebbering v Oberkoetter, 1 Mo. App. 393; Davis V Newkirk, 5 Denio (N. Y.) 92. See also, Chapman v O'Brien, 39 N. Y. Super. Ct. 244; MoKinley V Bowe, 97 N. Y. 93. In several of the states, provision is made by statute for substituting the indemnitors in place of the sheriff, in an action against the latter. Chapman v Douglas, 5 Daly (N. Y.) 244 ; 15 Abb. Pr. N. S. (N. Y.) 421. 650 Chap. XXVIII.] INDEMNITY § 692. § 690. Rulings upon officer's liabilities.— After accept- ing an indemnity, an officer renders himself liable by releasing the property levied upon, if in fact it was sub- ject to the levy.' And where the officer, having been indemnified, has sold the property levied upon, he ib liable for the purchase money to the plaintiff in the pro- cess, although the defendant did not in fact own the property, and the sheriff has not received the money, having given the purchaser credit." § 691. Doctrine that indemnity covers only the due course of proceedings, according to statute. — Where a sheriff is indemnified, upon a levy upon property, against the claim of a stranger, the indemnity covers only liabili- ties incurred by him in the due course of his seizing, disposing of, and applying the property, in accordance with the statute; it does not cover a loss of the property by the default, omission, or misappropriation of the sheriff or his deputy." But a sheriff, who has sold goods attached, and has been sued and compelled to pay a stranger having title to the goods, may recover upon his bond of indemnity, although in making the sale he did not strictly conform to the requirements of the statute, unless it is expressly shown that such failure to conform to the statute constituted the ground of the recovery against him." And a sheriff's right of action against his indemnitors on the attachment of property, is not affected by the fact, that he consented to a discontinuance of a former action to recover possession of the same prop- erty." § 693. Officer, to recover on bond, must comply with conditions.— Where a bond of indemnity, given to a Wadswortli v Walliker, 51 Iowa 605. « Grossman v Owen, 62 Me. 528. See also, Stanton v McMuUen, 7 111. App. 326. ' Adams v Dlsston, 44 N. J. L. 662. ' O'Donohue v Simmons, 31 Hun ^N. Y.) £87. ' Bowe V Brown, i N. Y. St. Rep'r. 456. 651 § 694. PUBLIC OFPICBKS [Book V. sheriff upon making a levy, contains a condition that, if the sheriff is sued, the obligors shall be notified and allowed to defend, and the sheriff fails to fulfil "that con- dition, he cannot recover upon the bond; and the express contract prevents him from recovering, upon an implied contract, to repay the money which he has paid over, as having been collected under the execution.' § 693. Officer may take additional security.— Where a sheriff, upon an attachment of gold coin, which was claimed by a stranger, demanded indemnity, and the plaintiff accordingly gave him a bond, and, for addi- tional security, a consent that he might retain in his hands, for a reasonable time, any money coming into his hands by virtue of the attachment, or of an execution to be issued upon any judgment recovered in the action; and the plaintiff recovered judgment in the action, but the claimant's suit against the sheriff was still pending; it was held, that the plaintiff could not have, upon motion, an order that the sheriff pay the money into court, on the receipt of a substituted bond; but that the sheriff, under the agreement, was entitled to retain the money for a reasonable time." § 694. Upon recovery of judgment against officer, the condition of the bond is broken. — Where a bond is given to an officer to indemnify him upon a levy, and the true owner of the goods recovers a judgment against the offi- cer, by reason of the levy, the condition of the bond is broken, and the obligor therein is liable to the officer, although the latter has not paid the judgment.' And in a similar case it was held, that the plaintiff in the judg- ' Preston v Yates, 24 Hun (N. Y.) 534. (Mass.) 339 ; See also, s. c. 17 Hun (N. Y.) 93. Johnson v Gilbert, 9 Hun (N. Y.) 469 ; « Scherr t> Little, 60 Cala. 614. ^°°^^ ".l^":,?.^- "^- ^"^ S'" !^^.i ' Cook V Merrifleld, 139 Mass. 139. See also, White v French, 15 Gray 652 Bancroft v Winspear, 44 Barb. (N. Y.) 309. Chap. XXVIII.] INDEMNITY § 696. ment against the officer, who had discharged the judg- ment, upon receiving an assignment of the bond from the officer, was entitled to recover upon it; and that his release of the officer did not release the obligors in the bond.' § 695. Measure of damages in action on indemnity bond. — In an action upon a bond of indemnity, given to a sheriff upon a levy, he is entitled to recover the amount of the judgment recovered against him by the true owner of the property, and also his reasonable expenses in defending the action in good faith.' Such expenses include reasonable counsel fees paid by him.' And in one case it was held, that in an action upon a bond of indemnity, it was not a good defence, that the sheriff had sold property to an amount exceeding the execution, where his costs and expenses in the action by the true owner, with the damages recovered, amounted to the penalty of the bond.' § 696. The same subject. — In an action upon such a bond, the sheriff is entitled to recover the expenses of his suc- cessful defence in the action against him by the claimant. " And it has been held, that a sheriff may recover the whole amount of the expenses of such a successful defence, not merely a proportional part, although other creditors, who did not indemnify him, received the surplus of the proceeds of the goods, after satisfying the indemnifying creditor. ° But a bond, conditioned to indemnify a sheriff against " costs, charges, and expenses " which he should incur in ■ McBetli I' Mclntyre, 57 Gala. 49. * Reilly v Moffat, 20 Week. Dig. (N. Y.) See also, Howe v rreidheiin, 27 Minn. 390. 29^- « Chamberlain v Seller, 18 N. Y. 115 ; " Graves v Moore, 58 Gala. 435. Home Ins. Gomp'y v Watson, 59 N. Y. ' Llndsey v Parker, 142 Mass. 582. , rev'g 1 Hun (N. Y.) 643 ; 4 T. & C. Contra, Brinker v Lelnkauff, 64 Miss. <^' ^'^ ^^" 236. * Chamberlain v Heller, 18 N. Y. 115. 653 § 698. PUBLIC OFFICERS [Book V. defending a suit, does not cover the ^damages recovered against him. ' III. Contracts of receiptors. § 697. Not within the statute against securities colore officii ; measure of damages. — A contract whereby a per- son, on receiving property levied upon unden an execu- tion or attachment against another, agrees with the oflBcer to deliver the property to the latter upon demand, or in default thereof, to pay the debt, is not within the statutory prohibition against securities taken colore officii, and may be enforced by the officer.'' And where the receiptor is sued by the officer, for failure to fulfil such a contract, he cannot show, in reduction of damages, that the property was worth less than the amount of the debt.' § 698. Nature of contract; extent of liability. — As con- strued by the courts, the contract of a receiptor is a pecu- liar one. He is the officer's bailee,' and is responsible to the officer only, not to the creditor." The officer is entitled to repossess himself of the property at any time, either to sell it, or to redeliver to the judgment debtor, on payment of the execution." The receiptor may defend an action against him- by the officer, upon any ground, showing that the officer is not under liability to the creditor ■ Scott 11 Tyler, 14 Barb. (N. Y.) 203. * Brown V Atwell, 31 Me. 351 ; » Beawf age's Case, 10 Coke 99 6 ,• ^^^^ « Livermore, 4D Me. 266, at p. 269 ; Hoyt V Hudson, 12 Johns. (N. Y.) 207 ; ^angs v Beacham, 68 Me. 425 ; Burrall v Acker, 23 Wend. (N. Y.) 606, "^"^lit v Dawson, 147 Mass. 384. aff 'g s. u., p. 1-.. 21 Wend. (N. Y.) 605 ; » Phillips v Bridge, 11 Mass. 242, at p. 247 ; Cornell v Dakin, 38 N. Y. 2.53. See also, Ladd v North, 2 Mass. 514 ; ' Cornell v Dakln, 38 N. Y. 253. ^lake v Shaw, 7 Mass. 505 ; Wakefield v Stedman, 12 Pick. (Mass.) Badlam v Tucker, 1 Pick. (Mass.) 389 ; Jewett V Torrey, 11 Mass. 219 ; SeTalso, Lymani. Lyman, 11 Mass. 317 ; ^yman t. Lyman, U Mass. 317. Jewett V Torrey, 11 Mass. 219. ' Burrall v Acker, 23 Wend. (N. Y.) 606, aff'g s. 0., p. r., 21 Wend. (N. Y.) 605. 654 Chap. XXVIII. J EECEIPTORS' CONTEACTS § 699, lor the property; and the officer can enforce the contract, only as far as necessary to relieve himself from liability. Thus a receiptor may successfully defend an action by the officer, where the property was taken from him by paramount title;' or where it was seized under an attacn- ment, and the debtor filed his petition in insolvency, within four months after the attachment, which dissolves the attachment by statute, and the property has gone to the assignee in insolvency;'' or where the debtor has been discharged under the insolvency law;' or, in Massachu- setts, if an execution is not taken out, as required by statute, within thirty days after judgment, where he has delivered the property to the debtor, but not otherwise." § 699. Extent of liability of sheriff and receiptor, con- tinued. — A sheriff, who leaves with a receiptor goods levied on by him, is liable for the loss thereof, unless it was caused by the act of God or of the public enemy;' and the liability of the receiptor to the sheriff is the same." Where the receiptor had delivered to the debtor an animal, which had been levied upon, and the animal died, without fault of any one; it was held, that the receiptor was liable to the officer, and that he was not exonerated by procur- ing its equivalent, and offering it to the officer.' A > Learned v Bryant, 13 Mass. 224 ; Lewis v Webber, 116 Mass. 450. Denny ti WlUard, 11 Hek. (Mass.) 519. , ^r^^ ^ Spragne, 9 Mass. 258 ; See also, Fisher v Bartlett, 8 Me. 122. Webster v Coffin, 14 Mass. 196 ; ' Wright V Dawson, 147 Mass. 384. In Cooper v Mowry, 16 Mass. 5 ; this case the receiptor had allowed Baker v Fuller, 21 Pick. (Mass.) 318. the debtor to take the property. For a full discussion as to the rights and obligations of the officer and receiptor respectively, see Story on ' Sprague v Wheatland, 3 Met. (Mass.) 416; Grant v Lyman, 4 Met. (Mass.) 470 ; Andrews V Southwlck, 13 Met. (Mass.) " Browning v Hanford, 5 Denlo (N. Y.) Bailments, 9th ed., §§ 124-136. 535; 586, s. c, below, 5 Hill (N. Y.) 588; 7 Butterfield v Converse, 10 Gush. (Mass.) HUl (N. Y.) 120 ; 317; ComellDDakin, 38N.Y. 253, atp. 259; Shumway v Carpenter, 13 Allen (Mass.) , Cornell v Dakin, 38 N. Y. 253. 68; ' Thayer v Hunt, 2 Allen (Mass.) 449. 655 § 701. PUBLIC OFFICERS [Book V. receiptor is not discharged, by an offer to redeliver the property to the officer, without a demand, unless the receipt so provides. ' § 700. Circumstances which do not discharge receiptor. — A receiptor is not discharged, under the poor debtor's law of Massachusetts, by a commitment of the debtor under an execution;' or by the discharge of the debtor under the United States bankruptcy law, if the lien of the attachment was such that it was not avoided, under the United States statute, by the proceedings in bankruptcy;' or by a discharge under a state insolvent act, if the court, as the statute permits it to do, directed that the attachment should not be dissolved, but that the assignee should prosecute the attachment suit to judg- ment, and he has done so, and issued an execution there- upon;* or by a delay to enforce the receipt for a consider- able time after judgment, pursuant to a stipulation to that effect between the parties;' or by the fact that the sheriff holds an execution against the judgment creditor, in favor of the judgment debtor, and that he has been required to set off one against the other;" or by a judg- ment in favor of the creditor, against the debtor and his surety, upon a bond for the liberties of the jail. ' § 701. Rule Vifhere the property was exempt ; where attachment was against a member of an insolvent firm. — Where the property, for which a receipt was given, had been actually taken by the officer from the debtor's pos- session, the receiptor cannot, in defence of an action by ' Rowland v Cooper, 16 Gray (Mass.) 53 ; Tracy v Preble, 117 Mass. 4. Scott V WMttemore, 29 N. H. 309. 3 i^es v Sturgis, 13 Met. (Mass.) 462. ' Lyman v Lyman, 11 Mass. 317 ; 4 parker v Warren, 2 Allen (Mass.) 187. Bailey v Jewett, 14 Mass. 155 ; Twining V Foot, 5 Cush. (Mass.) 512. ' ^^^s V Hamlin, 5 Cnsh. (Mass.) 534. See also, Murray v Shearer, 7 Gush. » Jenney v Rodman, 16 Mass. 464. (Mass.) 333 ; , Twining V Foot, 6 Cush. (Mass.) 612. Moore v Loring, 106 Mass. 455 ; 656 Chap. XXVIII.] receiptors' contracts § 702. the oflBcer, show that the property was exempt; but that fact is a defence, where the property was receipted for, without having been taken from the possession of the debtor.' Where, in an action against one of the members of a partnership, the goods of the partnership were attached, a receiptor therefor may, in defence of an action by the officer, show that the partnership was insolvent, and that, soon afterwards, the members of it went into bankruptcy, and obtained their discharge." § 703. Doctrine as to receiptor being estopped to claim property in the goods. — It has been held, in New York, that a receiptor to an officer for property seized by the latter, under an execution or an attachment, is estopped from setting up, in an action by the officer for failure to deliver the property, that the property was in fact his own, or that of any other person than the debtor; and this rule has been established, without reference to the presence or absence,x in the receiptor's contract, of an agreement to pay the debt, in case of failure to deliver the property.' In Massachusetts, the courts have held, that 'Where there is an express agreement to pay the debt, in case of failure to deliver the property, such an agreement may be enforced, although the attached property did not belong to the debtor, and perished before judgment was recovered;* and that the rule is the same, where either the form of the receipt, or the circum- stances under which it was given, import that it was an absolute assurance for a certain amount or value of attachable property; ' but that the receipt itself does not ' Smith V Cudworth, 24 Pick. (Mass.) ' Dewey v Field, i Met. (Mass.) 381 ; 196 ; Bacon D Daniels, 116 Mass. 474. Thayer v Hunt, 2 Allen (Mass.) 449. See, however, Wentworth v Leonard, ' Lewis V Webber, 116 Mass. 460. * ^Jush. (Mass.) 414 ; Thayer v Hunt, 2 Allen (Mass.) 449 ; ' Dezell V Odell, 3 Hill (N. Y.) 215 ; Robinson v Mansfield, 13 Pick. (Mass.) Cornell b Dakin , 38 N. Y. 253. 139 . ■* Hayes u Kyle, 8 Allen (Mass.) 300. Bursley v Hamilton, 15 Pick. (Mass.) 40. 657 § 704. PUBLIC OFFICERS [Book V, estop the receiptor from showing, in defence of an action by the officer, that the goods were his own property, or that of a third person who had reclaimed them. ' And where the receiptor has delivered the goods to the ofl&cer, according to his contract, he is not estopped by his receipt from maintaining an action against the officer, in replevin, trespass, or otherwise, claiming title in him- self.' § 703. Officer estopped to show goods were not the debtor's. — It has also been ruled, in New York, that the estoppel, in favor of the officer against the receiptor, enures to the benefit of the plaintiff in the action, wherein the atta,chment or execution was issued. So that, where a sheriff, who had levied under an execution upon goods, left them with a person other than the judgment debtor, who gave him a receipt therefor, with a promise to deliver them, or in default thereof to pay the judgment, with interest and the sheriff's fees; and, on his failure to deliver them, the sheriff sued him, and recovered a judg- ment against him, but was -unable to collect the same; it was held, in an action upon the sheriff's official bond, brought for the benefit of the judgment creditor, that the sheriff was estopped from showing that the goods were not in fact the judgment debtor's property.' § 704. Doctrine as to receiptor's lien. — It has been held, that a receiptor has a lien upon the property held by him, for his just and lawful charges as such receiptor. And where a constable, under an execution issued by a justice of the peace, levied upon property, and delivered the same to a receiptor, but the sale thereof was stayed upon ' Learned v Bryant, 13 Mass. 324 ; Robinson V Mansfield, 13 Pick. (Mass.) Burt V Perkins, 9 Gray (Mass.) 317. 139. Edmunds V Hill, 133 Mass. 445. , people „ Reeder, 25 N. Y. 302. ' Johns V Church, 13 Pick. (Mass.) 557 ; See also, Penobscot Boom Corp'n v WUkins, 27 Me. 345. 658 Chap. XXVIII.] receiptors' contracts § 705. an appeal from the judgment to the county court; and upon the appeal, the judgment was affirmed; and an exe- cution was issued upon the judgment of the county court, to the sheriff, which execution was satisfied by payment of the amount thereof to the sheriff; it was held, that the receiptor was not liable to the judgment debtors, in an act- ion for conversion, based upon a demand of the property, and the receiptor's refusal to surrender the same, until payment of the constable's fees, and his own charges for keeping the property.' Where property is attached in the hands of a third person, who has a lien upon it, and he receipts for it, upon an agreement that he shall con- tinue to retain it for his own lien; and afterwards he causes the same property to be attached, in a suit com- menced by himself, and again receipts for it, still assert- ing his lien; the lien is not discharged." § 705. Irregularities, which do not discharge the re- ceiptor.— A receiptor is liable, although the officer did not re- turn the precept into the court, until after th e first day of the term, and after the cause had been removed to the United States circuit court." He is liable, although the action in which the property was attached was abandoned, and the goods were afterwards taken from him, upon another attachment against the owner.' Where the receiptor takes the property into another state, and procures it to be attached there, in a suit brought there for the same debt, and between the same parties, in which judgment is recovered, and an execution thereupon is issued and the property sold under the execution, whereupon the action in which the receipt was given, is abandoned; he is not liable in trover, to the owner of the property,' 1 AUger V Keeler, 8 Hun (N. Y.) 125. » Nims v Spurr, 138 Mass. 209. 1 Townsend v Newell, 14 Pick. (Mass.) ■* Whittier v Smith, 11 Mass. 211. 332' ' Chase v Andrews, 6 Gush. (Mass.) Hi. 659 § 706. PUBLIC OPFiCEKS [Book Y. § 706. Necessity of demand, to render receiptor liable.— When the receiptor's contract is, that he will deliver the property on demand, and, if no demand is made, he will deliver it within thirty days after judgment, at a certain place, he is liable, at the expiration of. the thirty days, without a special demand. ' Where it is to deliver gener- ally, or on demand, a special demand is necessary, unless he has suffered the debtor to send the goods out of the jurisdiction, or has otherwise disabled himself from per- formance, in which case, semble, no demand is necessary." In certain special cases, it has been held, in Massachusetts, that a demand is sufficient, although it was not person- ally made.' If no demand is made upon the receiptor, during the life of the execution, he is discharged from liability to the officer, and bound to return the property to the debtor." ' Wentworth 1} Leonard, 4 Cush. (Mass.) Baker v Fuller, 21 Pick. (Mass.) 318. 414" ' Mason v Briggs, 16 Mass, 453 ; Hodskin V Cox, 7 Cush. (Mass.) 471. jjoore v Fargo, 113 Mass. 254. = Webster v Coffin, 14 Mass. 196 ; ^ Dewey i> Fay, 34 Vt. 138. 660 Chap. XXIX.] ACTION AGAINST OPFICEE BOOK VI JUDICIAL PROCEEDINGS RELATING TO PUBLIC OFFICES AND OFFICERS CHAPTER XXIX ACTION AT LAW BY OR AGAINST AN OPPICEK CONTENTS I. General rules, respecting an officer's liability to, or immunity from, a private action sounding in tort. Sec. 707. Foundation of action against an officer rests upon breach of a duty to the plaintiff; thus, recording officer, employed by mortgagor to make search, not liable to mortgagee for negligently omitting a prior deed. 708. So a private action wiU not he against officer, owing duty exclusively to the public, by a private person injured by his failure to discharge it; postmaster not liable to pub- lisher of newspaper, having the largest circulation, for not giving him publication of letters uncalled for; or aldermen of city to lowest bidder for a contract. 709. Members of legislative body not liable for legislative action, although founded on malicious or corrupt motives; but they are liable, where they perform ministerial duties. 710. Constitutional exemption of members of the national and state legislatures. 711. Held, in sorae cases, that political officers not liable to an individual, because they represent the sovereign power. 712. But executive officers liable; conflict as to whether the president and the governor of a state are liable. .661 PUBLIC OFFICERS [Book VI. Sec. 713. Officer performing judicial or quasi judicial act, if he has jurisdiction, is not liable to private action therefor; reasons for the rule. 714. Rule extends to cases, where a statutory penalty is given to party aggrieved, as where a habeas corpus is refused. 715. Instances of application of the rule to quasi judicial officers. 716. Rule extends to arbitrators, although chosen by consent of parties. 717. Act must have been within officer's jurisdiction; but, in some cases, his erroneous decision that he has jurisdic- tion, is a judicial act which protects him. 718. Held, by U. S. supreme court, that judges of courts of record not liable for excess of jurisdiction. 719. Rulings in New York in Lange v. Benedict, in action against TJ. S. circuit judge, for imprisonment in excess of his jurisdiction. 720. As to judges of inferior courts and quasi judicial officers, no presumption of jurisdiction; where jurisdiction depends upon existence of certain facts, they are not protected by erroneously deciding that those facts exist; but if they have general jurisdiction of the subject, and jurisdiction in the particular case depends upon certain facts, they are protected, if there is any evidence of those facts before them. 721. The same subject; various rulings. 732. Whether, in the case of an inferior or quasi judicial officer, the presence or absence of malice or a corrupt intent, affects his liability to individuals. 723. Whether a justice of the peace is liable, for acting under an unconstitutional statute; an officer, wrongfully act- ing, cannot escape liabihty, because he acted under such a statute. 724. Officer exercising ministerial powers liable for malfeas- ance or misfeasance, to any person injured thereby; and for nonfeasance, to a party interested in the per- formance of his duty. 725. The same subject; illustrations. 736. Officer owes to every person the duty of performing his official acts with due care, and is liable to any person, 662 Chap. XXIX. J ACTION AGAINST OFFICER injured by his negligence in such performance; refer- ences to citations elsewhere on this subject. Sec. 727. Illustrations; members of common council of a city, liable for suflEering a sidewalk to be out of repair; but justice of the peace not liable for losing jurisdiction, by delay in rendering judgment. 728. The same; tender of drawbridge liable for not shutting gates, and hanging out lanterns, while opening the draw. 729. Judge or judicial officer liable for omission or neglect in performance of ministerial duty; so as to quasi judicial officer. 730. Officer exercising ministerial power cannot justify, under an unconstitutional statute, although he acted in good faith, etc. 731. An officer's liability to a private action is not affected, by his having given an official bond; effect of such a bond. II. Special rulings, respecting the liability of particular officers ta private actions. 732. References to rulings on the subject cited elsewhere. (1.) Justice of the peace. 733. Variety of their functions raises many questions; cases cited, wherein it was ruled that a justice was not hable, because the particular act was of a judicial character. 734. Other cases cited, wherein it was held, that a justice was liable, because the particular act was of a ministerial character. 735. Justice not liable for incorrect statement as to amount of judgment. (2.) Highway officer. 736. Duties as to opening, cloBing, etc., and general manage- mentof highways, are gwosi judicial; and for these there is no private liability, unless jurisdiction is exceeded. 737. Duty of keeping highways and bridges in repair is minis- terial, and for failure so to do, officer is liable, if he has sufficient funds for the purpose, but not otherwise; and town not liable to reimburse officer in such a case. Officer Uable, although his funds were insufficient, if he had authority to procure funds. But not liable for a latent defect. Qualification as to funds not apphcable, where officer was negligent. If he has funds, but not 663 PUBLIC OFFICERS [Book VI. sufficient for all the repairs needed, not liable for an error of judgment, in determining which repairs were most urgently needed. (3.) Assessor of taxes. Sec. 738. What acts of assessors are quasi judicial, and what acts are ministerial; a bank can recover against assessors, who tax it upon its capital, where the statute requires that the stockholders shall be taxed upon their shares. 739. Assessors are not Uable, for assessing a shareholder's stock at the par value, although the statute requires them to assess it at its market value; or for assessing a dog tax upon one who neither owns nor harbors the dog. 740. Eulings, under the Massachusetts statute, protecting assessors acting in good faith; their liabihty for omit- ting to tax a person, where his right to vote depends upon his payment of a tax. 741. Miscellaneous rulings in different states, respecting the hability of assessors in particular cases. (4.) Recording officer. 743. His general duties are ministerial, and he is liable to per- son entitled to his service, for failure in diligent per- formance thereof; as for failure properly to record a conveyance; but the measure of damages, and whether he is liable to a subsequent purchaser for incorrect recording, etc. , are open questions. 743. He is liable, for failure to make and keep a correct index to the instruments recorded, to any one injured by rely- ing upon an imperfect index; but here also the measure of damages is uncertain, for courts hold that an error in the index does not affect the grantee's title. 744. It is his duty to allow any person to inspect the records, etc., and he is liable for refusal so to do; but not if demand made in an insulting manner; so this duty is subject to reasonable regulations, etc. He is also liable for furnishing incorrect copies of papers. (5.) Clerk of a court, 745. References to cases cited elsewhere. Clerk not liable for issuing a writ, which is a nullity, because no damages accrue; he is liable for misplacing papers filed with 664 Chap. XXIX.] ACTION AGAINST OFFICER him. Many of his duties and liabilities the same as a recording oflBcer's. (6.) Election officer. Sec. 746. Decision of inspectors, as to receiving a vote, and acts of canvassers, are ministerial, acts and an action generally lies against election officers, by qualified voter, for refus- ing his vote. But this is controlled in some states by statute. The former and the present English statutes stated. Massachusetts statute, as to furnishing "suffic- ient evidence," and rulings thereupon. 747. Maine statute, restricting liability to "unreasonable, etc., conduct," and rulings thereupon. 748. Cases holding, that in the absence of a statute, or where the statute is complied with, election officers are abso- lutely liable, for refusing a qualified elector's vote. 749. Other cases holding, that such habiUty depends upon the existence of malice, etc. ; sufficiency oi proof thereof. 750. RuUngs, as to liability of officers of registration, for refus- ing to put a man's name on the registry, or striking it off, etc. (7.) Postmaster. 751. Not liable for refusal to give publication of uncalled for letters, to publisher of newspaper, having the greatest circulation. He is liable for failure to deliver mail matter, to the person to whom it is addressed; is not excused by an erroneous decision, that additional post- age is chargeable thereupon, before delivery. He is lia- ble for loss of a letter, but not if caused by carelessness of his subordinates. 752. Liability for loss of a letter directed to be registered, and sent by the ordinary mail; not liable in equity to one, who had created a trust, for the benefit of the owner of money, stolen by the plaintiff. (8.) Sheriff, marshal, coroner, constable, etc. 753. References to rulings cited elsewhere. 754. Their ordinary functions ministerial; and in discharge thereof, they may become liable (1) to the person in whose favor the prodess was issued; (3) to the person against whom it was issued; '3) to a stranger. General 665 PUBLIC OFFICERS [Book VI. principles regulating such liabilities. Officer generally acts at his peril; instances. Sec. 755. References to rulings cited elsewhere, respecting the lia- bility of other officers. III. Protection of a ministerial officer by his process. 756. General principle. The word "process,"' in considering this rule, has a more extensive signification, than when used in connection with legal proceedings. 757. The accepted doctrine has only comparatively recently ■been established; statement of the three propositions, established in the leading case of Savacool v Boughton, 5 Wend. (N. Y.) 170. 758. The rule extended by other adjudications, so as to protect an officer in the execution of process, "fair on its face,'' issued by any court or officer, notwithstanding illegal- ities or irregularities, lying back of it. Many cases cited. 759. The bad faith of the officer, or his knowledge of antecedent defects, does not preclude him from protection under the rule. 760. Cases denying the last proposition. 761. Those cases criticised; ruling that a tax warrant, "fair upon its face," is an absolute protection to the collector. 763. Process is not "fair upon its face," where it shows a want of jurisdiction, or where, from the nature of the case, there could be no jurisdiction. But where juris- diction exists, though not apparent, officer is protected, on proving jurisdiction. 763. Officer protected only where he obeys the command of the process, and the rules of law; instances where he for- feits his protection, by his own oppressive or otherwise unlawful conduct. 764. Officer protected by his process in arresting a privileged person. 765. Officer not protected, where he arrests the wrong person, unless misled by the person arrested; or where process shows plaintiffs to be fictitious persons; case where officer was protected, in arresting a man, who was a stranger to the suit, and of a different name, he having been served with the process and suffered judgment 666 Chap. XXIX.] ACTION AGAINST OFFICER § 707. Se a. 766. Question whether oflftcer, holding process in replevin, is pro- tected, if he takes the goods from the possession of a stranger. 767. If process has alternative directions, one of which is law- ful, and the other not, officer protected only where he obeys the lawful one; but if he has a discretion, he may pursue either course; lawful process protects him, although he also acts under unlawful process. 768. Officer's assistants protected by process, but, semble, not volunteers; party not protected. 769. Where process issued without jurisdiction, etc., although "fair on its face," officer may refuse to execute it, in his discretion; but if he treats it as valid, he cannot afterwards set up defect. 770. Officer's protection is a shield, not a sword; he cannot maintain an action in aid of his process, unless it is regu- lar and lawful in fact. IV. Other actions at law by or against public officers. 771. Actions by officers; references to other parts of this book where they are incidentally considered. The doctrine of scandalum magnatum, not recognized here. 772. References to other parts of this book, where actions against officers are incidentally considered. 773. Questions relating to the personal liability of an officer, acting in behalf of the public, are generally the same as in cases of private agency. 774. But there is this distinction, that the legal presumption is always that the officer binds the pubUc, and does not bind himself, although, in a similar case, a private agent would be hable. 775. Additional references to other parts of this work, where actions against officers are incidentally considered. L General rules, respecting an officer's liability to, or immunity from, a private action sounding in tort. § 707. Foundation rests upon breach of duty to plaintiff. — It is a condition, lying at the very foundation of a private action against a public officer, to recover damages for a wrongful act or omission, that it must rest 667 § 708. PUBLIC OFFICERS [Book VI. upon some duty, owing to the plaintiff by the oflScer, which the latter has violated, whereby the plaintiff has sustained a special damage. "^^And one cannot maintain an action against even a ministerial officer, for a neglect of duty, unless that duty was owing to him,- Thus, where A, having applied to B for a loan on a bond and mortgage, was informed by the latter that he could have the money, if the title to the property was clear, whereupon his attorney, at his expense, ordered a search from the recording officer, who returned the same to the attorney, with the omission of any reference to a deed from A to another person; whereupon B loaned the money upon a mortgage, which proved to be uncollect- ible, by reason of the former deed; it was held that B could not maintain an action against the officer for the negligence, inasmuch the latter owed no duty to B, but only to A.'^ § 708. No private action for breach of duty to the public. — So, a private action cannot be sustained, for failure ■ to discharge a duty owing exclusively to the public, even by a person specially injured thereby.' Or, as a learned and distinguished writer gives the rule, where a duty neglected or improperly performed " is a public duty exclusively, and no single individual of the public can be, in any degree, legally concerned with the manner of its performance," a private action will not lie; for "no man can have any ground for a private action, ' state V Harris, 89 Ind. 363 ; ^ Smltli v Holmes, 54 Mich. 104 ; Butler v Kent, 19 Johns. (N. Y.) 233. Wood v Ruland, 10 Mo. 143 ; See also, Eslava v Jones, 83 Ala. 139 ; Morange v Mix, 44 N. Y. 315 ; Harrington v Ward, 9 Mass. 251 ; MoCaraher v Comm., 6 Watts & S., Eaynsf ord v Phelps, 43 Mich. 342 ; (Pa.) 21 ; Moss V Cummlngs, 44 Mich. 359 ; Ziegler v Comm., 12 Pa. St. 227 ; Bank of Rome v Mott, 17 Wend. (N. Y.) Houseman v Girard, etc., Ass'n, 81 Pa. 554. St. 256. » Day V Reynolds, 33 Hun (N. Y.) 131. » Held v Bagwell, 58 Iowa 139. See also. Ware v Brown, 2 Bond (U. S.) See also, cases cited in the following 267 ; sections. 668 Chap. XXIX.] ACTION AGAINST OFFICER § 708. until some duty owing to him has been neglected, and if the officer owed him no duty, no foundation can exist, upon which to support his action." ' Thus, where an action was brought, by the publishers of a newspaper against a postmaster, for failure to give them the publica- tion of the list of letters uncalled for, they having offered him proofs that their paper had the largest circulation, and the act of congress requiring that the list be pub- lished in the paper having the largest circulation; it was held, by the supreme court of New York, that the action would not lie, on the ground that the duty was imposed upon the postmaster, in order to give the widest possible notice of the unclaimed letters, and thus to benefit those to whom they were addressed, and to secure the greatest amount of revenue to the post office department, and not to benefit the publishers of the newspaper; so that the plaintiffs "had no such interest" in the performance of the duty " as gives a right of action. As connected with their paper, they were not within the purview of the statute, except incidentally. It secured to them no fixed and absolute right, and imposed upon them no duty what^ ever." ' In a subsequent case, decided by the court of appeals of the same state, the complaint alleged that the defendants, the aldermen of a city, the charter of which required that certain work should be awarded to the lowest bidder, advertised for sealed proposals for doing the work, and that the plaintiff was the lowest bidder for doing the work; but the defendants gave it to another bidder, at a considerably higher price. Upon a demurrer to the complaint, it was adjudged that the action could not be maintained. Danforth, J., delivering the opinion of the court, after adverting to the doctrine, that a public officer is not responsible in a civil action for an erroneous judicial determination, and stating that this was a deter- i Cooley on Torts, 2d ed. US (*379). ' Strong v CampbeU, U Barb. (N. Y.) 135. 669 § 709. PUBLIC OFFICERS [Book VI. mination of that character, to be followed by the minis- terial duty of executing the contract, continued: "More- over, the statute merely provides a scheme for the prudent administration of the affairs of the city, and has imposed a duty upon the defendants to carry it out. This duty appears, from the plaintiff's showing, to have been violated. But the duty is a public duty to the city or people at large, not to the plaintiff or for the benefit of individuals, or the promotion of any private interest; nor has the statute given to the plaintiff or any person an action for its violation." ' Other cases, declaring and illustrating the same rule, will be found in the succeeding ' sections, and in the note subjoined." § 709. No liability for legislative action. — Upon this principle, it has been well said by the writer already quoted, that a private action will not lie against a member of a legislative body, for any act or omission in the dis- charge of his legislative functions, because the members of such bodies "are not chosen to perform duties to indi- viduals, but duties to the state. The performance of these may benefit individuals, and the failure to perform them may prejudice individuals, but this is only inciden- tal." ' To which it may be added, that the immunity of members of a legislative body from private prosecutions is required by public policy, for if they were liable to such prosecutions, that would impair their independence, and the free exercise of their judgment, respecting such meas- ures as the public interests require. On both grounds the rule is well settled, that they are exempt . from such prosecutions, even though malice towards the particular individual aggrieved is charged; and that the immunity • East River Gas Light Comp'y v Don- Butler v Kent, 19 Johns. (N. Y.) 223 ; nelly, 93 N. Y. 557, aff'g 25 Hun (N. Y.) Martin v Mayor, etc., 1 Hill (N. Y.) 546 ; 614. Moss V Cummings, 44 Mich. 359. » Ashby " White, 1 Salk. 19 ; s. o. less * Cooley on Torts, 2d ed. 447 (*380). perfectly, 2 Ld, Raym. 938 ; 6 Mod. 45 ; 670 Chap. XXIX.] ACTION AGAINST OFFICER § 711, includes not only members of the national and state leg- islatures, but members of all public bodies, such as boards of supervisors, county commissioners, chosen freeholders, city councils, and the like, which possess and exercise legislative functions, for any municipal body, or any dis- trict, or other political division.' But this immunity is confined strictly to the exercise of legislative functions. It often happens that bodies possessing powers of local legislation, also exercise ministerial functions. With respect to the latter, the members are liable in the same manner as other officers, performing ministerial acts, as judicial officers are under like circumstances." § 710. The same subject ; constitutional exceptions. — The constitution of the United States provides that the senators and representatives "shall, in all cases, except treason, felony and breach of the peace, be priv- ileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house they shall not be questioned in any other place." ' A similar provision, respecting members of the state leg- islature, is to be found in the constitution of each of the states; and in some of them, additional privileges, such as exemption' from the service of civil process, are granted to the members of the legislature. The application and effect of such provisions belong to the subject of consti- tutional law. § 711. The rule as respects political officers. — It has also been said, by some writers, and held in some adjudica- » Baker u State, 27 Ind. 485 ; That the motives of members of a Co. Com'rs v Duokett, 20 Md. 468 ; legislative body cannot be Inquired WUson V Mayor, etc., 1 Denio (N. Y.) into, to impeach their acts, see Free- 695, cited ante, § 534 ; port V Marks, 69 Pa. St. 253, Martin v Mayor, etc., 1 Hill (N. Y.) 545. >, ggg jj^jj^ gg ^g^^ ^gg^ ,j^^ See also, Ferguson uKinnouU, Earl of, , ,, „ „ ,. , , , .„ 9 CI. & Fin. 251. U. S. Const'n, Art. 1, § B. 671 § 713. PUBLIC OFFICERS [Book VI. tions, that political officers owe duties, in the exercise of their trusts, to the public only, and are consequently not answerable to individuals for a failure to perform, or for a negligent performance of, such duties, at least where no corruption or malice is imputable, and they keep strictly within the limit of their powers; and that such officers, exercising the governmental power of the state, and representing its sovereignty, enjoy the same immunity as the state, from private prosecution for a neglect to exer- cise such powers, as well as for the consequences of a lawful exercise of them.' The supreme court of the United States has, in a case which was cited in a former chapter, disclaimed all jurisdiction over a private action against the president of the United States for his official conduct.' And, in some instances, a similar disclaimer has been made, with respect to the heads of departments, in matters resting within their judgment and discretion.' So the governor of a state is, it has also been said, exempt from a review of his action by the courts, on the ground that the executive department cannot constitutionally be subordinated to the judicial department.* § 712. The rule as to the liability of executive officers.— It is admitted, however, that executive officers, other than the president and the governor, are liable to private actions for misconduct in the discharge of ministerial duties confined to them." And in a subsequent chapter, ' Sheannan & Eedf. on Negl., 4th ed., " Martury D Madison, 1 Cranoh (U. S.) 302, citing Buron i> Denman, 2 Exch. 137, per Marshall, Oh. J., pp. 166-170. ^^'' ' » Decatur v Paulding, U Pet. (U. S.) 497 ; Att'y Gen'l v Brown, 1 Wis. 513, at p. United States v Commissioner, 5 Wall. ^^- (U. S.) 563. Also Siitherland v Murray, cited in Johnstone v Sutton, 1 T. R. (D. & E.) * ^ooley on Torts, 2d ed. 444 (*377). 538, wherein it was held, that an » Shearman & Redf. on Negl., 4th ed. action on the case lies against a. §8 352, 253, citing Adsit v Brady, 4 colonial governor, for maliciously Hill (N. Y.) 630 ; suspending the plaintiff from his Stack v Bangs, 6 Lans. (N. Y.) J:62 ; office. But see Mostyn D Fahrigas, Hutson d Mayor, etc., 9 N. Y. 163 ; 1 Cowp. 161. Robinson V Chamberlain, 34 N. Y. 389 ; 673 Chap. XXIX. J ACTION AGAINST OFFICER § 713. cases will be cited, where the action of the principal state or executive officers has been controlled by mandamus and certiorari.' Whether the action of the govei-nor of a state can be controlled or reviewed by the courts in any case, is, perhaps, an open question, upon which the weight of authority appears to be upon the affirmative side;' and no case has yet arisen, as far as the author's examination has enabled him to discover, in which the question, whether a mandamus, or certiorari, or prohibi- tion, will run against the president of the United States, has been presented directly for decision. With respect to the right to maintain a private action, against either the president or the governor of a state, the character of their powers and duties is such, that it is almost impos- sible to conceive a case, where such an action will lie, consistently with the rule, exempting an officer from such an action, for a judicial act or a quasi judicial act, that is, one which rests in his judgment or discretion; but if such a case should arise, it would probably be governed, in this respect, by the rules which govern the granting of a mandamus, certiorari, or prohibition. Indeed, as we have said before, the class of political, executive, or administrative officers, is very loosely defined; and it may be doubted, whether any practical benefit results, from specially distinguishing it from the judicial and ministerial classes. § 713. No liability for judicial or quasi judicial act. — With respect to the liability to a private action of an officer performing a judicial or quasi judicial' act, in a. Fulton Fire Ins. Comp'y v Baldwin, 37 See also, Brewer v Watson, 65 Ala. 88j- N-Y.648i .post, oh. 31. Hover i) Barkhoof , 44 N. Y. 113 ; 9 post, S8 795, et seg. Johnson v Belden, 2 Lans. (N. Y.) 433; afl'd 47 N Y 130 • ' ^*® ^^^ definition of this, expression^. Conroy v Gale, 47 N. Y. 665, afE'g 6 ante, 8 533 and note. Lans. (N. Y.) 344. 673 §713. PUBLIC OFFICERS [Book VI. case where he has jurisdiction, the rule is forcibly and correctly stated by a distinguished judge, in an opinion cited in a previous chapter, as follows: " No action lies in any case for misconduct or delinquency, however gross, in the performance of judicial duties. And although the officer may not in strictness be a judge, still, if his powers are discretionary, to be exerted or withheld according to his own view of what is necessary and proper, they are in their nature judicial, and he is exempt from all responsibility by action, for the motives which influence him, and the manner in which such duties are performed. If corrupt, he may be impeached or indicted; but the law will not tolerate an action, to redress the individual wrong which may have been done." ' This general rule has been declared and applied, in a great number of cases, in England and the United States, as applicable to all judicial acts, by officers of whatever degree." The reason for this immunity, as applied to a ' Per Beardsley, J., in Wilson v Mayor, etc., 1 Denio (N. Y.) 595, cited ante, S5M. ^ Year Bools; ; 9 Hen. VI, 60 pi. 9 ; 9 Edw. IV, 3 pi. 10 ; 21 Edw. IV, 67 pi. 49 ; Floyd V Barker, 12 Coke 23 ; Hamond v HoweU, 1 Mod. 18i ; 2 Mod. 218; Gwinne v Pool, Lutw. 290 ; Miller v Seare, 2 W. Blaokst. 1,141 ; Aire v Sedgwicke, 2 RoUe 197 ; Beaurain v Scott, 3 Campb. 388 ; MoBtyn 1) Fabrigas, X Cowp. 161 ; Kemp V Neville, 10 C. B., N. S. 523 ; 31 L. J., C. P. 158; 7 Jur., N. S. 913; i L. T. 640; s. c, mb alt. nom., 10 W. E. 6; Garnett v Ferrand, 6 Barn. & Cr. 611 ; Fray v Blackburn, 3 Best & Smith 576 ; DosweU V Impey, 1 Barn. & Cr. 169 ; Ackerley v Parkinson, 3 Maule & S. 411 , Houlden v Smith, 14 Q. B. 841 ; 19 L. J., Q. B. 170 ; 14 Jur. 598 ; Dicas 1) Brougham (Lord), 6 C. & P. 249 ; Ward V Freeman, 2 Ir. C. L. R. 460 ; Busteed v Parsons, 54 Ala. 393 ; Irion V Lewis, 56 Ala. 190 ; Woodruff V Stewart, 63 Ala. 206 ; Borden v State, 11 Ark. 519 ; Pickett V Wallace, 57 Gala. 555 ; Hughes V McCoy, U Colo. 591 ; Phelps V Sill, 1 Day (Conn.) 315 ; Bailey v Wiggins, 5 Harringt. (Del.) 462; Pruden v Love, 67 Ga. 190 ; Taylor v MoflEatt, 2 Blackf . (Ind.) 305 ; Spitznosle v Ward, 64 Ind. 30 ; ^Imore v Overton, 104 Ind. 548 ; Downing v Herrick, 47 Me. 462 ; Pratt V Gardner, 2 Cush. (Mass.) 63 ; Chickeriug v Robinson, 3 Cush. (Mass.) 543; Piper V Pearson, 2 Gray (Mass.) 120 ; Way V Townsend, 4 Allen (Mass.) 114 ; Fisher v Deans, 107 Mass. 118 ; Hoosac Tunnel D. & E. Comp'y V O'Brien, 137 Mass. 424 ; White V Morse, 139 Mass. 102 ; 674 Ohap. XXIX.] ACTION AGAINST OFFICER §713. judge of a court, has been thus stated: "Courts are created on public grounds; they are to do justice as between suitors, to the end that peace and order may prevail in the political society, and that rights may be protected and preserved. The duty is public, and the end to be accomplished is public; the individual advantage Wall V Trumbull, 16 Mich. 228 ; Stone V Graves, 8 Mo. 148 ; Edwards v Ferguson, 73 Mo. 686 ; Waldrou v Berry, 51 N. H. 136 ; Mangold v Thorpe, 33 N. J. L. 134 Seaman v Patten, 2 Gaines (N. Y.) 312; Vanderheyden v Young, 11 Johns. (N. Y.)150; Butler V Potter, 17 Johns. (N. Y.) 145 ; Cunningham v Bucklin, 8 Cow. (N. Y.) 178; Weaver v Devendorf , 3 Denio (N. Y.) 117; Brown v Smith, 24 Barb. (N. Y.) 419 ; People V Stocking, 50 Barb. (N. Y.) 573; Fvarts v Kiehl, 102 N. Y. 296 ; Kennedy v Barnett, 64 Pa. St. 141 ; Lining v Bentham, 2 Bay (S. C.) 1 ; Brodie v Rutledge, 2 Bay (S. C.) 60 ; McCall 11 Cohen, 16 S. C. 445 ; Rains ■» Simpson, 50 Tex. 495 ; Gould V Hammond, 1 McAUist. (U. S.) 235; Allen V Blunt, 3 Story (U. S.) 742 ; Martin v Mott, 12 Wheat. (U. S.) 19 ; Johnston v Moorman, 80 Va. 131 ; State V Campbell, 2 Tyler (Vt.) 177; Kibling v Clark, 53 Vt. 379 ; Carter i' Dow, 16 Wis. 298. See also, substantially recognizing the rule, but in some cases, witli qualifi- cations hereafter to be considered : Hamilton v Williams, 26 Ala. 527 ; Craig V Burnett, 32 Ala. 728 ; Heard v Harris, 68 Ala. 43 ; Grider v TaUy, 77 Ala. 422 ; Porter v Haight, 45 Gala. 631 ; Tracy v Williams, 4 Conn. 107 ; Holcomb V Cornish, 8 Conn. 375 ; Garfield v Douglass, 22 111. 100 ; Barkeloo v Randall, 4 Blackf. (Ind.J 476; Walker v Hallock, 32 Ind. 239; Londegan « Hammer, 30 Iowa 508 ; Jones V Brown, 54 Iowa 74 ; Clark V Spicer, 6 Kan. 440 ; Connelly v Woods, 31 Kan. 359 ; Walker v Floyd, 4 Bibb (Ky.) 237 ; BuUitt I! Clement, 16 B. Mon. (Ky.) 193; Morgan v Dudley, 18 B. Mon. (Ky.) 693 ; Revill V Pettit, 3 Met. (Ky.) 314; Terrail v Tinney, 20 La. Ann. 444 ; Spencer v Perry, 17 Me. 413 ; Morrison v McDonald, 21 Me. 550 Clarke v May, 2 Gray (Mass.) 410 ; Ela V Smith, 5 Gray (Mass.) 121 ; Amperse v Winslow, 75 Mich. 234 ; Stewart v Cooley, 23 Minn. 347 ; Wilcox V Williamson, 61 Miss. 310 ; Bell V McKinney, 63 Miss. 187 ; Wertheimer v Howard, 30 Mo. 420 ; Evans v Foster, 1 N. H. 374; Burnham v Stevens, 33 N. H. 247 ; Jordan B Hanson, 49 N. H. 199 ; Little V Moore, 4 N. J. L. 74 ; Taylor v Doremus, 16 N. J. L. 473; Morris v Carey, 27 N. J. L. 377 ; Tompkins ■uSands,8Wend. (N.Y.)462; Clark V Holdridge, 58 Barb. (N. Y.) 61 ; Ramsey v Riley, 13 Ohio 157 ; Truesdell v Combs, 33 Ohio St. 186; Randall v Brigham, 7 Wall. (U. S.) 523 ; . Fuller V Gould, 20 Vt. 643 ; Steele u Dunham, 26 Wis. 393 ; and the other cases hereinafter cited. Of course, the rule does not apply to cases, where a iudlcial officer is ex- pressly made liable by statute to a private action. See Comm.D Nether- land, 87 Ky. 195. 67S § 714. PUBLIC OFFICERS [Book VI. or loss results from the proper and thorough, or improper and imperfect, performance of a duty, for which his " (the individual's) " controversy is only the occasion. The judge performs his duty to the public, by doing justice between individuals, or, if he fails to do justice as between indi- viduals, he may be called to account by the state, in such form and before such tribunal, as the law may have pro- vided. But as the duty neglected is not a duty to the individual, civil redress, as for an individual injury, is not admissible." ' These reasons are applicable to every case, where judgment and discretion are confided to a public oflBcer, even, although in a less degree, where the parties have themselves created a tribunal, as in the case of arbitrators, etc. But considerations of public policy also furnish additional reasons for the rule, since the liability to a private action might well prevent the judi- cial or quasi judicial officer, from giving his entire time and attention to the discharge of his public duties, inter- fere with his independence, lower his dignity, increase litigation, etc." We will presently examine the question whether this rule is subject to any exceptions. § 714. Rule extends to cases involving a statutory penalty ; habeas corpus. — The immunity from a private action has been extended, even to a case, where a statu- tory penalty for a specific act was given to the aggrieved party. Thus, in a case which arose in New York in the year 1810, an action was brought against the chancellor of the state, to recover the penalty, given to the person aggrieved, for recommitting and reimprisoning one, who had been discharged upon habeas corpus. The plaintiff, one of the officers of the court of chancery, was com- mitted by the chancellor for contempt and malpractice; ' Cooley on Torts, 2d ed. 448 (*380). (*406-409) ; See also, Bishop on NonContraot Law, Bradley » Fisher, 13 Wall. (U. S.) 335, per Field, J., pp. 347-349. « See Cooley on Torts, 8d ed. 474-477 676 Chap. XXIX. J ACTION AGAINST OFFICER § 715. whereupon he sued out a writ of habeas corpus, returnable before one of the justices of the supreme court, who dis- charged him; and the chancellor recommitted him. It was held by the supreme court, .and also by the court of errors, that the action would not lie, because " a judge of a court of record is not liable to answer personally in a civil suit, for any act done by him in his judicial capacity, nor for errors of judgment; " very able opinions, sustain- ing this conclusion, having been delivered by Kent, Ch. J., in the supreme court, and by Piatt, senator, in the court of errors.' § 715, Application of the rule to quasi judicial officers. — A few instances of the application of the rule to quasi judicial officers will be given here. In an action for false imprisonment, the defence was, that the defend- ants, as censors of a college of physicians, had, by the charter of the college, power to make by-laws for the government of all practioners of medicine in London, and to punish malpractice by fine and imprisonment; that the plaintiff was such a practitioner; and that the defendants, in the exercise of that power, had adjudged the plaintiff to be guilty of malpractice, and fined him £20, and ordered him to be imprisoned for twelve months, nisi, etc. And it was held, that inasmuch as the defend- ants had jurisdiction over the person of the plaintiff, he being a practitioner in London, and over the subject matter, namely, the real practice; and had power to hear and punish, and to fine and imprison; they were judges of record, and were therefore not liable to an action for the fining and imprisonment." The subject was fully con- sidered, and all the American cases to the time of the decision (1871) were examined and commented upon, by Sargent, J., in a case in the supreme judicial court of ' Yates V Lansing, 5 .lohns. (N. Y.) 282 ; » Groenvelt v Burwell, 1 Ld. Ray. 154 ; 8. u. in error, 9 Johns. rN. Y.) 395. 13 Mod. 386 ; 1 Salk. 396. 677 § 716. PUBLIC OFFICERS [Book VI. New Hampshire, ■wherein it was held, that highway sur- veyors and other town officers are not liable to civil actions for damages, for acts requiring the exercise of discretion and judgment in the discharge of their official duties, as long as they act in good faith, and within the scope of their authority; but that they are so liable for damages done to individuals by their w anton, malicious, or fraudulent acts, and for acts beyond their jurisdiction; that the only question in such cases is, did the officer in good faith perform the act, in the discharge of his duty, according to the best of his ability; and that he is the sole judge of what is reasonable and proper, both as to the act to be done, and as to the manner of its perform- ance. ' So, the mayor of a city, in whom judicial functions are vested by statute, who tried, convicted, and fined a person, and imprisoned him for nonpayment of the fine, where, in that particular case, he had only authority to act as conservator of the peace, and bind the party over; is not liable in damages, he having acted in good faith.'' So, the members of a common council of a city are not liable to an action, for the exercise of quasi judicial power vested in them;' nor are supervisors liable for their decision upon claims against the county;' nor are members of a board of pilot commissioners liable to an. action, brought by a pilot, for erroneously revoking his license. ' § 716. Rule extends to arbitrators. — Mention has been made of the immunity of arbitrators, who, inasmuch as they constitute a tribunal selected by the parties, might, perhaps, be thought to constitute an exception to the general rule. But the courts have uniformly held, that inasmuch as arbitrators act judicially, they enjoy the ' Waldron v Berry, 51 N. H. 136. For ' Walker « Hallock, 32 Ind. 239. other rulings, specially applicable to , Tf^all « Trumbull, 16 Mich. 228. highway officers, see post, §§ 736, 737. ^ „ „ , „, ' Downer v Lent, 6 Cala. 94. * Bell V MoKinney, 63 Miss. 187. 678 Chap. XXIX.] ACTION AGAINST OFFICER § 718. immunity of other judicial officers, and an action will not lie against them, even for fraud and corruption in making their award/ § 717. Act must have been within officer's jurisdic- tion. — In giving the rule, we have stated, that in order to entitle an officer to immunity from a private action, for his judicial or quasi judicial act, the act must have been within his jurisdiction. Whether this statement requires any qualification, and if so, whether it should be nar- rowed or widened, is a question of no little difficulty, and upon which the cases are not entirely harmonious. Evidently, where an officer acts without any jurisdic- tion, he is a mere intruder or trespasser, whether his action purports to be ministerial or judicial. But there are many cases, which lie close to the border line, and where the question is complicated by the consideration, that the officer's decision, that he has jurisdiction, may be one of the very judicial acts, with respect to which the rule protects him. These cases usually arise in some controversy, respecting the action of a judge of an infe- rior court, or an officer who possesses special and inferior jurisdiction. But they sometimes arise, where the action of a judge of a superior court is called in question. § 718. The same subject ; ruling of U. S. supreme court. — In a case, where the general question of liability for judicial acts was very elaborately discussed, the supreme court of the United States held, that judges of courts of record, of superior or general jurisdiction, are not liable to civil actions' for their judicial acts, even where such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly; that a distinction exists, as to their liability, between ' Pappa V Rose, 7 L. R., C. P. 32, 525 ; Jones i) Brown, 54 Iowa 74; Tharsis Sulphur & C. Comp'y v Lof- Hoosao T., etc., Comp'y « O'Brien', 137 tus, 8 L. R., C. P. 1 ; Mass. 424. Phelps V Dolan, 75 111. 90 ; 679 § 719. PUBLIC OFFICERS • [Book VI. acts in excess of their jurisdiction, and acts done in the clear absence of all jurisdiction over the subject matter.' Evidently, however, it is necessary also that the judge should have jurisdiction of the person or the party aggrieved. § 719. The same subject ; ruling in New York: Lange V. Benedict. — This entire subject was fully considered by the court of appeals of the state of New York, in an action for false imprisonment, brought against a judge of the circuit court of the United States, in which the defendant demurred to the plaintiff's complaint. The facts, as set forth in the complaint, or otherwise conceded, were briefly these. The plaintiff was tried before the defendant, as judge of the court, upon an indictment for stealing certain mail bags, the property of the United States, and the jury found that he was guilty, and that the value of the mail bags was less than $35. By the act of con- gress, applicable to the case, if the value of the mail bags was found to be less than $25, the punishment for the offence was a fine of $300, or inaprisonment for one year; but the defendant sentenced the plaintiff to pay a fine of $300, and to be imprisoned for one year. The plaintiff paid the fine, during the same term of the court; and after he had been imprisoned five days, a writ of habeas corpus was granted, returnable before the same court; a,nd, at the same term thereof, and upon the return of the habeas corpus, the defendant vacated the sentence already pronounced, passed judgment anew upon the plaintiff, and resentenced him to be imprisoned for one year; under which sentence he was accordingly impris- oned: and the action was founded upon that imprison- ment. Proceedings, to which the defendant was not a party, were taken, to procure a review of the second sen- tence, by the United States supreme court; and that court 1 Bradley v Fisher, 13 Wall. (U. S.) 335. 680 Chap. XXIX. J ACtlON AGAINST OFFICER § 719. adjudged, that the sentence was without authority, and discharged the plaintiff. The court of appeals held, that the action could not be maintained. Folger, J., delivered an elaborate opinion, examining the principal cases on the question, whether an action would lie for a judicial act, in excess of jurisdiction. He said that the question was: "Did the defendant impose the second sentence as a judge; or, although he was at that moment of right upon the bench, and authorized and empowered to exer- cise the functions of a judge, was the act of resentencing the plaintiff so entirely without jurisdiction, or so beyond and in excess of the jurisdiction, which he then had as a judge, that it was an arbitrary and unlawful act of a private person?" He said that it is plain, that the fact, that a man is rightfully sitting in the seat of justice, does not protect him in an act against one, of whose person he has no jurisdiction, or with respect to a subject matter, of which he has no jurisdiction; but, in this case, the defendant had jurisdiction of both: of the plaintiff's per- son, because the plaintiff was before him on the return to a writ of habeas corpus, and under the first sentence, which was valid, until it was annulled; and of the sub- ject matter, because, during the same term of the court, the defendant might vacate or modify the sentence, as law and justice would require. That the error was, not in "the subject matter — the general matter then before the court;" but in "the particular matter," or question whether a new sentence could be imposed; that with respect to the latter, the court had the power to adjudi- cate, and its erroneous adjudication was a judicial error, to be corrected upon review, not a personal wrong to be answered for in a civil action. That the case was not one where the court never had jurisdiction, but that "the last act was in excess of its jurisdiction." "And though, where courts of special and limited jurisdiction 081 § 730. PUBLIC OFFICERS [Book VI. exceed their powers, the whole proceeding is coram non judice and void, and all concerned are liable; this has never been carried so far as to justify an action against a judge of a superior court, or one of general jurisdic- tion, for an act done by him in a judicial capacity." That, although the United States circuit court is not a court of general jurisdiction, it is not an inferior, but a superior court. So that, in conclusion, "the case turns upon a question, more easily stated than it is determined : was the act of the defendant done as a judge? Our best reflection upon it, aided by the reasonings and con- clusions of many more cases than we have cited, has brought us to the conclusion, that, as he had jurisdiction of the person and of the subject matter, and as his act was not without the inception of jurisdiction, but was one no more than in excess of or beyond jurisdiction, the act was judicial." ' § 720. Application, to judges of inferior courts and quasi judicial officers, of rule requiring jurisdiction ; no presumptions of jurisdiction.^ — There seems to be no solid foundation, for any distinction in this respect, between judges of superior courts, and judges of inferior courts, or quasi judicial officers, whose powers are limited to the particular cases specified in the statute, except that the presumption is always in favor of the jurisdiction of the former, whereas the facts, necessary to give jurisdiction to the latter, must be shown, whenever their decisions come in question.^ But although, " where ■ Lange v Benedict, 73 N. Y. 12, aff'g 8 the ground that no federal question Hun (N. Y.) 362. was involved. See MX vofrU Lange, 18 Wall. (U. S.) , gj^^^ ^ Burdick, 1 Hill (N. Y.) 130. 163, for the ruling of the U. S. su- g^^ ^^^^ jjoswell v Impey, 1 Barn. & preme court, as to the invalidity of qj, jgg . the second sentence ; and Lange v ^^^^ ^ Shurman, 6 Ark. 182 ; Benedict, B9 U. S. 68, dismissing a tucker v Harris, 13 Ga. 1 ; writ of error from the judgment of ^^^^^^ „ q^^^^^ ^3 jn_ ^ . the court of appeals in T3 N. Y. 12, on ^^^^ „ WooUey, 6 Dana (Ky.) IT ; 683 Chap. XXIX. J ACTION AGAINST OFFICER § 731. a statute prescribes that some fact must exist, before jurisdiction can attach in any court, such fact must exist before there can be jurisdiction, and the court can- not acquire jurisdiction by erroneously deciding that the fact exists, and that it has jurisdiction;" yet, "where general jurisdiction is given to a court over any subject, and that jurisdiction depends, in the particular case, upon facts which must be brought before the court for its determination upon evidence; and where it is required to act upon such evidence; its decision upon the question of its jurisdiction is conclusive until reversed, revoked, or vacated, so far as to protect its officers, and all other innocent persons who act on the faith of it." ' § 731. The same subject. — The correct rule, therefore, seems to be, that a judge of an inferior court, or an offi- cer exercising quasi judicial pow-ers, is not liable for want of jurisdiction, if there is any proof before him of the existence of the facts, upon which his jurisdiction depends, although in truth such facts do not exist." The cases, however, are not entirely in harmony on this subject. In South Carolina, it was held, that a judge of an inferior court, having jurisdiction of the subject matter, but failing to acquire jurisdiction of the person, by reason of defective service of process, is not liable, in the absence ReviU V Pettit, 3 Met. (Ky.) 3U : & Bing. 432 ; Rossiter v Peck, 3 Gray (Mass.) 538 ; Staples v I'airchUd, 3 N. Y. 41 ; Palmer v Oakley, 2 Dougl. (Mich.) 433 ; Porter v Purdy, 29 N. Y. 106. Foot M Stevens, 17 Wend. (N. Y.) 483 ; j Houlden v Smith, 14 Q. B. (Ad. & El.) Hart V Seixas, 31 Wend. (N. Y.) 40; 841 ; 19 L. J., Q. B. 170; 14 Jur. 598, Pratt 11 HiU, 16 Barb. (N. Y.) 303 ; citing and commenting upon Calder Messinger v Kintner, 4 Binn. (Pa.) 97. ^ Halket, 3 Moore P. C. 28 ; > Roderigas v East R. Sav. Inst'n., 63 Watson u Bodell, 14 M. & W. 57 ; N. Y. 460, per Earl, J., p. 464. Beaurain v Scott, 3 Campb. 388 ; Approved, with respect to this ques- Smith v Bouchier, 2 Stra. 993 ; tion, and applied to a legal conclu- Pike v Carter, 3 Bing. 78. slon from a conceded state of facts. See also, Lowther v Radnor, 8 East 113 ; Lange v Benedict, 73 N. Y. 12, per Kemp v Neville. 10 C. B., N. S. 523; Folger, J., pp. 30, 31. Grove v Van Duyn, 44 N. J. L. 654 ; Accord, Brittain v Kinnaird, 1 Brod. Bradley v Fisher, 13 Wall. (U. S.) 335. 683 § 722. PUBLIC OFFICERS [Book VI. of proof of malice or corruption.' And a similar rule appears to have been established in Tennessee, with respect to the exercise of a quasi judicial power." In Louisiana, it has been held, that the president of the board of health of a city, acting under a general order of the board, authorizing him to act in case of an emer- gency, is liable for unnecessarily fumigating a vessel loaded with fruit, whereby the cargo was damaged.' § 722. Rulings as to motive or corrupt intent. — The cases, most difficult to reconcile with the general rule, respecting immunity from personal liability for judicial or quasi judicial acts, are those where the liability is made to depend, partly or wholly, upon the existence of a malicious or corrupt motive. Some cases, where the absence of such a motive was stated as one of the reasons for such immunity, have already been cited." In Minne- sota, it has been held, that the judge of a municipal court was liable upon allegations, that he and the other defend- ants, maliciously and without probable cause, entered into a conspiracy to prosecute the plaintiff for perjury; although the judge's active part in the conspiracy con- sisted entirely of judicial action, founded upon regular proceedings in his court; the decision having been placed on the ground, that the conspiracy was not a part of any judicial proceeding, or in discharge of any judicial func- . tion. " And it also has been held, that the members of a court martial are liable to a person, whom they have maliciously convicted of military delinquency." In Georgia, it has been said, that the mayor and members of ' McCall V Colien, 16 S. C. 445. Judge Cooley condemns this ruling as 2 State V Thomas, 88 Teun. 491. irreconcUable with Bradley c Elsher, 13 Wall. (U. S.) 335. Cooley on Torts, 3 Beers v Board of Health, 35 La. Ann. ^ ^^^ 2 (*412). 1,132. « Shoemaker t) Neshit, 2 Rawle (Pa.) 201 ; » AnU, §§ 715, 721. Macon v Cook, 2 Nott. & McC. (S. (J.) ' Stewart v Cooley, 23 Minn. 347. 379. See Cooley on Torts, uin supra. 684 Chap. XXIX.] ACTION AGAINST OFFICER 732. the council of a city, who directed the pulling down of a house as a nuisance, were not liable, unless they acted maliciously, illegally, or corruptly.' And in Pennsyl- vania, it has been held, that the members of a school board were liable, for the malicious removal of a teacher. ' So in Connecticut, it has been said that a wharfmaster was liable, for ordering the removal of the plaintiff's ship from a certain dock, if the act was malicious, and intended to cause him injury; but the case turned upon the point, that the evidence was insufficient to establsh the malice.' Many other cases may be found in the reports, in each of which the court, either expressly or by implication, has made the immunity from a private action of an officer exercising judicial or quasi judicial powers, where he had jurisdiction, depend upon his good faith, or the absence of malice or corruption.' ■ Pruden v Love, 67 Ga. 190. " Burton V Fulton, 49 Pa. St. 151. See also, Hoggatt « Bigley, 6 Humph. (Tenn.) 236 ; Walker v Hallook, 33 Ind. 239 ; Lilienthal u Campbell, 22 La. Ann. 600 ; In Elmore v Overton, 104 Ind. 548, an action for maUcioualy refusing a teacher's license, to one lawfully en- titled thereto, was sustained, on the ground that the power was adminis- trative, and not judicial or giwsf. judicial. ' Gregory v Brooks, 37 Conn. 865. • Ashby V White, 2 Ld. Raym. 938; 6 Mod. 45; ISalk. 19; Burley v Bethune, 1 Marsh. 220; Garnett v Ferrand, 8 Barn. & Cr. 611, at p. 626; Davis V Capper, 10 Barn. & Cr. 28 ; Kemp V Neville, 10 C. B., N. S. 523 ; 31 L. J., C. P., 158; 7 Jur., N. S., 913; 4 L. T. 640; lOW. R. 6. Linford v Fitzroy, 13 Q. B. 240; 3 New Sess. Cas. 432 ; 18 L. J., M. C. 108 ; 13 Jut. 303; Hitch V Lambright, 66 Ga. 328 ; Garfield v Douglass, 23 111. 100 ; Billings 1! Laflerty, 31 111. 318 ; McCormick v Burt, 95 111. 363 ; Carter v Harrison, 5 Blackf. (Ind.) 138 ; State V Robb, 17 Ind. 686 ; Morrison v McFarlaud, 51 Ind. 206 : McOsker v BurreU, 55 Ind. 435 ; Spitznogle v Ward, 64 Ind. 30 ; Hetfield v Towsley, 3 Greene (Iowa) 5C4; Howe V Mason, 14 Iowa 610 ; Macklot V Davenport, 17 Iowa 379 ; MoCord V High, 24 Iowa 336 ; Muooatine, etc., R. R. Comp'y v Hor- ton, 33 Iowa 33 ; Chrisman v Bruce, 1 Duv. (Ky.) 63 ; Miller v Ruuter, 1 Bush (Ky.) 135; Gregory i' Brown, 4 Bibb (Ky.) 28 ; Bullitt V Clement, 16 B. Mon. (Ky.) 193 ; Morgan v Dudley, 18 B. Mon. (Ky.) 693 ; Donahoe v Richards, 88 Me. 379; Downing v Herrick, 47 Me. 462 ; Bevard v Hoffman, 18 Md. 479 • Elbin V Wilson, 33 Md. 135 ; Friend v Hamill, 34 Md. 298 ; Raynsford v Phelps, 43 Mich. 342; 685 § 733. PUBLIC OFFICERS [Book VI. In the face of such an array of authorities, it must be admitted, that there is some exception to the rule, that the motives of an officer cannot be made the sub- ject of inquiry, for the purpose of subjecting him to a personal liability, for a judicial or quasi judicial act, which he had jurisdiction to perform. But it is impossi- ble to define the limits of the exception, or the particular circumstances upon which it depends, so as harmonize all the cases upon that subject. The nearest approach to a general rule, that the author has been able to find, is that the immunity from a private action, founded upon an allegation of malice, although " applicable to judges of courts of record, does not extend to all judicial officers. In the case of inferior magistrates, the act complained of, although judicial and within their jurisdiction, must, in order to shield them from responsibility, have been done honestly and in good faith. Accordingly, if malice is shown, they will be liable to an action." ' But the excep- tion is an anomaly, and its existence, in any form, appears Reed v Conway, 20 Mo. 22 ; Peavey v Robbins, 3 Jones L. (N. C.) Pike V Megoun, U Mo. 491 ; 339 ; Dritt V Snodgrass, 66 Mo. 286 ; Hannon D Grizzard, 96 N. 0. 293 ; Edwards v Ferguson, 73 Mo. 686 ; Ramsey v Riley, 13 Ohio 157 ; Wheeler -o Patterson, 1 N. H. 88 ; Stewart v Southard, 17 Ohio 402 ; Third Turnpike Comp'y v Champney, Gregory v Small, 39 Ohio St. 3i6 ; 2 N. H. 199 ; Moran v Rennard, 3 Brewst. (Pa.) 601 ; Rowe D Addison, 34 N. H. 306 ; Weckerly v Geyer, 11 S. & R. (Pa.) 35 ; Adams v Richardson, 43 N. H. 212 ; Keenan v Cook, 12 R. I. 52 ; ' Neighbour B Trimmer, 16 N. J. L. 58 ; Rail v Potts, 8 Humph. (Tenn.) 225 ; Jenkins v Waldron, 11 Johns. (N. Y.) McTeer v Lebow, 85 Tenn. 121 ; 114 ; Wilkes v Dinsman, 7 How. (U. S.) C9 ; Tompkins v Sands, 8 Wend. (N. Y.) WUson v Marsh, 34 Vt. 352 ; 462 ; Henderson v Smith, 26 W. Va. 829. Millard v Jenkins, 9 Wend. (N. Y.) 298 ; See also, post, §§ 733-741 ; 746-750. Wickware i) Bryan, 11 Wend. (N. Y.) , Goetoheus v Matthewson, 61 N. Y. 420, 545; per Dwight, Com'r, p. 43G, citing Goetcheus v Matthewson, 61 N. Y. 420, Shearman & Red. on Negligence, rev'g 5 Lans. (N. Y.) 214, and 58 Barb. g y^_ (N.Y.)152; Chap. XXIX.] ACTION AGAINST OFFICER 723. to be irreconcilable with the rules and principles estab- lished by numerous adjudications.' § 733. Justice of the peace, acting under unconstitu- tional statute. — It has been held that a justice of the peace is liable in a private action, where he has acted under a statute, which has afterwards been adjudged to be unconstitutional." But this doctrine was denied in another case, where the question was, whether a justice of the peace was liable, who had proceeded under a municipal ordinance, which the court declared to be void; and it was there held, that the presentation of an information gave him jurisdiction to decide, whether he was authorized to issue a warrant, and therefore to pass judicially upon the validity of the ordinance, and for an ' An honest error as to his inrisdiction, made by an inferior officer, is not a defence to an action against him, hat goes to the damages. McClure v HiU, 36 Ark. 268, at p. 626 ; Long B Long, 57 Iowa 497. Many of the cases cited p. 685, note *, were actions against election officers for refusing votes, which is held, in many cases, to be a ministerial act. Ante, § 463. Others were actions against assessors or other taxing officers. The entire doctrine is vigorously repudiated in Weaver v Devendorf, 3 Denio (N. Y.) 117, per Beardsley, J., p. 120, citing many cases; and in many of the other cases cited in § 713, ante. In Irion v Lewis, 56 Ala. 190; Kress v State, 65 Ind. 106 ; Stone v Graves, 8 Mo. 148 ; Mangold v Thorpe, 33 N. J. L. 134; it was distinctly held, that an action would not lie against a justice of the peace, for a judicial act, upon an allegation of malice, corruption, or the like; and In Johnston v Moor- man, 80 Va. 131, the same ruling was made, respecting an action against the mayor of a city, as a judge of the hustings court. See also, Taylor v Doremus, 16 N. J. L. 473. Judge Cooley says of this class of cases: "In respect to these last cases, though they may seem out of harmony with the general rule above laid down, and the reasons on which it rests, yet we may perhaps safely concede, that there are various duties, lying along the borders be- tween those of a ministerial and those of a judicial nature, which are usually intrusted to inferior officers, and in the performance of which it is highly important, that they be kept as closely as possible .within strict rules. If ^ourts lean against recognizing in them full discretion- ary powers, and hold them strictly within the limits of good faith, it is probably a leaning that, in most cases, will be found to harmonize with public policy." Cooley on Torts, 2d ed. 482 (*413.) « KeUy V Bemis, 4 Gray (Mass.) 83 ; Barker v Stetson, 7 Gray (Mass.) 53. See also, Ely v Thompson, 3 A. K. Marsh (Ky.) 70. 687 §724 PUBLIC OFFICERS [Book VI. error of judgment in that respect he could not be made liable. ' Where commissioners for bonding a town, in aid of a railroad, issued bonds in excess of the amount authorized by law; it was held, that they were liable to the purchaser upon an implied warranty, as well as their express warranty that their action was lawful; alid that they could not defeat the action, by proof that they acted in good faith, and without negligence, or on the ground that the bonds were issued in violation of a provision of the constitution." § 734. Rule as to officer exercising ministerial powers. — With respect to officers exercising ministerial powers, the rule of law is well settled, that where an individual sustains an injury by the malfeasance, misfeasance, or nonfeasance of such an officer, acting or omitting to act contrary to his duty, the law gives redress to the injured person by an action for damages. ' The officer is liable ' Henke v McCord, 55 Iowa 378. ' Robinson v Bishop, 39 Hun (N. Y.) 370. ' Lane v Cotton, 1 Salk. 17 ; Henly v Mayor, etc., 5 Bing. 91 ; Rowning v GoodcMld, 2 W. Blackst. 906; Ashby V White, 2 Ld. Ray. 038; 6 Mod. 45; 1 Salk. 19; Ferguson i) Kinnoull, 9 CI. & F. 251 ; Lyon V Goree, 15 Ala. 360 ; Briggs V Coleman, 51 Ala. 561 ; Grider v Tally, 77 Ala. 432 ; Eslaya v Jones, 83 Ala. 189 ; McClure v Hill, 36 Ark. 268 ; Collins V McDaniel, 66 Ga. 203 ; Dilcher v Raap, 73 111. 266 ; Governor v Dodd, 81 111. 162 ; KolbjjO'Brien, 86111. 210; McCord V High, 24 Iowa 336 ; Long V Long, 57 Iowa 497 ; Hayes 1) Porter, 22 Me. 371 ; County Com'rs v Duckett, 20 Md. 463 ; County Com'rs v Baker, 44 Md. 1 ; Keith V Howard, 24 Pick. (Mass.) 292 ; NoweU V Wright, 3 Allen (Mass.) 166; Williams v Powell, 101 Mass. 467 ; Conway v Russell, 151 Mass. 681 ; Russell u Phelps, 42 Mich. 377 ; McGuire v Galligan, 57 Mich. 38 ; Chouteau v Rowse, 56 Mo. 65 ; St. Joseph F. & M. Ins. Comp'y v Le- land, OOMo. 177; Brock V Hopkins, 5 Nebr. 231 : Harrington v Wadsworth, 63 N. H. 400 ; Bonnel v Dunn, 28 N. J. L. 153 ; Bartlett v Crozier, 15 Johns. (N. Y.) 250; Shepherd v Lincoln, 17 Wend. (N. Y.) 250; Bailey v Mayor, etc., 3 Hill (N. Y.) 531 ; .idslt V Brady, 4 Hill (N. Y.) 630; Hickok V Plattsburgh, 15 Barb. (N. Y.) 427; Smith V Wright, 24 Barb. (N. Y.) 170 ; Fish V Dodge, 88 Barb. (N. Y.) 163 ; Paulding v Cooper, 10 Hun (N. Y.) 20 ; Bassett v Fish, 12 Hun (N. Y.) 209 ; Pierey v Averill, 37 Hun (N. Y.) 360 ; Chap. XXIX.] ACTION AGAINST OFFICER § 735. for nonfeasance, that is, for an omission to do his duty, only to the person who has a special interest in the per- formance of that duty; as where a sheriff, or other officer having corresponding functions, fails to fulfil the direc- tions of the process delivered to him; in which case he is liable only to the party interested in the execution of the process. But for misfeasance, or negligence in the per- formance of his duty, and also for malfeasance, or excess or abuse of his power, he is liable to any person who sustains injury thereby. § 725. The same subject. — Thus an officer, charged by statute with an absolute and certain duty, in the per- formance of which an individual has a special interest, is liable to the latter for a refusal to perform it, and is not relieved from such liability, because his disobedience was prompted by an honest belief that the statute was unconstitutional,' So an officer, refusing to obey the mandate of a court to levy a tax, in order to pay a judg- ment against a county, is liable to the judgment creditor, although the court, by proceedings for contempt, might compel him to levy the tax." On the other hand, where the duty was owing to the public only, the officer is not liable to an individual, who may have been incidentally injured by his failure to perform it.' Hutson V Mayor, etc., 9 N. Y. 163 ; See also. Hover v Barktoof, 44 N. Y. Robinson v Chamberlain, 34 N. Y. 389 ; 113, and cases cited ; Fulton F. Ins. Comp'y v Baldwin, 37 Amy v Sup'rs, 11 Wall. (U. S.) 136. N. Y. 648 ; a St_ Joseph Fire & M. Ins. Comp'y v Hicks V Dorn, 43 N. Y. 47 ; Leland, 90 Mo. 177.. Hover v Barkhoof, 44 N. Y. 113; jj^^ „ Humbert, 91 U.S. 294 McCarthy v Sjrracuse, 46 N. Y. 194 ; rpjjg ^ule is the same where the omis- Clark V Miller, 64 N. Y. £28 ; gion jg made a penal offence. Olmsted v Dennis, 77 N. Y. 378 ; Hryes v Porter, 22 Me. 371 ; Bennett V Whitney, 94 N. Y. 302 ; Raynsford v Phelps, 43 Mich. 343, per WooUey v Baldwin, 101 N. Y. 688 ; Cooley, J., p. 345 ; Kendall v Stokes, 3 How. (U. S.) 87 ; Bennett v Whitney, 94 N. Y. 302. Amy V Supervisors, 11 Wall. (U. S.) 136 ; ggg ^jg^^ Farmers' T. Comp'y V Gov- Stevens V Dudley, 56 Vt. 158. entry, 10 Johns. (N. Y.) 389. ' Clark V Miller, 54 N. Y. 528. s gee ante, IS 707, 708. 689 § 726. PUBLIC OFFICERS [Book VI. § 736. Liability for negligence.— But an officer owes to every individual, the duty of performing his official acts with due care; and he is consequently liable to any indi- vidual, who is injured in person or in property, by reason of his negligence in performing a ministerial act. Many instances, where actions for such negligence have been sustained, against not only the officer himself, but against the sureties in his official bond, have been given in former chapters of this work.' But a full considera- tion of the rules and principles, which govern such actions, and the application thereof to particular cases, cannot be attempted in a work of this character. The subject of negligence is a distinct and well explored branch of the law, and those questions are fully con- sidered in the works specially devoted to that subject. A few cases only, possessing peculiar features, and indi- cating in outline the principles, applicable to the liability of a public officer to a private individual, for an injury to the latter, caused by the former's negligence in the per- formance of his official duty, will be given here, and in subsequent portions of this chapter. The distinction, between judicial and ministerial functions, was considered at length in a former chapter^ and it was there stated, and the doctrine illustrated by several adjudications, that where an officer, whose general functions are judicial, as for instance, the judge of a court, is vested by law with any ministerial functions, his duty, with respect to the performance thereof, and the liability incurred by him in the course of such performance, are not affected by his judicial character, but are precisely the same as those of any purely ministerial officer, charged with the same functions. ' And it was also shown, that the ministerial character of a particular function, is not affected by the 1 Ante, ch. 12. ' Ante, §8 534, 539. « Ante, oh. 23. 690 Chap. XXIX.] ACTION AGAINST OFFICER § 727. fact, that in order to perforin the same, it is necessary for the officer to decide upon questions of fact, relating to the contingency upon which lie is empowered to act, or the best mode of acting, or the like. ' These principles are also stated and illustrated in many of the cases herein- after cited. § 737. The same subject. — Several of the principles, applicable to this class of cases, are ably stated and illus- trated in a decision of the supreme court of the state of New York. In the case referred to, an action was brought against the persons holding the offices of mayor and aldermen of a city, to recover damages for negligently and carelessly suffering a certain sidewalk to become out of repair, and large quantities of snow and ice to accum- ulate thereupon, to the knowledge of the defendants, whereby the plaintiff, without her fault, slipped upon the sidewalk, and was injured. Upon a demurrer to the com- plaint, the court held, that the plaintiff was entitled to recover. Learned, P. J., delivering the opinion of the majority of the court, after stating the general rule of liability by reason of ministerial acts, added: " Of course, this rule does not apply to an action, which is, in any sense, judicial. ISTow it is undoubtedly true, that the deciding whether or not a sidewalk shall be made, a,nd of what materials and of what grade it shall be made, is a quasi judicial act. But, on the other hand, the keeping of a sidewalk or a street in repair has often been held to be a ministerial act If the duty is imposed on a public officer, of keeping a sidewalk or a street in repair, he cannot excuse himself, on the ground that, in his judg- ment, it was best not to repair it. He may excuse him- self, of course, by showing that he did the best that he could." The opinion then considered the defendants" argument, that they are not charged with the duty, of 1 AnU, 8§ 537, 538, 607. 691 § 727. PUBLIC OPFiCEES [Book VI. doing the manual work of repairing, and keeping snow off the sidewalks, and that they are not responsible for the negligence, etc., of their employees; which is answered by referring to the fact, that the question arises upon a demurrer to the complaint, which alleges that they were negligent, etc. It then took up the objection, that the defendants cannot be made liable, because the charter of the city declares, that the city shall not be liable for any injury, caused by a sidewalk being out of repair, or by stepping upon snow or ice thereon. The learned presid- ing justice said, that this position is untenable, since it has been holden, that a canal contractor is liable for neglect, although the state is not liable; and that a street commissioner is liable for negligence, where the city charter expressly exempts the city from such liability; and that public officers are not relieved from liability, because the public body, which they represent, is not lia- ble; and he concluded by holding, that the defendants, since they have by the city charter the powers, are under the duty to exercise the powers, of commissioners of high- ways, upon whom the statute casts the duty of keeping the highways in repair." Where an action was brought against a justice of the peace, for not entering a judg- ment within four days, after a cause pending before him was tried, and finally submitted to him, whereby he lost jurisdiction; the court said, that his duty under the stat- ute was twofold, one to render judgment, being judicial, and the other to enter it, being ministerial; that the plaintiff alleged a default in regard to the latter only, but that the record showed that neither act was per- formed; and inasmuch as no judgment or decision was ' Piercy u Averill, 37 Hun (N. Y.) 360, Bennett v Whitney, 94 N. Y. 303. citing, upon the point that the de- It is not a defence, to an action against fendants liahllity is not affected hy a city, by an oflBcer unlawfully re- exemption of the city from llahillty , mo ved, that in removing him the city Robinson V Chamberlain, 34 N. Y. acted judicially. Dillon Mun. Corp., 389; 8 235(*m). 693 Chap. XXIX.] ACTION AGAINST OFFICER 729. made, there was none to enter, and the ministerial duty never attached; and so the action could not be main- tained. ' § 738. The same subject. — So, the supreme judicial court of Massachusetts held, that the tender of a draw- bridge, appointed by the governor and receiving a salary, who has full control of the passing of all vessels through the draw, and is required to give bond for the faithful performance of his duty, is liable in damages to a person injured, in consequence of his negligence in not shutting the gates, and hanging out lanterns while .opening the draw."" § 739. Rule where judicial or quasi judicial officer per- forms ministerial duty. — So a judge, or other strictly judicial officer, is liable to an action, for his omission or neglect of a duty imposed upon him, which is purely rain- isterial, no discretion, with respect to his acting or refus- ing to act, being conferred upon him by the statute imposing it; and the same rule applies to an officer exer- cising quasi judicial functions." ' Evarts v KieM, 102 N. Y. 296. 2 Now ell V Wright, 3 Allen (Mass.) 166, citing Jones v Bird, 5 B. & Aid. 837 ; Hall V Smith, 2 Bing. 156 ; Schlnotti V Bumsted, 6 T. R. (D. & E.) 646; White u Phillipston, 10 Met. (Mass.) 108 ; Bartlett v Crozier, 15 Johns. (N. Y.) 250; reversed, on another point, 17 Johns. (N. Y.) 439. " Ferguson v KinnouU (Earl of), 9 01. & Fin. 251, where the rule is fully dis- cussed, and the English cases cited ; Thompson v Holt, 52 Ala. 491 ; Grider v Tally, 77 Ala. 422 ; People V Bush, 40 Cala. 344 ; Smith V Trawl, 1 Root (Conn.) 165 ; Peters v Land, 5 Blackf. (Ind.) 12 ; Howe V Mason, 14 Iowa 510 ; McCord D High, 24 Iowa 336 ; State V Carrick, 70 Md. 586 ; Briggs V Ward well, 10 Mass. 356 ; Noxon V Hill, 2 AUen (Mass.) 215 ; Pike V Megoun, 44 Mo. 491 ; Rowe D Addison, 34 N. H. 306 ; Taylor v Doremus, 16 N. J. L. 473 ; Houghton V Swarthout, 1 Denio (N. Y.) 589; Christopher v Van Liew, 57 Barh. (N. Y.)17; Place V Taylor, 22 Ohio St. 317 ; Gaylor v Hunt, 23 Ohio St. 255 ; Fairchild v Keith, 29 Ohio St. 156 ; Spears i) Smith, 9 Lea (Tenn.) 483 ; McTeer v Lebow, 85 Tenn. 121 ; Wilson V Marsh, 34 Vt. 352, and other cases cited ante, ch. 23, and post, S§ 733-785. 693 §731. PUBLIC OFFICERS [Book VI. § 730. Ministerial officer cannot justify under uncon- stitutional statute. — An officer, exercising a ministerial power, cannot justify under an unconstitutional statute, although he acted in good faith, and before the statute had been declared to be unconstitutional. ' § 731. Officer's liability to private action not affected by his giving official bond. — The liability of an officer to a private action is not affected by the fact, that he has given an official bond. The effect of such a bond is merely to render the sureties therein liable for his official acts or omissions; whereas the action by an individual is founded upon a personal wrong committed by him." So that the fact, that the bond does not cover the particular act or omission, upon which the action is founded, does not tend to show that the officer is not liable therefor, civilly or criminally.' The bond of a justice of the peace does not include his judicial acts, but it applies only to his ministerial acts;* it does not alter his liability for either, but merely renders his sureties liable for acts for which he is liable. ' ' Sumner v Beeler, 60 Ind. 341 ; Fisher v McGirr, 1 Gray (Mass.) 1 ; Lynn v Polk, 8 Lea (Tenn.) 121 ; Astrom v Hammond, 3 McLean (U. S.) 107; Woolsey v Dodge, 6 McLean (U. S.) 142. See also. Board of Liquidation v McComl), 92 U. S. 531 ; Cunningham v Macon & B. R. R. Comp'y, 109 U. S. 446 ; Poindexter v Greenhow, 114 U. S. 270 ; Norton t' Shelby Co,, 118 U. S. 425. Contra, Sessums V Botts, 34 Tex. 335, holding that a ministerial officer Is protected in obeying a statute, until it is judicially declared to be uncon- stitutional. As to acts of a judicial ofHcer, see ante, § 723, and of an offi- cer de facto, see ante, ch. 27. Generally, see also, Campbell i) Sher- man, 35 Wis. 103. " State V Conover, 28 N. J. L. 224, per Haines, J., pp. 229, 230. See also, Comm. i) Cole, 7 B. Hon. (Ky.) 250. ' Holt B McLean, 75 N. C. 347. * Ante, § 237. ' Irion V Lewis, 56 Ala. 190. 094 Chap. XXIX. ] ACTION AGAINST OFFICER § 733. II. Special rulings, relating to the liabilities of particu- lar officers to private actions. § 732. References to rulings cited elsewhere.— Many rulings of this character were given in the chapter relat- ing to the liabilities of the sureties in official bonds;' others will be found in the foregoing sections of this chapter. (1.) Justice of the peace. § 733. Variety of his functions, and extent of the doc- trine. — The variety of the functions, discharged by a jus- tice of the peace, which are often political or administra- tive, and, even in the course of legal proceedings before him, are partly judicial and partly ministerial, has given rise to numerous questions, some of which are very per- plexing. Some citations of cases, in which such questions arose, will be found in foregoing pages of this work." It has been also held, that where a justice of the peace has jurisdiction of the cause of action, an error, in directing an order of arrest to the sheriff, or any constable, where the statute requires it to be directed to the sheriff, does not render him personally liable;' nor is he personally liable for giving judgment for costs, where he had no authority so to do;' or for making a writ issued by him, returnable before himself, instead of before the district court;' or for entering judgment and issuing execution, before the time allowed by law,° or for refusing to render judgment for the plaintiff, and adjourning the cause against the plaintiff's objection, where the defendant did not appear, although- the statute required him so to render judgment, and mean- while other creditors secured liens;' or for issuing an 1 Ante. ch. 12, passim. ' Reid v Hood, 2 Nott & McC. (S. C.) 168. ' See ante, §§ 235, 237, 539, 727. • Abrams v Carlisle, 18 S. C. 242 ; 3 Alleo V Keece, 39 Fed. Rep. (U. S.) 341 ; ^^"^^"^ " Woodard, i Chand. (Wis.) 34. ' White V Morse, 139 Mass. 162. ' ^^'^'^ "> ^^f '•=' ^ ^- ^- ^t- Rep'r. 496; 6N. Y. Supp. 882. 695 § 733. PUBLIC OFFICERS [Book VI. attachment on a note, before it was payable, where the affidavit stated that it was payable;' or for enter- ing judgment for less than the sum proved to be due, although the plaintiff alleged that this was done fraudulently;' or for corrupt official conduct on the trial of a cause;' or for erroneously dismissing a cause, for the failure of the plaintiff to appear;' or for taking a recogniz- ance on appeal which is insufficient in form;' or for erron- eously refusing to grant an appeal;" or for erroneously determining the sufficiency of bail;' or for erroneously granting a rehearing, and altering his former judgment;' or for failing to render and enter a judgment, within four days after a cause has been finally submitted to him, as the statute requires him to do." In these, and many other instances to be found in the reports, although there is often considerable conflict as to the character of particular acts, it was held, that the justice acted judicially, and he was therefore protected within the rule, that a private action will not lie against an officer for a judicial act, which he had jurisdiction to perform, however erroneous it might have been, and whatever might have been his motives in the performance thereof. " ' Connelly v Woods, 31 Kan. 359. been liable, if he had rendered the See also. Grove v Van Duyn, 4A N. J. L. judgment within the four days, and 654. had omitted to enter it in his docket, ' Kress v State, 65 Ind. 106. >» Heard v Harris, 68 Ala. 43 ; » Irion V Lewis, 56 Ala. 190. Holcomb v Cornish, 8 Conn. 375 ; Holtzman v Robinson, Z MaoArthnr * Hitch 11 Lambright, 66 Ga. 228. ,jj q ) 530 . = ChickeringDRobinsou,3Cu8h. (Mass.) Walker v Floyd, 4 Bibb (Ky.) 237 ; 513. Bullitt V Clement, 16 B. Mon. (Ky.) 193 ; » Jordan t, Hanson, 49 N. H. 199. kittle v Moore, 4 N. J. L. 74 ; See also, Tyler v Alf ord, 38 Me. 530 ; Mangold v Thorpe, 33 N. J. L. 134 ; Tompkins v Sands, « Wend. (N. Y.) 462. Sutler v Potter, 17 Johns. (N. Y.) 145. See also, Pratt v Gardner, 2 Gush. ' Lining D Bentham, 2 Bay (S. C.) 1 ; (Mass ) 63 • See also. State v Johnson, 2 Bay (S. C.) Raymond t> BoUes, U Cush. (Mass.) 315 ; Piper V Pearson, 8 Gray (Mass.) 120 ; * Gregory v Brown, 4 Bibb (Ky.) 28. Way v Townsend, 4 Allen (Mass.) 114 ; ' Evarts v Kiehl, 102 N. Y. 296. ^^^l'^'' " D^a^^s- 1^ Mass. 118. Semble, however, that he would have Jolmston v Moorman, 80 Va. 131. 696 Chap. XXIX. J ACTION AGAINST OFFICER § 734. § 734. Where justice's act was of a ministerial charac- ter. — On the other hand, it has been held, that in issuing an execution upon a judgment recovered before him, a justice of the peace acts ministerially, and not judicially, and therefore an action lies against him, for failing to issue an execution, upon the request of the judgment creditor entitled thereto;' or upon a void judgment;" or where the execution is issued against the body, in a case wherein such an execution is not allowed by law;^ and generally, wherever the execution is unwarranted by law.* So, he is liable to the judgment creditor, for issuing an execution void upon its face. " And a justice of the peace is liable for failure to issue a writ de retorno habendo, upon the application of a defendant, who has recovered a judg- ment before him, where the property was taken under a writ of replevin; and his official bond is also liable there- for." So he is liable, for rendering a judgment exceeding his jurisdiction;' or after the cause has been discontinued by an unauthorized adjournment;' or for issuing an attachment, or a search warrant, or other process, without the preliminary proof which the statute requires;" or for issuing an attachment, in a case where he is not authorized so to do by law;'° or a warrant of arrest, under the same circumstances, although he acted honestly;" or for com- mitting a witness for contempt in disobeying a subpoena, where the proceedings to punish him were not begun, > Fairchild v Keith, 29 Ohio St. 156. » Noxon v Hill, 2 Allen (Mass.) 215. Contra, that issuing an execution is a „ gj^^^-g ^ Carriok, 70 Jld. 5S6. judicial act, and that the justice is „_ .^ . ^ ,. , , . . . .. ,. .,„ ' Estopmalii Peyroux, 37 La. Ann. 4iT. not liable for issuing it negligently, ^ in such an unlawful form that the ' Spencer v Perry, 17 Me. 413. creditor lost the debt. Wertheimer » Orumon v Raymond, 1 Conn. 40 ; V Howard, 30 Mo. 420. Tracy v Williams, 4 Conn. 107 ; « Inos V Winspear, 18 Cala. 397. Flack v Harrington, 1 111. 213 ; . T. • TIT- J 11 in »/r . Qcn . Adkins u Brewer, 3 Cow. (N. Y.) 203. ' Bnggs V Ward well, 10 Mass. 358 ; Sullivan v Jones, 2 Gray (Mass.) 570. '° Wright v Rouss, 18 Nebr. 234. 4 Fisher v Deans, 107 Mass. 118. " Truesdell V Combs, 33 Ohio St. 186. See also, Albee v Ward, 8 Mass. 79. 697 735. PUBLIC OFFICERS [Book VI. until after the end of the cause, in which the subpoena was issued;' or where, after convicting a person for assault and battery, he allows him to go at large, and then issues a mittimus, without a previous capias to show cause;'' or where he voluntarily or negligently absents himself from the place and at the time specified, after he has been notified of the arrest of a person, under process issued by him.' So, where a person was arrested on a charge of larceny, and money was taken from him, and delivered to the justice who issued the process, and the money was not identified as that stolen, it was held, that the justice was liable for the money, to the person from whom it was taken." In these, and numerous other cases to be found in the reports, the justice was hoiden personally liable to the individual injured, because he acted wrongfully and without authority, either in the exercise of a power committed to him, which was minis- terial in its character, or by exceeding his jurisdiction and authority, with respect to a judicial power. ' § 735. Not liable for incorrect statement of amount of judgment. — Where a party, against whom a judgment had been rendered by a justice of the peace, applied to ' Clarke v May, 2 Gray (Mass.) 410. See also, Piper t) Pearson, 3 Gray (Mass.) 120. 2 Doggett V Cook, 11 Gush. (Mass.) 262 ; Fisher v Deans, 107 Mass. 118. * Shaw V Reed, 16 Mass. 450. < Welch V Gleason, 28 S. C. 247. ' Kelly V Moore, 51 Ala. 364 ; Lanpher « Dewell, 56 Iowa 153 ; Revill V Pettit, 3 Met. (Ky.) 314 ; Bore 1) Bush, 6 Mart. N. S. (La.) 1 ; Terrail v Tinney , 20 La. Ann. 444 ; Tyler v Alford, 38 Me. 530 ; Kendall « Powers, 4 Met. (Mass.) 553 ; Knowles v Davis, 2 Allen (Mass.) 61 ; Guenther v Whlteacre, 24 Mich. 504 ; Evertson v Sntton, 5 Wend. (N. Y.) 281 ; Tompkins V Sands, 8 Wend. (N. Y.) 462; Cunningham v Bucklln, 8 Cow. (N. Y.) 178; Houghton V Swarthout, 1 Denio (N. Y.) 589; Christopher d Van Liew, 57 Barb. (N. Y.) 17 ; Blythe v Tompkins, 2 Abb. Pr. (N. Y.) 468; Kerns V Sehoonmaker, 4 Ohio 331 ; Miller v Grice, 2 Rich. L. (S. C.) 27 ; Morrill v Thurston, 46 Vt. 732 ; Vaughn v Congdon, 56 Vt. 111. See also, Morgan v Hughes, 2 T. R. (D & E.) 225. 698 Chap. XXIX.] ACTION AGAINST OFFICER §737 him by letter for a statement of the amount of the judg- ment, in order to prepare a bond for an appeal; and, in answer to the application, the justice gave the amount incorrectly, whereupon the appeal taken by the party was quashed for the variance; it was held, that an action would not lie against the justice, founded upon an allega- tion of negligence or carelessness, because it was not his oflficial duty to give a certificate for that purpose, and "no fraudulent intent is imputed." ' (2.) Highway officer. § 736. What duties are quasi judicial. — Some of the duties of highway officers are of a quasi judicial character, and others are of a ministerial character. To the former class belong all their duties, connected with the opening, discontinuing, closing, and general management of the highways and other roads, including the assessment of damages or of benefits thereupon. These duties involve the exercise of judgment and discretion, and, upon the principles heretofore stated, highway officers are exempt from liability to a private action in the performance thereof, as long as they keep within their statutory juris- diction; but they are so liable whenever they exceed their jurisdiction.' § 737. What duties are ministerial. — The duty of keeping the highways, roads, and bridges, under their • Wickware v Bryan, U Wend. (N. Y.) 545. •> Elder v Bemis, 2 Met. (Mass.) 599 ; Benjamin v Wheeler, 8 Gray (Mass.) 409; Benjamin v Wheeler, 15 Gray (Mass.) 486; Morrison v Howe, 120 Mass. 565 ; Denniston u Clark, 125 Mass. 216 ; Hatch V Hawkes, 126 Mass. 177 ; Upham V Marsh, 128 Mass. 546 ; Johnson v Dunn, 134 Mass. 522; Sage V Laurain, 19 Mich. 137 ; Highway Com'rs i) Ely, 54 Mich. 173 ; Lamed v Briscoe, 62 Mich. 393 ; Clark V Phelps, 4 Cow. (N. Y.) 190 ; Van Steenhergh u Bigelow, Z Wend. (N. Y.)42; Miller v Brown, 56 N. Y. 383 ; Morse i) WUliamsou, 35 Barb. (N. Y.) 472; Harrington » Com'rs, etc., 2 MoCord (S. C.) 400. See, however, Adams v Richardson, 43 N. H. 2IS. 699 § 737. PUBLIC OFFICERS [Book VI. control, in proper repair, is ministerial, and for a failure to perform that duty, they are liable to an action for damages, by any person injured by reason of the insuffi- ciency of any highway, road, or bridge, under their control, provided they have funds at their disposal, sufficient for the purpose of keeping the same in proper repair, but not otherwise;' and the town is not liable, in the absence of a statute to that effect, to reimburse the highway officers for a liability so sustained by them, and it cannot be compelled to do so by mandamus or action/ They are liable, even if they have not suffi- cient funds, where they have authority to procure such funds;' for it is their duty to make the effort to obtain funds, "to use the power given to them, and apply through the proper channels for the needed funds; failing to do so, they were negligent." * Their duty is not dis- charged, by waiting to be notified that the .highway is out of repair; it involves "the exercise of a reasonable degree of watchfulness." ' But they are not liable for a defect, which a careful examination would not reveal.' And the rule, requiring them to have funds, or the means of procuring funds, in order to render them liable, does not apply to "a case of misfeasance, where the officer > ' Adsit t) Brady, 4 Hill (N. Y.) 630 ; have, from time to time, been en- Lament V Haight, 4i How. Pr. (N. Y.) 1 Warren v Clement, 2i Hun (N. Y.) 472 Babcock v Gifford, 29 Hun (N. Y.) 186 acted, imposing upon particular municipalities, the duties and lia- bilities of highway officers ; and by Piercy v Averill, 37 Hun (N. Y.) 360 ; L. 1881, ch. 700, towns were made Hutson V Mayor, etc., 9 N. Y. 163 ; liable for injuries by defective high- Garlinghouse v Jacobs, 29 N. Y. 297 ; ways, and were given a remedy over Robinson v Chamberlain, 34 N. Y. 389 ; against delinquent commissioners. Hover v Barkhoof, 44 N. Y. 113; , p^^^^^ ^ ^^^^ Auditors, 74 N. Y. 310; Hines V Lockport, 50 N. Y. 236 ; p^ j^ ^ ^^^^ Auditors, 75 N. Y. 316. Weed V Ballston Spa, 76 N. Y. 329 ; Bennett v Whitney, 94 N. Y. 302 ; ' Hover v Barkhoof, 44 N. Y. HS. Pomf rey v Saratoga Spr, 104 N. Y. 459. ^ee also, Olmsted d Dennis, 77 N. Y. 378. See, however, Lynn v Adams, 2 Ind. * Warren v Clement, 24 Hun (N. Y.) 472. ^^ ' ' Bostwick D Barlow, 14 Hun (N. Y.) 177. Dunlap V Knapp, 14 Ohio St. 64. In New York, many special statutes ' ^icks v Chaffee, 13 Hun (N. Y.) 293. 700 Chap. XXIX. j ACTION AGAINST OFFICER § 738. had actedj but conducted himself negligently, to the special injury of an individual.' But where the highway officers hare funds, but not sufficient funds, or the means to procure sufficient funds, to make all the repairs which are needed, it becomes a matter of judgment and discre- tion, to determine the repairs which are most urgently needed, and they are not liable for an error of judgment in making such determination." (3.) Assessor of taxes. § 738. What acts are quasi judicial ; and what minis- terial. — The duties of tax assessors are also partly quasi judicial, and partly ministerial, and the courts, with occasional variations respecting the application thereof, have followed the same rules, with respect to private actions against those officers for erroneous official acts. The cases in New York were fully examined in an opinion, delivered in the court of appeals of that state, in an action by a bank, to recover a tax levied under an assess- ment upon its capital stock, in violation of a statute forbidding such an assessment, and providing for the taxation of the stockholders. The court held, that the action could be maintained. Church, Ch. J., delivering the opinion, adverted to the defendants' argument that the act was judicial, and said: "Some of the duties of assessors are judicial in their nature, and as to these, when acting within the scope of their authority, they are pro- tected from attack collaterally, to the same extent as other judicial officers; but they are subordinate officers, pos- ses.'ring no authority except such as is conferred upon them by statute; and it is a well settled and salutary rule, that such officers must see that they act within the authority committed to them. "When they have no power to act at ' Bennett v Whitney, 94 N. Y. 302. See also, Garlinghouse v Jacobs, 89 N. J Monk V New Utrecht, lOi N. Y. 553. ^- ^• 701 § 738. PUBLIC OFFICERS [Book VI. all in a given case, either as to person or property, their acts are void. So, when their right to act depends upon the existence of some fact, which they erroneously deter- mine to exist, their acts are void. So, in performing a ministerial duty, their acts are void, if not in accordance with law. But having jurisdiction of the person and sub- ject matter, if they err in the exercise of it, they are protected." He illustrated these principles, by citing the former cases, holding that if assessors erred in determin- ing that a person was a taxable inhabitant of the town, they were liable to an action; that where land's of a non- resident of a town were assessed to a resident as resident lands, the assessment was void; and that the same result followed, where a building exempt as a seminary was assessed. In one case, where an action was brought against assessors by a clergyman, for not allowing him the statutory exemption of $1,500, it appearing that he had property to a larger amount, it was held, that the assessors were not liable, as they had jurisdiction to act, and in fixing the value of the property they exercised a judicial power; but, in another case, where the clergyman did not possess property to the amount of the exemption, it was held that they were liable, as they had no jurisdiction, "and could not obtain any, by deciding wrongfully that he was not a minister." After citing and explaining other cases, supposed to conflict with these rulings, the learned chief judge concluded: "The distinction is between an erroneous and an illegal assessment. The former is where the officers have power to act; but err in the exercise of the power, the latter where they have no power to act at all, and it does not aid them to decide that they have." ' ' Nat. Bk. of Chemung v Elmlra, 53 Whitney v Thomas, 23 N. Y. 281 ; N. Y. 49, reversing 6 Lans. (N. Y.) 116. Chegaray V Jenkins, 5 N. Y. 376 ; Opinion by Church, Ch. J., citing and Weaver v Devendorf , 3 Demo(N.Y.) 117; commenting upon Prosser v Secor, 5 Barb. (N. Y.) 607. Mygatt V Washburn, 15 N. Y. 316 ; And explaining and disapproving 702 Chap. XXIX. J ACTION AGAINST OFFICER § 739. § 739. The same subject ; illustrations.— On the other hand, it was held by the court of appeals of the same state, (and the decision was affirmed by the supreme court of the United States,) that tax assessors were not liable, for making an assessment on the par value of the plain- tiff's shares of stock in a national bank, where the statute required the assessment to be made upon the market value of the shares; although a similar assessment was m.ade upon the shares of each of the national banks in the city, some of which had a market value twice as large as the plaintiff's shares, the effect of which was, as the court held, to impose upon the plaintiff, a greater burden of taxation, than that which properly belonged to him. It was said by the court, that "in order to estab- lish an. individual liability, it must be made to .appear against the assessors, not only that the assessment was erroneous, but that such assessors had no jurisdiction whatever in laying the tax. If they had jurisdiction, both of the person taxed, and of the subject matter, then their acts partake of a .judicial character; and, however erroneous or unequal the tax may be, do not fix an indi- vidual liability upon them, at least when they act in good faith, and without malice." ' So, the supreme court of the same state held, that an action would not lie against the assessors of a town, for imposing a tax upon the plaintiff for a dog, under a statute rendering the person who "harbors " a dog liable for the tax, although the plaintiff did not in fact harbor the dog; inasmuch as the plaintiff dicta in Barhyte v Shepherd, 35 where they assessed a nonresident's N. Y. 238 ; ■ . land to him personally. Hilton v Swift V Poughkeepsie, 37 N. Y. 511. Fonda, 86 N. Y. 339. Followed, holding assessors liable, See also, Haley v Whitney, 63 Hun where a farm lying partly In each of (N. Y.) 119. two adjoining towns, was assessed , ■wuuams v Weaver, 75 N. Y. 30, afl'd in the town wherein the owner did ^qq ^_ g_ g^y_ not reside, Dorn v Backer, 61 N. Y. 261, rev'g 61 Barb. (N. Y.) 597 ; and 703 § 741. PUBLIC OFFICERS [Book VI. was a resident of the town, and the dog was, for part of the time, on the plaintiff's land, so that the assessors "had jurisdiction of the subject matter assessed, and of the person of the plaintiff," and "acted within the limits of the jurisdiction conferred upon them, and are not liable for an erroneous determination of that question." ' § 740. Rulings under Massachusetts statute. — In Mas- sachusetts, it is now expressly provided by statute, that assessors are not liable for the assessment of a tax, where it was assessed pursuant to a lawful vote, etc., "except for the want of integrity and fidelity on their own part." " Before the enactment of that statute, the courts of Massachusetts held, that assessors were liable in such a case." And in cases not within the statute, the courts of that state have adopted substantially the same rules, as those which govern in New York.' Where the right to vote is made dependent upon payment of a tax, assessors are not liable for omitting to tax the plaintiff, whereby he lost his vote; unless the plaintiff shows their knowledge of his liability to be taxed, and a wilful omission by them to tax him, for the purpose of depriving him of his vote. " § 741. The same subject ; miscellaneous rulings. — It has been held, in Iowa, that a tax payer may maintain an action against an assessor, for an overestimate of his property for the purpose of taxation, if it was thus over- estimated maliciously." And the rule, that they are not liable, where they have jurisdiction of the person and of ' Robinson v Rowland, 26 Hun (N. Y.) Inglee v Bosworth, 5 Pick. (Mass.) 498 ; 501. Dickinson v Billings, 4 Gray (Mass.) » Pub. Stat, of Mass., p. 113, 8 94. ^'' Blankinship v Hadlej", 11 Gray (Mass). ' Gage 1) Currier, 4 Pick. (Mass.) 399 ; joi . Ingraham v Doggett, 6 Pick. (Mass.) j^^^'^ Thompson, 125 Mass. 553. 451; Little V Merrill, 10 Pick. (Mass.) 543 ; ' '^'^^^^ " Rising, 11 Met. (Mass.) 339. Taf t V Wood, 14 Pick. (Mass.) 362 ; » Parkinson v Parker, 48 Iowa 667, at p. Freeman DKenney, 15 Pick. (Mass.) 44. 669. * Stetson i> Kemptou, 13 Mass. 272 ; 704 Chap. XXIX.] ACTION AGAINST OFFICER § 743. the subject matter, "for errors of judgment, and unin- tentional mistakes, irregularities, or illegalities in the assessment," has been established and applied in other states.' The rule of law, as to the liability of assessors, and other oflBcers having corresponding duties, to a judg- ment creditor, for failure to levy a tax to pay a judg- ment recovered against the municipality, was considered in a previous section of this chapter." Other rulings, relating, directly, or indirectly, to the liability of these officers, have been cited elsewhere. ' (4.) Recoeding officer. § 743. His general duties are ministerial. — The ques- tion, whether a recording officer is liable for an error in a search and certificate of title, made by him, to any one, except the person who employed him, has been already considered.' The general duties of a recording officer are purely ministerial; and he is therefore liable, to the person entitled to his service, for any failure diligently to perform such duties; provided, of course, that his fees are paid or tendered, where he is entitled to them in advance, or that he accepts the employment, without requiring advance payment. Thus, he is liable for an omission to record, seasonably and iu its proper order, every instru- ment delivered to him for that purpose, which may be recorded under the statutory provisions relating thereto; or for recording the same incorrectly; and for such a failure of his duty he is liable, either to the grantor or to the grantee in the instrument, according to the nature of the error, or other circumstances from which the injury arises. But the extent of his liability to either, and his liability, if any, to a subsequent grantee, often pre- ' McDaniel i) Tebbetts, 60 N. H. 497 ; » Ante, 8 785. Wilson V Marsh, 34 Vt. 352. s j,nte § 541. See also, Dillingham v Snow, 6 Mass. 547;' Odiome v Band, 59 N. H. 504. < Ante, § 707. 705 § 743. PUBLIC OFFICERS [Book VI. I sent questions of great difficulty, upon which the cases are not harmonious, depending, as those questions do, upon considerations, relating to the person to whom the duty-is owing, and the remote or proximate cause of the injury, and upon the different circumstances under which the injury occurred; as to which the rules of law are not distinctly defined, nor are they certain in their application.' Most of these questions properly belong to the treatises on the measure of damages. § 743. Liability for imperfect index ; the measure of damages. — The statutes invariably require the recording officer to make, and keep for public reference, an index to the instruments recorded; and he is liable to any per- son, who is injured by relying upon an index, which is defective." But here again, a question is presented, respecting the measure of damages; for the courts have held, that a failure to index, or an error in indexing a conveyance, does not affect the grantee's title." > Mims 1) Mims, 35 Ala. 23 ; Rigga v Boylan, i Bias. {U. S.) 445 ; Obamberlain v Bell, 7 Cala. 293 ; Sanger v Craigue, 10 Vt. 555. WellesuHiitchinson,2Boot(Conn.)85; , Mutual Life Ins. Comp'y v Dake, 87 Shepherd v Burkhalter, 13 Ga. 443 ; jj_ y. 257, afE'g 1 Abb. N. C. (N. Y.) Merrick v Wallace, 19 111. 486 ; ^^ p^^. ^^^^, j_^ ^ 2g^_ Kerr v Russell, 69 111. 668 ; g^^ ^1^^^ g^^^^^^ ^ Windsor, 24 Vt. 327 ; Scoles V Wilsey, U Iowa 261 ; Lyman v Edgerton, 29 Vt. 305, holding, Miller V Bradford, 12 Iowa 14 ; ^j^^^ ^^^^^ ^ ^^^^^^^ „f Vermont, Breed v Conley, 14 Iowa 269 ; ^^^^^ ^^^ ^^^^ j.^^j^ ^^^ ^^^ ^^^ Brydon „ Campbell, 40 Md. 331 ; ^^^^^,^ ^^^^ ^^^ ^^^^ i^ ^.^^^^ ^^^ j^.^ Sinclair v Slawson, 44 Mich. 123 ; j^^^^^ ^^ ^^^^^ ^ conveyance, to one Parret v Shaubhut, 5 Minn. 323 ; ^^^ examined and relied uoon the Terrell v Andrew Co., 44 Mo. 309 ; Index Bishop V Schneider, 46 Mo. 472 ; Garrard v Davis, 53 Mo. 322 ; ' ^^'^°P " Schneider, 46 Mo. 472 ; Davis V Thompson, 1 Neva. 17 ; ^"t- ^- 1°«- ^^omPV '« Dake, 87 N. Y. Beekman v Frost, 18 Johns. (N. Y.) 544, ^57, aff'g 1 Abb. N. C. (N. Y.) 381 ; rev'g, s. cp.r. , 1 Johns. Ch. (N.Y.) 288; Bedford v Tupper, 30 Hun (N. Y.) 174 ; Simonsoni,Falihee,25 Hun (N. Y.) 570; Commissioners, etc., •uBabccck, 5 Oreg. Bedford v Tupper, 30 Hun (N. Y.) 174 ; *''^ ' LaUy V Holland, 1 Swan (Tenn.) 396 ; ^Jurtis v Lyman, 24 Vt. 338. Baldwins Marshall, 2 Humph. (Tenn.) . ^^^ ^■l^"' Chatham v Bradford, 50 Ga. 116; 327; Polk V Cosgrove, 4 Biss. (U. S.) 437 ; ^c'^ " S*«»' ''^ ^a-S*-- 706 Chap. XXIX.] ACTION AGAINST OFFICER § 745. § 744. Refusal to permit inspection of records ; liability for furnishing incorrect copies. — It is the duty of a clerk, or other officer having charge of public records, upon reasonable and proper application, to allow any pei;son to inspect the records and other papers in his office, and to take abstracts or copies of the same; and he is liable to an action for his refusal so to do. ' But this duty is subject to such reasonable regulations and limitations, as may be necessary for the safety of the records and other papers, and the proper transaction of the business of the office." It is also the duty of such an officer, upon reason- able request, and payment of his fees, to furnish, to and person applying therefor, searches, and copies of the records and other papers in his office; and for his failure so to do, or his negligence in furnishing incorrect or imperfect searches or copies, he is liable to an action.' (5.) Clerk of a court. § 745. Reference to cases cited elsewhere ; nature and extent of his liability. — Rulings, respecting the judi- cial or ministerial character of particular functions, exercised by a clerk of a court, will be found in former chapters." The rules, respecting the clerk's liability or ' Burton i) Tuite, 78 Mich. 363 ; "So ruled upon mandamus, People v Lum V McCarty, 39 N. J. L, 287, over- ReUly, 38 Hun (N. Y.) 429 ; ruling Fleming v Hudson Co. Clerk, People v Richards, 99 N. Y. 620. 30 N. J. L. 280 ; See also, Webber v Townley, 43 Mich. Lyman v Windsor, 24 Vt. 575. 534, as qualified by Burton v Tuite, Hanson v Eichstaedt, 69 Wis. 538. 78 Mich. 363, at p. 374 ; The same rule was applied to the Chase i; Heaney, 70 111. 268. l/nited States Commissioner of Pat- a gjjjjtjj „ Holmes, 54 Mich. 104 ; ents, in Boyden v Burke, 14 Kow. Morange v Mix, 44 N. Y. 315 ; (U. S.) 575, wherein it was also held, MoCaraher v Comm., 5 Watts. & S. that the officer is not bound to com- (Pa.) 21 • ply with a demand made in an in- ziegler v Comm., 12 Pa. St. 227. suiting manner; hut a suhsequent j,^^ ^^^^^ rulings, relating to the ' proper demand by the same person, liability of those officers, see ante, although not accompanied with any gg 248 250. apology for his preyious improper A^ -,11 *>.« *„™.i„«„« „* « ^nte, §8208,231,233,243,249,291,529,539, conduct, will lay the foundation of , , i 1 , , , 1 ^. 540, 614. an action. 707 § 746. PUBLIC OFFICERS [Book VI. immunity from liability in the performance of such acts, may be readily applied to such cases. A few additional cases will be cited. It has been held, that a clerk is not liable for issuing a writ which is a nullity, since.no damages to the party can accrue, within the rules of law relating to proximate and remote damages; for the costs and expenses of the ensuing litigation are not the natural and proximate consequence of his issuing the writ. ' A clerk is not liable for negligence, by reason of his omis- sion of the name of one of the appellees in an appeal bond, where the parties have treated the appeal bond as valid." A clerk is liable to an action, by the person aggrieved, for misplacing papers filed with him, so that they cannot be found in the appropriate place, when required; although, when handed in to be filed, they were in a package with other papers. ° In many respects, the duties, and consequently the liabilities, of the clerk of a court are the same as those of a recording officer, and the rulings cited in the last preceding subdivision apply thereto. Indeed, in some of the cases there cited, the question arose upon the duties or liabilities of the clerk of a court. (6.) Election officer. § 746. His functions ministerial ; refusal to receive vote ; English statutes ; Massachusetts statute.— It was stated in a previous chapter, that the decision of inspectors or judges of election, as to the admission of a vote, or of county canvassers, as to the result of an elec- tion, and the making of returns by election oificers, are ministerial acts.* The questions which have arisen, respecting the liability of an election officer to a private action, have usually been presented in a case, where a ' Eslava v Jones, 83 Ala. 139. « Ante, 8 538. ^ People V Leaton, 121 111. 666. See also, ante, gS 153, 154, 156. ' Rosentlial v Davenport, 38 Minn. 543, ■708 Chap. XXIX.] ACTION AGAINST OFFICER § 746. qualified voter has brought an action against the inspect- ors or judges of the election, for refusing his vote; and it follows, from the ruling stated, that such an action can generally be maintained. But in some states, a stat- ute has vested election officers with quasi judicial pow- ers, with respect to either the entire subject of receiving or rejecting a vote, or declaring the result of the election, or with respect to some of the proceedings in the con- ducting of the election. Where that has been done, of course no action lies, unless, perhaps, where the officer has acted maliciously. Thus, the English statute, in force before the statute 3 William IV, ch. 45, required the returning officer to make, under oath, a return of that person as elected, who, in his judgment, had the majority of legal votes. This provision referred to the judgment of the returning officer, the question, whether a particular person was a legal voter, and so rendered his action thereupon of a judicial character.' So, in Massachusetts, the statute now exempts the selectmen from liability for refusing a vote, unless the person offer- ing it shall furnish them " sufficient evidence " of his qualifications; and the courts have ruled, that this provis- ion imposes upon the selectmen the duty of deciding, in the first place, as to the sufficiency of the proof presented; and that, in an action against them for refusing a vote, the jury is to determine whether the proof was '"suffi- cient." " Before that statute, it was held, that the select- men were absolutely liable, if the person, whose vote was refused by them, was a qualified voter, although they acted without malice.' Under the statute, it has been ' Rogers on Elections, 246 ; Oakes i) Hill, 10 Pick. (Mass.) 333 ; Tozer v Child, 7 El. & Bl. 377 ; 26 L. J., Keith v Howard, 24 Pick. (Mass.) 292. Q. B., 151 ; 3 Jur. N. S. 409. See also, Capen t) Foster, 12 Pick. •" Blanchard v Steams, 5 Met. (Mass.) 298. (Mass.) 485 ; Gates V Neal, 23 Pick. (Mass.) 308 ; ' Kilham v Ward, 2 Mass. 236 ; -q^^^ ^ Benchley, 2 Cush. (Mass.) 100 ; Gardner v Ward, 2 Mass. 244 note ; Lombard v Oliver, 3 Allen (Mass.) 1, Lincoln » Hapgood, U Mass. 350 ; ^^ Blgelow, Ch. J., p. 3. 709 § 748. PUBLIC OFFICERS [Book VI. held, that an action lies against the selectmen, for wrongfully erasing the name of a person from the regis- try of the voters, he being a qualified voter, and having previously furnished to them "sufficient" evidence of his qualification;' and this, although the statute makes such an act highly penal." ' § 747. The same subject ; the Maine statute.— So, also, in some of the other states, special provision is made by statute, limiting the right of action against election officers for refusing a vote; as in Maine, where the select- men are made liable only for "unreasonable, corrupt, or wilfully oppressive " conduct, in the refusal to receive a qualified elector's vote. Under that statute, it has been held, that they are not liable, although their action was corrupt or wilfully oppressive, if it was not unreasonable; that the question is, not whether the officers' acts appeared to them to be reasonable, but whether such acts were reason- able in fact; that ignorance is not a legal excuse; but where their conduct is unreasonable, but not corrupt, punitive damages will not be given against them;^ and that the refusal to permit a qualified elector to vote, because another had personated him, and voted in his name at the same election, is unreasonable and renders them liable.' § 748. The same subject ; rulings where statute com- plied with, or in the absence of statute. — But in the absence of any statutory restriction upon the right of action, the better opinion appears to be, although the cases are not harmonious, that inspectors of election, selectmen, judges of election, or other officers controlling the reception or rejection of the votes, are liable to an action by a quali- fied voter for rejecting his vote, if he has taken the pre- ' Lamed 1) Wheeler, 140 Mass. 390, citing » Id.; and see Blanchard v Stearns, 5 Lombard v Oliver, 3 Allen (Mass.) 1 ; Met. (Mass.) 298. s. i;. 7 Allen (Mass.) 155 ; Harris v Whitcomb, 4 Gray (Mass.) 433. « Sanders i) Getchell, 76 Me. 158; < Pierce v Getchell, 76 Me. 316 710 Chap. XXIX.] ACTION AGAINST OFPICEK 748. scribed oath, and answered such questions as the statute allows them to put to him, and otherwise complied with the statutory regulations as to registry, etc. ; and this, not only without any allegation or proof of malice, but even where they affirmatively show, that they acted honestly and in good faith. Thus, where the constitution of a state provided, that only white male inhabitants should vote, and the inspectors decided that a particular voter was not white, and so rejected his vote; the court held, that they were liable, as the evidence showed that he was white, although they acted without malice, and in the belief that they were discharging their official duty. ' So, where a person offering his vote was challenged, on the ground that he was a deserter from the United States military service, and therefore disqualified under an act of con- gress to that effect; the court holding, in accordance with former decisions, that the only competent evidence of the fact was a duly authenticated record of his convic- .tion, held also, that the inspectors were liable for refusing to receive his vote, after he had taken the preliminary oath, prescribed by the statute to be taken upon a chal- lenge, and had answered the other questions which the statute allows the inspectors to ask, as to his residence, etc., and had refused to answer other questions, relating to the challenge on th,e ground of desertion." Other cases, to the same effect, are given in the note.' » Anderson v MiUikin, 9 Ohio St. 568. ' GoetcheusD Matthewson, 61 N. Y. 420, rev'g 58 Barb. (N. Y.) 152; 5 Lans. (N. Y.) 214. ' Ashby V White, 2 Ld. Ray. 938 ; 6 Mod. 45; ISalk. 19; Pryce v Belcher, on demurrer, 3 C. B. 68; 4 D. & L. 238; 15 L. J., C. P. 305; 11 Jur. 675 ; s. u., on motion for judg- ment non nbat. ver., 4 C. B. 867 ; 16 L. J., C. P. 264 ; Pickering v James, 8 L. R., 0. P. 489 ; 42 L. J., C. P. 217; 21 W. R. 786; 29 L. T. 210; Spragins v Houghton, 3 lU. 377; Bernier v Russell, 89 111. 60; State « IJobb, 17 Ind. 536 ; Jeffries V Ankeny, 11 Ohio 372 ; Monroe v Collins, 17 Ohio St. 665 ; Gillespie v Palmer, 20 Wis. 544. See also. Murphy v Ramsay, 114 U. S. 15, and the Mass. cases, cited in the notes to § 746, ante, also the casescited ante, § 538. 711 § 750. PUBLIC OFFICERS [Book VI. § 749. The same subject : existence of malice.— On the other hand, it has been held, in several cases, that election officers are liable to an action for refusing a qualified voter's vote, on proof of malice; and in others, that they are only liable on proof of malice; in some, because their powers are thought to be judicial, and in others, without expressly deciding that particular point.' Where proof of malice is deemed necessary, it is not requisite that it should be directly proved; it may be inferred from circumstances; and every fact and circum- stance should go to the jury in proof thereof, and the defendants may rebut such testimony, by circumstances showing good intent. Thus, ' ' the fact, that the inspect- ors differed from the voter in political sentiments, may be considered by the jury." § 750. Registration officers ; their liability.— An action will not lie against the selectmen, for refusing to put upon the list the name of a person, who was not in fact a qualified voter, although he produced prima facie evi- dence that he was so qualified; and the fact that he was not qualified may be proved at the trial.' But an action lies against them, for refusing to put a qualified voter's name upon the list, while they are in session to revise it, although he does not afterwards offer his vote; unless they ' Carter v Harrison, 5 Blackf. (Ind.) 138 ; Weokerly v Geyer, U S. & R. (Pa.) 35 Caulfleld v Bullock, 18 B. Mon. (Ky.) Keenan v Cook, 12 R. I. 52 ; 494 ; Rail V Potts, 8 Humph. (Tenn.) 235 ; Morgan v Dudley, 18 B. Mon. (Ky.) 693 ; Fausler v Parsons, 6 W. Va. 486. Miller J) Rueker, 1 Bush (Ky.) 135 : a r.„ t i, n/r t^u m i^t -ir -.m „, \ 1 I • a (joetcheus v Matthewson, 61 N. Y. 420, Chrismani) Bruce, IDuv. (Kv.) 63; T^_■ 1,4. n , >jt j mx,- ^_.j_~ ^ , ^ , * „;^ ' perDwight, Com'r, p. 441 ; and Elbm V Wilson, 33 Md. 135; Friend v Hamill, 34 Md. 298, there cited. As to the sufficiency of the proof „ . , „ of the . rejection of the vote, see Friend « HamiU, 34 Md. 298 ; „„j. .. t.t , 00 tj- 1 ,tii > ono „., , ' Gates V Neal, 23 Pick. (Mass.) 308. Pike V Megoun, 44 Mo. 491 ; Wheeler 1; Patterson, 1 N. H. 88 ; ' Lombard v Oliver, 7 Allen (Mass.) 155. Peavey v Rohbins, 3 Jones L. (N. C.) ^^ *^^°' ""**• ^ ^*- 339; 713 Bridge v Oakey, 2 La. Ann, Dwight V Rice, 5 La. Ann. 580 ; Patterson v D'Auterive, 6 La. Ann, Elbin V Wilson, 33 Md. 135 ; Chap. XXIX. J ACTION AGAINST OFFICER § 751. have reconsidered their decision, and placed his name on the list, before the opening of the election; in which case they are not liable.' And an action lies against selectmen, in favor of a person, whose name has been wrongfully erased by them from the registry of the voters." But it has also been held, that an action will not lie against registration officers, for refusing to enter a qualified voter's name upon the registry list, even, semble, if their action was malicious or corrupt.' (7.) Postmaster. § 751. Instances of liability. — A case, wherein it was ruled, that the publisher of a newspaper could not main- tain an action against a postmaster, for failing to give him the publication of the list of letters uncalled for, was given at length in a previous section of this chapter.* But it has been held, in several cases, that in the dis- charge of his ordinary functions, a postmaster is a mere ministerial officer, who owes to each individual the duty to deliver to him, all mail matter addressed to him, received at the postmaster's office; and that an action will lie for a failure so to dp." And the facts, that the mail matter thus received was a newspaper, on the wrapper of which there was a mark; and that the post- master was required by an act of congress to collect letter postage on a newspaper, marked so as to communicate information, do not convert him into a quasi judicial officer, so as to protect him from an action, where he erroneously decided that the mark in question was within the act of congress, and demanded letter postage, before delivering the package, although he acted with- ' Bacon v BencMey, 3 Cush. (Mass.) 11. ' Fausler v Parsons, 6 W. Va. 486, See also, Waite v Woodward, 10 Gush. , ^nte § 708. (Mass.) 143. ' Lamed v Wheeler, 140 Mass. 390, See also, Harris v Whitcomb, i Gray g^ftji „ Powdich, 1 Cowp. 182. (Mass.) 433. ' Rowning v GoodcMld, 2 W. Blackst. 906; 713 § 752. PUBLIC OFFICERS [Book VI. out fraud or malice.' So a postmaster, and semble, also a letter carrier, and a contractor for carrying the mail, is liable to a person whose letter is lost, through his negligence, after it came to his hands; but the post- master is not liable, if the loss was caused by the negli- gence of one of his subordinates, appointed pursuant to law, unless his own careless or improper management of his office contributed to the loss." § 752. The same subject. — Where a post oflSce clerk receives a letter containing money, to be sent as a regis- tered .letter, and, on finding that registered letters cannot be sent to the post office to which it is directed, sends it by the ordinary mail, by direction of his superior, both are liable to the sender, in case of loss.' The United States statute, providing for the payment to the order of the postmaster-general, for the benefit of the owner, of money taken from the mails by theft or robbery, which comes to the possession of any agent of the post office department, applies to the proceeds of such money; and a bill in equity will not lie against a postmaster, by a person who had stolen money from the mail, to enforce a trust deed, executed by the plaintiff, conveying to the defendant the proceeds of such money, in trust to pay claims arising out of the theft, and to pay the balance to the plaintiff.^ > Teall V Felton, 1 N. Y. 537; afl'd 12 Bolan i) Williamson, 1 Brev. (S. C.) 181. How. (U. S.) 284. As to the postmaster-general's liabil- » Maxwell flMcHvoy, 2 Bibb (Ky.) 211; 't^' see Whitfield t) Le Despencer KeenanuSonthwoith, 110 Mass. 474; (Lord), 2 Cowp. 754, wherein Lord Ford V Parker, 4 Ohio St. 576 ; Mansfield gives a learned account Sawyer v Corse, 17 Gratt. (Va.) 230; of the origin, etc., of the po^ office; distinguishing or disapproving Con- 'i^a.ne v Cotton, 1 Salk. 17 ; 1 Ld. Raym. weU V Vorhees, 13 Ohio, 525 ; Hutch- ^^ ' ins V Brackett, 22 N. H. 252. Dunlop v Munroe, 7 Cranch (U. S.) 242. See also. Bishop v Williamson, 11 Me. -*^°'^' generally, see ante, § 592. <95 ; a Fitzgerald v BnrrlU, 106 Mass. 446. Wiggins V Hathaway, 6 Barb. (N. Y.) , j^^^^ ^ g^^^ ^^9 Mass. 202. 633; 714 Chap. XXIX.] ACTION AGAINST OFFICER § 754. (8.) Sheriff, marshal, coroner, constable. § 753. References to rulings cited elsewhere.— The rules of law, relating to the powers, duties, and liabilities of sheriffs, constables, and other officers exercising simi- lar functions, cover a vast field, and are fully considered in many treatises specially devoted thereto. As the plan of this work excludes subjects, which are thus considered in special treatises, a mere glance at the general rules, relating to the liability of an oflScer of that description to a private action, is all that is required here. Many cases, relating to that subject, have been incidentally considered in the former chapters of this work;' and others will be given in that portion of this chapter, which treats of the rules relating to the protec- tion of an officer by his process." § 754. Their ordinary functions ministerial ; extent and nature of liability. — The ordinary functions of those officers consist of the execution of process, or other man- dates of a court or judicial ofiicer, and are strictly regu- lated and defined by the terms of the process or mandate, and the rules of law relating thereto, generally embodied in statutes. Those functions are, therefore, with few exceptions, purely ministerial ; and the general rules, respecting the liability of an officer exercising ministerial powers, apply to such officers to the full extent. A liability against such an officer may accrue, either (1) to the person in whose favor the process or mandate was issued; or (2) to the person against whom it was issued; or (3) to a stranger. As a general, but by no means universal rule, 9. liability of the latter description does not arise, in the due execution of the process or other mandate which the officer holds, but from some wrongful act, under color or pretext thereof. A particular act or neglect may render the officer liable to each of the parties, to the ' Ante, §8 242, 252, 291, 561. ' Post, §§ 756, et seq. 715 i 755. PUBLIC OFFICERS [Book VI. process or mandate in his hands; as where, after lawfully levying upon property under an execution, he negligently suffers it to be lost, destroyed, or taken away; in which case, he would be liable to the judgment creditor for the value of the property, not exceeding the amount of the judgment, and to the judgment debtor for any surplus. As a general rule, the officer acts at his peril, and he is not excused from liability by his honesty or good faith; as where he seizes goods of a sti^anger to the process, rely- ing upon appearances, which might have misled any one;' or arrests a person, other than the person intended to be described in the writ, although both bear the same name;" unless the person arrested has led him into the error, as where he answers in the affirmative, a question, whether he is the person described; but it seems, that he is liable for detaining a person so arrested after he learns that he is not the person intended.' § 755. References to rulings cited elsewhere, respecting the liability of other officers. — This examination of the rulings, applicable to particular officers, might be extended to a very great length, by embracing other officers, and including additional authorities, applicable to the officers already mentioned. But enough has been written, to illustrate fully the force and application of the general principles stated in the first division of this chapter. The chapters, relating to the liabilities of sureties in offi- cial bonds;' and to the nature and extent of official powers;" contain many other adjudications, upon the ' Davies u Jenkins, U M. & W. 745 ; » Jarmain v Hooper, 6 M. & G. 827 ; Glasspoole v Young, 9 Barn. & Cr. 696 ; Comer v Knowles, 17 Kan. 436. Saunderson i) Baker, 3 Wila. 309; See however, O'Shaughnessy v Baxter, Edwards v Bridges, 2 Stark. 348 ; 121 Mass. 515, cited post, § 765. Walcot V Pomeroy, 2 Pick. (Mass.) 121 ; , Dunston v Paterson, 2 C. B., N. S. 495 : Hallowell, etc. Bank v Howard, 14 Formwalt u Hylton, 66 Tex. 288. Mass. 181 ; Weber v Henry, 16 Mich. 399 ; ' ^"'^' ''^- ^• Kingsbury v Pond, 3 N. H. 511. « Ante, oh. 33, 716 Chap. XXIX.] ACTION AGAINST OFFICER § 757. liability of particular public officers to, or their immunity from, private actions, and the same subject will be further considered in the next succeeding division. III. Protection of a ministerial officer by his process. § 756. General principle ; meaning of word " process." — As a ministerial officer is bound to execute process, issued to him by competent authority, in a case where power to execute the same is conferred upon him by law, it follows, that he is protected in executing the same, pursuant to the command thereof, whatever injury may accrue to an individual, from his acts in pursuance thereof. And in the application of this rule, the word "process" is not used, in its ordinary restricted sense of a writ or precept, issuing from a court or magistrate, or other judicial officer; but it is used " in a very compre- hensive sense, and will include any writ, warrant, order, or other authority, which purports to empower a minis- terial officer to arrest the person, or to seize or enter upon the property, of an individual, or to do any act in respect to such person or property, which, if not justified, would constitute a trespass." ' This proposition will be illustrated by the adjudications hereafter cited. § 757. The accepted doctrine is of recent date ; Sava- cool V. Boughton. — The accepted doctrine upon this subject, at least as it respects the process of a court of special or inferior jurisdiction, is so modern, that the court of King's Bench left it unsettled, in a case which i was decided in 1734." And in the year 1830, the rule was first settled in the state of New York, and only by over- ruling some former adjudications. In the case referred to, which is considered as the leading American case on the subject, Marcy, J., after a long and careful discussion ' Cooley on Torts, 2d ed., 539, 540 (*461.) 831: Gas. temp. Hardwioke, 62; « Smith V Bouchier, 2 Stra. 993 ; 2 Bam Cunn. 89, 127 ; 2 Kelyng, 144, pi. 133. 717 § 758. PUBLIC OFFICERS [Book VI.. of the question, upon principle and authority established, with the concurrence of other members of the court, the following propositions, which have now become univer- sally recognized: " 1. That where an inferior court has not jurisdiction of the subject matter, or, having it, has not jurisdiction of the person of the defendant, all its proceedings are absolutely void; neither the members of the court, nor the plaintiff (if he procured or assented to the proceed- ings,) can derive any protection from them, when prose- cuted by a party aggrieved thereby. "2. If a mere ministerial officer executes any process, upon the face of which it appears, that the court which issued it had not jurisdiction of the subject matter, or of the person against whom it is directed, such process will afford him no protection for acts done under it. "3. If the subject matter of a suit is within the juris- diction of a court, but there is a want of jurisdiction as to the person or place, the officer who executes process issued in such suit is no trespasser, unless the want of jurisdiction appears by such process." ' § 758. Officer protected in execution of a process " fair on its face." — These rules, it will be noticed, relate entirely to the protection of an officer, executing process issued by a court; but the same principles have been extended, so as to apply to process, in the liberal sense of the word which has been already given. The modern rule has been correctly stated as follows: "The process, that shall protect an officer, must, to use the customary ' Savaoool v Boughton, 5 Wend. (N. Y.) Suydam u Keys, 13 Johns. (N. Y.) Ui ; 170. Gold V Blssell, 1 Wend. (N. Y.) 210 ; Distinguishing, explaining, disap- Elliott v Peirsol, 1 Pet. (U. S.) 328 ; proving, or overruling, dicta or de- Wise v Withers, 3 Cranch (U. S.) 331 ; cisions, in Approving Warner v Shed, 1 Johns. Borden v Fitch, 15 Johns. (N. Y.) 121 ; (N. Y.) 138 ; Cable V Cooper, 15 Johns. (N. Y.) 15? Beach v Furman, 9 Johns. (N. Y.) 229. Smith V Shaw, 12 Johns. (N, Y.) 257 ; 718 Chap. XXIX.] ACTION AGAINST OFFICER §758. legal expression, be fair on its face. By this ... is intended, that it shall apparently be process lawfully issued, and such as the oflficer might lawfully serve. More precisely, that process may be said to be fair on its face, which proceeds from a court, magistrate, or body, having authority of law to issue process of that nature; and which is legal in form; and on its face contains nothing, to notify or fairly apprise the officer that it was issued without authority. When such appears to be the process, the officer is protected in making service, and he is not concerned with any illegalities, which may exist back of it." ' This doctrine has been settled by a large number of adjudications, in England and in the United States, wherein the question, whether the officer was pro- tected by his process, has arisen, not only upon process issuing from a court or a judicial officer, but upon any other warrant, precept, or order, issued by an officer or body of officers, possessing quasi judicial power. These adjudications, except a few which are hereinafter examined in detail, are collected in the note.' • Cooley on Torts, 2d ed., 538 (*459, 460). ' HiU V Bateman, 2 Str. 710 ; Ladbroke v Crickett, 2 T. R. (D. & E.) 649 ; p. 653, per Buller, J.; Laroche v Wasbrough, 2 T. R. (D. & E.) 737; Parsons v Loyd, 3 Wils. 341 ; ' Ives V Lucas, 1 C. & P. 7 ; Andrews v Marris, 1 Q. B. (Ad. & E., N. S.)3; Magnay v Burt, 5 Q. B. (Ad. & E., N. S.) 381 ; Dav. & Meriv., 652 ; 7 Jur. 1,116 ; Cogburn v Spence, 15 Ala. 549 ; Lott V Hubbard, 44 Ala. 593 ; Norcross i) Nunan, 61 Cala. 640 ; Thames Manuf'g Comp'y v Lathrop, 7 Conn. 550; Watson V Watson, 9 Conn. 140 ; Prince v Thomas, 11 Conn. 472 ; Neth V Crofut, 30 Conn. 680 ; Chlpstead v Porter, 63 Ga. 220 ; Roth V Duvall, 1 Idaho 149 ; Lattin v Smith, 1 111. 361 ; Brother v Cannon, 2 111. 200 ; Shaw V Dennis, 10 lU. 405 ; Hill«Figley,25Ill. 156; Smith D People, 99 111. 445 ; Davis V Bush, 4 Blackf. (Ind.) 330; Gott V Mitchell, 7 Blackf. (Ind.) 270; Noland v Busby, 28 Ind. 154; Brainard v Head, 15 La. Ann. 489 ; KeUar v Savage, 20 Me. 199 ; Tremont School Dist. v Clark, 33 Me. 482; State V McNally, 34 Me. 210 ; Caldwell v Hawkins, 40 Me. 526 ; Judkins v Reed, 48 Me. 386 ; Bethel v Mason, 55 Me. 501 ; Nowell V Tripp, 61 Me. 426 ; Seekius v Goodale, 61 Me. 400; Lashus V Matthews, 75 Me. 446 ; Nichols V Thomas, 4 Mas§. 232 ; 719 759. PUBLIC OFFICERS [Book VI. § 759. Officer's bad faith or knowledge of defects does not prejudice him. — Under the rule, as now settled, it Colman v Anderson, 10 Mass. 105 ; Holden v Eaton, 8 Pick. (Mass.) 436 ; Spragne v Bailey, 19 Pick. (Mass.) 436 ; Sturbridge v Winslow, 21 Pick. (Mass.) 83; Upton V Holden, 5 Met. (Mass.) 360; Wilmarth v Burt, 7 Met. (Mass.) 257 ; Aldrich v Aldrich, 8 Met. (Mass.) 103; Donahoe v Shed, 8 Met. (Mass.) 326 ; Twitchell v Shaw, 10 Gush. (Mass.) 46 ; Clarke v May, 3 Gray (Mass.) 410 ; Hays t) Drake, 6 Gray (Mass.) 387 ; Howard v Proctor, 7 Gray (Mass.) 128 ; Williamstown ^■ Willis, 15 Gray (Mass.) 427; Cheever v Merritt. 5 Allen (Mass.) 583 ; Chase v Ingalls, 97 Mass. 524 ; Bergin v Hajrward, 102 Mass. 414 ; Underwood v Robinson, 106 Mass. 296 ; Wall V Trumbull, 16 Mich. 228 ; Bird V Perkins, 33 Mich. 28 ; Dunn 1) Gilman, 34 Mich. 256 ; Wood V Thomas, 38 Mich. 686 ; Byles V Genuug, 52 Mich. 604 ; Orr V Box, 22 Minn. 485 ; State V Spencer, 30 Mo. App. 407 ; Mllburn v Gilman, U Mo. 64 ; Turner v Franklin, 29 Mo. 285 ; Glasgow V Rowse, 43 Mo. 479 ; St. Louis Building, etc., Ass'n o Light- ner, 47Mo. 393; State V DuUe, 48 Mo. 282; Walden v Dudley, 49 Mo. 419; Ranney v Bader, 67 Mo. 476 ; Philips V Spotts, 14 Nebr. 139; Blanohard v Goss, 2 N. H. 491; Henry v Sargeant, 13 N. H. 321 ; State D Weed, 21 N. H. 262 ; Keniston v Little, 30 N. H. 818 ; Kelley v Noyes, 43 N. H. 209. WeineruVan Rensselaer, 43N.J.L.547: Hann v Lloyd, 50 N. J. L. 1; Warner v Shed, 10 Johns. (N. T.) 138 ; Savaoool v Boughton, 5 Wend. (N. Y.) 170; Wilcox V Smith, 5 Wend. (N. Y.) 231 ; McGuinty v Herrick, 5 Wend. (N. Y.)240; Lewis V Palmer, 6 Wend. (N. Y.) 367 ; Alexander v Hoyt, 7 Wend. (N. Y.) 89 ; Reynolds v Moore, 9 Wend. (N. Y.) 35 ; Coon V Congden, 12 Wend. (N. Y.) 496 ; Parker v Walrod, 16 Wend. (N. Y.) 514 ; Earl V Camp, 16 Wend. (N. Y.) 562 ; Hart V Dubois, 20 Wend. (N. Y.) 236 ; Stewart v Hawley, 21 Wend. (N.Y.) 552 ; Webber v Gay, 24 Wend. (N. Y.) 485 ; Noble V Holmes, 5 Hill (N. Y.) 194; People V Warren, 5 Hill (N. Y.) 440; Cornell v Barnes, 7 Hill (N. Y.) 35; Bennett v Burch, 1 Denio (N. Y.) 141 ; Abbott V Yost, 2 Denio (N. Y.) 86 ; Dunlap V Hunting, 2 Denio (N. Y.) 643 ; Foster v Pettibone, 20 Barb. (N. Y.) 35C ; Patchin u Ritter, 27 Barb. (N. Y.) 34 ; Grady v Bowe, 11 Daly (N. Y.) 259 ; Bovee v King, 11 Hun (N. Y.) 250 ; Livingston v Miller, 48 Hun (N.Y.) 232 ; Sheldon v Van Buskirk, 2 N. Y. 473 ; Kerr v Mount, 28 N. Y. 659 : Porter v Purdy, 29 N. Y. 106 ; National Bank v Elmira, 53 N. ^ . 49 ; Hill V Haynes, 54 N. Y. 153 ; Bradley v Ward, m N. Y. 401 ; Clearwater v Brill, 63 N. Y. 627 ; Cody V Qulnn, 6 Ired. L. (N. C.) 191 ; State V Lutz, 65 N. C. iiOS ; Gore V Mastin, 66 N. C. 371 ; Loomis V Spencer, 1 Ohio St. 153 ; Moore v Allegheny City, 18 Pa. St. 55 ; Billings 11 Russell, 23 Pa. St. 189 ; Cunningham v Mitchell, 67 Pa. St. 78 ; State V Jervey, 4 Strobh. (S. C.) 304; Rainey v State, 20 Tex. App. 455 ; Erskine'!,Hohnbaoh,14Wall.(U.S.)613; Bailey v Railroad Comp'y, 22 Wall. (U. S.) 604 ; Matthews v Densmore, 109 U. S. 216; Pierson v Gale, 8 Vt. 509 ; Watkins v Page, 2 Wis. 92 ; McLean v Cook, 23 Wis. 364 ; Stahl 1) O'Malley, 39 Wis. 328. 720 Chap. XXIX.] ACTION AGAINST OFFICER § 759. matters not, that the oflScer knew, that in the particular case, the process was issued without authority, if it appears upon its face to be such, as the court, body, or officer, issuing the same, has power to issue; as where it was issued upon a judgment, which was obtained by fraud;' or irregularity." So, where an officer, before the civil war, arrested a negro, under a warrant, reg- ular on its face, and which it was his duty to execute, as a fugitive from justice from a southern state, and declared that his warrant for that purpose was only a pretext to procure the custody of the negro; that he knew that the latter had not committed the crime of which he was charged; but that he was a fugitive slave, and the officer held a power of attorney from his master, to seize him and return him;' or where the officer knew that the judgment, upon which the process was issued, was recovered in a case where there was no lawful cause of action;* or that the judgment had been paid, before the execution thereupon was issued. ' Thus, in a case decided by the supreme court of New York, the defendant was convicted of an assault and battery upon a constable, by forcibly resisting an arrest upon a warrant, issued by the inspectors of election, for disturbing an election by dis- orderly conduct in their presence. He offered to prove, upon the trial, that he had not been in the presence or hearing of the inspectors, at any time during the election, and that the constable knew that such was the case; but the evidence was excluded. Upon a certiorari to the court below, the conviction was affirmed by the supreme court, although it was conceded that this evidence went to the jurisdiction of the inspectors; the court holding, 1 Baker v Sheehan, 29 Minn. 235. « Wilmarth v Burt, 7 Met. (Mass.) 257 ; ' Bensel v Lynch, U N. Y. 162. Twitchell V Shaw, 10 Gush. (Mass.) 46 ; Lewis V Palmer, 6 Wend. (N. Y.) 337 ; ' Comm. V Tracy, 5 Met. (Mass.) 536. jj^^^ ^ Vance, 1 Sneed (Tenn.) 178. « Watson V Watson, 9 Conn. liO. 731 § 761. PUBLIC OPFICEES [Book VI. that as the warrant was regular on its face, the defend- ant had no right to resist the officer, and that an " officer is protected by process, regular and legal upon its face, whatever he may have heard, going to impeach it." ' And the rule applied, before the civil war, to an officer, holding a warrant, issued by a United States commis- sioner, under the fugitive slave law.' § 760. The same subject ; adverse rulings.— But the cases are not entirely harmonious upon this question. It has been held, in Illinois, that a ministerial officer (in, this case a tax collector,) is not protected by his process, although it is fair on its face, where he has knowledge that the antecedent proceedings were so defec- tive, that it is void in law.^ And in Wisconsin, the same rule has been applied to an officer holding an execution, who has knowledge of a jurisdictional defect, which ren- ders the judgment void. ' And in Vermont, it seems to have been held, that a tax bill and warrant, although regular on the face thereof, do not protect a tax collector, unless he shows that the antecedent proceedings were taken according to law. ^ § 761. The same subject ; criticism of adverse cases. — The rulings, cited in the last preceding section, are so opposed to the weight of the American authorities, as to constitute local exceptions to the general rule. With respect to a tax collector, it has been uniformly held else- where, that his warrant is process, under the rule, if it is fair on its face, and he is. not deprived of its protection by any antecedent errors or defects in the proceedings, whether known to him or not known; nmch less is he > People V Warren, 5 Hill (N. Y.) 440. CoUamer v Drury, 16 Vt. 574 ; ' Henry v Lowell, 16 Barb. (N. Y.) 268. ^haw v Peckett, 25 Vt. 423 ; Downing v Roberts, 21 Vt. 441. ' Leachman u Dougherty, 81 111. 324. g^^^ however, Spear TUson, 24 Vt. ' Grace v Mitchell, 31 Wis. 533. 420. ' Hathaway v Goodrich, 5 Vt. 65 ; 723 Chap. XXIX.] ACTION AGAINST OFFICER §762. required to prove aflSrmatively their regularity. Thus, the court of appeals of New York held, that an action against a tax collector could not be maintained, for levy- ing upon property for nonpayment of a tax, assessed upon a "seminary of learning," (such institutions being exempt from taxation by the statute of that state,) on the ground that the assessors acted within their jurisdiction in determining, even although erroneously, that the plain- tiff's seminary was taxable as a dwelling, and therefore the collector was protected by his warrant. ' The same rule of protection to a tax collector, acting under a warrant apparently regular, has been declared in numer- ous other cases.' § 762. When process "fair on its face." — It has been well said, by the supreme judicial court of Massachu- setts, that the cases, where an officer is not protected by his process, are those where the want of authority appears upon the face of the process itself, or a want of jurisdiction arises from the character of the proceedings, which the process itself discloses.' Where the process does not affirmatively show jurisdiction, or apparent Chegaray v Jenkins, 6 N. Y. 376, aff'g 3 Sandf . (N. Y.) 409. I Colman v Anderson, 10 Mass. 105; Spragne V Bailey, 19 Pick. (Mass.) 436; Howard v Proctor, 7 Gray (Mass.) 128 ; Rawson v Spencer, 113 Mass. 40 ; Abbott V Yost, 2 Denio (N. Y.) 86 ; Woolsey v Morris, 96 N. Y. 311. See also,Watson v Watson, 9 Conn. 140 ; Shaw 1! Dennis, 10 111. 405 ; Noland v Busby, 28 Ind. 154 ; KeUar v Savage, 20 Me. 199 ; Caldwell v Hawkins, 40 Me. 526 ; NoweU D Tripp, 61 Me. 426 ; Wall V Trmnbull, 16 Mich. 228 ; Bird V Perkins, 33 Mich. 28 ; Erskine V Hohnbach, 14 Wall. (U. S.) 613, and other oases hereinafter cited. = Pearoe v Atwood, 13 Mass. 324, p. 342; Fisher v Mc(jrirr, 1 Gray (Mass.) 1 ; Chasei) Ingalls, 97 Mass. 524 ; Comm. V Martin, 105 Mass. 178. Accord, Donald v McKinnon, 17 Fla. 746; Fames v Johnson, 4 Allen (Mass.) 382 ; Warrensburg v Miller, 77 Mo. 56 ; Gale V Mead, 4 Hill (N. Y.) 109 ; Van Rensselaer v Witbeck, 7 N. Y. 517; Westf aU V Preston, 49 N. Y. 349 ; Chalker v Ives, 55 Pa. St. 81 ; Hilbish V Hower, 58 Pa. St. 93. In Campbell v Sherman, 35 Wis. 103, it was held, that where the court as- sumes jurisdiction under an uncon- stitutional statute, the officer is not protected by his process. 723 § 763. PUBLIC OFFICERS [Book VI. jurisdiction, the burden of proving jurisdiction, in an action against the officer, falls upon him; and if he suc- ceeds in showing jurisdiction of the subject matter and of the person, his process protects him. ' And a sheriff, justifying under a regular execution, is not required to show, as against a party to the execution, that any judgment has been recovered." A tax warrant, signed by two persons, who are not assessors de jure or de facto, will not protect a collector, levying under authority thereof." § 763. Officer must act within the command of the process and the rules of law. — It is essential to the offi- cer's right to protection under his process, that he should proceed in the execution thereof, according to the com- mand thereof, and in the manner directed by'law. Thus, unnecessary oppression, in the execution of a lawful pro- cess, will render the officer liable to the person injured; as where a tax collector makes a distress which is greatly and obviously excessive,* or a sheriff makes a similar levy under an execution.* So a tax collector, who sells more property than is necessary to satisfy the tax, is lia- ble in trespass for the excess." So, where the collector of a duty on carriages, having made a distress, sold the same at half its value, in two hours after the seizure, without notice of the time and place of sale; it was held, that although the statute contained no special directions, as to the time and mode of sale, it is a rule of the common law, that a distress must be kept a reasonable time before the sale, and sold for the best price that can be obtained i Piper D Pearson, 2 Gray (Mass.) 120 ; 121 N. Y. 246, per Finch, J., p. Chase V Ingalls, 97 Mass. 524 ; , j^^^U „ g^^.^^ g^ jj_ jj_ ^^ . Smith „ Keniston, 100 Mass. 172. Davis v Webster, 59 N. H. 471. '^ Holmes v Nuncaster, 12 Johns, (N. Y.) 5 Handy v Clippert, 50 Mich. 355. ^^ ' See also, Lawson v State, 10 Ark. 2a. Crocker on Sheriffs, 3d ed., § 866. ' Seekins V Goodale, 61 Me. 400; 8 Delaware & H. Canal Comp'y x- Atkins, ^one v Forest, 126 Mass. 97. 734 Oiiap. XXIX. J ACTION AGAINST OFFICER § 765. therefor; and that the immediate sale, for a price far below the value, rendered the collector a trespasser ah initio.^ So an officer, who seizes or sells property, at a different time or place, or substantially in different man- ner, than the process or the statute prescribes, is not pro- tected by his process.' It goes without saying, that an officer, who takes property of a person not named in his process, or property exempt by law from seizure under the process, is not within the rule, that his process protects him, whatever other grounds he may have for the defence of an action against him. § 764. Officer protected by process in arresting a privi- leged person. — An officer is protected by his process in arresting, pursuant to the command thereof, a privileged person, for instance, a member of the legislature, or a witness going or returning;' although he knew that the person arrested was privileged;* or an infant, although he was aware of the infancy.' § 765. Rulings where officer arrests the wrong per- son. — An officer is not protected by his process, Avhere he arrests the wrong person, in consequence of his mistak- ing the latter's name;° or in arresting a person not named in the process, although the person arrested was the per- son intended, the wrong name having been inserted in the process by mistake, unless he was known by that ' Blake v Johnson, 1 N. H. 91. Smith v Jones, 78 Me. 138. = Veit « Graff, 37 Ind. 253 ; See also. Carle « Delesdernier, 13 Me. Chase v Fish, 16 Me. 132 : Hayes » Buzzell, 60 Me. 205; Sawyer v Wilson, 61 Me. 529 ; Pierce v Benjamin, 14 Pick. (Mass.) S^™"" " ^eU, 18 Johns. (N. Y.) 52 ; ggg . Sperry v Willard, 1 Wend. (N. Y.) 32. Smith V Gates, 21 Pick. (Mass.) 55 ; ■• Magnay v Burt, 5 Q. B. (Ad. & E., N. Hall V Ray, 40 Vt. 576 ; S.) 381; Dav. & M. 652 ; 7 Jur. 1,118 , Evarts v Burgess, 48 Vt. 205 ; and cases cited. Buzzell v Johnson, 54 Vt. 90. See also, Yearsley i) Heane, 1± M. & W. » Cameron v Lightfoot, 2 W. Blackst. 322; 3 D. & L. 265. J jgQ . ' Gassier v Fales, 139 Mass. 461. Tarlton v Fisher, 2 Dougl. 671 ; « Cooter v Bronson, 67 Barb. (N. Y.) 444. 725 § 766. PUBLIC OFFICERS [Book VI. name as well, as by his real name;' or unless the offic.«r was misled by the person arrested, as where the latt'er stated that he was the person described." So, where 'it appeared on the face of a warrant of attachment, thattlie first names of the defendants were fictitious, it was hehi, that the process showed upon its face that it was issuejd without authority, and consequently that it did not pr(br tect the officer." But where an action was brought uporp. a note signed by one John Shaughnessy, and the sun i- mons was served upon another person, whose real namie was John O'Shaughnessy, but who was commonly knowjfi as John Shaughnessy; and judgment was taken in the^< action, and an execution issued thereupon, and delivered to an officer with instructions to arrest O'Shaughnessy; and the officer, knowing that he was not the person who signed the note, but having ascertained that he was the person on whom the summons was served, arrested him accordingly; it was held that an action would not lie against an officer. The court said: " The officer, acting in good faith, had the right to rely for his protection upon the process put into his hands, and was not bound to go behind that process, and so assume the risk of determining the question, whether the plaintiff really signed the note upon which the action was brought, or the truth of any extrinsic fact, which would exempt him from being imprisoned upon the execution." * § 766. Quere, as to officer in replevin taking goods from a stranger. — It has been said, if not held, that where an officer holds a writ of replevin, or other similar > Shadgett v Clipson, 8 East 328 ; McMahan v Green, 34 Vt. 69. Nichols V Thomas, I Mass. 232 ; , Formwalt v Hylton, 68 Tex. 288. Griswold V Sedgwick, 6 Cow. (N. Y.) g^^ also. Price v Harwood, 3 Campb. 456 ; s. c, 1 Wend. (N. Y.) 126 ; jo8. Mead v Haws, 7 Cow. (N. Y.) 332 ; Gurnsey v Lovell, 9 Wend. (N. Y.) 319 ; ' P^'*""'^ " Sollnger, 9 Daly (N. Y.) 149. Scheer v Keown, 29 Wis. 586. * O'Shaughnessy v Baxter, 121 Mass. 515. See also, Johnston v Riley, 13 Ga. 97 ; 726 Chap. XXIX.] ACTION AGAINST OFFICER § 767. process under the code of civil procedure, which com- mands him to seize certain chattels specified therein, without any qualifying words, relating to the person in whose possession the chattels may be found, he is pro- tected by his process, in taking them from the possession of a stranger to the action. ' But the weight of authority is the other way; and the better opinion is that the pro- cess must be understood, if it does not so expressly state, as limiting the the power of officer to seize the chattels, to the case, where they are found in the possession of the defendant or his agent.'' § 767. Where process contains alternative provisions, one lawful and one unlawful. — If the process contains alter- native directions, of which one is lawful, and the other is unlawful,. the officer is protected, if he obeys the lawful direction, but not if he obeys the unlawful one;" but where the law confers upon him a discretion as the mode of executing it, he is not liable for adopting any lawful mode, although he does so from improper motives.' So a lawful process protects an officer, for any act lawfully done thereunder, although he also acts under one which is unlawful. Thus, in an action, brought by Edward J . Woolsey, against the tax receiver of a city and his deputy, for a trespass in levying upon the plaintiff's personal property, it appeared that the levy was made under eight tax warrants, issued against "E. J. Woolsey," which were regular upon their face; and the evidence showed presumptively that the plaintiff was the person intended > Shipman v Clark, 4 Denio (N. Y.) US, Foster v Pettibone, 20 Barb. (N. Y. per Bronson, J., quoting Hallett v 350; Byrt, Carthew, 380. BuUis v Montgomery, 50 N. Y. 352. ' Billings V Thomas, Hi Mass. 570; ' Stetson « Packer, 7 Cusb. (Mass.) 563. Stimpson V Reynolds, U Barb. (N. Y.) 4 Woodward v Hopkins, 2 Gray (Mass.) 506; 210. Otis V Williams, 70 N. Y. 208. ggg ^i^^ ^^^^ ^ Crosby, 1 Allen See also, Willard V Kimball, 10 Allen (Mass.) 220. Mass. 211; 737 § 768. PUBLIC OFFICERS [Book VI. therein. It appeared also, that the plaintiff was the owner of land, on account of which the taxes specified in three of the warrants were levied, but he had paid the taxes on that land before the warrants were issued; and that the property, on account of the taxes upon which the other five warrants were issued, was owned by Emily P. Woolsey. The court held, that it could be proved by evi- dence aliunde^ that the plaintiff was the person intended in the warrants; that although the three warrants for taxes that had been paid were unlawfnl, yet as the taxes for which the other five were issued had not been paid, the tax receiver was justified in issuing the warrants, and the deputy was justified in levying thereunder, although the assessment to the plaintiff was unlawful; that the officers did not lose their protection, because .the seizure was also made under the unlawful warrants, in the absence of proof of malice, or abuse, or of special damages growing out of the levy under the unlawful warrants, separable from the damages growing out of the levy, under those which were lawful. ' § 768. Protection of process ; as to officer's assistants, volunteers, parties. — Not only is the oflBcer protected by process, but those whom 'he calls to his assistance in the execution thereof, are protected, to the same extent and under the same circumstances as the officer himself;" but it has been said, that the same protection does not extend to volunteers. ' And the party, who sues out pro- cess, which is, for any reason, unlawful, derives no pro- tection therefrom, but is liable, in the proper form of action, for the acts of the officer thereunder." ' Woolsey v Morris, 96N. Y. 311. Ac- Kilpatrick « Frost, 2 Grant (Pa.) 168 ; cord, on the proposition that one McMahan v Green, 34 Vt. 69. lawful warrant protects a collector, , -^^^-^^^ ^ ^^^^^ 5 ,^^^ ^pp_ ^_ although he also levies under an un- lawful warrant. Hays « Drake, 6 * Shergold v HoUoway, 2 Str. 1,002; Moravia v Sloper, Willes, 30 ; Earl V Camp, 16 Wend. (N. Y.) 502. Good wine t' Stephens, 63 Ind. 112 ; ggg ^Ig^^ Tuttie V Wilson, 24 111. 553. Gray (Mass.) 387. loodwine v Stephe Payne v Green, 18 Miss. 507 ; 728 Chap. XXIX.] ACTION AGAINST OFFICER § 770. § 769. Officer's refusal to execute process issued without jurisdiction ; ruHng where he treats it as valid. — Where the process was issued, without jurisdiction having been acquired, or is otherwise void as between the parties, although, being "fair upon its face" it will protect the officer; he is not bound to execute it, and an action will not lie against him for his refusal so to do.' But if the defect is capable of amendment, and the officer elects to execute the process, he is still protected by it, and cannot afterwards set up the defect." And an officer, sued for money collected under a void process, cannot set up the invalidity in defence.' § 770. Officer's protection is a shield, and not a sword. — The officer's right to protection under his process is given to him by the law as a shield, and not as a sword; it does not confer upon him any power to maintain an action, in aid of the execution of process, which is intrinsically unlawful; but in such an action he must, as in other cases, rely upon the jurisdiction of the court or body issuing the process, and the regularity of the proceedings for that purpose; either by affirmative proof of the jurisdic- tional facts, and of compliance with the requisites of law; or by a resort to legal presumptions, which may be over- come by proof on the other side, as the case may require." Thus, in an action brought by a sheriff against a consta- ble, where the constable levied upon goods of one K, under an execution issued upon a judgment by confession in a ' Tuttlei) Wilson, 24111. 553; ' ' Williamstowu v Willis, 15 Gray Housh D People, 75 m. 487 ; (Mass.) 427; Earl V Camp, 16 Wend. (N. Y.) 562 ; Cheever v Merritt, 5 Allen (Mass.) 563 ; Newburg v Munshower, 29 Ohio St. Sherman v Torrey, 99 Mass. 472. ^1''- ■■ Dunlap V Hunting, 3 Denio (N. Y.) 643, See also, CorneU v Barnes, 7 Hill per Bronson, J., p. 645 ; (N. Y.) 35 ; Sheldon v Van Buskirk, 2 N. Y. 473'; Reid V Stegman, 99 N. Y. 646. Clearwater v Brill, 63 N. Y. 627, rev'g » Dunham v Reilly, 110 N. Y. 366, rev'g 4 Hun (N. Y.) 728. , 47 Hun (N. Y.) 241. 739 § 771. PUBLIC OFFICERS [Book VI. justice's court, which was invalid, by reason of failure to comply with the statute; and the sheriff afterwards seized the goods under an attachment against K; whereupon the constable retook the goods j it was held, that if, at the time when the constable retook the goods, the sheriff was in full and complete possession of the same, the latter was liable for retaking them, because the constable " as an officer acting under process apparently valid, but void in law, can avail himself thereof for his defence, but not as a justification for affirmative and aggressive action;" and in this case it was clear, that the constable could not have maintained replevin for the goods, because the judgment, on which the execution was issued, was void against the creditors of K; and he could not do with his own hand, that which the law would render him no aid in accom- plishing. ' IV. Other actions at law by or against public officers. § 771. References to rulings cited elsewhere ; doctrine of scandalum magnatum. — This subject, as far as it comes within the scope of this work, has already been so fully considered in former chapters, in its incidental connec- tion with other subjects, that little more than references to the places, where the different rulings relating thereto may be found will be needed here. To commence with actions by public officers. We have already showij, that every public officer, although not expressly so authorized by statute, has implied authority to maintain any action requisite for the due discharge of his official duties, or, as the rule has been stated, that his capacity to sue is commensurate with his public trusts or duties." And in most instances, actions by or against par- ticular officers, as representatives of the public inter- ests, or of particular public bodies, are thus regulated by • BodmeuThurwaohter,34Hun (N. Y.) 6. » Ante, § 544. 730 Chap. XXIX.] ACTION AGAINST OFFICER § 773. statutes, containing special provisions for the collection of any judgment, which may be rendered against the offi- cer in such an action. So, as we have shown, an officer may maintain an action to recover his lawful compensa- tion, against the municipality or other public body, liable to pay the same, subject to certain exceptions, which have been considered in detail.' So an officer dejure, having established his right to the office, may maintain an action to recover the emoluments of the office, against an intruder who has received the same.' The rules, relating to the validity of bargains for offices or for official con- duct, and the consequent right to maintain actions there- upon, have also been fully considered.^ And the same consideration has been given to securities, taken upon the exercise of official power,' and also upon the appointment of a deputy. " The doctrine of scandalum magnatum has never been adopted in this country.' § 772. The same subject. — With respect to actions against public officers, it was shown in a former chapter, that a contract or other act, made or performed by a pub- lic officer, expressly or impliedly authorized by law to make or perform the same, binds the government of the state or nation, in like manner as a contract made by an individual, through his authorized agent, binds the indi- vidual; and that the constitutional prohibition against passing any law, impairing the obligation of contracts, applies to a contract thus made : and the same rule applies to a contract made, or other act performed, by an officer, in behalf of a municipality or other public body, with this additional feature, that in the former case the principal is ' Ante, SS 510 to 519. ' Sillars v Collier, 151 Mass. 50. o > i .. =m .. Km See also, Townsliend on Slander & ' AnU, §8 521 to 523. ' Libel, 4th ed. § 138 ; ' Ante, ch. 6. Hogg ^ Dorrah, 2 Port. (Ala.) 212 ; * Ante, oh. 28. Reeves v Winn, 97 N. C. 246. ° Ante, ch. 24. 731 § 773. PUBLIC OFFICERS [Book VI. not, and in the latter the principal is, liable to an action founded upon the contract or other act. And, in neither case, is the officer liable to such an action. But the rule is different, where the officer has exceeded his powers; and every person dealing with an officer is chargeable with notice of the extent of his powers; and this rule fs more stringent, in the case of a contract or other act by a pub- lic officer, than in the case of a private agency. That the government is never estopped by the existence of an apparent, as distinguished from an actual authority; but a municipality or other public body may be, provided the act was within its own powers. And that, although a municipality or other public body is liable, subject to certain exceptions stated, for the acts of its officer, in the discharge of duties imposed by law upon the body itself, it is not liable where such duties are imposed by law upon the officer, as distinguished from the body for which he acts. ' § 773. Personal liability of officer ; analogy to doc- trine of private agency. — Many questions, upon some of which the authorities are conflicting, have arisen respect- ing the individual liability of a person acting as agent for another, depending upon the form of the contract entered into by him; an excess of his powers, or his want of power; representations and other acts of the agent, forming part of the transaction; and other circumstances, such as the intervention of the rights of third persons, and the like. In general, the rules of law relating to the individual liability of a public officer, in cases of this kind, are the same as those which govern the individual liability of a private agent in similar cases, and are considered in treatises upon the law of principal and agent, the law of contracts, and the law of bills of exchange and promissory notes. It is therefore not > Ante, 98 551, 593. 732 Chap. XXIX.] ACTION AGAINST OFFICER §774. within the scope of this work, to consider such questions. But in this class of cases, some rules, specially relating to public oflBcers, have been declared by the courts, which will now be briefly stated. § 774. The same subject ; presumption that officer binds the public. — The legal presumption always is, that an officer, acting in behalf of the public, or of a muni- cipalty or other public body, binds his principal and not himself, and that the person dealing with him relies upon the responsibility of the principal, and not of the officer; unless the contrary intent is clearly apparent from the nature of the transaction, the words of the instrument, or the circumstances attending the transaction; and this, although in a similar case, where the agency was private, the agent himself would be personally liable, and although the contract was under seal.' > story on Agency, 9th ed. § 302; Maebeath v Haldimand, 1 T. R. (D. & E.)172; Bowen v Morris, 2 Taunt. 374, per Lord Mansfield, Ch. J., p. 387 ; Twycross v Dreyfus, L. R., 5 Ch. Div. 605 ; 46 L. J. Ch. 510 ; 36 L. T. 752 ; Newman v Sylvester, 43 Ind. 106 ; Brown v Austin, 1 Mass. 208 ; Tippets V Walker, 4 Mass. 595 ; Dawes v Jackson, 9 Mass. 490 ; Savage v Gibhs, 4 Gray (Mass.) 601 ; Cutler V Ashland, 121 Mass. 588 • Lyon V Irish, 58 Mich. 518; Knight V Clark, 48 N, J. L. 22 ; Walker v Swartwout, 13 Johns. (N. Y.) 444; Bronson v Woolsey, 17 Johns. (N. Y.) 46; Olney v Wickes, 18 JohnS: (N. Y.) 122 ; Fox V Drake, 8 Cow. (N. Y.) 191 ; Belknap V Reinhart, 2 Wend. (N. Y.) 375; Nichols V Moody, 22 Barb. (N. Y.) 611 ; Heidelberg School Dist. v Horst, 62 Pa. St. 301 ; Enloe V Hall, 1 Humph. (Tenn.) 303 ; Brazelton v Colyar, 2 Baxt. (Tenn.) 234; Miller v Ford, 4 Rich. L. (S. C.) 376 ; Hodgson V Dexter, 1 Cranch (U. S.) 345. Accord, Comer v Bankhead, 70 Ala. 493; Cahokia School Trustees v Rauten- berg, 88111. 219; Perrin v Lyman, 32 Ind. 16 ; Wallis V Johnson Sch. Tp., 75 Ind. 368; Bayliss v Pearson, 15 Iowa 279 ; Wing V Gliok, 56 Iowa 473 ; Stinchfield v Little, 1 Me. 231; Ross V Brown, 74 Me. 352 .; Bainbridge v Downie, 6 Mass. 253 ; Freeman v Otis, 9 Mass. 272 ; Fowler v Atkinson, 6 Minn. 503 ; MoClenticks v Bryant, 1 Mo. 598 ; Tutt V Hohhs, 17 Mo. 486 ; Rathbon v Budlong, 15 Johns. (N. Y.) 1 ; Osborne v Kerr, 12 Wend. (N. Y.) 179; Jones V La Tombe, 3 Dall. (U. S.) 384 ; McCurdy v Rogers, 21 Wis. 197. 733 § 775. PUBLIC OFFICERS [Book VI. § 775. References to rulings cited elsewhere. — Numer- ous rulings, relating to the liability of a public officer to an action, either by the people, the public authorities, or an individual, will be found in the chapter relating to his official bond;' and the chapter relating to the liabili- ties of the sureties in an official bond." With respect to the latter class of cases, those which hold that the sureties are not liable, because the time, when the officer's act or default was committed, was not a part of the time covered by the bond, or by reason of some defence peculiar to them in their character of sureties, are, of course, inapplicable upon the question, whether the officer himself is liable for the same act or default. An officer's liability for the acts of his deputies has also been con sidered at length.' The same may be said of his liability for extortion J* and to a penalty for refusing to accept an office for which he has been chosen. " And the rule, that an officer de facto is liable for his acts or omissions, in the exercise of the office of which he holds possession, in like manner an officer de jure, has also been stated and illustrated." ' Ante, ch. U. * Ante, ch. 23. ' Ante, oh. 12. » Ante, oh. 10. ' Ante, ch. 24. » AnU, oh. 87. 734 Chap. XXX,] QUO WARRANTO CHAPTER XXX JUDICIAL PROCEEDINGS TO OUST A USURPER PROM AN OFFICE AND TO PUT THE RIGHTFUL OFFICER IN POSSESSION THEREOF, AND OP THE APPURTENANCES THERETO CONTENTS I. Information in the nature of a quo warranto; and other statutory proceedings to oust a usurper, and put the rightful officer in possession. Sec. 776. The ancient prerogative writ of quo warranto, superseded by the information in the nature of a quo warranto; definitions of the latter. 777. Information granted in the same cases, and governed gen- erally by the same rules, as the ancient writ; modified in several states, and superseded in others, but general rales are the same. In some states, a special statutory proceeding exists to contest an election; qu. whether this proceeding supersedes the information. An enact- ment, making a body the judge of the election, etc., of its members, does not oust the jurisdiction of the courts. 778. Not essential to the jurisdiction, that a person is to be put in possession; it sufiices that a person holding office unlawfully is to be ousted. 779. Right to maintain the proceedings is inherent in the sov- ereignty from which the office proceeds; a state cannot maintain it, to oust a person from an office created by the United States. 780. The proceedings cannot be taken, where the relief can be obtained by some other proceeding. 781. A private relator must obtain leave of the court to file the information, and the granting or refusing of the appli- cation is discretionary; but the attorney-general has an absolute right to take the proceedings; what interest a private relator must have in the question to be decided. 783, Principles, which control the discretion of the court, in granting or refusing the application, 735 § 776. PUBLIC OFFICERS [Book VI. Sec, 783. The controversy must relate to a lawful and public office, as distinguished from an employment, etc. ; but title to a petty office may be thus determined. 784. The person, against whom the proceedings run, must be in actual possession of the office. 785. Upon the trial, the burden of proof is upon the respondent to establish a good title; but a. prima facie case shifts the burden. And the relator cannot recover possession, unless he establishes his title, although the respondent may be ousted. 786. Judgment of ouster must be rendered, although the usur- pation has ceased before the trial. Where a fine may be imposed, it will not be substantial, if there was a fair question, etc. Eule as to the relator's damages, sus- tained by the usurpation. //. Proceedings by an officer, to recover possession of the books, papers, and other appurtenances of his office. 787. Mandamus lies to compel an officer, whose term has expired, to deliver appurtenances of the office to liis successor. Replevin also lies in a similar case. 788. In many states, a statutory proceeding lies for that pur- pose; general principles as to the right to maintain it. 789. The proceedings will not lie, unless the applicant has a clear prima fade title, and respondent withholds the books, etc., without color of title. 790. The right to the office is not determined in these proceed- ings, and the applicant must have obtained possession; if he is the actual incumbent, the validity of his appointment, etc., cannot be questioned. 791. Although title cannot be tried, the proceedings can be maintained, if the respondent's claim is frivolous. 793. The statute must be closely followed in the form of the proceedings; instance. I. Information in the nature of a quo warranto ; and other statutory proceedings, to oust a usurper and put the rightfnl officer in possession of an office. § 776. The ancient writ practically superseded by an information in the nature of a quo warranto. — The writ of quo warranto is an ancient prerogative writ, which 736 Chap. XXX.] • QUO WARRANTO § 777. has been for many years practically superseded by the information in the nature of a quo warranto, by reason of the more convenient, effective, and speedy procedure, under the latter, and because the former was a writ of right, the final judgment upon which was conclusive against all the world, including the crown. ' Of the latter, an eminent judge has said: "The information which has superseded the old writ, is defined to be a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him and seize it for the crown. It has, for a long time, been applied to the mere purpose of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only." " And a leading text writer has said: "The modern information in the nature of a quo warranto may be defined as an information, criminal in form, presented to a court of competent jurisdiction, by the public prosecutor, for the purpose of correcting the usurpation, misuser, or nonuser of a public office, or corporate franchise. The object of the information, as now employed both in the courts of England and America, is substantially the same as that of the ancient writ of quo warranto; and, though still retaining its criminal form, it has long since come to be regarded as in sub- stance a civil proceeding, instituted by the public prose- cutor, upon the relation of private citizens, for the determination of purely civil rights." ' § 777. Wherein the information differs from the ancient writ.— The information is granted, in cases where the writ would have been formerly granted, and not other- ' 3 Blackst. Commentaries, 262, 263. Hex v Shepherd, 4 T. E. (D. & E.) 381 ; _ „. ^ „ ,i=Ti,.,= Rex 1) Stafflerton, 1 Bulst. 55. ^ People V Utlca Ins. Comp'y, 15 Johns. (N. Y.) 358, per Spencer, J., p. 387 ; ' High on Extr. Rem., § 591. citing 2 Inst. 281, pi. 12 ; See also, Osgood v Jones, 60 N. H. 543. Rex 1! Marsaen,3 Burr. 1812, at p. 1,817; 737 § 778. PUBLIC OFFICERS [Book VI. wise;' and usually the court is allowed by statute, to impose a substantial fine. In many of the states, the writ and the information have been abolished, and an action, brought by the attorney-general, upon his own information, or upon the relation of a private person, has been substituted in place thereof, accomplishing the same purpose, governed by substantially the same rules, and resulting, if successful, in substantially the same judgment. In other states, a special statutory remedy has been provided, for contesting the result of an election, by a notice and summary trial, at the instance of an elector, or of the prosecuting oflBcer in behalf of the people. It has been held, that the summary statutory proceeding does not abolish the information in the nature of a quo warranto, but that both remedies are open to . the contestant, or one may be pursued by him, and the other by the people;" but other cases hold; that the statu- tory proceeding supersedes the information, with respect to the right of the state, as well as that of a private person, to pursue the latter. ' A constitutional or a statutory provi- sion, that a body shall determine respecting the election or qualification of its members, does not oust the juris- diction of the courts to determine the same, upon an information in the nature of a quo warranto, or an equivalent statutory proceeding.' § 778. May be confined to ouster only. — We have no concern in this work, with that feature of the infor- } state V Paul, 5 Stew. & P. (Ala.) 40 ; For other rulings, relating to a statu- Llndsey u Att'y Gen'l, 83 Miss. 508 ; tory contest, see Clanton v Ryan, U Comm. V Murray, 11 Serg. & R. (Pa.) 73. Colo. 419 ; » People, V Holden, 28 Gala. 123 ; Greenwood v Murphy, 131 111. 604 ; State V Gallagher, 81 Ind. 558. Cusiok's Election, 136 Pa. St. 459. See also, Talkington v Turner, 71 111. « State v Marlow, 15 Ohio St. 114; 234 ; Comm. v Garrigues, 28 Pa. St. 9 ; Clark V Robinson, 88 111. 498 ; Comm. v Henszey, 81* Pa. St. 101. Tarbox v Sughrue, 36 Kan. 225 ; « ^^^^^ gg 39^^ ^^ Conger v Con very, 52 N. J. L. 417. 738 Chap. XXX.] QUO WARRANTO §778. mation, which relates to the forfeiture of a corporate franchise, or the prevention of the unauthorized exercise of corporate power. Our business relates merely to the proceedings to oust a usurper from a public office, exercised by him. And it is to be noted, that it is not at all essential to the jurisdiction to grant and enforce the information, that it should also aim to put into possession of the office, a person rightfully entitled thereto. Where it is prosecuted by the attorney-general, or other public prosecutor, it lies for setting up a new office without authority of law;' or where an officer is acting without having taken the official oath or given the official bond required by law;" or where the statute, under which he holds, is alleged to be unconstitutional;' or where the incumbent has forfeited his office, as by the acceptance of another incompatible office;* or where his election was procured by bribery;' or where, after accepting his office, he has. virtually abandoned it;° or in any other case, where the person, against whom it is brought, holds the office without authority of law, whether his original holding thereof was lawful or unlawful, and whether any other person is or is not entitled to the same.' But where the governor has the power to remove a public officer, upon > Rex V Boyles, 3 Stra. 836. ' In re Mayor of Penryn, 1 Stra. 582. See also, ante, §8 173-175, 629. ' Att'y Gen'l v Holihan, 29 Mich. 116. See also, Dullam v Willson, 53 Mich. 392. * Ante, ch. 4. ■ State V Collier, 72 Mo. 13 ; Comm. V Walter, 83 Pa. St. 105. » State V Graham, 13 Kan. 136. ' People V Bingham, 82 Gala. 288 ; Osgood V Jones, 60 N. H. 543; People V Sweeting, 2 Johns. (N. Y.) 184; Hyde v State, 52 Miss. 665. See also, State v Hixon, 27 Ark. 398 ; Davidson v State, 20 Fla. 784 ; Stone V Wetmore, 44 Ga. 495 ; Collins V HuflC, 63 Ga. 207 ; People V Callaghan, 83 111. 128 ; Gass V State, 34 Ind. 425 ; Griehel u State, 111 Ind. 369; Tarhox « Sughrue, 36 Kan. 225 ; State V Co. Gom'rs, 39 Kan. 85 ; Neeland v State, 39 Kan. 154 ; Att'y Gen'l v Megin, 63 N. H. 378; Prince v Boston, 148 Mass. 285 ; Farrington v Turner, 53 Mich. 27 ; State V Stein, 13 Nehr. 529 ; Hammer v State, 44 N. J. L. 667 ; State V Meehan, 45 N. J. L. 189 ; Comm. V Small, 26 Pa. St. 31 ; State V Schnierle, 5 Rich. L. (S. 0.) 2 Williams v State, 69 Tex. 368. 739 § 781. PUBLIC OFFICERS [Book VI. charges and notice thereof, his act is final, and cannot be reviewed by an information in the nature of a quo warranto, against the person appointed in place of the officer so removed. ' § 779. A state cannot oust from office created by the United States. — The right to inquire into the authority, by which a person assumes to exercise the functions of an office, and to remove him, if he is a usurper, is inher- ent in the people in their sovereign capacity;" and the proceedings must be taken in the name of the sovereign power, from which the power of the office proceeds. Thus an action, in the nature of a quo warranto, does not lie in a state court, and in the name of the state, to determine the title to the office of elector of president and vice president of the United States, since the office originates in the United States constitution, although the office is filled under the power of the state. ' § 780. Depends upon the existence of no other ade- quate remedy. — A writ of quo warranto would not formerly lie, and the information or other remedy in lieu thereof will not now lie, in a case where the relief can be obtained by mandamus;* or, as a general rule, by any other remedy. ° § 781. The doctrine touching leave to file the informa- tion. — The statute, 9 Anne, ch. 20, requires a private relator to obtain the leave of the court, before filing an ' state V Hawkins, 44 Ohio St. 98. tie disputed questions of title, see » People V Holden, 28 Gala. 133. 2'°'*' * *^- ' State V Bowen, 8 S. C. 400. ° ^""^^ Brace's Case, 2 Stra. 819 ; See also, Territory v Lookwood, 3 ^^ "= Heaven, 2 T. R. (D. & E.) TO; Wall. (U. S.) 236; and De Turk v State u Wilson, 30 Kan. 661 ; Comm., 129 Pa. St. 151, cited cMe, P«°Ple v Every, 38 Mich. 405 ; § 31 note 4. State v Mario w, 15 Ohio St. 114; Comm. V Leech, 44 Pa. St. 332 ; « Reg. V Hungerford, U Mod. 142 ; gt^^^ ^ Wadkins, 1 Rich. L. (S. 0.) 42. State « Lewis, 10 Ohio St. 128. ^^ ^^^ p^^pl^ ^ Hillsdale, etc., Turn- For the rules respecting the cases pike Comp'y, 2 Johns. (N. Y.) 190. where mandamus will not lie, to set- 740 Chap. XXX.] QUO WARRANTO § 781. information in the nature of a quo warranto; and a simi- lar provision is contained in the statutes of each of the states, where that remedy is allowed, and in those of most of the states, where an action or special statutory- proceeding has been substituted therefor. Granting or refusing an application for that purpose rests in the sound discretion of the court, even where the papers, presented upon the application, show that the title of the person, against whom the proceeding is to be taken, is substan- tially defective. ' But where the proceedings are taken by the attorney -general, the court, unless the statute other- wise expressly provides, has no discretion, but is bound to grant the application, if it is necessary for him to make one.'' Where the application is made by a private person, he must show that he has some interest in the question to be decided; but it has been held, that the interest which one, who is a citizen and a tax payer, has in the due administration of public affairs, will entitle him to maintain the proceeding, if its object is merely to oust a person unlawfully holding a public office.' But where the object of the proceeding is also to put the » Anon. 1 Barn. K. B. 379 ; State v Sohnierle, 5 Rich. L. (S. C.) 299 ; Rex V Marten, 4 Burr. 2,122 ; State v Fisher, 28 Vt. 714 ; Rex V Peacock, 4 T. R. (D. & E.) 684 • State v Smith, 48 Vt. 266 ; Rex V Parry, 6 Ad. & E. 810 ; State v Mead, 56 Vt. 353. Rex V Trevenen, 2 B. & Aid. 479 ; ^ Comm. v Allen, 128 Mass. 308. Reg. V Cousins, 42 L. J., Q. B., 124 ; 28 p^^pj^ ^ Knight, 13 Mich. 230. I'-T. 116; See also, Comm. D Walter, 83 Pa. St. People V Keeling, 4 Colo. 129 ; jqj Stone V Wetmore, 44 Ga. 495 Contra, People V Sweeting, 2 Johns. Dorsey v Ansley, 72 Ga. 460 ; (N Y ) 184 • People D Waite, 70 111. 25 ; People V Moore, 73 111. 132 ; ' !!°^l!,?°^°^!';'_^!f° ff .' People V Callaghan, 83 111. 128. State V Tolan, 33 N. J. L. 195 ; Comm. V Reigart, 14 S. & R. (Pa.) 216 ; Comm. V Arrison, 15 S. & R. (Pa.) 127 ; Comm. I' Jones, 13 Pa. St. 365 ; Comm. 1) Cluley, 56 Pa. St. 270 ; State V Brown, 5 R. 1. 1 ; 741 Churchill v Walker, 68 Ga. 681 ; Comm. V Meeser, 44 Pa. St. 341. Accord, State v Martin, 46 Conn. 479; State D VaU, 53 Mo. 97 ; State V Hammer, 42 N. J. L. 435 ; Comm. V Co. Com'rs, 1 S. & R. (Pa.) 382. § 782, PUBLIC OFFICERS [Book VL relator into possession of the office, he must show affirmatively, upon his application, that he has, at least prima facie, the better title.' But if the applicant has been kept out by the respondent, it is not necessary for him to show that he has qualified." A private person cannot maintain an information, to oust a person from an office of a body acting as a municipal corporation, on the ground that the body has no legal existence as a corporation; the attorney-general only can maintain an information in such a case.' § 782. The same subject. — Where the application is made by a private relator, the court will not, in general, grant it, if the matter is of little importance, or the term of the office has so nearly expired, that but little practi- cal benefit will result from the proceeding.' So, the court refused to grant a rule, applied for by the former occu- pant of an office, on the ground that his dismissal from office had been illegal, where it was satisfied that if he should be reinstated, he might legally, and would be, dis- missed again immediately; " and, in one case, the same ruling was made, upon an application by the attorney- general.' And the conduct of the relator, such as his acquiescence, delay, etc., and all the other circumstances ' CoUina v Huff, 63 Ga. 207 ; Comm. v Jones, 12 Pa. St. 365 ; Hardin i; Colquitt, 63 Ga. 588 ; State v Fisher, 28 Vt. 714. State « Tipton, 109 Ind. 73 ; , ^^ ^^^ Richards, 3 L. R., Q. B. Div. Jones D State, 112 Ind. 193 ; 368 ; 47 L. J., Q. B. 498 ; 38 L. T. 684 ; 26 State V Boal, 46 Mo. 528 ; W R 695 People V Ryder, 12 N. Y. 433. g^ ^j^^ proceedings win be dismissed, » Ante, %% 164, 172. So where the proper if the term of the office or the re- officer refused to approve his bond. lator's title has expired, or nearly ex- .4.mf 6, S 175. pired, at the time of the trial. ' State V Vickers, 51 N. J. L. 180. State v Tudor, 5 Day (Conn.) 329 ; See also. People v Gunn, 85 Gala. 238. S***^ " 'P°^''' S8 Iowa 19 ; State V Jacobs, 17 Ohio 143 ; ' ^"°°- 1 B^™- ^- S- ^™ : State V Ward, 17 Ohio St. 543, at p. 548 ; State V CentreyiUe Bridge Comp'y, 18 Att'y-Gen'l „ Megin, 63 N. H. 378. Ala. 678; Comm.i.Reigart,14S.&R.(Pa.)216; " Peoples Sweeting, 2 Johns. (N.Y.) 184; 742 Chap. XXX.] QUO WARRAITTO § 784. bearing upon the question, will be considered, in deter- mining whether the application shall be granted or refused.' § 783. Controversy must relate to an office, as distin- guished from a mere employment. — In order to enable the court to grant the application, it must appear, that the controversy relates to the title of a lawful and public office, as distinguished from an employment, a contract, or other situation, not embraced within that term." Thus, an information in the nature of a quo warranto cannot be sustained against a pilot, for he is not a public officer, his license being only granted for the protection of com- merce.' But petty officers, appointed by magistrates, or the like, may be ousted by these proceedings;' although, as already stated, the court inclines not to grant the application in such a case. § 784. The alleged usurper must have actual posses- sion. — In order to sustain the information, it is necessary that the person, against whom it runs, should be in the actual possession and user of the office; a mere claim to it will not suffice. ° But it seems, that taking the oath of office suffices for that purpose, although he has not ' Bex V Dawes, 4 Burr. 2,120 ; See also, Comm. v Dearborn, 15 Mass. Rex V Peacock, 4 T. R. (D- & E.) 684 ; 125 ; Rex V Marten, 4 Burr. 2,122 ; People v DeMill, 15 Mich. 164 ; Reg. V Lockhouse, 14 L. T., N. S. 359 People v Hills, 1 Lans. (N. Y.) 202. As Rex V Parry, 6 Ad. & E. 810 ; to what are public offices, within this People V Keeling, 4 Colo. 129 ; rule, see ante, ch. 1. People V Waite, 70 111. 25 ; , Dean v Healy, 66 Ga. 503. People t) Moore, 73 111. 132 ; People V CaUaghan, 83 111. 128 ' ^^''^^^ " ^«^-' ^^ ^Jl. & Finn. 520. Dorsey v Ansley, 72 Ga. 460 ; Accord, Rex v Bedford Level, 6 East State V Tipton, 109 Ind. 73; People V Harshaw, 60 Mich. 200 ; Att'y Gen'l v Megin, 63 N: H. 378 ; 356; Rex V Justices of Herefordshire, 1 Chitt. 700; State V Tolan, 33 N. J. L. 195 ; ^^S. « Hampton, 6 B. & S. 923 ; 13 L. T. State V Schnierle, 5 Rich. L. (S. C.) 299. ^^' '^ J"'' N- S. 583 ; 15 W. R. 43 ; Reg. V Poor Guardians, 17 Q. B. (Ad. & ' State V North, 43 Conn. 79 ; j,jj N S ) 149 EUason v Coleman, 86 N. C. 235. s Rex V WhitweU, 5 T. R. (D. & E.) I 743 § 785. PUBLIC OFFICERS [Book VI. actually performed any of the duties of the office.' And where a person has taken the oath of office, and other- wise entered into possession of the office to which he was chosen, and afterwards abandons it, an information to oust him will lie." § 785. Doctrine as to the burden of proof. — According to the weight of the authorities, upon the trial of an information in the nature of a quo warranto, the prose- cutor is not required, in the first instance, to show want of title in the person, against whom the information is exhibited; nor, it seems, if the proceeding is brought by a private relator, to show title in himself; but the burden is upon the respondent to establish a good title; and for that purpose, it may not be enough for him to show an original good title; he must establish the continued existence of every qualification, necessary to the con- tinued holding of the office, if any sUch qualifications exist." But where the respondent has shown a good prima facie title, such as a regular certificate of election by the canvassers, or a commission or certificate of appoint- ment by the proper authority, the burden of proof is shifted to the prosecutor. ' And although the respondent's title may be defective, the relator cannot recover posses- sion, unless he shows a clear title in himself. If he fails > Rex V Harwood, 2 East 177 ; See also, People v Miles, 2 Mich. 348 ; Rex V Tate, 4 East 337 ; Clark v People, 15 111. 213 ; People V Callaghan, 83 111. 138. State v Beeoher, 15 Ohio 723 ; See also. State v Atlantic City, 62 People v Clayton, 4 Utah 421 ; N. J. L. 332. People v Jack, 4 Utah 438. = State V Graham, 13 Kans. 136. Contra, semUe, State v Hnnton, 28 Vt. 594; ' Rex V Leigh, 4 Burr. 2,143; State t Gleason, 13 Fla. 190 ; * State v Buokland, 23 Kan. 259 ; People V Mayworm, 5 Mich. 146 ; -'^"'^ ^^''^ '" Megin, 63 N. H. 378 ; State V McCann, 88 Mo. 386 ; P^oPle «' ?ea8e, 27 N. Y. 45 ; People v Thompson, 21 Wend. (N. Y.) ^^^Pl^ '" Thacher, 55 N. Y. 525. 235 . That a certificate or commission is only People V Pease, 27 N. Y. 45, aff'g 30 P*^"" ^'^^ evidence of title, and Barb. (N Y.) 588 ■ ^^^ actual facts may be shown upon Peopled) Thacher, 55 N. Y. 525. 1'^° warranto, see See post, §§ 802, 814. » Ante, §8 TU, 712. 755 § 795. PUBLIC OFFICERS [Book VI. wherein the question has been directly presented for adjudication.' In one case, the supreme court of the United States disclaimed the power to control the presi- dent, because, "as far as his powers are derived from the constitution, he is beyond the reach of any other depart- ment, except in the mode prescribed by the constitution, through the impeaching powers" but the remark was obiter, for the court was considering merely its power over the postmaster-general." And in another case, the same court refused to restrain the president by injunction, from carrying into effect an act of congress, which, it was insisted, was unconstitutional, on the ground that his duties under the act were not ministerial, but purely executive and political, and resting in his own discretion; but it declined to decide, whether it had power to compel the president to perform or refrain from performing a ministerial act.' § 795. Exemption of governor of a state. — With respect to the power of the courts to control the action of the governor of a state, many cases have arisen there- upon. It is entirely clear, that the executive of a state is not subject to control from the courts, with respect to the exercise of his political powers, or his powers in any other matter, where his action is left to be guided by his own judgment and discretion. Thus, a mandamus will not issue to compel him to call an election;* or to make and file a certificate, approving a valuation of property to be taken for public use, where the statute gives him discretion to approve or disapprove the same;' or to certify that a public work has been nerformed ' Ante, S 712. See also, Marbury v Madison, 1 Cranch ' Kendall v United States, 12 Pet. (U. S.) '■^•^•^ ^^'^^ 524, per Thompson, J., p. 610. * People v Cnllom, 100 111. 472. ' Mississippi V Johnson, i Wall. (U. S.) " Berryman v Perkins, 55 Gala. 483. 475, per Chase, Ch. J., pp. 498, 499. 756 Chap. XXXI. J JUDICIAL REVIEW § 79G. according to contract;' or to issue state bonds, pursuant to a statute;" or, as commander in chief, to convene a court martial;' or otherwise to perform or refrain from performing any executive function.' Upon the question, whether the governor can be compelled by the courts to issue a commission, and, where that is requisite, to administer the oath of office, to an officer who has been duly elected, and concerning whose right to the office there is no pending controversy, the cases are directly in conflict; some holding that a bill in equity and an injunc- tion will not lie, in favor of the successful candidate at an election, against the governor and the plaintiff's com- petitor, to compel the governor to issue a certificate of election to the plaintiff;' and that a mandamus will not lie, to compel him to issue a commission to an officer, who has been duly chosen;' while others hold that he may be compelled to do so by mandamus.' § 796. The same subject ; conflict of authorities. — And the conflict of authorities upon this question extends, beyond particular instances of the exercise of the func- tions of the governor; for, in many adjudications, it has been held, that the courts have no jurisdiction to compel or restrain the. official action of the governor of a state, in any case, even where the function to be exercised is of a purely ministerial character; some putting this ruling upon the ground of the necessity of preserving the ' People V Governor, 29 Mich. 320. Houston, etc., Comp'y v Randolph, 24 ' Jonesboro, etc.. Turnpike Comp'y v j.oi. uj.i. Brown, 8 Baxter (Tenn.) 490. " Bates v Taylor, 87 Tenn. 319. See also. People v Bissell, 19 lU. 239. „ Hawkins v Governor, 1 Ark. 570 ; ' Mauran v Smith, 8 R. 1. 192. State v Drew, 17 Fla. 67 ; ^ TT _i vui A 1 on T>„ at Avt State V Towns, 8 Ga. 360 ; * Hartranft's Appeal, 85 Pa. St. 433. ™,, „„„ , ,.r _i- T T, „ ootr CJ1. State « Governor, 39 Mo. 388. See also, Martin 1) Ingham, 38 Kan. 641 ; Miles V Bradford, 22 Md. 170 ; ' Governor v Nelson, 6 Ind. 496 ; State V Champlier, 2 Bailey L. (S. C.) Baker v Kirk, 33 Ind. 517 ; gaj ; Magruder v Swann, 25 Md. 173 ; Groome v Gwinn, 43 Md. 572. 757 § 797. PUBLIC OFFICERS [Book VI. independence of the executive, and the constitutional separation of the executive and judicial departments; and others, on the ground of the inconvenience and obstruction of public business, which would result, if the governor of the state was liable to respond continually to litigations, and to be imprisoned for disobedience to the commands of the process of the courts;' while other adjudications, of equal weight of authority, hold that the governer, like any other public officer, may be compelled by mandamus or other appropriate process, to perform any ministerial duty, not resting within his own discre- tion, or left to depend exclusively upon his own judg- ment.' § 797. Doctrine as to other principal officers of govern- ment. — A similar question has arisen, with respect to other principal officers of the government. In England, the court of queen's bench has held, that a mandamus will not lie against the lords commissioners of the treasury to compel them to take the necessary measures to cause to be refunded money received by them, as servants of ' state V Drew, 17 Fla. 67 ; 933 ; and cases cited p. 780, note 2, State V Towns, 8 Ga. 360 ; post. People V Bissell, 19 111. 229 ; , Tennessee, etc., R. R. Comp'y v Moore, People V Yates, 40 111. 126 ; 3g j^^^ gjj^ . People v CuUom, 100 111. 472 ; Middleton v Low, 30 Gala. 596 ; State V Warmoth, 22 La. Ann. 1 ; s. o. Herpendlng v Haight, 39 Gala. 189; 24 La. Ann. 351 ; g, j,^y ^ gja^j^^ ,^2 ^^^ ^^^ following In re Dennett, 32 Me. 508 ; Governor v Nelson, 6 Ind. 496 and People V GoYernor, 29 Mich. 320 ; ^^y.^^ ^ j^i^^^ 33 j^^ g^^ . Chamberlain v Sibley, 4 Minn. 309 ; j^^^^^ ^ g^.^^^^ ^^g j^^ ^ . Rice V Austin, 19 Minn. 103 ; g^^te ^ Kirkwood, 14 Iowa 162 ; Western R. R. Gomp'y v De Graff, 27 j„ „ Cunningham, 14 Kan. 416 ; ^™"- ^ ' Martin v Ingham, 38 Kan. 641 ; Vicl£sburg,6tc., R. R. Gomp'y i>Lowry, g^^^g ^ j^j^j^^l^^ ^ La. Ann. 209, 61 Miss. 102 ; Magruder v Swann, 25 Md. 173 ; Pacific R. R. Gomp'y v Governor, 23 chumasero v Potts, 2 Monta. 242 ; M°-^^' StateuBlasdel, 4Neva. 241; State V Governor, 39 Mo. 388 ; Gotten v Ellis, 7 Jones L. (N. G.) 545 ; Stete V Governor, 25 N. J. L. 331. g^^^tg ^ Moffltt, 5 Ohio 358, at p. 362 ; See also, State v Johnson, 28 La. Ann. ^^^^^ „ chase, 5 Ohio St. 628. 758 Chap. XXXI. J JUDICIAL REVIEW § 797. the crown, although illegally. ' And it has been said by Chief Justice Marshall, referring to the heads of depart- ments or cabinet officers of the United States: "By the constitution of the United States, the president is invested with certain ihiportant political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders. In such cases, their acts are his acts; and . . . there exists and can exist no power to control that discretion. The subjects are political. They respect the nation, not individual rights; and being intrusted to the executive, the decision of the executive is conclusive. . . . The acts of such an officer, as an officer, can never be examin- able by the courts." " In the cases thus specified by the distinguished chief justice, there can be no doubt that the courts have no jurisdiction to control the action of the officer; and the same result would follow, with respect to corresponding cases, arising in the administration of the government of a state. But in other cases, the United States supreme court has recognized the power to grant a mandamus against an officer of the cabinet,' as well as against other principal officers of the government, as the commissioner of patents and the commissioner of pensions, * to compel them to perform ministerial duties. But neither a mandamus nor an injunction can be sustained, ' Reg. V Lords Com'rs, etc., L. R., 7 Q. B. refused, on the ground that the court 387 ; 41 L. J., Q. B., 178 ; 26 L. T. 64 ; had not original jurisdiction. 20 W. R. 336. 8 Kendall v United States, 12 Pet. (U. S.) See also. Rex v Lords Com'rs, etc., 4 534 . Ad. & El. 984. United States 1) Schurz, lOs'U. S. 378. ' Marbury v Madison, 1 Cranch (U. S.) , Butterworth v United States, 113 U. S. 137, per Marshall, Ch. J., p. 166. gg . The application (for a mandamus United States u Black, 128 U. S. 40. against the secretary of state) was 759 § 798. PUBLIC OFFICERS [Book VI, to control the action of such an officer, where such action rests in his judgment or discretion, or otherwise relates to the performance of his ordinary official duties, " even where those duties require an interpretation of the law." ' In this respect, as probably in all others, except in the cases specified by Ch. J. Marshall, there appears to be, in this country, no distinction between these officers and other officers. § 798. The same subject. — The same considerations ought to govern also the case, where the action of one of the principal officers of a state is to be controlled by the process of the courts. But in some states, the proposi- tion has been maintained, in judicial decisions, that the writ of mandamus does not lie against the principal state officers, such as the secretary of state, the state treas- urer, the state auditor, etc.; on the ground that their offices are but branches of the executive department of the government, and the incumbents thereof are not subject to the control of the judicial department.'' It is believed, however, that these rulings are so thoroughly in conflict with the weight of the American authorities, that they can have only a local operation. In other states, there are numerous cases, where mandamus has been sustained against the principal state officers, such United States v Black, 128 U. S. 40 ; ' State v Dike, 20 Minn. 363 ; United States v Windom, 137 U. S. 636. State v Whitoomb, 28 Minn. 50 ; Accord, United States v Com'r Laud, Secombe v Kittelson, 39 Minn. 555, at Office, 5 Wall. (U. S.) 563 ; p. 561 ; Gaines v Thompson, 7 Wall. (U. S.) State v Deslonde, 27 La. Ann. 71. 347; Seealso, People 1! Hatch, 33 111. 9; Litchfield v Register, etc., 9 WaU. Bledsoe v International R. R. Comp'y, (U.S.) 575; 40 Tex. 537; SecretaryDMcGrarrahan,9Wall.(U.S.) Galveston, etc.,R. R. Comp'y i) Gross, 298. 47 Tex. 428; See also, Decatur v Paulding, 14 Pet. Chalk v Darden, 47 Tex. 438. (U. S.) 497. 760 Chap. XXXI.] JUDICIAL REVIEW § 799. as the secretary of state," the comptroller," the state auditor," the register of the state land office, and the state treasurer.' But these officers are not subject to the con- trol of the courts, in cases where such control would involve also control of the state in its sovereign capacity. Thus, a suit against a state and the state auditor, to com- pel the levy of taxes, and the application of the money so raised to the payment of bonds issued by the state, is practically a suit against the state only, and, not being maintainable against the state, it cannot be maintained against the auditor." § 799. No question has arisen as to other officers. — No question, as far as the author's examination has enabled him to discover, has been raised, respecting the liability of any other public officer, to be controlled in his official action by the process of the courts, subject to the general rules of law, governing the cases, wherein the remedies hereinafter considered will or will not lie; which will be stated, with respect to each of those remedies, in connection with the other rules of law relating thereto. ' state V Lawrence, 3 Kan. 95 ; People v Auditor General, 9 Mich. 141 ; State V Barker, i Kan. 379 ; People v State Auditors, 42 Mich. 422 ; State V Wrotnowski, 17 La. Ann. 156 ; Lachance v Auditor General, 77 Mich. State V Sec. of State, 33 Mo. 293 ; 563 ; People V Carr, 86 N. Y. 513 ; McCulloch v Stone, 64 Miss. 378 ; State V Doyle, 40 Wis. 175. People v Benton, 27 N. Y. 387 ; See also, People v Sec. of State, 58 111. People v Schuyler, 79 N. Y. 189 ; 90. Citizens' Bank v Wright, 6 Ohio St. » People V Allen, 1 Lans. (N. Y.) 248 ; ^^■ People V Allen, 42 N. Y. 404 ; * Ex parte Selma, etc., R. R. Comp'y, 46 People V Comptroller, 77 N. Y. 45, 50 ; Ala. 423 ; People V Chapin, 104 N. Y. 96 ; State v Francis, 23 Kan. 495 ; People V Chapin, 105 N. Y. 309. ■ Hommerich v Hunter, 14 La. Ann. 221 ; See also, Fowler v Peirce, 2 Gala. 165 ; State v Dubuclet, 26 La. Ann. 127 ; People V Brooks, 16 Gala. 11 ; State v Nichols, 42 La, Ann. 209; State V Gamble, 13 Fla. 9. People v State Treasurer, 23 Mich. 499 ; ' Smith BSIrohach, 50 Ala. 462: People „ State Treasurer, 24 Mich. 468 ; Danley v Whiteley, 14 Ark. 687 ; Northwestern, etc., R. R. Comp'y v People V Smith, 43 111. 219 ; Jenkins, 65 N. C. 173. Bryan v Gattell, 15 Iowa 538 ; « North Carolinai! Temple, 134 U. S. 22. State V Bordelon, 6 La. Ann. 68 ; 761 § 801. PUBLIC OPFICEKS [Book VI. II. Certiorari, § 800. At common law ; and as extended by statute. — At common law, the writ of certiorari lies, only to bring up a record; but, in addition to the cases where it lies at common law, it is given by statute, in nearly all the states, in particular cases, where an officer or a body of offi- cers exercise quasi judicial powers. In such cases, unless the statute contains special directions to the contrary, the effect is merely to extend the office of the writ to the cases specified; the rules relating to the granting thereof ,^ the proceedings thereupon, the questions which may be reviewed, and all other matters relating thereto, are the same, as upon a common law certiorari. Numerous cases, arising upon the statutory certiorari, to review the pro- ceedings of officers and boards in the removal of subordi- nate officers, which were cited in a former chapter, illus- trate this proposition.' § 801. The writ and its office defined.— The office of a certiorari has been well defined, by a learned chief justice of the supreme judicial court of Massachusetts, as follows: "A writ of certiorari lies only to correct the errors and restrain the excesses of jurisdiction of inferior courts, or officers acting judicially. It lies to correct the errors of inferior courts or judicial officers, acting in proceedings not according to the course of the common law; and where errors cannot be corrected by appeal or exceptions, or by a writ of error. Thus, it is the proper remedy to revise the proceedings of county commissioners, or of city councils, or of boards of aldermen, wheii they act in mat- ters like the laying out of highways, or making assess- ments for sewers, or other improvements. The reason is, that in such matters they act judicially, and not merely » Ante, ch. 16, passim. And see, People u Parker, 117 N. Y. 86, cited post, § 807. • 763 Chap. XXXI. J CERTIORARI 802. as ministerial or executive officers." ' Other definitions, substantially to the same effect, are given in the cases cited by the learned chief justice, and others given in the note." § 802. Confined to the review of judicial or quasi judicial decisions; instances. — The writ lies only to review a judicial decision, or a quasi judicial decision; but the mere fact that an officer exercises judgment in deciding the matter before him, does not make his decision of a judicial character, so that it may be reviewed by certiorari. ' It will lie to review the proceedings of the common coun- cil of a city, supervisors, county commissioners or other officers or bodies charged with similar powers, in laying out and opening roads, ditches, etc., directing the erection of bridges, equalizing taxes, deciding contested elections, and the like." And, where a permanent official body is ' Attorney General v Northampton, 143 Mass. 589, per Morton, Ch. J., citing the following cases: Parks V Boston, 8 Pick. (Mass.) 218 ; Fay, petitioner, 15 Pick. (Mass.) 243; Eobhins v Lexington, 8 Cush. (Mass.) 292; Dwight V Springfield, 4 Gray (Mass.) i07; Lowell V Co. Com'rs, 6 Allen (Mass.) 131: Farmington R. W. P. Comp'y v Co. Com'rs, 112 Mass. 206 ; Powers V Springfield, 116^ass. 84 ; Locke V Lexington, 132 Mass. 290 ; Lynch v Crosby, 134 Mass. 313 ; Snow V Fitchburg, 136 JIass. 179. " Co. Com'rs v Hearne, 59 Ala. 371 ; Miller v School Trustees, 88 111. 26 ; state V Coco, 42 La. Ann. 408 ; State « Judge, 42 La. Ann. 1,089 ; • Lapan v Co. Com'rs, 65 Me. 160 ; Hannibal, etc., R. R. Comp'y v State Ed. of Equalization, 64 Mo. 294 ; State B City Council, 39 N. J. L. 416 ; . People V Brooklyn, 8 Hun (N. Y.) 50.; People t) Sup'rs, 25 Hun (N. Y.) 131 ; People V Mosier, 56 Hun (N. Y.) 64 ; People V Stedman, 67 Hun (N. Y.) 280 ; Roulhao V Miller, 89 N. C. 190; State V Herndon, 107 N. C. 934. » People V Walter, 68 N. Y. 403; People V Park Com'rs, 97 N. Y. 37. See also, ante, §§ 537-539. Ante, § 801, and cases cited. See also. Ex parte Keenan, 21 Ala. 558 ; People V Delegates Fire Dep't, 14 Cala. 479; Keys V Marin Co., 42 Cala. 252 ; Harney v Sup'rs, 44 Iowa 203 ; Royce v Jenney, 50 Iowa 676 ; Eemey v Board of Equalization, 80 Iowa 470 ; Farmington R. W. P. Comp'y v Co. Com'rs, 112 Mass. 206 ; Tewksbury v Co. Com'rs, 117 Mass. 563 ; People V Brighton, 20 Mich. 57 ; Names v Highway Com'rs, 30 Mich. 490; Sherwood v Duluth, 40 Minn. 22; Dorchester v Wentworth, 31 N. H. 451 ; People V Gilon, 121 N. Y. 551 ; French v Barr6, 58 Vt. 567 ; Chenowith v Co. Com'rs, 26 W. Va. 230. 763 § 803. PUBLIC OFFICERS [Book VI. clothed with the power, and charged with the duty, to do certain official acts, without being limited as to time, if a former determination of such a body is reversed or set aside, it is capable of performing the duty at a subsequent time; and in such a case a certiorari lies to review its proceedings, although the individuals who made the determination have ceased to be officers, and the record of their proceedings has passed into the custody of another authority." The writ is not taken away by statutory expressions, which can be otherwise construed, as that the decision shall be final, or res adjudicata, or the like; but only by express language.' But the legislative or quasi legislative action of such bodies cannot be reviewed by certiorari ;° nor will a certiorari lie to review any other action of such bodies, which is not judicial in its char- acter.* Thus, a certiorari will not lie to review the action of supervisors, coiinty commissioners, school officers, or other bodies having similar powers, in forming a school district;' in adopting school text books;" or in organizing a new township or land district.' So, proceedings for the appointment, by the common council of a city, of a muni- cipal officer, cannot, in the absence of an express statu- tory provision be reviewed by certiorari, for the act is administrative in his character, although, like most administrative duties it involves the exercise of judg- ' People u Gilon, 121 N. Y. 551. » Sherwood v Duluth, 40 Minn. 22 ; State V Graham, 60 Wis. 395. See, however, People v Court of S sions, 45 Hun (N. Y.) 54. ' lake D Newton, 54 Iowa 586; In re Wilson, 32 Minn. 145 ; Lemont v Dodge Co., 39 Minn. 385 ; People V Sup'rs, 25 Hun (N. Y.) 131. * Townsend v Copeland, 66 CaJa. 612 : Parks 1) Boston, 8 Pick. (Mass.) 317 ! Locke V Lexington, 122 Mass. 290. ' Lemont B Dodge Co., 39 Minn. 385. • People V Oakland B'd of Ed'n, 54 Cala. 375. ' Williams « Sup'rs, 65 Cala. 160; Christlieh v Hennepin Co., 41 Minn. 142. But it has been held, that the writ will lie, to review the act of the superintendent of public instruction, in dividing school districts. State I) Whitford, 54 Wis. 150. See also. Trustees, etc., v School Di- rectors, 88 111. 100. 764 Chap. XXXI. J CERTIORARI §802. ment and discretion.' And it is not the province of a certiorari to try the title to an office f even although the person appointed to the office has not entered upon the duties thereof, for which reason, an information in the nature of a quo warranto will not lie against him. ' These examples suffice, to illustrate the distinction between legislative, ministerial, and judicial action, which has been fully considered in former pages of this work." The adjudications respecting the cases, wherein the function exercised is of such a character, that a certiorari will or will not lie, are very numerous, and not always harmonious; some additional authorities thereupon are collected in the note.' ' Att'y Gen'l v Northampton, 143 Mass. 589. See also, Op'n of the jTist.,138 Mass. 601. ' Donough V Dewey, 82 Mich. 309, at pp. 31i,315., ' Simon v Hohoken, 52 N. J. L. 367. The contrary was held in State v Cam- den, 39 N. J. L. 416, which is in effect overruled by this decision, and by State V Camden, 47 N. J. L. 454. « Ante, ch. 23. 5 Carroll v Mayor, etc., 12 Ala. 173 ; Payne v McCahe, 37 Ark. 318 ; Williams v Sup'rs, 65 Cala. 160 ; TUton V Agr'l Ass'n, 6 Colo. 288 ; Ohm V Super. Ct., 85 Cala. 545 ; Harrell v Holt, 76 Ga. 25 ; Holliday v Poole, 77 Ga. 159 ; Waverly v Kemper, 88 111. 579; Indiana, etc., K. R. Comp'y v McCoy, •23IU. App. 143; Jordon v Hayne- 36 Iowa 9 ; Dyer v LoweU, 30 Me. 217 . Sup'rs V Auditor General, 27 Mich. 165 ; Townsend v Tudor, 41 Mich. 263; Merrick v Township Board, 41 Mich. 630; Dunlap V Toledo, etc., B. R. Comp'y, 46 Mich. 190; Garvin v Gorman, 63 Mich. 221 ; State V St. Paul, 34 Minn. 250 ; In re Saline Co., 45 Mo. 52 ; St. Charles v Rogers, 49 Mo. 530; State V Paterson, 39 N. J. L. 489 ; Mowery v Camden, 49 N. J. L. 106 ; Stone V Mayor, etc., 25 Wend. (N. Y.) 157; People V Mayor, etc., 2 Hill (N. Y.) 9 ; People V Cobb, 14 Abb. N. C. (N. Y.) 493; In re Lauterjung, 48 N. Y. Super. Ct. 308; People V Weaver, 34 Hun (N. Y.) 321 ; People V Dunkirk, 38 Hun (N. Y.) 7 ; ■ People V Carter, 5?. Hun (N. Y.) 458 ; People t! Assessors, 39 N. Y. 81 : People V Assessors, 40 N. Y. 154 ; People V Park Com'rs, 97 N. Y. 37 ; People V Chapm, 104 N. Y. 369 ; People V Chapin, 106 N. Y. 265 ; People V Jones, 112 N. Y. 597; Smith V Abrams, 90 N. C. 21 ; Lowe V Elliott, 107 N. G. 718 ; Cox V Kent, 9 Baxt. (Tenn.) 492 ; Milwaukee Iron Comp'y v Schubel, 29 Wis. 444 ; State V Whitford, 54 Wis. 150. See also, ante, 8§370, 379, 381, 383, 387, 392, 394-398, 610, 622. 765 § 804, PUBLIC OFFICERS [Book VI. § 803. Not a writ of right ; but lies in discretion.— A certiorari is not a writ of right; it can issue only by special leave of the court, upon an application therefor, and the granting or refusing the writ is discretionary •with the court to which the application is made;' and, although it is said in many cases, that the discretion must be sound, and exercised according to the rules of law, the decision of the court upon the application is in general practically conclusive, since it cannot be reviewed upon appeal to another court;" although the judicial system of some of the states allows an appeal to be taken to another branch of the same court, in which the dis- cretion may be reviewed. Thus, where a certiorari has been lawfully issued by the special term of the supreme court of New York, the general term of the same court may quash it or refuse to quash it, and its decision there- upon cannot be reviewed by the court of appeals.' But where a certiorari was granted, in a case where the writ does not lie, an order refusing to quash it may be reviewed on appeal.* And an order of the general term of the supreme court, quashing a certiorari issued by the special term, may be reviewed by the court of appeals, where the order was erroneously granted, on the ground of want of power to issue the writ, for in such a case the general term failed to exercise its discretion.' § 804. Effect of laches. — As a general rule, the writ will not be granted, or, if granted, will be dismissed, unless the ' Ex vmte, Pearce, 44 Ark. 509 ; People B Tax Com'rs, etc., 85 N. Y. 656. Sup'rs V Magoon, 109 lU. 142 ; See also, People v StUweU, 19 N. Y. 531 ; Gaither v Watkins, 66 Md. 576 ; People v Hill, 53 N. Y. 547 ; Gager v Sup'rs, 47 Mich. 167 ; People v McCarthy, 102 N. Y. 630. People V Andrews, 52 N. Y. 445 ; Contra, Trustees, etc., u School Dlreot- Walbrldge v WaJhrldge, 46 Vt. 617 ; ors, 88 HI. 100. Knapp V Holler, 32 Wis. 467, and cases , j^^^g ^ y^ovls, 79 N. Y. 45. subsequently cited in this section, and in the next section. * P«°Pl« « ^^^^ Com'rs, 97 N. Y. 37. « People V Police Com'rs, 82 N. Y. 506 ; ' P«°Pl« '" McCarthy, 102 N. Y. 630, per Buger, Ch, J., at p. 685. 766 Chap. XXXI.] CERTIORARI 805. applicant has acted promptly after his grievance arose; for laches will usually constitute a suflScient reason for refusing the writ;' especially if new interests have intervened during the delay.'' And a fortiori, one who has stood by, pending the progress of a public work, can- not, after its completion, attack the preliminary proceed- ings by certiorari.' § 805. Will not lie where there is adequate relief by appeal, etc. — A certiorari will not lie, where the party may have adequate relief against the grievance of which he complains by writ of error, appeal, exceptions, or other remedy." And, generally, the court will grant a certiorari • Keys V Marin Co., 42 Cala. 252 ; Hagar v Sup'rs, 47 Cala. 232 ; Kimple v Super. Ct., 66 Cala. 136 ; DyeDNoel, 85111. 290; Trustees, etc., v School Directors, 88 1U.100; Rentz 1) Detroit, 48 Mich. 544 ; Carpenter v Highway Coui'rs, 64 Mich. 476; People V Utica, 65 Barb. (N. Y.) 9 ; Elmendorf v Mayor, etc., 25 Wend. (N. Y.)693; People V Fire Com'rs, 77 N. Y. 605, and cases cited : Peebles V Breaswell, 107 N. C. 68 ; Dailey v Bartholomew, 1 Ashmead (Pa.) 135; State V Milwaukee Co., 58 Wis. 4. See also, Chamberlin v Barclay, 13 N. J. L.244; Bell V Overseers, 14 N. J. L. 131 ; People V Mayor, etc., 2 HiU (N. Y.) 9 ; People V HiU, 53 N. Y. 547. A distinguished judge has said, that the writ ought to he applied for "with special alacrity." Rentz v Detroit, 48 Mich. 544, per Cooley, J., at p. 547. In New York the courts have ruled, that a certiorari will not he granted after the expiration of two years. People v Perry, 16 N. Y. 461, and oases cited ; Elmendorf v Mayor, etc., 25 Wend. (N. Y.) 693; People V Hill, 53 N. Y. 647. So held, also, in Wisconsin. State li Milwaukee Co., 58 Wis. 4. ' Willson V Giiford, 43 Mich. 454. See also, Dunlap v Toledo, etc., R. R. Comp'y, 46 Mich. 190 ; Bresler v Ellis, 46 Mich. 335. » State V Rutherford, 52 N. J. L. 501. * Alabama G. S. R. R. Comp'y v CShris- tian, 82 Ala. 307 ; Pettigrew v Washington Co., 43 Ark. 33; Carolan v Carolan, 47 Ark. 511 ; Newman v Super. Ct., 62 Cala. 545 ; Stnttmeister u Super Ct., 71 Cala. 322; McCue V Super. Ct., 71 Cala. 545; Gibson v Super. Ct., 85 Cala. 216; Wilson V Burks, 71 Ga. 863 ; Darmstaedter v Armour, 17 111. App. 285; Cedar Rapids, etc., R'y Comp'y v Whelan, 64 Iowa 694 ; Ransom t) Cummins, 66 Iowa 137 ; Hodgdon v Co. Com'rs, 68 Me. 326 ; Galther v Watkins, 66 Md. 576 ; Farrell v Taylor, 12 Mich. 113; Specht V Detroit, 20 Mich. 168 ; Smith V Reed, 34 Mich. 240 : Ishpeming v Maroney, 49 Mich. 226 ; 767 § 806. PUBLIC OFFICERS [Book VI. upon a judgment, where there is no right of appeal;' or where there was. a right of appeal, but the applicant has lost it, through some cause other than his own inexcusable laches or other default." And it has been held, that the allowance of a certiorari is not absolutely prohibited, although there is a remedy by appeal; and that it will be sustained even in such a case, if the court, in the exercise of its discretion, sees fit to grant it." § 806. Nor to review an executed decision. — A cer- tiorari will not be granted to review a decision, which has been so far executed, that the matter to be reviewed has passed out of the hands of the court, body, or other tribunal,, by which the decision was made. Thus, in the supreme court of New York, an application for a certiorari to the common council of a city and the tax receiver thereof, to review an assessment levied upon the relator, was denied, where the assessment roll had already been delivered to the tax receiver, on the ground that "the roll, having passed from those officers who had any judicial or quasi judicial control over it, and having been placed Tucker v Parker, 50 Mich. 5 ; ' People v Rochester, 14 HTin (N. Y.) 166, Galloway v Corbitt, 52 Mich. 480 ; at p. 172. Garvin v Gorman, 63 Mich. 221 ; Accord, Carpenter v Super. Ct., 75 Cala. State I) Co. Court, 80 Mo. 500 ; 598. Logue D Clark, 82 N. H. 184; See also, People v Hosier, 56 Hun State 1) Lowery, 49 N. J. L. 391 ; (N. Y.) 64. People V Walsh, 67 How. Pr. (N. Y.) , p^^^^ „ ^^^^^^^ ^ ^^^_ 3^3 . 482; People V DennisOB, 28 Hun (N. Y.) 328 ; People V Sup'rs, 49 Hun (N. Y.) 476 ; Williamson v Boykin, 99 N. C. 238 ; Meeks u Windon, 10 W. Va. 180; Beasley v Beckley, 28 W. Va. 81. As to the adequacy of the other remedy, see People u Sup'rs, 34 N. Y. 516, per Peckham, J., at p. 518. The rule is the same, although the other remedy has heen newly given ' People "o Donohue, 15 Hun (N. Y.) 418. by statute. People v Lohnas, 64 Hun ^^^ ^^^o. People v Perry, 16 Hun (N. Y.) (N. Y.) 604. «1- Tilton V Ag'l, etc., Ass'n, 6 Colo. 288 ; Kern « Davis, 7 111. App. 407 ; Waverly u Kemper, 88 111. 679 ; Territory d Valdez, 1 New Mex. 533 ; Soroggs 1) Alexander, 88 N. C. 64 ; Wiley V Lineberry, 88 N. C. 68 ; Roulhao V Miller, 89 N. C. 190; Smith V Abrams, 90 N. C. 21 ; Cox V Kent, 9 Baxt. (Teun.) 492. Chap. XXXI.] CERTIORARI § 807. in the hands of a mere ministerial officer, who had no power to correct errors in it, the writ of certiorari accom- plishes nothing under such circumstances." ' Upon the same principle, it was held, by the same court, that a cer- tiorari would not lie to the assessors, to compel the cor- rection of an assessment roll, where the roll had passed from the assessors to the supervisors, although the super- visors were included in the writ.'' And that it was too late for a certiorari against the board of supervisors, to review their allowance of a claim, where the warrant had been issued, and the money had been collected, and was in the hands of the county treasurer, to pay the claim." § 807. Nor to review a void decision. — A certiorari will not lie to review a void decision. Thus, where it was found that two persons, who made up an assessment roll, were not assessors either de jure or de facto, it was held, that a certiorari given by a statute, to review and correct erroneous assessments, could not be maintained; that the object of the statute was merely to furnish a new remedy, to be applied according to the rules of law • governing a common law certiorari; that "the function of the writ of certiorari is to review the judicial action of inferior officers or tribunals; it assumes their existence, and the fact of official action, but draws in question the legality and correctness of that action; it is wholly un- suited to a case where there is no officer and no tribunal, and where, as a consequence, there could not have been any judicial action, or anything to review." In this ' People « Dunkirk, 38 Hun (S. Y.) 7 ; See also, People v Sup'rs, 82 N. Y. 275; citing People v Reddy, 43 Barb. The doctrine of these cases criticized, (N. Y.) 539 ; ^^^ ^ distinction established, In People V Fredericks, 48 Barb. (N. Y.) People v Gilon, 121 N. Y. 551. 173 ; 3 People v Tompkins, 40 Hun (N. Y ) 228. People V Tax Com'rs, 9 Hun (N. Y.) . „ , „ . „, „ ,„ tr , J:^ ' People V Supervisors, 34 Hun.(N. Y,) 266 People V Board of Assessors, 16 Hun (N. Y.) 407, 769 §808. PUBLIC OFFICERS [Book VI. case, the party sought to make the certiorari usurp the functions of a quo warranto.' This decision seems to rest partly on the principle, that a certiorari will not lie, where the party can have adequate relief by action or otherwise, and partly on the doctrine that a certiorari will not lie, unless it appears that the applicant will suffer, a substantial injury, if the certiorari is withheld.' § 808. Doctrine that the decision to be reviewed must be final. — As a general rule, a certiorari will not lie in this country, until there has been a final decision of the matter, by the tribunal against which the application asks that it shall be issued.' And where a statute authorized the state comptroller, if he should discover that a sale of land for taxes was invalid, to cancel the sale and refund the purchase money; it was held, that the statute was for the benefit of the purchaser; that the owner of the land was not a party to the proceedings before the comptroller; and that he could not review the decision of the comptroller, denying his petition to cancel the sale of his land, inasmuch as the comptroller " has no judicial power to determine a controversy between ' Peoplp V Parker, 117 N. Y. 86, follow- ing People V Covert, 1 HUl (N. Y.) 674. See also, Locke i) Lexington, 132 Mass. 290, per Gray, Ch. J. ; People V Moore, 16 N. Y. State Rep'r 469; 1 N. Y. Supp. 405. Held otherwise in Null v Zierle, 52 Mich. 540. And see Mowery v Cam- den, 49 N. J. L. 108 ; People v Jones, 112 N. Y. 597, modifying and aff'g 49 Hun (N. Y.) 365. ' People V Leavitt, 41 Mich. 470; state V Lamherton, 37 Minn. 362. See also. People v Chapin, 104 N. Y. 369, cited in the next succeeding section. ' Sayers v Super. Gt., 84 Gala. 642 ; Sohwarz i; Co. Ct., 14 Colo. 44. State 1) Noonan, 24 Minn. TZi ; Grinager v Norway, 33 Minn. 127 ; State D Dist. Court, 44 Minn. 244 ; Lynde v Noble, 20 Johns. (N. Y.) 80 ; People V Sup'rs, 15 Wend. (N. Y.) 198, *t p. 211 ; People V Sup'rs, 1 Hill (N. Y.) 195: Devlin v Piatt, 11 Abb. Pr. (N. Y.) 398 ; People V Peabody, 26 Barb. (N. Y.) 437 ; People V Com. Council, 65 Barb. (N. Y.) 9 ; 45 How. Pr. (N. Y.) 289 ; People t) Trusties, etc., 3 Hun (N. Y.) 549; 5T. &C. (N. Y.)609; Herf 11 Shialze, 10 Ohio 263. This is an American rule, for at com- mon law, a certiorari lies either before or after judgment. Powell App. Pro., p. 411. 770 Chap. XXXI.] CEKTiOEAEi § 809. other parties, but to 'discover' a fact, which, when found, is to determine his own conduct." ' But there are some adjudications, establishing exceptions to the rule, requiring a final decision. Thus it has been held, in New Jersey, that a certiorari lies before final decision to a special tribunal, proceeding summarily in a matter, of which it has not acquired jurisdiction;' and that the rule, that a certiorari will not be allowed before a final decision in the inferior tribunal, is confined to cases where the office of the writ is in the nature of 'a writ of error; it is not applicable to a case, where the writ is designed to review municipal proceedings, in which case its allow- ance before a final decision is discretionary. " A case in New York, which has been cited in opposition to the rule, turned upon the construction of the statute, regu- lating proceedings in forcible entry and detainer.' § 809. Exception where decision must be approved by another officer. — Where, a statute gave the power of removal of certain city officers, "to the mayor, for cause, and after opportunity to be heard, subject, however, before such removal shall take effect, to the approval of the governor, expressed in writing;" it was held, that the proceedings of the mayor, in granting an order for the removal of such an officer, might be reviewed upon certiorari, although the governor had not acted upon them, on the ground that the mayor's order was the final judgment to be reviewed, although it reinained in abey- ance until the governor's approval; and that it was doubtful whether the courts had the power to review the action of the governor, after his approval. ' ' People 1) Chapin, 104 N. Y. 369, oittng State v Jersey City, 35 N. J. L. 404 ; People V FaircMld, 67 N. Y. 334. State v Hudson Co. Avenue Com'rs, 2 Mowery v Camden, 49 N. J. L. 106. ^ ^- ''■ ^- ^^■ > State«Paterson,39 N. J. L. 489, follow- ' P«°Pl« ^ Covlll, 20 Hun (N. Y.) 460. ing State v Paterson, 34 N. J. L. 163 ; » People v Cooper, 81 Hun (N. Y.) 617. 771 I 811. PUBLIC OFFICERS [Book VI. § 810. Decision resting in discretion cannot be reviewed. — A certiorari will not lie, to review a decision, which rested in the discretion of the tribunal below, or in its judgment as to the expediency and propriety of the decision rendered.' But where it appears that the dis- cretion or judgment has not been exercised, by reason of an erroneous decision upon a preliminary point, the writ will lie. Thus, where a statute of New York authorized the commissioners of the land office, to grant lands of the state, under water, to the owner of the adjoining uplands; it was held, that although the discretion of the commis- sioners, as to whether the grant should or should not be made, could not be controlled by the court, yet where it appeared, that upon an application for such a grant, they had decided that the applicant was not the owner of the adjoining uplands, and therefore was not entitled to the grant under the statute, their decision upon that point might be reviewed by certiorari." § 811. What questions may be reviewed.:— A certiorari lies only for errors of law, and, if granted, it brings up for review only errors of law. Thus it has been often held, that the finding of the facts by the tribunal to which it is directed, upon conflicting evidence, cannot be reviewed upon certiorari; that the only questions to be examined are, whether the inferior tribunal had jurisdic- tion of the subject matter, and of the person or property affected by its decision; whether there was evidence of all the facts, necessary to sustain the decision; "whether there was any legal evidence tending to the conclusion; ' Benton v Taylor, 46 Ala. 388 ; People v Park Com'rs, 97 N. Y. 37 ; Ketchum v Super. Ct., 65 Gala. 494 ; People v Fire Com'ra, 100 N. Y. 82 ; and Hildreth v Crawford, 65 Iowa 339 ; ante, 8§ 394-396. Supervisors V Auditor General. 27 , p^^pig „ j^^^^^ ^g j^^ y. 597, aff'g 49 ^-^^-ISS; Hun(N.Y.)365. Schwab V Coots, 44 Mich. 463 ; g^^ ^j^^^ p^^pl^ ^ McCarthy, 102 N. Y. State V Trinity Church, 45 N. J. L. 230 ; gg^^ ^^^^ „„t^^ g 8Q3_ People V Excise B'd, 24 Hun (N.Y.) 195 ; m2 Chap. XXXI.] CEETibEAEi § 811. and whether any errors of law affected the ultimate decision." ' The doctrine, to be found in several recent decisions in New York, that the court may, upon cer- tiorari, pass upon questions of fact arising upon conflict- ing evidence, to the extent that it will reverse the decision of the inferior tribunal, if there was such a preponder- ance of evidence against its finding, that it would set aside the verdict of a jury to the same effect, upon a trial by a jury, is derived from a peculiar provision of the statute of that state, and is not the rule of the com- mon law." So it has been held, in New York, that upon a statutory certiorari, "in order to make a ground for reversal, other than that based upon the conclusions from the proofs," it is necessary, that the attention of the tribunal below, " should have been called to the error in the examination, or in the admission or exclusion of evidence, by an objection, which states the vice or illegal- ity complained of.' " If the inferior tribunal had authority to make the decision complained of, an error in the exercise of such authority must be corrected by appeal, not by » People V Christie, U5 N. Y. 158 : St. Paul v Marvin, 16 Minn. 102 ; People V Rand, 41 Hun (N. Y.) 529, re- Brown v Ramsay, 29 N. J. L. 117 ; viewing the decision of a court State v Hudson, 32 N. J. L. 365 ; martial. People V WUliams, IT Abb. N. C. (N. Y.) See also, Baxter v Brooks, 29 Ark. 173 ; 366 ; Andrews V Pratt, U Gala. 309 ; People v McCartby, 102 N. Y. 630 ; Monreal v Bush, 46 Gala. 79 ; People v Hicks, 105 N. Y. 198 ; Sayers V Super. Ct., 84 Gala. 642 ; People v Coleman, 107 N. Y. 541 ; Barber v Harris, 6 Mackey (D. G.) 586; People v McGlave, 29 N. Y. St. Rep'r Singer Man. Gomp'y v Cole, 78 Ga. 353 ; 366 ; 8 N. Y. Supp. 515, afl'd (no opin.) Farmer v Rogers, 85 Ga. 290 ; 121 N. Y. 677 ; Chicago, etc., R. R. Comp'y v FeU, 22 People v French, 29 N. Y. St. Rep'r 304 ; lU. 333 ; 8 N. Y. Supp. 459 ; Hamilton v Harwood, 113 111. 154 ; State u Whitf ord, 54 Wis. 150, and oases LsCpan V Go. Gom'rs, 65 Me. 160 ; ■ cited ante, i 398. Farmington R. W. P. Gomp'y v Co. a People v French, 119 N. Y. 502, dis- Gom'rs, 112 Mass. 206; tinguishing People v French, 119 Jackson v People, 9 Mich. Ill ; jj y. 493. Genesee Go. Sav. Bank v Michigan ,oo-kt it- cio Barge Comp'y, 52 Mich. 164 ; = P^°Pl« "> M'^^lave, 133 N. Y. 512. -7.73 § 813. PUBLIC OFFICERS [Book VI. certiorari.' Mere irregularities in the proceedings, not affecting the jurisdiction, or property, or other rights, cannot be considered upon a certiorari." III. Mandamus. § 813. Origin and nature of the writ,— The writ of mandamus was also originally a prerogative writ, and in England, it still retains some of the characteristics of such a writ; but in the United States, it has lost all those characteristics, and is only " an ordinary process," whereby a civil action is commenced between the parties;' although it issues in behalf of the sovereign power, and otherwise assumes the form of a criminal proceeding. It is an original common law writ, which a court of equity has no inherent jurisdiction to issue;' and the granting of it is not the exercise of appellate juris- diction, so that a court, whose jurisdiction is solely appellate, has no power to grant it, except in aid of its appellate proceedings; and a statute conferring the power to grant it upon a court, whose jurisdiction is confined by the constitution to appellate proceedings, is unconstitutional. ' § 813. Its office defined.— The office of the writ has been very clearly and comprehensively stated by a learned judge, as follows: " The writ of mandamus is, in form, a command, in the name of the state, directed to ' Loaiza v Super. Ct., 85 Gala. U. Kendall » Stokes, 3 How. (U. S.) 87, at " Donough V Dewey, 82 Mich. 309. P- ^^■ » Kentucky v Dennison, 24 How. (U. S.) * ^^^ " ^ilmore, 76 Ga. 725. 66, per Taney, Ch. J., p. 97. » Westbrook v Wicks, 36 Iowa 382 ; See also. State v Williams, 69 Ala. 311 ; Morgan v Register, Hardin (Ky.) 609 ; Oilman v Bassett, 33 Conn. 298, at p. 305 ; Daniel i) Co. Court, 1 Bibb (Ky.) 496 ; People V Weber, 86 111. 283 ; Whitfield v Greer, 3 Baxt. (Tenn.) 78 ; State V Bailey, 7 Iowa 390, at p. 397 ; State v Hall, 6 Baxt. (Tenn.) 3 ; State V Gracey, 11 Neva. 223 ; Kentucky v Dennison, 24 How. (U. S.) Arberry v Beavers, 6 Tex. 457 ; 66. Kendall v United States, 12 Pet. (U. S.) See also, Hawes v People, 129 lU. 123. 624: 774 Chap. XXXI.] MANDAMUS §813. some tribunal, corporation, or public officer, requiring them to do some particular thing therein specified, and which the court has previously determined that it is the duty of such tribunals or other person to perform. It issues, in England, only out of the king's bench, the highest court " (of original common law jurisdiction) " in the kingdom; and was introduced, it is said, in order to prevent disor- der from a failure of justice, or defect of police; and is therefore granted only in cases, where the law has pro- vided no specific remedy, and in justice and good gov- ernment there ought to be one. It does not lie to correct the errors of inferior tribunals, by annulling what they have done erroneously; nor to guide their discretion; nor to restrain them from exercising power not delegated to them; but it is emphatically a writ, requiring the tribunal or person, to whom it is directed, to do some particular act, appertaining to their public duty, and which the prosecutor has a right to have done." ' Other definitions of the writ, and the office thereof, not materially varying from this, will be found in the cases cited in the note.° Of course, we have no concern, in this work, with so much of the office of the writ, as relates to private corpo- rations, and the officers and members thereof, except where the ruling upon mandamus, in such a case, estab- lishes or illustrates principles, relating also to a man- 1 Dunklin Co. v District Court, 23 Mo 449, per Leonard, J., p. 454. » People V Dist. Ct., 14 Colo. 396 ; Keokuk u Merriam, 44 Iowa 432 ; State V Police .Jury, 29 La. Ann. 14fi ; Att'y Gen'l v Boston, 123 Mass. 460, at p. 470; People V Supervisors, 26 Mich. 422 ; State V Garesch6, 3 Mo. App. 526, at p. 638; State V Gracey, 11 Neva. 223; People V Snp'rs, 67 N. Y. 330 ; People V Sup'rs, 73 N. Y. 178 ; People V Wilson, 119 N. Y. 515 ; People V Wendell, 57 Hun (N. Y.) 362; Buckman v Co. Com'rs, 80 N. C. 121 ; Tyler v Taylor, 29 Gratt. (Va.) 765 ; Page V Clopton, 30 Gratt. (Va.) 415. See also. Ex parte Grant, 53 Ala. 16 ; Chesebro v Babcock, 59 Conn. 213 ; State V Herron, 29 La. Ann. 848 ; Hughes V Co. Com'rs, 197 N. C. 698; Comm. V Fitler, 136 Pa. St. 129; Ex parte Barnwell, 8 S. C. 264 ; State I! Burnside, 33 S. C. 276 ; Ex parte Schwab, 98 U. S. 240. 775 § 814; PUBLIC OFFICERS [Book VI. damus against a public officer, or a tribunal exercising public functions. § 814. Scope of the writ. — The writ will not lie against a member of the legislature, to compel his action with respect to a matter pertaining to his legislative duties. Thus, it cannot be granted against the speaker of the assembly, upon the application of a member, to compel him to send to the senate a bill, which the relator insists has duly passed the house, and which the speaker insists has not duly passed. ' But the speaker may be compelled by mandamus to perform a ministerial act, as to certify the amount of mileage to which a member is entitled.' And the same rule extends to the members of a munici- pal legislative body. Thus, a mandamus will not be gr-anted, to compel aldermen to attend the stated meet- ings of the common council, " there being no specific right involved, but only a general violation of public duty.' Nor will it lie to enforce the performance of merely political duties." Thus, it will not lie a,gainst the secretary of a territory, to compel him to produce and correct ofiicial documents, purporting to be a record of the proceedings of a session of the territorial legislature, no private right being involved. ^ Its usual function is to compel the performance of a ministerial duty;" and, indeed, in some cases it has been said, that the office of ' Ex ■parte Echols, 39 Ala. 698. = Ex parte Pickett, 24 Ala. 91. = People V Whipple, 41 Mich. 548. « ScoviUe V Calhoun, 76 Ga. 263. And see ante, Div. I, of this chapter. = Clough V Curtis, 134 U. S. 361. ' United States v Seaman, 17 How. (U. S.)225; United States v Schurz, 102 U. S. 378. See also. People v Sexton, 37 Gala. 532 ; Barksdale v Cobb, 16 Ga. 13 ; Ottawa V People, 48 111. 233 • State V Board of Liquidators, 23 La Ann. 388 ; State V Shaw, 23 La Ann. 790 ; State V Archibald, 43 Minn. 328 ; Swan V Gray, 44 Miss. 393 ; State c Chase, 42 Mo. App. 343 ; Humboldt Co. V Co. Com'rs, 6 Neva. 30 ; People V Att'y Gen'l, 22 Barb. (N. Y.) 114; People V Breunan, 39 Barb. (N. Y.) 651 ; Koonce v Co. Com'rs, 106 N. C. 192; Ex parte Black, 1 Ohio St. 30 ; Comm. V James, 135 Pa. St. 480. 776 Chap. XXXI.] MANDAMUS § 814. the writ is confined to the performance of ministerial acts, and does not extend to judicial acts.' But, as we shall presently see," it is Avell settled, that the writ lies to enforce the performance of quasi judicial acts; and it also lies, in certain cases, against a judge or other judi- cial oflBcer, to compel him to do his duty in judicial procedings. Thus, where a prisoner, before indictment, is brought before a magistrate, who refuses to hear the evidence touching his guilt, the magistrate may be com- pelled by mandamus to hear such evidence." So a man- damus lies, to compel a judge to sign and seal a bill of exceptions, settled by him;* but not a particular bill of exceptions, proposed by the relator, which the judge has not settled, unless, perhaps, in a very clear case, where its correctness is shown. ' So a judge may be compelled by mandamus to take the bond of a clerk duly appointed, and admit him to his office." And it has been held, that a mandamus lies, where a court unlawfully refuses to allow an amendment;' or to grant an appeal to which the party is entitled by law;. ^ Doubtless the correct gen- eral rule, respecting the power to control judicial action by mandamus, is the same as in the case of quasi judicial action, which is hereinafter considered;" but many of ' In re Woffenden, 1 Arizona, 237 ; states that he is unahle to determine. State V Johnson, 28 La. Ann. 933 ; whether the exceptions were taken State V Burnside, 33 S. C. 276 ; as stated, the court cannot compel State D County Court, 33 W. Va. 589. him to sign and seal the bill. And ^ Post § 820 ''"^ Thornton v Hoge, 84 Gala. 231, it was held, that if he returns that he = Ex parte Mahone, 30 Ala. 49 ; ^^ gety^^ t^^ ^^^ ^.j^^ ^it ^j ^^ People V Osborn, 38 Mich. 313. discharged ; the correctness of the See also. People v Barnes, 66 Gala. 594. settlement cannot he inquired into. ' Hawes v People, 129 111. 123. See also, Hyde v Boyle, 86 Gala. 352. See also, State v Field, 37 Mo. App. 83 ; , g^^^^ ^ t;^^^^ 37 ^^_ ^pp 335 Reagan v Gopeland, 78 Ter. 551. ' Lee V Harper, 90 Ala. 548. ' Id.; also People v Anthony, 129 111. 218 ; s. c, below, 25 111. App. 532 ; ° Louisville Industrial School, etc., v Vanvabry ,, Staton, 88 Tenn. 334. Louisville, 88 Ky. 584. In People v Anthony, 129 111. 218, it 9 p^^ g ggQ was held, that where the judge- § 815. PUBLIC OFFICERS [Book VI. the adjudged cases lie so near the border line, that it is difficult to determine upon which side they properly belong. ' It is, however, clear, that where the act to be performed is purely ministerial, a judge may be com- pelled to perform it, although it relates to proceedings before him in his judicial capacity. ' § 815. Lies in the discretion of the court. — A writ of mandamus can issue only by the special direction of the court, upon an application therefor, and is granted or refused in the discretion of the court; but " the discretion of the court to grant or refuse the writ is not absolute, but governed by legal rules, and its exercise is subject to review."' "The writ of mandamus is a summary remedy for want of a specific one, where there would otherwise be a failure of justice. It is based upon reasons of justice and public policy, to preserve peace, good order, and good government. It is compared to a bill in equity for specific performance. Not a writ of right, it is granted, not as of course, but only at the discre- tion of the court to which the application is made; and this discretion will not be exercised in favor of appli- cants, unless some just or useful purpose may be answered by the writ." * Accordingly, where there has been a ' See State v Dist. Judge, 32 La. Ann. ' People v Chapjn, 104 N. Y. 96, citing 1306 ; People v Com. Council, 78 N. Y. 56. Delhi Sch. Dist. v Circuit Judge, 49 Contra, respecting the right of review, Mich. 433 ; Chesehro v Bahcook, 59 Conn. Z18. Lloyd V Chamhers, 56 Mich. 236 ; , g^^^^ ^ ^^^^^^^ 19 jj^_ 35^^ ^^^ 3^^.^^ Locke V Speed, 62 Mich. 408 : q. t „„j State V St. Louis Court, 87 Mo. 374 ; g^^ ^j J_ ^^^^ ^ j^.^^^^ 12 ^^ ^^ . State V Allen, 92 Mo. 20 Weeden v Richmond, 9 R. 1. 128. People V Hatch, 38 111. 9 ; id., 134 ; People V Illinois Cent. R. R. Comp'y> * Cases cited amie : also Cuthhert v 62 111. 510 ; Lewis, 6 Ala. 262 ; People v Ketchum, 72 111. 212 ; Taylor v Gillette, 52 Conn. 216 ; Com'rs Highways v People, 99 111. 587 ; Manor v McCall, 5 Ga. 522 ; State v Co. Com'rs, 26 Kan. 419 ; State 1) Dist. Court, 49 N. J. L. 537 ; State v Co. Com'rs, 28 Kan. 67, at p. 70 ; State V Burgoyne, 7 Ohio St. 153 : Dane v Derby, 54 Me. 95 ; Comm. D Bunn, 71 Pa. St. 405. Belcher v Treat, 61 Me. 577 ; 778 Chap. XXXI.] MANDAMUS §815. considerable lapse of time, that fact will be considered; and the writ ought not, in any event, to be granted, where an action would be barred by the statute of limitations; and it may be refused, in the discretion of the court, although less time has elapsed. ' So, where it will work hardship or injustice; or will not accomplish any useful purpose; or the applicant has assented to the act com- plained of; or his conduct has been inequitable; the writ will not be granted." And a mandamus will not be granted, unless the applicant has a clear legal right, and the officer is subject to a clear legal duty; so that, if either appears to be doubtful, the court will refuse the writ, or discharge it if it has been issued.^ But a mandamus will be granted to compel a county treasurer to pay a bill audited by the supervisors, although it appears that there were defects and irregularities in the proceedings, whereby the demand was created.* Dayis v Co. Com'rs, 63 Me. 396; state V Kirkley, 29 Md. 85, at p. 109 Crooke v Widdicomte, 30 Md. 386 ; Oakes v Hill, 8 Pick. (Mass.) 47; Sherburne v Horn, 45 Mich. 160 ; Lamphere v Grand Lodge, 47 Mich. 429 ; St. Stephen Church Cases, 25 Abb. N. C. (N. Y.) 242 : Ex parte Fleming, 4 Hill (JSf. Y.) 581 ; People V Chapin, 104 JS(. Y. 96 ; Comm. V Co. Com'rs, 1 Whart. (Pa.) 1 ; Comm. V Co. Com'rs, 16 S. & R. (Pa.) 31 ; Free Press Ass'n v Nichols, 45 Vt. 7. » People V Chapin, 104 N. Y. 96 ; State V Appleby, 25 S. C. 100. See also, Coffey v Grand Council, 87 Gala. 367. » Ohesebro v Babcock, 59 Conn. 213 Swigert v Hamilton Co., 130 lU. 538; State V Co. Com'rs, 26 Kan. 419; Oakes v HiU, 8 Pick. (Mass.) 47 ; Hale V Risley, 69 Mich. 596. » Williams v Smith, 6 Gala. 91 ; Ghesebro v Babcock, 59 Conn. 213 ; State V Craft, 17 Fla. 732 ; People V Forquer, 1 111. 104 ; People D Oldtown, 88 111. 202 ; Chicago, etc., R. R. Comp'y v Suffem, 129111.274; Brokaw v Gom'rs, 130 lU. 482 ; Swigert v Hamilton Co., 130 lU. 538 ; Hall V Stewart, 23 Kan. 396 ; Townes v Nichols, 73 Me. 515 ; People V Miller, 43 Hun (N. Y.) 463 ; People V N. Y. Infant Asylum, 122 N. Y.190; People V MacLean, 25 Abb. N. C. (N. Y.) 470; St. Stephen Church Gases, 25 Abb. N. C. (N. Y.)242; Hughes V Go. Gom'rs, 107 N. C. 598 ; Easton v Lehigh Water Comp'y, 97 Pa. St. 554; Frte Press Ass'n i; Nichols, 45 Vt. 7. See also. High Extr. Rem., 2d ed., § 9 and numerous cases there cited ; and the postscript to ch. 9, p. 172, ante. « People V Dickson, 57 Hun (N. Y.) 312. 779 816. PUBLIC OFFICERS [Book VI. § 816. Doctrine as to the relator's interest. — A private person, who applies for the writ, must show affirmatively that he has a special interest, not possessed by citizens generally, in the performance of a duty specially imposed upon the officer, against whom the writ is asked.' But it has been held, that a citizen and tax payer has a right, by virtue of his interest in the order and maintenance of the government, and the enforcement of the law, to have a mandamus, to compel the common council of a city to consider and act upon the estimate of the mayor, of the expenses of executing the civil service law; and that it is only when some personal or private redress is sought, that the relator must be personally interested.'' But the authorities are not harmonious, respecting the right of a private citizen, in the absence of a statute conferring upon him the power, or of any interest, apart from his general interest in the due administration of the laws, to interfere by mandamus to compel official action;, some of them, like the case just cited, incline to give him an extensive power in that respect;' while others deny to ' Ottawa V People, 48 111. 233; Chance v Temple, 1 Iowa 179 ; State V County Judge, 3 Iowa 280 ; Moon V Cort, 43 Iowa 503 ; Bohbett V State, 10 Kan. 9 ; Sanger v Co. Com'rs; 25 Me. 291 ; People tJ Inspectors, etc., 4 Micli. 187 ; People V Regents, etc., 4 Mich. 98 ; People V Halsey, 37 N. Y. 344; State 11 Co. Com'rs, 5 Ohio St. 497 ; State V Henderson, 38 Ohio St. 644, at p. 648; HeflEner v Comm., 28 Pa. St. 108 ; State V Haben, 22 Wis. 660. ' People t) Com. Council, 16 Abb. N. C. (N. Y.) 96. ' Moses V Kearney, 31 Ark. 261 ; State V Co. Com'rs, 17 Fla. 707 ; Ottawa V People, 48 111. 233 ; Hall V People, 57 111. 307 ; Glenooe v People, 78 111. 382; Hamilton v State, 3 Ind. 452 ; State V Co. Judge, 7 Iowa 186 ; Pumphrey v Mayor, etc., 47 Md. 145. ; State V Francis, 95 Mo. 44 ; State 1} Graoey, 11 Neva. 233 ; State V Rah way, 33 N. J. L. 110; People V Collins, 19 Wend. (N. Y.) 56 ; People V Supervisors, 11 Hun (N. Y.) 306; modified on other points, 73 N. Y. 173; People V Sup'rs, 17 Hun (N. Y.) 501, at p. 505; People V Halsey, 37 N. Y. 344 ; People V Sup'rs, 56 N. Y. 249 ; Union Pacific K. R. Comp'y v Hall, 91 U. S. 343. 780 Chap. XXXI.] MANDAMUS 818. him the right to interfere.' It has been said by the supreme court of the United States, and the court of appeals of Maryland, that the preponderance of authority is in favor of the former proposition.' § 817. The same subject ; where the attorney-general is the applicant. — Where the application is made by the attorney-general, in a matter wherein the public is interested, the writ is granted of course; but it may be refused, even if the attorney -general applies for it, where no public right is to be protected or public interest to be secured; and the application is not properly made by him, where private interests only are involved.' § 818. Doctrine as to other adequate remedy.— A mandamus will not, in general, be granted, or, if granted, will be quashed at the hearing, where the party may have an adequate remedy by appeal, writ of error, cer- tiorari, exceptions, motion, or other mode of review,* or ' Bobbett V State, 10 Kan. 9 ; Turner v Co. Com'rs, 10 Kan. 16 ; Reedy v Eagle, 23 Kan. 254 ; Adklns D Doolen, 23 Kan. 659 ; Sanger v Co. Com'rs, 25 Me. 291 ; Mitchell V Boardman, 79 Me. 469 ; People V Regents, etc., i Mich. 98; People V Inspectors, etc., 4 Mich. 187 ; People V Snp'rs, 38 Mich. 421 ; Smith V Saginaw, 81 Mich. 123 ; State V Weld, 39 Minn, 426; Heffner v Comm., 28 Pa. St. 108. See also, post, §§ 851, 852. 2 Cases in 47 Md. and 91 U. S., SMpra. ' Att'y Gen'l v Lawrence, 111 Mass. 90 ; Att'y Gen'l V Boston, 123 Mass. 460; People D Rome, etc., R. R. Comp'y, 103 N. Y. 95. * Reg. u Registrar, etc., L. R., 21 Q. B. Div. 131 ; 57 L. J., Q. B., 433 ; 59 L. T., 67; 36 W. R. 695; 52 J. P. 710; Ex parte Schmidt, 63 Ala. 252 ; Ex parte South, etc., R. R. Comp'y, 65 Ala. 599; Basham v Carroll, 44 Ark. 284 ; Early v Mannix, 15 Cala. 149 ; People V Hubbajjd, 22 Cala. 34 ; People V MoLane, 62 Cala. 616 ; Hemphill v Collins, 117 111. 396; Marshall c Sloan, 35 Iowa 445 ; Meyer i) Dubuciue Co., 43 Iowa 592; Barnett v School Directors, 73 Iowa 134; State V Police Jury, 29 La. Ann. 146 ; State V Judge, 36 La. Ann. 394; People V Judge, etc., 29 Mich. 487 ; Olson V Circuit Judge, 49 Mich. 85 ; Third National Bank v Reilly, 81 Mich. 438; Burt V Circuit Judge, 82 Mich. 251 ; State V County Court, 68 Mo. 29 ; State 1) Lubke, 85 Mo. 838 ; State V Megown, 89 Mo. 156 ; State e Buhler, 90 Mo. 560 ; State V Babcock, 23 Nebr. 38 ; State V Kinkaid, 23 Nebr. 641 ; People V Lott, 42 Hun (N. Y.) 408; 781 818. PUBLIC OFFICERS [Book VI. by an action at^ law to recover damages. ' But -where a county treasurer holds funds belonging to the state, he may be compelled by mandamus to pay over the same, and the state is not confined to an action upon his bond." So with respect to a tax collector." The rule is the same, with respect to the prevention of a mandamus by another remedy, where it is given by statute, as where it is given by the common law." But it has been held, that where a statute gives an action against supervisors, in a case where formerly the remedy was by mandamus, the mandamus is not taken away thereby, but either remedy may be pursued ;° and that the existence of a remedy in equity does not cut off a mandamus." McDanlel v King, 89 N. C. 29 ; Moon V Wellford, 84 Va. 34 j State D Co. Court, 33 W. Va. 589 ; state V Sup'rs, 29 Wis. 79. But the want of any other adequate and specific remsdy is not, of itself, sufficient to entitle the party to a mandamus. People v Garnett, 130 111. 340; Ewing v Cohen, 63 Tex. 482. ' Ex varte, Robins, 7 Dowl. P. C. 566 ; 1 W. W. & H. 578 ; 3 Jur. 103 ; Reg. V Ponsf ord, 1 D. & L. 116 ; 12 L. J., Q. B.,313; 7 Jur. 767; American Asylum v Phcenix Bank, 4 Conn. 172 ; Tohey v Hakes, 54 Conn. 274 ; Ccaiey XI Webster, 59 Conn. 361 ; People V Salomon, 46 111. 415 ; Connersville u Connersville HydrauAlc Comp'y, 86 Ind. 184; Excelsior, etc., Ass'n v Riddle, 91 Ind. 84; State V Dist. Judge, 43 La. Ann. 847 ; Lexington v Mulliken, 7 Gray (Mass.) 280; People V Town Auditors, 1 How. Pr. N. S. (N. Y.)234; People V Miller, 43 Hun (N. Y.) 463 ; People D Sup'rs, U N. Y. 568 ; People V Hawkins, 48 N. Y. 9 ; People V Campbell, 72 N. Y. 496 ; People V Thompson, 99 N. Y. 641 ; King William Justices v Munday, 2 Leigh (Va.) 165; HighExtr. Rem., 2d ed., § 15, and num- erous cases there cited. But see Fremont v Crlppen, 10 CaJa. 211 ; Babcock v Goodrich, 47 Cala. 488; State V Dougherty, 45 Mo. 294 ; Mobile, etc., B. R. Comp'y v Wisdom, 5 Heisk. (Tenn.) 125. " State » Staley, 38 Ohio St. 259, at p. 264. ' State V Fyler, 48 Conn. 145. < High Extr. Rem., 2d ed., § 16, citing LouisTlUe, etc., R. R. Comp'y v State, 25 Ind. 177 ; Fogle i> Gregg, 26 Ind. 345; Marshall v Sloan, 35 Iowa 445 ; State V Co. Com'rs, 46 Md. 621 ; Ex -parte Mackey, 15 S. C. 322, at p. 333; King William Justices v Munday, 2 Leigh (Va.) 165; State II Sup'rs, 29 Wis. 79. » Thomas 1) Sup'rs, 115 N. Y. 47, afl'g45 Hun (N. Y.) 588. » Eby V School Trustees, 87 Cala. 166; People D State Treasurer, 24 Mich. 468. See, however, contra^ semble, Ameri- can Asylum v Phoenix Bank, 4 Conn. 172; People V Salomon, 46 111, 415, 782 Chap. XXXI.] MANDAMUS 830. § 819. The same subject— In order to defeat a manda- mus, on the ground that there is another remedy, it must clearly appear, that the latter is competent to afford the party the full relief, which he might obtain by manda- mus; and, if it is doubtful whether such is the case, the mandamus will lie.' And it is no objection to granting a mandamus, that an indictment will lie for the act or omission, of which complaint is made." § 820. Doctrine where writ issues against a judicial officer. — Where the function, which is to be performed by the officer, against whom the mandamus is to issue, is of a judicial or quasi judicial character, the mandamus will lie, only where he fails to perform the duty enjoined upon him; or, in other words, a mandamus will be granted to compel him to act, where he neglects or refuses to act. Thus, a mandamus will lie against a board of supervisors or other auditing officers, to compel them to audit the account of the relator, where they refuse so to do.' And in all other cases, where an officer, a court, or other tribu- nal, charged with the performance of a judicial or quasi ' Etheridge u Hall, 7 Port. (Ala.) 47 ; Fremont v Crippen, 10 Cala. 211 ; Babcock v Goodrich, 47 Cala. 488 ; People V Auditors, 42 Mich. 422 ; People V Mayor, etc., 10 Wend. (N. Y.) 395; In re Williamsburgh, 1 Barb. (N. Y.) 34; Overseers ii Overseers, 82 Pa. St. 275. ' Rex u Severn, etc.. By. Comp'y, 2 B. & Aid. 646; Reg. V Bristol Dock Com'y, 1 G. & D. 286; a Q. B., (Ad. & El., N. S.) 64; 2 Rallw. Gas. 599; 6 Jur. 216; Ex pwrte Robins, 7 Dowl. P. C. 566 ; 1 W. W. & H. 678 ; 3 Jur. 103 ; Reg. V Eastern Counties Ry. Comp'y. 10 Ad. & El. 531; 2 P. & D. 648; 1 Railw. Cas. 509 ; Fremont v Crippen, 10 Cala. 211 ; In re Trenton W. P. Comp'y, 20 N. J. L. 659; People V Mayor, etc., 10 Wend. (N. Y.) 395. But, in an ecclesiastical case, it was held, that a mandamus would not be granted, because a suit in equity or quare im/pedit would lie. Reg. v Trustees of Orton Vicarage, 14 Q. B. (Ad. & e\., N. S.) 139 ; 18 L. J., Q. B. 321; 13 Jur. 1,049. It has been held in Illinois, that where an indictment would accomplish the object, to attain which the manda- mus is asked, the mandamus will not be granted. Brokaw v Highway Com'rs, 130 111. 482, explaining Com'rs V People, 66 111. 339. People V Supervisors, 53 Hun (N. X.) 254. 783 § 820. PUBLIC OFFICERS [Book VI. judicial duty, fails to act upon the matter thus committed to his or its charge, he or it may be compelled by manda- mus to take such action; but not to act in a particular way, as that would be tantamount to substituting the judgment of the court granting the mandamus, in place of the judgment of the officer or other tribunal, to whose judgment the law has committed the decision of the matter. ' Thus, the New York court of appeals, denying a mandamus, to compel a board of town auditors to allow an account against the toAvn, which had been rejected by a former board, said: " In determining whether the town was liable for these claims, the board acted judicially, and such action cannot be reviewed or controlled by courts through the writ of mandamus, which is an appropriate remedy to compel public officers, judicial as well as minis- terial, to act; and when the act is ministerial, the officer may be compelled to perform the act according to law; but officers vested with judicial power, which is to be exer- cised upon a disputed state of facts, or upon facts from which different inferences may be drawn, cannot be compelled by mandamus to decide in a particular way." ' Upon the same principle, an officer or other tribunal, exercising judicial or quasi judicial power, cannot be compelled by mandamus to reverse a decision upon ' state V Williams, 69 Ala. 311 ; State v St. Louis Court, 8T Mo. 374 : People V Barnes, 66 Gala. 594 ; People v Gilon, 24 'Abb. N. C. (N. Y.) People V Dist. Ct., 14 Colo. 396 ; 125 ; Union Colony v Elliott, 5 Colo. 371 ; Howland v Eldredge, 43 N. Y. 457 ; State V Co. Com'rs, 22 Fla. 29 ; People v Com. Council, 78 N. Y. 33 ; State V Thrasher, 77 Ga. 671 ; People v Sohiellein, 95 N. Y. 124 ; People 1) Anthony, 25 111. App. 532 ; People v Chapin, 104 N. Y. 96 ; Glencoe v People, 78 111. 383 ; People v Meakim, 56 Hun (N. Y.) 626 ; People V Garnett, 130 111. 340; Comm. v McLaughlin, 120 Pa. St. 518; Case 1) Blood, 71 Iowa 632 ; Weeden v Town Council, 9 B. 1. 128 ; Eden v Templeton, 72 Iowa 687 ; Meadows v Nesbit, 12 Lea (Tenn.) 486 ; Comm. V Co. Court, 83 Ky. 632 ; State v County Court, 33 W. Va. 589. State V Dubuclet, 28 La. Ann. 698 ; See also, ante, § 814. State V Dist. Judge, 32 La. Ann. 1,305; , p^^ple v Barnes, 114 N. Y. 317, see State 1) Rightor, 32 La. Ann. 1,305 ; pp 330 331 State 1) Judge, 34 La. Ann. 1,177 ; 784 Chap. XXXI.] MANDAMUS § 821. the matter, already made, although such decision was erroneous. ' Thus, where commissioners of highways had refused a petition to ascertain and record an old road, a mandamus was refused, as not being the proper remedy, which was by proceedings to review their action." But if the decision has been reversed, upon review by a higher court, and there is no other remedy to enforce action, in accordance with the decision upon the review, a manda- mus will lie to compel such obedience." Thus, a manda- mus lies against an equity judge, for wrongfully refusing to make an order, requiring the restitution of money, paid under a decree which has been reversed.' § 821. Will specify mode of performance of ministerial act. — But where the application for the writ is made, on the ground that the officer has failed to perforin a minis- terial act, which it was his duty to perform, the manda- mus may direct the performance of the particular act, and specify the mode of performance, so as to conform to the law, and the right of the party, as determined by the court. ' And where the board of supervisors of a county reduced the amount of a claim against the county, in a » Davidson » Washburn, 56 Ala. 596 ; Ex parte Perry, 103 U. S. 183 ; Hempstead Co. v Grave, 44 Ark. 317 ; United States v Black, 128 U. S. 40. Scott V Super. Ct., 75 Gala. 114 : j p^^pig „ g-^jg^^ gg g^^ j^. Y.) 388. Scheerer v Edgar, 76 Gala. 569 ; People V Garnett, 130 Dl. 340 ; ' United States v Black, 128 U. 8.-40; People V Judge, 41 Mich. 5 : S. P., Falk v Strother, 84 CaU. 544. Detroit, etc., B. R. Comp'y v Newton, * Ex parte Walter Bro's, 89 Ala. 237. 61 Mich. 33 ; .Shortt on Informations, etc., 1st Amer. Myers v Chalmers, 60 Miss. 773 ; ^^ 256, 257, and cases cited ; State V Young, 84 Mo. 90 ; Humboldt v Co. Com'rs, 6 Neva. 30 ; In re Abrams, 45 Hun (N. Y.) 272 ; g^^^^g ^ Edwards, 51 N. J. L. 479 ; People V Saratoga Springs, 54 Hun p^^pj^ ^ Barnes, 114 N. Y. 317, per (N-Y.)16; Potter, J., p. 331: People V SupTs, 14 Abb. N. C. (N.Y.) 29; p^^pj^ ^ g^^^^^ j^ j^^^_ p^ ,N. Y.) 19, People V Chapin, 103 N. Y. 635 ; p^^, gogkes, J., p. 28. People V Chapin, 104 N. Y. 96 ; p^^pj^ ^ ^.^^^^y j^^^^^ 13 hq^. p^. InreNewlin,123Pa.St.541; ^^ Y.) 277; and numerous other Ex parte Flippin, 94 U. S. 348 ; Ex parte Loring, 94 U. S. 418 ; 785 § 822. PUBLIC OFFICERS [Book VI. case where there was no dispute about tlie facts, and the rule of compensation was fixed by law; a mandamus was granted, to compel them to audit and pay the claim, as presented; the court holding, that in such a case the board merely represented the debtor, and had no quasi judicial power.' So, where a city board fixed the salaries of cer- tain officers, at a smaller sum than the statute required, a mandamus was granted, to compel the board to fix the salaries at the lawful rate. " So, a mandamus was granted, to compel the clerk of the quarter sessions, to file and record resolutions of the school directors of a city, the court refusing to entertain the objection, that the statute, which made it his duty so to do, was unconstitutional." And it has been held, that the validity of the passage of a municipal ordinance, where it is apparently regular, cannot be tested upon a mandamus, to require the proper officer to certify to the passage thereof." § 822. Cannot issue to control discretion. — Upon the same principle, as that which forbids the courts to con- trol by mandamus the exercise of judicial or quasi judi- cial power, rests the rule, that a mandamus will not be granted, where the matter in question is left by the law to be determined, according to the discretion of the officer or other tribunal, against whom or which the mandamus is asked; for the court has no power to substitute its own judgment or discretion, in place of that of the officer or body, to whose judgment or discretion the matter has been referred by the law." This rule applies also to the ' People V Sup'rs, 56 Hun (N. Y.) 459. United States v Key, 3 McArthur 2 Dolan V Brooklyn, 55 Hun (N. Y.) 448. '°- '^■* ^ ' State V Thrasher, 77 Ga. 671 ; = Comm. V James, 135 Pa. St. 480. p^^pj^ ^ Dui^ney, 96 111. 503 ; * Comm. II Fitler, 136 Pa. St. 129. People v Knickerbocker, 114 111. 539 ; » Ex parte Gresham, 82 Ala. 359 ; Holliday v Henderson, 67 lud. 103 ; McCreary v Rogers, 35 Ark. 298 ; ^tate v Co. Com'rs, 125 Ind. 247. WiUard V Super. Ct., 82 Gala. 456 ; Stanley v Monnet, 34 Kan. 702 ; United States v Boutwell, 3 Mao Ar- C™™' '<> County Ct., 82 Ky. 632 ; thur (D. C.) 172 • State v Judge, 40 La. Ann. 853; 786 Chap. XXXI.] MANDAMUS 823. writ of certiorari, and the adjudications thereupon with respect to tlie certiorari, are equally applicable here.' But it has been held, that a mandamus will lie, where a discretionary power has been so abused, that injustice will result from the act complained of." A similar exception to the rule, that an injunction will not be granted to control the exercise of a discretionary power, will be noticed in its proper place.' § 823. Nor to compel an unlawful act ; nor an imprac- ticable act. — A mandamus will not be granted, or, if it has been granted, will be quashed, where the officer can- not lawfully perform the act which he is thereby com- manded to perform, as where he is prohibited by statute from doing it;' or where he has been enjoined by a court state V Bead, U La. Ann. 73 ; Davis V Co. Com'rs, 63 Me. 396 ; Shober v Coclirane, 53 Md. 644 ; Deehan v Johnson, 141 Mass. 23 ; Mayo V Co. Com'rs, 141 Mass. 74 ; People V Auditor Gen'l, 36 Mich. ZTL ; People V Judge, 36 Mich. 274 ; People V Circuit Judge, 38 Mich. 244 ; Perrine v Hamlin, 48 Mich. 641 ; Wolfsou V Rubicon, 63 Mich. 49 ; Brown Co. v Winona Land Comp'yi 38 Minn. 397. State V Somerset, 44 Minn. 549 ; Swan u Gray, 44 Miss. 393 ; state V Young, 84 Mo. 90 ; State V Megown, 89 Mo. 156; state V Scott, 18 Nebr. 597 ; State V Edwards, 51 N. J. L. 479 ; People V French, 24 Hun (N. Y.) 263; People V Sup'rs, 24 Hun (N. Y.) 413 ; People D Fairchild, 67 N. Y. 334 ; Com'rs V Co. Com'rs, 107 N. C. 335 ; Virginia u Rives, 100 U. S. 313; Ex parte Railway Comp'y, 101 U. S. 711: And ante, § 394. Accord, Co. Com'rs V Crotty, 9 Colo. 318: Freeman i) Selectmen, 34 Conn. 406 ; Seymour u Ely, 37 Conn. 103 ; State V Judge, etc., 41 La. Ann. 951"; State V Judges, 41 La. Ann. 1,012; Post V Sparta, 63 Mich. 323 : People V Martin, 82 N. Y. St. Rep. 440 ; IIN.Y. Supp. 123; Pebple V Grant, 58 Hun (N. Y.) 455 ; People u Leonard, 74 N. Y. 443 ; CoUarn's Petition, 134 Pa. St. 551 ; United States v Seaman, 17 How. (U. S.) 225 ; United States i) Com'r Gen'l Land Office, 5 Wall. (U. S.) 563 ; Secretary v McGarrahan, 9 Wall. (U.S.) 298; State V Co. Court, 33 W. Va. 589 ; and many other authorities. ' Ante, % 810. » BrokawD Com'rs Highways, 130 111. 482. See also, Glencoe v People, 78 111. 382, at p. 389. s Post, § 849. « State V Sneed, 9 Baxt. (Tenn.) 472. See also. Page v Sup'rs, 85 Cala. 50; People V Hyde Park, 117 111. 462 ; Ross V Lane, 11 Miss. 695 : People V Fowler, 55 N. Y. 252 ; Johnson v Lucas, U Humph. (Tenn.) 306. 787 § 834. PUBLIC OFFICERS [Book VI. of competent jurisdiction from doing it.* The same rule applies, where he has not the power to perform the act/ although he has wrongfully put it out of his power to perform the same." And it seems, that the want of power, which excuses the performance, is not necessarily the want of lawful power, but may include inability to devote to the business the time and attention required for performance. Thus, in the supreme court of New York, where a justice of the marine court declined to entertain an application for the removal of a tenant by summary proceedings, under a statute which provided, that upon such an application, the officer " must " issue the precept, on the ground that all his time was required to enable him to attend to the business of his court, and there were other officers who had jurisdiction to enter- tain the proceedings; it was held, upon the appeal, that the court below " very wisely exercised" its discretion in refusing to grant the writ.' And a mandamus will not lie, where the relator's right and the officer's power have come to an end. " § 824. The same subject. — So, a mandamus will not lie, to compel a public financial officer to pay a demand, where no appropriation has been made therefor;' or ' Ea; pctrte Fleming, 4 Hill (N. Y.) 581; R.Comp'y,2Q.B.(Ad.&Ell.N.S.)47. People V Supervisors, 30 Hun (N. Y.) . p^^pj^ „ MoAdam, 28 Sun (N. Y.) 28i ; ' appeal dismissed, 91 N. Y. 655. Ohio, etc., R. R. Comp'y v Co. Com'rs, g^^ ^-^^^^ ^^t'y Gen'l v Boston, m 7 Ohio St. 378; Mass. 460; See, however, Roherts v Davidson, 83 ^ „ g^ ^^ Ky. 279. . x, , .^.nr. ^ ,„ „ , - » state u ArehihaJd, 43 Minn. 328. ' People V O'Keefe, 100 N. Y. 572. See also, Highway Co-jn'rs v People, ' ^eeside v Walker, U How. (U. S.) 272; 19 111. App. 253 ; ^®® also, State v Jumel, 31 La. Ann. State V Vanarsdale, 43 N. .T. L. 536 ; ^'^' Bates t! Porter, 74 Gala. 224 ; Weston u Dane, 51 Me. 461 , Ackerman v Desha Co., 27 Ark. 457. ^*^*° " Bishop, 43 Mo. 504 ; . Rice.Walker,44Iowa458; Kentucky « Boutwell, 13 Wall. (U. S.) People , Wendell, 57 Hun (N. Y.) 302 , ^^^^^^ g^^^^^ ^ B^^^^^^ 1^7 U, S. 251. Contra, Regina v Birmingham, etc., 788 Chap, XXXI.] , iiANDAMUS § 825. where a lawful and regular warrant or other voucher therefor has not been made.' § 825. Nor to determine the title to an office. — Manda- mus will not lie to determine, either directly or indirectly, a disputed question of title to a public office. The rule in this respect was stated in the New York court of appeals, where the question arose upon an application for a mandamus, to enjoin and restrain the defendants from exercising the offices of trustee and president of a village. The court affirmed an order, dismissing the application and quashing the writ. Andrews, J., deliver- ing the opinion of the court, said: " The awarding of a mandamus is, in general, discretionary. There may be cases, where the party is legally entitled to have the writ issued, and where a denial of the right would be review- able in this court. But this is not a case of that character. It is not the proper office of a writ of mandamus, to restrain a party, claiming to be a public officer, from exer- cising his office, or to enjoin one, claiming to have been elected or appointed to an office, from qualifying. ' Man- damus is always to do some act in execution of law, and not to be in the nature of a writ de non molestando.' Vin. Abr., tit. Man. A; 2 Salk. 572. The statute gives a remedy in the nature of a quo warranto for an unlawful intrusion into a public office, and the right of the defend- ants . . . may be tested in a suit brought for that purpose." ' Numerous cases have settled, by a great preponderance of authorities, the rule, that where an office is filled by an incumbent, exercising the functions thereof, and claiming title thereto, another person claim- ing title cannot have a mandamus, to eject him and put himself in possession; his remedy is by an information ■ People t' Fogg, U Gala. 351 ; Mich. 416. Honea v Monroe Co., 63 Miss. 171: People v Ferris, 76 N. Y. 336, aff'g 16 See also. People v Co. Treasurer, 36 g^^ (j^ yj gjg 789 §837. PUBLIC OFFICERS [Book VI. in the nature of a quo warranto, or a statutory substitute for such a proceeding, where such a substitute is pro- vided. ' § 836. The same subject. — Nor can a mandamus be used to accomplish the same result indirectly. Thus the claimant to an office, in possession of another, cannot maintain mandamus, to enforce the payment to him of the salary appurtenant to the office. " Nor will mandamus lie to a board of officers, ex. gr., a board of supervisors, to command them to admit the relator as a member, where his title is in controversy, and he is not in possession;' or where the answer shows that he is not qualified." § 837. The same subject; conflicting authorities. — But the authorities are not in perfect harmony upon this question, for some of them recognize a mandamus, as a proper method of settling a disputed question of title to an office. Thus, in Massachusetts, a mandamus was ' Rex V Mayor of Cololiester, 2 T. K. (D. &E.)259; Rex V Mayor of Oxford, 6 Ad. & Ell. 349; INev.&P. 474; Rex V Mayor of Winchester, 7 Ad. & Ell. 215; 2 Nev. & P. 274; Reg. V Councillors of Derby, 7 Ad. & Ell. 419 ; 2 Nev. & P. 589 ; W. W. & D. 671; Frost V Mayor of Chester, 5 Ell. & Bl. 631 ; s. c, sub nom., Reg. v Mayor, etc., 25 L. J., Q. B. 61 ; 2 Jur. N. S. 114; State V Dunn, Minor (Ala.) 46 ; Ex parte Harris, 52 Ala. 87 ; Underwood v Wylie, 5 Ark. 248 ; Meredith v Sup'rs, 50 Gala. 433 ; Kelly V Edwards, 69 Gala. 460 ; Duane v McDonald, 41 Gonn. 517 ; Harrison v Simonds, 44 Conn. 318 ; Bonner v State, 7 Ga. 473 ; People V Forquer, 1 111. 104 ; Hildreth v Heath, 1 111. App. 82; People V Head, 25 111. 325 ; State V Johnson, 29 La. Ann. 399 ; French v Cowan, 79 Me. 426 ; People V Detroit, 18 Mich. 338 ; Frey v Michie, 68 Mich. 323 : County Court v Sparks, 10 Mo. 117 ; State V Thompson, 36 Mo. 70 ; State V Rodman, 43 Mo. 256 ; Anderson v Colson, 1 Nebr. 172 ; State V Palmer, 10 Nebr. 203 ; Denver v Hobart, 10 Neva. 28 ; People V Mayor, etc., 3 Johns. Cas. (N. Y.)79; People V Stevens, 5 Hill (N. Y.) 616 ; People V Sup'rs, 12 Barb. (N. Y.) 217; People V Lane, 55 N. Y. 217 ; In re Gardner, 68 N. Y. 467 ; Brown v Turner, 70 N. C. 93 ; Swain v McRae, 80 N. G. HI ; Ellison V Raleigh, 89 N. C. 125. ' State V John, 81 Mo. 13. ' Frey v Michie, 68 Mich. 323. See also, French v Gowan, 79 Me. 423. People V Sheffield, 47 Hun (N. Y.) 481. Accord, Pucket V Bean, 11 Heisk. (Tenn.) 600. 790 Chap. XXXI.] MANDAMUS § 828. granted, to compel the members of a school committee to recognize the relator as one of their number, although they had already recognized another person. ' And the courts of Maryland and Virginia, seem to recognize a mandamus, as a proper remedy, in favor of the claimant of an office against the person in possession, to oust the respondent, and put the relator in possession.'' § 828. When the writ lies to enforce the claims of an officer de jure. — But an issue upon the eligibility of a person to hold an office, of which he is in possession, can- not be raised upon a mandamus, to compel payment of his salary." And the cases agree, that where there is no other person in possession, the relator may be put by mandamus into possession of an office, to which he is rightfully entitled. Thus mandamus lies to restore an officer, who has been illegally suspended;' or to induct a person into an office, to which he has been lawfully chosen, there being no adverse claimant;" or to put into possession one, in whose favor a final judgment, declaring him to be entitled to the office, has been rendered upon information in the nature of a quo warranto, or other pro- ceedings to test his title;' or to compel a person, chosen to a municipal office, to accept it and to qualify;' or in favor ■ Conlin v Aldricli, 98 Mass. 557. Comm. v Guardians, etc., 6 S. & R. See, however. In re Strong, 20 Pick. (Pa.) 469 ; (Mass.) 484 ; Milliken v City Council, 54 Tex. 388 ; Att'y Gen'l v Simonds, Ul Mass. 356. State v Com. Council, 9 Wis. 254. " Harwood v Marshall, 9 Md. 83; Dew V Judges, etc., 3 Hen. & Munf. (Va.) 1. ' Turner v Melony, 13 Gala. 621. j„ ^e Gleese, 50 N. Y. Super. Ct. 473 ; 67 ' Metsker v Neally, 41 Kan. 122, citing How. Pr. (N. Y.) 372. Rex V Barker, 3 Burr. 1266 ; e gtate v Miller, 45 N. J. L. 251. El parte Wiley, 54 Ala. 226 ; . „ ,f .,, / „^ =oo » Mannix u State, 115 Ind. 245 Fuller V Trustees, 6 Conn. 532 ; See also, Delahanty 1) Warner, 75 111. 185; In re Strong, 20 Pick. (Mass.) 484; State V Dusman, 39 N. J. L. 677 ; Howard v Gage, 6 Mass. 462 ; County Court v Sparks, 10 Mo. 117 ; State sey City, 25 N. J. L. 536 ; ' Ante, 8 166 791 Prince v Skillin, 71 Me. 361 ; State V Atlantic City, 52 N. J. L. 332. § 830, PUBLIC OFFICERS [Book VI. of the person in possession of an office, against a claim- ant, who wrongfully takes the tax duplicate from the county treasurer in possession. ' § 839. Practice, proceedings, etc.; references else- where. — The principles, upon which the relief by man- damus rests, have been, it is believed, stated and illustrated sufficiently for the purposes of this work, in the foregoing pages. Numerous cases, arising upon mandamus, which have been cited in former chapters, are referred to in the note." An examination of the practice and proceedings upon mandamus, and a complete collection of the cases in which the writ will lie, would be foreign to our plan. They belong properly to works, specially treating of this and other extraordinary remedies. But a few additional cases, possessing special features, where the office of the writ was illustrated, will be inserted. § 830. Doctrine of mandamus in tax cases. — Man- damus is the proper remedy, to compel the assessors of a city to correct an error, by including the relator's land in a district, subject to an assessment for a local improve- ment, although the assessment has been confirmed by the common council, and the statute declares such a confirmation to be final and conclusive; and this, although the warrant has been delivered to the collector, provided he has also been made a party.' It also lies, against the register of arrears of taxes, to compel him to receive the balance of the tax chargeable against the relator's land, and to cancel the sale of such land; where the relator seasonably applied for information as to the amount of the tax, and paid the sum which was stated to him as being the amount thereof; but in fact, it was a larger sum; and in such a case, the purchaser is not a » Runion v Latimer, 6 S. C. 126. 392, 394, 4U, 413, 443, 451, 457, 4i8, 509. See also, ante, § 787. 510, 539, 641, 644, 686, C67. ^ Ante, §§ 86, 98, 138, 148, 155-157, 166, 359, ' People V Wilson, 119 N, Y. 515. 793 Chap. XXXI.] MANDAMUS § 832. necessary party.' It also lies against a town, to compel it to raise by taxation, its share of the money required for the support of a "joint free high school." § 831. Against tribunal refusing to act ; against officer refusing to certify. — Mandamus lies against a tri- bunal, empowered to decide the relator's controversy, where it dismisses such controversy, upon the ground of want of jurisdiction." A teacher in the public schools of a city, who, under the statute, cannot obtain payment of her salary, unless the principal of the school prepares the pay roll, and the school trustees certify to the cor- rectness thereof, may have a mandamus against those officers, to compel them to perform such duties; in such a case, the rule that a mandamus will not lie, where there is a remedy at law, does not apply, and the court will compel the performance of the legal,duties, which are indispensable preliminaries to the payment,' § 833. That the act is burdensome on the defendant is no defence. — It is not a ground for denying a mandamus against a public officer of a city, to compel him to remove a nuisance in the street, "that there are thousands of such nuisances, which would require an army of employees, and put the city to a heavy expense to remove;" and that the relator has a remedy against the individual creating the nuisance; unless it appears, that by reason of the numerous applications made in similar cases, the respondent is without men or money to obey the directions of the court." ' People v Registrar of Arrears, 114 N. Y. ' Temple v Super. Court, 70 Cala. 211 ; 19, citing Clementi v Jackson, 93 People v Swift, 59 Mich. 529. N- ^- ^^1 ' ' Inre Gleese, 50 N. Y. Super. Ct. 473 ; 67 People V Cady, 51 N. Y. Super. Ct. 316, . How. Pr. (N. Y.) 372. aff'd 99 N. Y. 620. « Joint F. H. School Dist. v Green Grove, 77 Wis, 532. 6 People 1) Newton, 20 Abb. N. C. (N. Y.) 793 § 834. PUBLIC OFFICERS [Book VI. § 833. Will not lie to enforce a private right ; other cases. — A mandamus will not be granted 'to compel per- formance of a private right, as distinguished from a public duty;' such as compliance with the terms of a contract, although it was made officially. ° It will not be granted against a recording officer, and a purchaser at a tax sale, to compel the former to cancel of record a tax deed; nor against the recording officer only, to compel the cancellation of a mortgage; because in each case the application presents issuable facts, to be determined in an ordinary judicial proceeding.' Nor will it be granted upon the application of members of the board of alder- men of a city, against the marshal of the city, to compel him to obey an order of the board, which the mayor, his official chief, refuses to recognize. The proper remedy in such a case is to remove the disobedient officer; and even if the statute requires the mayor's concurrence, in order to effect the removal, still that is the remedy pro- vided by law, and the courts will not interfere by. man- damus, on the ground that the mayor will probably refuse to concur with an order for the marshal's removal." § 834. The same ; will not lie against deputy ; when officer represents the public. — A mandamus regularly lies only against a court or a public officer; and therefore it will not lie against an executor, to compel him to perform his statutory duty, because he holds only a private trust.' And regularly it should not be directed to a deputy or other subordinate, to compel him to do an act in the ' Shortt on Informations, etc., 1st. Am. See also, High Extr. Rem., 2d ed. 8 85, ed., 231 ; citing Rex v Wlieeler, Lee's Cas. Parrott v Bridgeport, 44 Conn. 180 ; tem^p. Hardwicke, 99. Totey V Hakes, 54 Conn. 274 ; 3 state v Batt, 40 La. Ann. 582 ; State V Howard Co., 39 Mo. 375. p^^^^ „ jjjUg,.^ ^ jj^^ ,jj_ Y_j ^ = Board of Education v Runnels, 57 1 Alger » Seaver, 138 Mass. 3SI. Mich. 46 ; State V ZanesYille T. Comp'y, 8 Ohio ° ^^^^ " ToUe, 71 Mo. 645. St. 308. 794 Chap. XXXI.] PROHIBITION § 835. name and in behalf of his principal, but to the principal.' A mandamus; directed to the clerk of a township, or other officer of a municipality, to compel performance of a continuing duty, not relating to the particular incum- bent of the office, runs substantially against the munici- pality, and does not abate by the cessation of the incum- bent's term of office." So a change in the membership of a board of municipal officers, pending a mandamus against them, does not abate the proceeding.^ So it has been held, that where a mandamus is prayed for in the United States supreme court, by a state, against the governor of another state, to compel the performance of an act in behalf of his state, the mandamus in effect runs against the latter state, and the suit is one in which that court has original jurisdiction, and so may grant the mandamus." IV. Prohibition. § 835. Its office and functions. — The writ of prohibi- tion, which we will next consider, partakes, within the very limited sphere to which it is confined, of the nature of an injunction. Its office and functions were well stated and defined by Gray, Ch. J., delivering the opinion of the supreme judicial court of Massachusetts, upon an application for the writ against county commissioners, to prohibit their action upon the proceedings of the man- ager of a railroad, owned by the Commonwealth, looking • Rex V Jeyes, 3 Ad. & El. 416 ; 5 N. & M. » Thompson v United States, 103 U. S. 10];1H. &W.325; 480. Rex V Payn, 6 Ad. & El. 392 ; 1 N. & P. Accord, People v Champion, 16 Johns. 524 ; W. W. & D. 1« : 1 Jur. 54. (N. Y.) 61 ; See also, Wigginton v Markley, 52 People V Collins, 19 Wend. (N. Y.) 56. Cala. 411. , Doolittle v Branford Selectmen, 59 So where he acts by direction or Conn. 402. command of a superior, although not a deputy. Alger v Seaver, 138 * Kentucky, Dennison,Z4How.(U.S.)65. See also. North Carolina v Temple, 134 U. S. 22, cited ante, § 798. 795 Mass. 331. § 035. PUBLIC OFFICERS [Book VI, to the appropriation of lands of the relator for a passen- ger station, under a statute authorizing such proceedings; which statute the relator insisted, and the court decided, was unconstitutional, because it made no sufficient pro- vision for payment of the owner of the lands. The distinguished chief justice said: "A writ of prohibition, issuing from the highest court of common law, is the appropriate remedy to restrain a tribunal of peculiar, limited, or inferior jurisdiction, from taking judicial cog- nizance of a case not within its jurisdiction. . . . The fact, that the remedy by petition for a writ of certiorari, will be open to the landowner, after final judgment, affords no reason why the court should now refuse a writ of prohibition, and thereby put the petitioner to the trouble, expense, and delay of a trial before a tribunal, which has no jurisdiction of the case, and to whose jurisdiction the petitioner has objected at the outset of the proceedings. . . . The fact, that an agent of the commonwealth is the adverse party, in the proceedings before the county commissioners, affords no reason for refusing the writ. A writ of prohibition, like a writ of mandamus or of certiorari, is properly sued out in the name of the crown or the state; the only necessary defendant is the tribunal, whose proceedings are sought to be restrained, controlled, or quashed; and there is no class of cases, where the authority to issue writs of prohi- bition is better settled, than in those of courts martial, ecclesiastical courts, or inferior courts of common law, assuming to take cognizance, in excess of their jurisdic- tion, of criminal prosecutions." ' But the office of the ' Connecticut River R. R. Comp'y v Com'rs, 10 Cush. (Mass.) 13 ; County Com'rs, 137 Mass. 50, per Day v Springfield, 102 Mass. 310 ; Gray, Ch. J., citing 3 Bl. Com. 113 ; Zylstra v Charleston, 1 Bay (S. C.) 382. Searle v Williams, Hob. 288 ; Accord, Henshaw v Cotton, 127 Mass. Reg. V Herford, 3 El. & El. 115 ; 60 ; Washburn v Phillips, 3 Met. (Mass.) Chandler i) R. R. Com'rs, 141 Mass. 296; 308; Gilbert v Hebard, 8 Met. (Mass.) 129 ; State v St. Louis Court, 99 Mo. 216 ; Vermont & Mass. R. R. Comp'y v Co. People v Sup'rs, ISl N. Y. 345. 796 Chap. XXXI.] PROHIBITION § 83G. writ is not confined to a case, where the inferior tribunal is proceeding to adjudicate upon a matter of which it has no jurisdiction; it will also issue, to prevent the exer- cise of unauthorized power, in a case where the inferior tribunal has jurisdiction of the subject matter.' In other words, the writ is proper, where an inferior court either has no jurisdiction of the subject matter, or, having such jurisdiction, exceeds its authority in the proceedings relating thereto." Thus, it has been held that prohibition lies, to prevent an inferior tribunal from proceeding further, after an appeal regularly taken to a superior tribunal;' but, in another case, it was held, that where, after a regular appeal from an order, and a stay of the proceedings, the inferior court proceeded to enforce the order by punishment for contempt, the remedy was not by prohibition, but by appeal from the conviction for contempt, on the ground that the first appeal did not go to the jurisdiction.* § 836. Writ lies in discretion ; objection must have been taken in court below. — The writ does not issue, of course, but only upon special direction of the court, which may grant or refuse it in the exercise of a sound discretion; but, as its discretion is subject to be reviewed by an appellate court, it is practically a writ of right, if the relator shows a case which entitles him to it. ' The • Coker v Super. Ct., 58 Cala. 177; the text, see Ex parte Hamilton, 51 Murphy v Super. Ct., 58 Cala. 520 ; Ala. 02 ; Hayne v Just. Court, 82 Cala. 284 ; Hudson v Super. Ct., 42 Mich. 239 ; Appo V People, 20 N. Y. 531. Roper v Cady, i Mo. App. 592 ; ' Havemeyer v Superior Court, 84 Cala. Thomson V Tracy, 60 N. Y. 31 ; ^. Smith D Whitney, 116 U. S. 167. People V Petty, 32 Hun (N. Y.) 443. It ' Fite V Black, 85 Ga. 413. has also heen held that the writ lies , g^^^^ ^ Young, 44 Minn. K. where jurisdiction was obtained by fraud. Bodley v Archibald, 33 W. ' Havemeyer v Super. Ct., 84 Cala. 327 ; ~. gog Hudson V Super. Court, 42 Mich. 239, For 'other definitions of the office per Marston, J., pp. 248, 249 ; and functions of the writ, substan- Smith v Whitney, 116 U. S. 167, per tiaUy agreeing with those given in ^^^T^' •^•' P- ^'''^• 797 § 837, PUBLIC OFFICERS [Book VI, attendant circumstances will be taken into considera- tion, in determining whether the writ shall be granted or refused, substantially as where an application is made for a certiorari or mandamus." But it is necessary, that the applicant for the writ should show, that he season- ably objected to the jurisdiction in the proceedings below;" unless, perhaps, where the want of jurisdiction appears upon the face of the proceedings, in which case it has been said, that an objection to the jurisdiction is not required; and that the rule, requiring such an objection to be taken, applies, only where it arises upon matter dehors the record. ° § 837. Is founded upon want of jurisdiction.— "Want of jurisdiction in the inferior tribunal is the foundation, upon which the writ of prohibition rests, and it will not lie where the inferior tribunal has jurisdiction.* Thus it has been said, that a prohibition ought not to issue, where the papers before the inferior tribunal present a case proper for its consideration; the remedy is to appear and defend; and that a prohibition will not lie, where the inferior tribunal has power to decide whether ia jurisdictional fact exists, if there was any proof of the existence of the fact, • Ante, fi§ 803, 804, 815. For cases, where Hudson v Super. Ct., 42 Mich. 239 ; the court has exercised its discretion State v Wilcox, 2i Minn. 143. in granting or refusing a writ of pro- See also, Ex parte McMeechen, 12 Ark. hibition, see 70 ; Ex parte Hamilton, 51 Ala. 62 ; Ex parte Little Rock, 26 Ark. 52 ; Russei; « Jaco way, 33 Ark. 191 ; State D Williams, 48 Ark. 227 ; Wreden v Super. Court, 65 Gala. 504 ; State t) Steele, 38 La. Ann. 569 ; Leonard v Bartels, 4 Colo. 95 ; State v Henry, 41 La. Ann. 908 ; Arnold v Shields, 5 Dana (Ky.) 18 ; Conn. River R. R. Comp'y v Co. State V Skinner, 32 La. Ann. 1,092 ; Com'rs, 127 Mass. 50, at p. 59. State D-Monroe, 33 La. Ann. 923 ; , Havemeyer v Super. Ct., 84 Gala. 327. Washburn v Phillips, 2 Met. (Mass.) 2gg . * Sherlock ti Jacksonville, 17 Pla. 93 ; Roper V Cady, 4 Mo. App. 592 ; Hart v Taylor, 61 Ga. 156. People V Seward, 7 Wend. (N. Y.) 518 See also. Ex parte Greene, 29 Ala. 52 ; Appo V People, 20 N. Y. 531, ^ P"^ Peterson, 33 Ala. 74 ; Murphy v Super. Ct., 58 Cala. 520; » Havemeyer v Super. Ct., 84 Cala. 327 ; g^^j^ „ Judge, 42 La. Ann. 71. 798 Chap. XXXI.] PROHIBITION § 838. although its decision was erroneous.' It is ' entirely foreign to the office of a writ of prohibition to set aside, correct, or modify a judgment, however erroneous, in a case within the jurisdiction of the inferior tribunal, with respect to the subject matter and the proceedings before it.' And it has been held, in some cases, that a prohibition is too late in any event, after its final judgment or other decision by the inferior tribunal. ' § 838. Doctrine where there is another remedy. — It has been held, that a writ of prohibition will not lie, where there is a remedy by appeal, writ of error, or other proceedings to review the decision of the inferior tribunal, or where the party applying for the writ has a remedy at law;* but the contrary ruling has been made in other cases;' and the latter opinion appears to accord more sat- isfactorily with the principles, regulating the office and functions of the writ, since the writ proceeds upon the ground of want of jurisdiction, and therefore, in most cases, there will be another remedy, if the proceedings below are allowed to end in a final judgment. But the ' Murphy 11 Super. Ct., 84 Cala. 592. People v Dist. Court, 11 Colo. 574 ; See also. People v MoAdam, 3 Browne Hudson v Super. Ct., 42 Mich. 239 ; Civ. Pro. Rep. (N. Y.) 52 ; 2 McCarty People v Excise Com'rs, 61 How. Pr. Civ. Pro. Rep. (N. Y.) 86 : (N. Y.) 514 ; People I) Parker, 63 How. Pr. (N. Y.) 3 ; State u Stackhouse, 14 S. C. 417 ; « More u Super. Ct., 64 Cala. 345; United States v IIofEman, i Wall. Bank Lick Turnpike Comp'y f Phelps, (U. S.) 158 ; 81 Ky 613 • Haldeman v Davis, 28 W. Va. 324 State V Judge, 34 La. Ann. 6U ; "o"*"^^' ^°^^^^ " AroKihald, 33 W. Va. 22Q State u Judge, 34 La. Ann. 782 ; '*'''• State V Houston, 40 La. Ann. 393 ; * State D Monroe, 33 La. Ann. 923 ; State V Burckhartt, 87 Mo. 533 j State v Judge, 33 La. Ann. 1,284 ; People V Letson, 8 How. Pr. N. S. Ea; pctrte Braudlacht, 2 Hill (N. Y.) 367. (N. Y.) 381 ; Accord, Havemeyer v Super. Ct., 84 People t) Surrogate's Court, 36 Hun Cala. 327 ; (N. Y.) 218 ; Murphy v Super. Ct., 84 Cala. 592. State V Columbia, 17 S. C. 80 ; , Connecticut River R. R. Comp'y V Co. Ex parte Pennsylvania, 109 U. S. 174 ; Com'rs, 127 Mass. 50, cited ante, 6 835 ; Shell V Cousins, 77 Va. 328. gt^te v Wilcox, 24 Minn. 143. 3 Hull V Super. Ct., 63 Cala. 179 ; 799 § 840. PUBLIC OFFICERS [Book VI, cases agree, that the other remedy must be full and ade- quate to relieve the relator, in order to bar the writ. ' The denial of a trial by a jury, in a prosecution for misde- meanor, is not, it has been held, a suificient ground for issuing the writ, because the remedy by appeal will be effectual." § 839. Issues only to a court, or an officer exercising quasi judicial functions. — The writ can issue only to an officer, tribunal, or body, exercising a judicial or quasi judicial power.' And it does not lie to prevent the exercise of any power, not of a judicial nature,* although requiring the exercise of judgment and discretion, such as fixing the rates which a waterworks company may charge for the use of its water;' still less of any purely ministerial power;' or of an executive or administrative power;' or to prevent the usurpation of an office, that being the function of an information in the nature of a quo warranto." §840. Prevents action under unconstitutional stat- ute, or void judgment or order. — Inasmuch as an uncon- stitutional statute is void, and cannot therefore confer jurisdiction upon a court, a judicial officer, or a quasi judicial officer, upon which or whom it purports to con- fer jurisdiction, prohibition is the proper remedy to pre- vent action by such a court or officer under such a stat- • Havemeyer v Super. Ct., 84 Cala. 327, ' Spring Valley 'VVatBrworkB v Bartlett, and other cases cited in note 4, on p. (J3 Cala. 245. 799. • Hobart » Tillson, 66 Cala. 210; ' Powelson d Loekwood, 82 Cala. 613. People V Supervisors, 1 Hill (N. Y.) » People D Dist. Court, 6 Colo. 534 ; ^^^ ' La Croix u Co. Com'rs, 50 Conn. 331 ; ^^ J"^** Braudlacht, 2 Hill (N. Y.) 367. Fleming v Election Com'rs, 31 V,''. Va. ' People i) Election Com'rs, 54 Cala. 404; 608. People D Dist. Court, 6 Colo. £34; « Shortt on Informations, etc., 1st Am. ^""^ '^ Whitney, 110 U. S. 167 ; g^_ ^g_ Burch I) Hardwicke, 23 Gratt. (Va.) 61. 8 Buokner « Veuve, 63 Cala. 304. 800 Chap. XXXI. J INJUNCTION § 841. ute.' It has also been held, that prohibition lies to a court, which has rendered a personal judgment against a tax collector, in an action for money had and received, where he refused to accept from the plaintiff a tender of coupons for the plaintiffs' taxes, under a statute allowing payment in such coupons; whereupon the plaintiff paid the taxes under protest; and the collector paid the money into the treasury; this ruling proceeding upon the ground, that as the statute gave a special remedy in such a case, the court below had no jurisdiction, and the judgment was void. ' But, in Alabama, it was held, that a prohibition would not lie, to prevent a judge from discharging a con- vict, without payment of the costs, by an illegal order, made before his sentence expired; such an order being regarded as a ministerial act, and therefore the subject of a mandamus.' V. Injunction. § 841. Is either a writ or an order; inquiry limited to public officers. — An injunction, except in those states where law and equity proceedings have been merged by a code of civil procedure, is a writ issuing from, a court of equity. Under the codes of civil procedure, it consists of an order; but the order is governed by the same rules and principles, which govern the writ of injunction. The general principles governing injunctions, and the mode of procedure thereupon, form the subject of several voluminous treatises, in England and in the United; States, upon equity jurisprudence, equity jurisdiction, and equity procedure, and the consideration thereof is foreign to the purpose of this work. Our concern is merely with those principles, which relate to injunctions controlling the official action of public officers. ' Ex parte Roundtree, 51 Ala. 43 ; » Mallan « Bransford, 86 Va. 675. Connecticut River R. R. Comp'y t) Co. , jj,^ ^g^ gt^te, 89 Ala. 177. . Com'rB, 127 Mass. 60, cited ante, § 835. 801 §843. PUBLIC OFFICERS [Book VI. § 843. Rules governing the granting of the writ against a public officer.— The rules, governing injunctions of this description, are thus stated in the leading Ameri- can work upon equity jurisprudence: "The question has been made, how far a court of equity has jurisdiction to interfere, in cases of public functionaries, who are exercising special public trusts or functions. As to this, the established doctrine now is, that so long as those functionaries strictly confine themselves within the exer- cise of those duties which are confided to them by law, this court will not interfere. The court will not interfere to see whether any alteration or regulation, which they may direct, is good or bad; but if they are departing from that power which the law has vested in them; if they are assuming to themselves a power over property, which the law does not give them; this court no longer considers them as acting under the authority of their commission, but treats them, whether they be a corpora- tion or individuals, merely as persons dealing with property without legal authority." ' § 843. The same subject; limitations of the writ. — An injunction will not therefore lie to restrain administrative or political officers, from discharging their ordinary offi- cial functions. Thus, election officers cannot be enjoined from counting the votes and declaring the result of an ' story Eq. Juriap., 13th ed. % 955 a, cit- ing Frewin v Lewis, 4 Myl. & Cr. 249 ; Murray v Clarendon, L. R., 9 Eq. 11 ; Att'y Gen'l v Kirk, L. R., 14 Eq. 558 ;_ VavaaseurDKrupp (foreign sovereign), ' L. R.,9Gli.D. 351; 39L.T.437; 27W. R.176; Beebe v Robinson, 53 Ala. 66, 75 ; ' Graham v Horton, 6 Kan. 343 ; Missouri R., etc., Comp'y v Co. Com'rs, 12 Kan. 280; Lane v Morrill, 51 N. H. 422 ; People D Canal Board, 55 N. Y. 390; : Galloway v Jenkins, 63 N. C. 147 ; Missiasippi v Johiison, 4 Wall. (U. S.) 475; Gaines v Thompson, 7 Wall. (U. S.) 347. See also, High on Inj., 3d ed., § 1,308, and.cases cited ; Crawford v Carson, 35 Ark. 565 ; Dickey v Reed, 78 111. 261 ; Ollphant V Go. Com'rs, 18 Kan. 386; Knox D Police Jury, 27 La. Ann. 204; ,Glbbs4!,Usher, 1 Holmes (U. S.) 348. 802 Chap. XXXI.] INJUNCTION § 844. election/ or from holding an election;" nor can the com- missioners of the canal fund be enjoined from making a loan/ nor the comptroller-general from collecting the public revenues." And an injunction will not be granted, to restrain municipal officers from the exercise of the ordinary police powers of the municipal government.' Nor will an injunction lie, to prevent a judge or a judicial officer, from acting in a cause pending before him, even although the statute under which he is acting, is uncon- stitutional/ or to restrain criminal proceedings, or pro- ceedings in mandamus' or prohibition. " § 844. Doctrine as to restraining the passage of a municipal ordinance. — It has been held, that an injunction will not lie against a city or the common council of a city, to restrain them from passing, or against the mayor to restrain him from approving, an ordinance in violation of the plaintiff's right, on the ground that the court will not deal with hypothetical cases/ but other authorities have held, that it will be granted to restrain the passage of a municipal ordinance, exceeding the scope of the munici- pal authority, in a case where the ordinance would work irreparable injury to the plaintiff, unless the ordinance > Weil V Calhoun, 25 Fed. R. (U. S.) 865. Woodruff, 61 N. Y. 378 ; « Harris v Sohryock, 82 111. 119. ^^^'^'^^'^^ " Metcalf , 1 Tenn., Ch. m Aliter, where an officer, other than a ' Thompson V Com'rs Canal Fund, 2 judicial officer, is proceeding under Abb. Pr. (N. Y.) 248. ^^ unconstitutional statute, post. * Scofleld V Perkerson, 46 Ga. 350. 8 846. See also, Secombe uKittelson, 29 Minn. , ^igh Xnj., 3d ed., § 63, and cases cited. 555. * Montague v Dudman, 2 Ves. Sr. 398; Sheen v Stothart, 29 La. Ann. 630 ; ^^^ ^ord Hardwicke, Ch'r, p. 398. H'ottinger v New Orleans, 43 La. Ann. 629; ° Harrison v New Orleans, 33 La. Ann. Whitman v Hubbell, 20 Abb. N. C. ^' fN Y ) 385 • New Orleans Elev. R. Comp'y v New TT- vr'_.j. ot\ M.r, v n mr -v \ Orleans, 39 La. Ann. 127. Kiernan ij Newton, 20 Abb. In . C (H. Y.) „„g . See also, High on Inj., 3d ed., 8 1,243 ; Emn^onsD CampbeU,22 Hun (N.Y.)582. Roudanez v New Orleans, 29 La. Ann. 271; « High Inj., 3d ed., 8 46, citing Piatt v 803 § 846. PUBLIC OFFICERS [Book VI. would be void upon its face, in which case the injunction will not lie.'. § 845. Restraining police from entering a club house. -^ The police authorities of a city may be restrained by injunction, from invading the precints of a private club house, to interfere with its festivities, where such festivi- ties do not constitute a breach of the peace, a nuisance, or other violation of the law or the public order." But where the club sells tickets for the entertainment to the general public, the entertainment becomes a public affair, and the injunction will not lie.° § 846. Generally lies to prevent public officers from acting without lawful authority to plaintiffs prejudice. — And so, generally, an injunction lies to restrain public officers, other than judicial officers, from proceeding, in violation of law, to the prejudice of the plaintiff;' as where they are proceeding under an unconstitutional statute, which, inasmuch as the statute is void, is equiv- alent to proceeding without lawful authority. " Thus, an injunction lies against road supervisors, where, in excess of their authority they threaten to open a road through 1 Spring V. Waterworks v Bartlett, 8 Comm. v Smith, 102 Mass. 144 ; Sawyer (U. S.) 555. Comm. v Pomphret, 137 Mass. 564, 566 ; See also, Chicago M., etc., Comp'y v People i) Canal Board, 55 N. Y. 390, 393 ; Lake, 130 111. 42; Davis v American Soo'y, etc., 75 N. Y. Des Moines Gas Comp'y v Des Moines, 362, 369 ; 44 Iowa 505 : People v Dwyer, 90 N. Y. 402, 409 ; Armstrong v St. Louis, 3 Mo. App. 151 ; State Lottery Comp'y v Fitzpatrick, 3 Murphy v East Portland, 42 Fed. R. Wood (U. S.) 222. (U.S.) 808; Pierpont v HarrisviUe, 9 W. Va. 215. " Cercle Frangais, etc., v French, 44 Hun (N. Y.) 123, citing Graff V Evans, 8 L. R., Q. B. Div.373, 377 ; ' State v Judge, 42 La. Ann. 1104 ; Springhead Spinning Comp'y v Riley, Waterloo Woolen, etc., Comp'y v L. R., 6 Eq. Cas. 551, 558 ; Shanahan, 58 Hun (N. Y.) 50. Seim V State, 55 Md. 566, 571 ; Contra, Thompson v Com'rs Canal ' Cercle Francais, etc.,D French, 44 Hun (N. Y.) 123. • Roosevelt v Edson, 51 N. Y. Super Ct. 227. Fund, 2 Ahh. Pr. (N. Y.) i 804 Chap. XXXI.] INJUNCTION § 847. the plaintiff 's property;' but not where, although the order has been passed, no threats have been made to carry it into execution." And an injunction lies against county oflBcers, to prevent them from removing their offices from the established county seat, until the determination of a pending proceeding to settle its location;' but they will not be enjoined from relocating the county seat, upon an allegation of fraud practiced, upon them,* nor on account of irregularities in the election authorizing the removal;' nor where the question has been regularly con- sidered and disposed of, especially if the plaintiff has participated in the proceedings. ° And an injunction will not lie, to prevent county commissioners from changing the depositary of the public money. ' A tax payer may maintain a suit against a municipal corporation^ to enjoin the collection of an illegal tax against him, if he has paid as much of the tax, if any, as he admits to be due;' or to enjoin the collection of a tax based upon an illegal assessment.' § 847. When irreparable injury must be shown. — An injunction will not lie, against the proceedings of sub- ordinate bodies and tribunals, on account of irregularities in their proceedings, unless it is shown that the interfer- ence of the court is necessary, to protect the plaintiff against irreparable damage and injury. '° ' Morgan v MiUer, 59 Iowa, 481. » London v Wilmington, 78 N. C. 109. For other rulings, relating to an in- See, however, Louisiana Nat. Bk. v junction against road officers, see New Orleans, 27 La. Ann. 446 ; Wetherell v Newington, 54 Conn. 67 ; Levy v Shreveport, 27 La. Ann. 620. BryanuEast St. Louis, 12 111. App. 390 ; , ^llwood v Cowen, Ul 111.' 481. Owens V Crossett, 105 111. 354. '" Prospect Park, etc., R. R. Company u » Weiss V Jackson Co., 9 Oreg. 470. Williamson, 24 Hun. (N. Y.) 216. ' Shaw V Hm, 67 HI. 455. See also. Mobile v Louisville, etc., R. * Markle v Co. Com'rs, 55 Ind. 185. ^- ^"'"P'^' ^ ^^^- "^ ' „, . , ,^ City Councjl v the same, 84 Ala. 127 ; 5ScottuMcGuire,15Nebr.303; Mooers v Smedley, 6 Johns. Ch., • Ellis B Karl, 7 Nebr. 381. (N. Y.) 28 ; See also, Sanders u Metcalf, 1 Tenn, Hyatt V Bates, 35 Barb. (N. Y.) 308; Ch. 419. Albany, etc., R. R. Comp'y V Brow- •" First Nat. Bk. 1) Co. Com'rs, 43 Kan. 648. neU, 24 N. Y. 345. 805 § 849. PUBLIC OFFICERS [Book VI. § 848. There must be no adequate remedy at law. — The rule is familiar, that, except in certain special cases, an injunction will not lie, where there is a full and adequate remedy at law. ' Thus an injunction will not be allowed, to prevent the secretary of state from issuing to another a grant of land, which the plaintiff has entered, where the plaintiff can avail himself of the objections, on obtaining a grant to himself;" or to restrain town officers from arresting and fining the plaintiff, for violation of an unlawful town ordinance, as he has a sufficient remedy by action.' An injunction will not lie, to restrain the acts of the officers of an illegally organized municipal corporation, as there is a remedy by information in the nature of a quo warranto.* Nor will an injunction lie, to restrain a collector from collecting a tax on the plaintiif 's property, and to have the assessment declared void, on the ground that the assessors were not officers de jure or de facto, because the wrong may be redressed by certiorari, or by an action at law against the collector, for executing a warrant which is void on its face. " § 849. Doctrine as to enjoining discretionary power. — The rule, with respect to granting an injunction, where the matter complained of is left by the law to the discre- tion or judgment of the officer, against whom it is asked, is the same, as where any of the other remedies, treated in this chapter, is asked in a similar case; namely, that the court will not interfere to review, control, or restrain ' High on Injunctions, 3d ed., 8 28, citing Gilmore t! Wells, 78 Ga. 197 ; Richards v Kirkpatrick, 53 Gala. 433 ; Neiser t> Thomas, 99 Mo. 224 ; Winkler v Winkler, 40 111. 179 ; Penn v Ingles, 82 Va. 65, cum mtiMis Welde V Sootten, 59 Md. 72 ; aUis. Hettrick 1) Page, 82 N. C. 65 ; , ^^^^ ^ H^uck, 101 N. C. 627. Coe V Columbus, etc., Comp'y, 10 Ohio g^ g^g. ' Cohen i) Goldsboro, 77 N. C. 2. Moore v Steelman, 80 Va. 331. • MacDonald v Rehrer, 22 Fla. 198. See also, Davis v Hinton, 29 lU. App. . Delaware, etc.. Canal Comp'y « Atkins, ^' 121 N. Y. 246, aff 'g 48 Hun (N. Y.) 456. Nicholson v Cook, 76 Ga. 24 ; 806 Chap. XXXI. ] INJUNCTION §850. the exercise of the powers by the officer or officers, in whom the law has vested the discretion or judgment to exercise the same. ' But in this respect, the power of a court of equity to interfere by injunction exceeds that of a court of law; for equity will review the exercise of a discretionary power, which is tainted with fraud, or where it is necessary so to do, in order to prevent abuse^ injustice, or violation of a trust." § 850. Cannot be used to try collaterally the title to an office.— It is well settled, that an injunction will not lie to oust a usurper from a public office, and to put the right- ful officer into possession, as that relief can be obtained by information in the nature of a quo warranto.' JSTor will it lie, in aid of an information, or other proceeding to try the title, by restraining the person in possession from exer- cising the functions, or receiving the emoluments of the office, even upon an allegation of insolvency;' nor will ' Andrews v Knox Co., 70 111. 65 ; Fitzgerald v Harms, 92 111. 372 ; Featherston v Small, 77 Ind. 143; First Nat'l Bk. v Co. Com'rs, 43 Kan. 648; Wiley V B'd of Com'rs, 51 Md. 401 ; Lane v Morrill, 51 N. H. 422; McKinley v Freeholders, 29 N. J. Eq. 164; Mooers v Smedley, 6 Johns. Ch. (N. Y.) 28; Kelsey v King, 32 Barh. (N. Y.) 410; People V Mayor, etc., 32 Barb. (N.Y.) 102; Cleveland, etc., Comp'yuFire Com'rs, .55 Barb. (N.Y.) 288; Phelps V Watertown, 61 Barb. (N. Y.) 121; United States 111. Comp'y V Grant, 55 Hun (N.Y.) 222; Cooper V WiUiams, 4 Ohio 253. » Ante, 8 555. » Dickey v Reed, 78 111. 261 ; Muhler v Hedekin, 119 Ind. 481 ; Osgood V Jones, 60 N. H. 543 ; People V Wiant, 48 111. 263 ; Markle v Wright, 13 Ind. 548 ; Cochran v McCleary, 22 Iowa 75 ; Hughes V Parker, 20 N. H. 58 ; Demarest v Wickham, 63 N. Y. 320 ; Updegrafl v Crans, 47 Pa. St. 103. See also, Beebe v Robinson, 52 Ala. 66 ; Moulton V Reid, 54 Ala. 320 ; Guillotte V Poincy, 41 La. Ann. 333 : Planters' C. Ass'u v Hanes, 52 Miss. 469 ; Patterson v Hubhs, 65 N. C. 119 ; Sneed v Bullock, 77 N. C. 282 ; ■ Kilpatrick v Smith, 77 Va. 347, and ante, § 392. « McDonald v Rehrer, 22 Fla. 198 ; Stone D Wetmore, 42 Ga. 601 ; Foster v Moore, 32 Kan. 483; Necland v State, 39 Kan. 154 ; Tappan v Gray, 9 Paige (N. Y.) 507 ; People V Draper, 24 Barb. (N. Y.) 265; Hagner v Heyberger, 7 W. &. S. (Pa.) 104; Campbell v Taggart, 10 Phil'a (Pa.) 443. See, however, Colton V Price, 50 Ala. 424. 807 § 851. PUBLIC OFFICERS [Book VI, equity interfere, to enjoin the incumbent of a municipal office from acting in the office, where, upon an election for a new term, there was a tie between him and another candidate, and the common council of the city has failed to determine the result by lot, as the statute requires.' So, the title of the members of the board of police of a city cannot be impeached, under the statute, allowing a tax payer to have an injunction against unlawful expenditures, by a petition to prevent the passing and appropriation by the municipality, of money to pay the salaries of the members and their officers, and the expenses of the police department, upon the requisition of the board.'' § 851. Injunction in behalf of tax payers to prevent misappropriation of public money. — In many of the states, statutes have been enacted, empowering any one or more tax payers, to maintain an equitable action against public officers, to restrain illegal acts, tending to increase the taxation, or to divert the public revenues or other property from their proper objects; and to have an injunction in aid of such an action, upon sufficient cause shown. Whether, in the absence of such a statute, a person, having no special interest to protect, may main- tain such a suit, founded upon his general interest as a tax payer in the reduction of the public taxes, and the due appropriation of the public property and revenues, is a question, upon which there has been a conflict of opinions in the adjudicated cases. In several, the courts have held, that such a suit cannot be maintained, by an individual tax payer; and that the only person, who can prosecute for such relief, is the attorney -general in behalf of the state;' and that where a statute has been enacted ' Huels V Hahn, 75 Wis. 468. Wood V Bangs, 1 Dak. 179 : » Prince « Boston, 148 Mass. 285. Louisiana Naf 1 Bank t! New Orleans, 27 La Ann. 446 * = Linden v Case, 46 Cala. 171; jjing, ; Grandy,'l3 Mich. 540; Merriam v Sup'rs, 72 Cala. 517 ; g^^Q^^ ^ y^^^^^^ 68 Mich. 291 ; 808 Chap. XXXI.] INJUNCTION 853. permitting a private tax payer to maintain such a suit, a suit cannot be maintained, in a case which is not within the terms of the statute.' It has also been held, that the attorney -general, although he may thus interfere to pro- tect the funds and property of the state, cannot maintain a suit, in behalf of the state, for the. protection of the funds and property of a municipal corporation." § 853. The same subject. — On the other hand, it has been held, in a preponderating number of cases, that one or more tax payers, may, in behalf of themselves and all others similarly situated, maintain a suit in equity, and have an injunction, to restrain illegal acts of public ofl&cers, which will increase the taxation, or divert to improper and unlawful purposes the public funds or other property; and this, without the aid of a statute, and on the ground that such acts will work an irreparable injury to the plaintiffs.' ' Roosevelt v Draper, 23 N. Y. 318 ; Kilbourne v St. John, 59 N. Y. 21, aff'g 7 Lans. (N. Y.) 352 ; Comins v Supervisors, 64 N. Y. 626; aff'g 3 T. & C. (N. Y.) 296. See, however, Curtenins v Grand Rapids, etc., R. R. Comp'y. 37 Mich. 583, not noticed in 68 Mich. 291, before cited. > Alvord V Syracuse Sav. Bank, 3i Hun (N.Y.)143; Lutes V Brlggs, 6i N. Y. 404, rev'g 5 Hun (N. Y.) 67. ^ People V IngersoU, 58 N. Y. 1 ; People V Fields, 58 N. Y. 491. See also. State v McLaughlin, 15 Kan. 228; and contra. State v Saline County Court, 51 Mo. 350. ' New Orleans, etc., R. R.. Comp'y v Dunn, 51 Ala. 128 ; Smith V Magourich, 44 Ga. 163 ; DentuCook, 45Ga. 323: Hudson V Mayor, etc., 64 Ga. 286 ; Sherlock v Winnetka, 59 lU. 389, 68 Dl. 530; Chestnutwood v Hood, 68 111.132 Leitch 1) Wentworth, 71 111. 146 ; Springfield v Edwards, 84 lU. 626 ; McCord V Pike, 121 111. 288 ; Warren Co. Ag'l, etc., Comp'y v Barr, 55Ind. 30; Rothrock v Carr, 55 Ind. 334; Valparaiso v Gardner, 97 Ind. 1 ; Hospers v Wyatt, 63 Iowa 264 ; Allison D Louisville, etc., R. R. Comp'y, 9Bush(Ky.) 247; Patton V Stephens, 14 Bush (Ky.) 324 ; Frantz v Jacob, 88 Ky. 525 ; AllenuJay, 60Ke. 124; Mayor, etc., V Gill, 31 Md. 375; Peter v Prettyman. 62 Md. 566 ; Mayor, etc., v Keyser, 72 Md. 106 ; Pope 1) Halifax, 12 Gush. (Mass.) 4]fl; Sinclair v Co. Com'rs, 23 Minn. 404 ; State V Saline Co. Ct., 51 Mo. 350; Newmeyer v Missouri, etc., R. R. Comp'y, 52 Mo. 81; 809 § 853. PUBLIC OFFICERS [Book VL= § 853. The same subject ; rulings in New York. — In the state of New York, the courts of which had very strenuously denied the right of a private tax payer to interfere in such cases, a very comprehensive statute, allowing one or more tax payers to maintain an action in the nature of a suit in equity, and to have an injunction, for relief against misappropriation of public funds or other property, and other illegal acts, and making other provisions for the same general object, was passed in 1873," and has been construed, in several adjudications of the courts of that state. In the first case under it, which reached the court of appeals, the court held, that the act was to be liberally construed; that it was sufficient to embrace every wrong by which taxes might be increased; that it included "not only property and funds in posses- sion, but the credit and the power of taxation, and of borrowing money in anticipation of taxation, and every process and means, whereby a municipal corporation can be charged pecuniarily, or the taxable property within its limits burdened." ' It is no defence to an action under Black V Ross, 37 Mo. App. 250 ; cednre of that state. Davenport v Kleinsclimiat, 6 Mont. , ^y^^^ ^ Lawrence, 59 N. Y. 192, per 502;. Allen, J., p. 198. Normand v Co. Gom'rs, 8 Nebr. 18 ; Followed, Hills v Peeksklll Sav. Bk., Merrill v Plainfleld, 45 N. H. 126 ; 26 Hun (N Y ) 161 ■ Brown v Concord, 56 N. H. 375 ; Metzger v Attica, etc., R. R. Comp'y. London v Wilmington, 78 N. C. 109 ; 79 N. Y 171 Hays V Jones, 27 Ohio St. 218 ; j-^r other rulings tinder this statute, Wheeler „ Philadelphia, 77 Pa. St. 338 ; ^^^ ^he amendments thereto, see Delano Land Comp'y's Appeal, 103 Lee » Sup'rs, 62 How. Pr. (N. Y.) 201 ; Pa. St. 347 ; Roosevelt v Edson, 51 N. Y. Super. Ct. Place V Providence, 12 R. 1. 1 ; 227 • Austin V Coggeshall, 12 R. I. 329 ; p^^pJe v Edson, 51 N. Y. Super. Ct. 238 ; Crampton v Zabriskie, 101 U. S. 601; Osterhont v Hyland, 27 Hun (N. Y.) List « Wheeling, 7 W.Va. 501; jg^. ^g,^^ ^j, „j^ Osterhondt v Nevil V Clifford, 55 Wis. 161 ; Rigney, 98 N. Y. 322. WiUard V Comstock, 58 Wis. 565. Standart v Burtis, 46 Hun (N. Y.) 82 ; ' This act, L. 1872, ch. 161, has since been Armstrong v Grant, 56 Hun (N. Y.) 226 ; amended several times, and as Warrin i; Baldwin, 105 N. Y. 534, rev'g amended, §1 thereof now const!- 35 Hun (N. Y.) 334 ; tutes § 1925 of the Code of Civil Pr Zlegler ii Chapin, 126 N. Y. 342. 810 Chap. XXXI.] INJUNCTION § 853. the act, that the illegality relied upon would form a good defence by the municipality;' or that the tax payer has other sufficient remedies for the wrong complained of." But, in some other respects, the same objections will lie to a suit under the act, as to other equitable suits, as, for instance, that considerable time has elapsed, since the commission of the wrong of which complaint is made, and that innocent persons have meanwhile acquired rights in good faith.' An action cannot be maintained under the act, where the real object is to benefit the individual, and not the public. Thus, an injunction to prevent the sale of a ferry franchise was refused, where the real parties interested were those enjoying the fran- chise, who were seeking to protect themselves in the enjoyment thereof;' but an unsuccessful bidder at such a sale was allowed to maintain the action.' The action cannot be maintained, to restrain the continuance of a public work, because no previous proceedings have been taken to compensate the city; it lies only for official mis- conduct." Nor can it be maintained, unless the plaintiff shows that he will, as a tax payer, sustain a pecuniary loss, in consequence of the act of which complaint is made;' nor unless corruption, or fraud, or bad faith equivalent to fraud, is charged and proved, since the statute was not intended to reach cases, where the pro- posed action is only unwise, and without due regard to economy.' ' Osterhondt v Rigney, 98 N. Y. 222, per • Ottendorfer v Agnew, 13 Daly (N. Y.) Andrews, J., p. 231. 16. 2 In re Eastchester, 53 Hun (N. Y.) 181. ' Peck v Belknap, 55 Hun (N. Y.) 91. s Callioun V Millard, 121 N. Y. 69. « Talcott v Buffalo, 125 N. Y. 280, rev'g ' Hull V Ely, 2 Abb. N. C. (N. Y.) «0. ^'' ^^^ (^- ^-^ ^^ » Stariu V Mayor, etc., 42 Hun (N. Y.) 519. -811 § 854j PUBLIC OFFICERS [Book VI. CHAPTER XXXII CRIMINAL PROCEEDINGS AGAINST A PUBLIC OFFICER CONTENTS Sec. 854. Liability of public officers to criminal proceedings, gen- erally provided for by statute; this chapter treats only of common law rules relating thereto; references to for- mer chapters, where the subject is incidentally treated. 855. General rules; respecting officers' common law liability for . neglect of their duties. 856. The same, for wilful or corrupt abuse of discretionary power. 857. The same, for fraud or breach of trust, respecting public funds or other public property. 858. Exception in case of superior officers of government, who are punishable only by impeachment; and of legisla- tors. Quere, if the latter are punishable in any way. 859. Exception in case of exercise of a judicial or quasi judicial function. 860. Superior judicial officers not punishable by indictment for any judicial act, however wrongful or corrupt. 861. Justices of the peace punishable, only where the act was instigated by a dishonest, oppressive, or corrupt motive; instances. 863. Jurors punishable at common law by attaint, etc. ; now not punishable, except under statute. 863. Miscellaneous rulings, as to liability at common law of ministerial officers to punishment. • 864. Common law rules, in cases of bribery, attempts to bribe, etc.. 865. Usurpation of office punishable. § 854. This chapter confined to common law rules. — In Great Britain and in this country, the subject of crimes committed by public officers — by which, of course, is meant crimes, committed by them, in the course of the 812 Chap. XXXII.] CRIMINAL PROCEEDINGS § 855. discharge of their official functions, or under color of their respective offices, as distinguished from crimes, committed without connection with their official charac- ter — is amply provided for by numerous statutes, defining the same, and prescribing the punishment thereof. It is foreign to the object of a work of this character, to con- sider these various enactments, which have superseded the common law, with respect to the matters for which they provide; and the subject of criminal procedure is also without our sphere. Both of these subjects are treated at length, in many voluminous treatises, devoted specially thereto. In this chapter, we shall aim only to present the rules of the common law, respecting the crimen specified, which rules are in force, wherever they are not expressly or impliedly superseded by statutory provisions, and form the foundation of the different statutes referred to. Some of these rules have already been stated in the preceding chapters of this work, in considering the subjects to which they relate.' § 855. Common law rules as to neglect. — The liability of a public officer, at common law, to indictment and punishment, for neglect to perform, or misconduct in the performance of, his official functions, is stated in some of the books in very broad terms. Thus, in a justly cele- brated work on crimes, it is said: "Where an officer neglects a duty incumbent upon him, either by common law or by statute, he is indictable for his offence; and this, whether he be an officer of the common law, or appointed by act of parliament; and a person, holding a ' That bargaining for an oflBce or for see ante, §8 399, 400. That an ofacer official conduct is indictable at com- d6-/acto is liable to indictment and . mon law, see ante, §§ 49, 55. So as to a punishment, in Uke manner as if he refusal to serve iu a public office, to was an officer de jwre, see ante, § 668. which one has been duly chosen. That taking interest, by a custo- ante, §§ 165, 166, 409. So as to extor- dian of public money, from a bank tion by a public officer, 9 525. As to of deposit, is not an ofEenoe at com- impeacbment of a public officer, mon law, see ante, 8 265. 813 855. PUBLIC OFFICERS [Book VI. public office under the king's letters patent, or deriv- atively from such authority, has been considered amenable to the law for every part of his conduct, and obnoxious to punishment for not faithfully dis- charging it; and it is laid down generally, that any public officer is indictable for misbehavior in his office. There is also the further punishment of the forfeiture of the office, for the misdemeanor of doing anything, con- trary to its design. . . . Where a duty is thrown upon a body of several persons, and they neglect it, each is individually liable to prosecution for the neglect." ' In another standard work, it is said: "Every officer commits a misdemeanor, who wilfully neglects to perform any duty, which he is bound, either by common law or by statute, to perform, provided that the discharge of such duty is not attended with greater danger, than a man of ordinary firmness and activity may be expected to encounter." ' And another leading writer states, that an indictment lies against a ministerial officer, for wilful or negligent mis- conduct in office, which works injury to the public or to an individual.' Still another distinguished American author states, that the general doctrine is, that " any act or omission, in disobedience of official duty, by one who has accepted public office, is, when of public concern, in general, punishable as a crime. This is particularly the 1 Russell on Crimes by Sharswood, 9th American ed. 199, 200; citing Reg. D Wyat, 1 Salk. 380 j Anon. 6 Mod. 96 ; Rex V Bembridge, 1 Salk. 381, note ; Rex V HoUond, 5 T. R. (D. & E.) 607. Stephen Dig. Grim. Law, art. 122. See also, Crouther's case, Cro. Eliz. 684; Rex V Commings, 6 Mod. 179 ; Rex V Barlow, 2 Salk. 609 ; Rex V Boys, Say. 143. Wharton Grim. Law, 9th ed., 6 1,568, citing : Ex parte Harrold, 47 Gala. 129 ; People V Coon, IB Wend. (N. Y.) 377; People V Norton, 7 Barb. (N. Y.) 477 ; State V Leigh, 3 Dev. & Bat. (N. G.) 127 : State V MoEntyre, 3 Ired. L. (N. C.) 171 ; State V Maberry, 3 Strobh. (S. C.) 144 ; Gross V State, 1 Yerg. (Tenn.) 261 ; State V Buxton, 2 Swan (Tenn.) 57. See also, Housh v People, 75 111. 487 ; State 1! Startup, 39 N. J. L. 423 ; State V Kern, 51 N. J. L. 259; State V Justices, 4 Hawks (N. C.) 194; State V Furguson, 76 N. C. 197; State V Hawkins, 77 N. G. 494. 814 Chap. XXXII.] CRIMINAL PROCEEDINGS § 857. case, where the thing required is of a ministerial or other like nature, and there is reposed in the officer no discre- tion." But, the writer continues, "one serving in a judicial or other capacity, in which he is required to exercise a judgment of his own, is not punishable for a mere error therein, or for a mistake of law." ' § 856. Wilful or corrupt abuse of discretionary power. — Similarly, it is laid down in the books, that the wilful or corrupt abuse of discretionary power, by any officer, is punishable at common law. Thus, a distinguished Eng- lish jurist, already quoted, says: "Every public officer commits a misdemeanor, who, in the exercise or under color of exercising the duties of his office, does an illegal act, or abuses any discretionary power, with which he is invested by law, from an improper motive, the existence of which motive may be inferred, either from the nature of the act, or from the circumstances of the case. But an illegal exercise of authority, caused by a mistake in the law, made in good faith, is not a misdemeanor within this article." '' § 857. Fraud or breach of trust in respect to public funds or property. — So also, where an officer is guilty of fraud or breach of trust, respecting the public funds or other public property in his hands. " Every public officer commits a misdemeanor, who, in the discharge of the duties of his office, commits any fraud or breach of trust, » Bishop Criminal Law, 7th ed.,§§ 459, 460, Reg. i) Badger, 4 Q. B.(Ad. & EU.N. S.) citing numerous cases. See also, 468; post, § 859. Rex v Young, 1 Burr. 556, 560, et seg ; > Stephen Dig. Grim. Law, art. U9 ; ^^^ " Williams, 3 Burr. 1317 ; 1 Russell Crimes hy Sherwood, 9th ^^^ "^ ^ann, 3 Burr. 1716, 1786 ; Amer ed 200 201 • '^^ " Bembridge, 3 Dougl. 327 ; Wharton Crim.L., 9th ed. § 1572: ^^ ^ ^"^^^^ 1 T. R. (D. & E.) 653; Case of Scroggs, Ch. J., 8 How. St. Tr. ^^ ^ Holland, 1 T. R. (D. & E.) 692; 163 190 • State u Wedge, 24 Minn. 150 ; Eei. « Okey, 8 Mod. 45 ; ^^^^ " Williams, 12 Ired. L. (N. C.) 172. 815 § 858. PUBLIC OFFICERS [Book VI, affecting the public, whether such fraud or breach of trust would have been criminal or not, if committed against a private person." ' Upon an indictment for mis- behavior in office, for not duly accounting for public moneys, it was said that gross negligence, in the discharge of a fiduciary duty, is evidence of fraud and misbehavior in office; that an habitual neglect to account for small sums by a public officer, authorizes and requires the presump- tion, that the sums retained and not accounted for, were retained for sinister and selfish purposes; and a gross and unscrupulous negligence in the keeping of his accounts, instead of rebutting such presumption, strengthens and supports it." But a ministerial officer is not liable to indictment for misconduct of his deputy, in which he did not personally participate." § 858. Exception as to superior officers of government, and legislature. — Two classes of exceptions to the general rule, that an officer is punishable criminally at common law for misfeasance, malfeasance, or nonfeasance in the discharge of, or under color of, his office, seem to be recognized by the authorities. The first relates to the rank of the officer, or the general nature of his functions. Thus, it has been said that the superior officers of the national and state governments cannot be punished for official misconduct by indictment; they are punishable by impeachment only." And that the same rule applies to members of the national and state legislatures.' Indeed, • Stephen Dig. Crim. Law, art. 121 ; " Comm. ti Lewis, 4 Leigh (Va.) 664. 1 Russell on Crimes, 9th Am. ed. hy See also, ante, § 588. Sharswood, pp. 207, 208 ; ' , Wharton Crim. Law, 9th ed., 8 1,571 ; ■ Wharton Crim. L., 9th ed., 8 1573 a ; ^^^^^^ ^rim. Law, 7th ed., 8 462. Rex V Bembridge, 3 Dougl, 827, cited g^^ .^ ^^^ ^^^^^ .^ ^j^^ ^^^^ ^g^^^ ^^^^ Bex V Southerton, 6 East 136 ; ^j^^ secretary of state of North Caro- Rex V Martin, 2 Camph. 268 ; j.^^^ ^^^3 t^ai^^^^i^ f,,^ fraudulently Townson v Wilson, 1 Camph. 396 ; .^^^.^^ ^^^^ warrants. State v Glas- RexDJones,31How.St.Tr.351. gow, N. C. Conf . R. 176 (38). » Comm. V Rodes. 6 B. Men. (Ky.) 171. . bishop Crim. Law, 7th ed., § 462. " 816 Chap. XXXII. J CRIMINAL PROCEEDINGS § 860. the principal treatises maintain that a member of the legislature is not liable, even to impeachment, for any- official act or omission.' § 859. Exception in case of judicial or quasi judicial functions. — The second class of exceptions relates to the nature and character of the particular functions, with respect to which the officer's nonfeasance, misfeasance, or malfeasance was committed. It is well settled, that a judicial officer, from the highest to the lowest grade, is not punishable criminally for an honest error or mistake, made by him in performing a judicial act, of which he had jurisdiction." So also an officer, exercising a quasi judicial power, is not punishable for any honest mistake or error of judgment in the exercise of that power, but only for an abuse of his power, proceeding from a corrupt or other improper motive. ° But it has been said, that the rule is otherwise, if his ignorance of the law "is negligent."* § 860. The same subject ; superior judicial ofificers. — But with respect to judges of courts of record, the authorities go further, and hold, that they are not punish- able by indictment, but liable only to impeachment, for any act, however wilful or corrupt, performed in the discharge of their judicial functions. Thus, in one of the earliest records, it was said, that where A was indicted, for that, being a judge of oyer and terminer, certain persons were indicted before him of trespass, and he had entered upon the record that they were convicted of felony, and 1 story Const., S 795; = Bishop Grim. Law, 7th ed., §§ 460, 299, 1 Kent. Commen., 235, note ; citing numerous cases ; Bishop Crim. L., 7th ed., 9 461 ; See also, post, § 860. See also. Lord Denman, Ch. J., in s id.; See also, Wharton Crim. L., 9th Howard ijGosBet, Car. & Mar. 380; ^^ g gg^ ^jy^g ^g^ny p^ggg. ^^^ In re Speakership, 15 Colo. 520, cited ^^^^ | gjg ante, 8 400, note. Oontia, per Lord Coke, 4 Inst. 24. ' Wharton, vbl supra, citing Rex v Stukely, 12 Mod. 493. 817 860. PUBLIC OFFICERS [Book VI. judgment was demanded, if he should answer for falsify- ing the rebord, since he was a judge by commission; and all the judges were of opinion that the presentment was void. ' And one of the most, distinguished of the Ameri- can judges, after mentioning this case, said: "Judges of all courts of record, from the highest to the lowest^ and even jurors, who are judges of fact, were always exempted from prosecution by action or indictment, for what they did in their judicial character." " So, in a standard text book, it is said: " The oppression and tyrannical partiality of judges, justices, and other magistrates, in the adminis- tration and under color of their offices, may be punished by impeachment in parliament, or by information or indictment, according to the rank of the offender, and the circumstances of the case." ° Another leading author says, that judges and justices of the peace are not liable to indictment for judicial, as distinguished from ministerial acts; but justices of the peace are indictable for misconduct, in matters as to which they are not invested with judicial discretion, if the misconduct was not imputable to mere error of judgment." > Year Book (Book of Assize), Part V, p. 135: 27 Ed. Ill, pi. 18. ° Yates V Lansing, 5 Johns. (N. Y.) 282, per Kent, Oh. J., 293, citing Staunforde P. C, p. 173 ; Floyd V Barker, 12 Coke. 23. Approved, Lange u Benedict, 73 N. Y. 12, per Folger, Ch. J., p. 25. ' Russell on Crimes, Sharswood's 9tli Amer. ed., p. 200, citing 4 Blackst. Commen. 141 ; Rex V Palmer, 2 Burr. 1,162. « Wharton on Criminal Law, 9th ed., § 1,571, citing, in addition to the oases cited cmte. Rex I! Wehb, 1 W. Blackst. 19 ; Reg. V Badger, 6 Jur. 994 ; Hpulden v Smith, 14 Q. B. (Ad. & Ell., N. S.)841; State V Odell, 8 Blackf. (Ind.) 396; Downing v Herrick, 47 Me. 462 ; Pratt V Gardner, 2 Cush. (Mass.) 63 ; State V Gardner, 2 Mo. 23 ; Cunningham v Bucklin, 8 Cow. (N. Y.) 178; People V Coon, 15 Wend. (N. Y.) 277 ; State t) Sneed, 84 N. C. 816 ; Wilson V Comm., 10 S. & R. (Pa.) 373 ; Comm. V Alexander, 4 Hen. & Munf. (Va.)522; Jacobs D Comm., 2 Leigh (Va.) 709 ; Wallace v. Comm., 2 Va. Cas. 130 ; Comm. V Callaghan, 2 Va. Cas. 460. The same rule is given in 1 Hawk.. P. C, oh. 72 8. 6., except where a judge so far forgets his dignity, etc., as to "privately tamper with wit- nesses, or labour jurors." 818 Chap. XXXII.] CRIMINAL PEQCEEDINGS § 861. § 861. The same subject; justices of the peace.— With respect to the liability to punishment of justices of the peace, Lord Tenterden said, that whenever justices have been challenged by indictment or information, the question is, "not whether the act done might, upon full and naature investigation, be found strictly right, but from what motive it had proceeded; whether from a, dishonest, oppressive, or corrupt motive, under which description fear and favor may generally be included; or from mistake or error. In the former case alone, they have been the objects of punishment." ' But where a magistrate acts wilfully and in direct defiance of the law, he is punishable, without reference to his motives. ' Thus, the arrest and imprisonment of a person, by direction of a justice of the peace, without reason or probable cause, and under color of his office, is " an abuse of the authority of his office; a pretended, not a real exercise of his juris- diction," and a misdemeanor at common law.' So, a justice of the peace is indictable, for "not actively assisting in suppressing" a riot, which it is his duty to suppress;* or for neglect in not suppressing a riot;' and upon the trial, in the latter case, the judge charged the jury that the question was whether the defendant " did all that he knew was in his power, and which would be expected from a man of ordinary prudence, firmness, and activity." And it is a misdemeanor, at common law, for a justice of the peace to act as agent for one of the parties litigating before him.' • Rex V Borron, 3 B. & Aid. 432 ; ' Kelly i) Moore, 51 Ala. 364, per Briok- See also. Ex parte Fentiman, 2 Ad. & ell, J„ pp. 365, 366. EU. iZt ; t Respublica v Montgomery, 1 Yeates, Bishop Grim. Law, 7th ed., 8 299, and jp^^ j ^^g^ cases cited. » Rex V Salnsbury, i T. R. (D. & E.) 451 ; Reg. V Dodspn, 9 A. & E. 704 ; Reg. V Badger, 4 Q. B. (Ad. & Ell., ' Limerick v Murlatt, 43 Kan. 318 ; N. S.) 468. Boyer « Potts, 14 Serg. & R. (Pa.) 157. 819 » Rex V Plnney, 5 Car. & P. 254, 270. «Id. § 863. PUBLIC OFFICERS [Book "VT. § 862. Criminal liability of jurors. — With respect to jurors, formerly their lot was a hard one. Where their verdict was "notoriously wrong," they might "be punished, and the verdict set aside, by attaint; but in criminal cases only at the suit of the king, not at the suit of the prisoner." ' An attaint was tried by a jury of double the original number, and composed of men of larger property; and if they found against the juror, he was stripped of all he had, and imprisoned. In this and other respects, jurors were "treated with a degree of tyranny, which it is almost frightful to contemplate," being also liable, in criminal cases, if the verdict was displeasing to the crown, to be called • before the star- chamber, and fined and imprisoned." These tyrannical proceedings were not formally abolished, until 6 Geo. IV, ch. 50; but they had been disused for three hundred years previously.' Doubtless the rule in England now is, as it has always been in the United States, that a juror is not liable to prosecution, either civilly or criminally, except as prescribed by statute.' ' Blaokst. Commen., vol. 4, p. 361. In Phillips on Juries, p. 215, It is said » For an interesting history of attaints, ^^^^ '^° ^^^^ °* ^ conviction for a and the barbarous treatment of '^'^^e verdict is found in our legal jurors in other respects, see Mr. annals, and that no proceeding Forsyth's Trial by Jury, pp. U9-154; therefor has been brought, since also Kennedy Law and Practice of ^^"^ ''^'sn of Elizabeth. Juries, pp. 32-34 ; Stephen Hist. * Bushell's Case, Vaughan 135 ; 6 How. Crim. Law, Vol. 1, pp. 304-307. But it St. Tr. 999. was said in Bushell's Case, Vaughan See also, 1 Hawk. P. C, ch. 72, § 5 135, p. 146, that at common law, at- (where, however, the author says taints lay only in writs of assize; and that jurors are still liable to attaint they were extended to other cases by in a civil cause) ; acts of parliament. In " the olden Bishop Crim. L., 7th ed., § 462; time," where one juror held out Yates u Lansing, 5 Johns. (N. Y.) 282, against the othor eleven, the verdict per Kent, Ch. J., p. 292, quoted ante, of the eleven might be taken, and 8 860. In 1667, parliament resolved, the twelfth committed to prison. that the practice of fining or im- Forsyth, pp. 199, 200. prisoning jurors for giving their » Kennedy L. & Pr. Juries, p. 33. verdicts was illegal. Phillips on See also, per Lord Mansfield, Ch. J., Juries, p. 221. Bright V Lynon, 1 Burr. 390, at p. 393. sao Chap. XXXII.] CRIMINAL PROCEEDINGS § 864. § 863. Miscellaneous rulings as to criminal liability of ministerial officers. — A few rulings, in special cases, respecting the Uability, at common law, of an ofl&cer per- forming ministerial duties, to indictment and punishment, will be added. An overseer of the poor is indictable for misfeasance or malfeasance, with respect to the relief of the poor under his charge." Semble, that a clergyman of the church of England, who is, quoad hoc, a public officer,' is guilty of a misdemeanor, for refusing to marry two persons, who may lawfully be married." A constable is guilty of a misdemeanor, for refusing to arrest a person, who commits a felony in his presence;* or for refusing to make a hue and cry against a burglar." A coroner is guilty of a misdemeanor, for refusing to hold an inquest upon the body of a person within his jurisdic- tion." A sheriff is guilty of a misdemeanor, for refusing to execute a criminal duly sentenced to death, and delivered to him for that purpose.' A sheriff or constable is indictable, for not taking to prison one Committed on a magistrate's warrant; and so is the keeper of the jail for refusing to receive such a person." A sheriff or constable is indictable, for failure to return a precept, according to the command thereof." And if the default occurs during his term of office, the indictment may be found after the expiration thereof.'" § 864. Common law rules in cases of bribery, attempts, etc. — Giving or receiving a bribe, to influence official 1 Tawney's Case, 16 Vin. Abr. 415; ■ * Crouther's Case, Cro. Eliz. 654. Rex V WinsMp, Cald. 72 ; a 3 jj^^^ p_ q gg_ Rex V Compton, Cald. 246 ; Rex V WetheriU, Cald. 432 ; ' ^^^ Antrobus, 2 Ad. & Ell. 788. Rex V Herbert, 1 East P. C, 0. 11, s. 11. = Reg. v Johnson, 11 Mod. 62 ; p. 461 ; B,ex v Mills, 2 Show. 181 ; Rex V Tarrant, 4 Burr. 2106. Rex v Cope, 7 C. & P. 720. " Ante, § 9. » Reg. v Wyatt, 1 Salk. 380 ; 2 Ld. Raym. ' Reg. V James, 2 Den. Cr. Cas. 1. 1189. * 3 Hawk. P. C, ch. 13, s. 7. " State v SeUers, 7 Rich. L. (S. C.) 368. 821 865. PUBLIC OFFICERS [Book VI. action, is indictable at common law;' so is the attempt to bribe a judge, although he refuses to receive the bribe;" or a cabinet minister.^ And the American cases hold, that a public officer is indictable for receiving a bribe, directly or indirectly, in money or other benefit, although no improper act followed; and that a person is indictable, for offering an officer a bribe, although it was not accepted,* and although the matter was not within the officer's jurisdiction;' and that a proposition by an officer to receive a bribe, to influence his official conduct, is a misdemeanor at common law, although the case is not within the statute against bribery.' § 865. Usurpation of office a common law crime. — It is an indictable offence, at couimon law, for one know- ingly to procure himself to be sworn into an office, to which he has no title.' Russell on Crimes, 9th Am. ed. by Sharswood, 823, citing 4 Blackst. Commen. 139; 3 Inst. 119; 1 Hawk. P. C, c. 67, s. 2; Rex V Beale, oited Rex v Gibbs, 1 East 183; Rex V Vaughan, 4 Burr. 2494. Bribery of voters, at an election for members of parliament, is also an indictable offence at common law. Rex V Pitt, S Burr. 1335 ; Hughes V Marshall, 2 Tyrw. 134; 2 C. &J. nS; faC. &P. 150. See cwite, 88 75, 7T. ' Russell on Crimes, 9th Am. ed., by Sharswood, 223. * Id.; citing oases mtpra, and Rex » Poll- man, 2 Campb. 229. < Barefield v State, 14 Ala. 603 ; Dishon v Smith, 10 Iowa 212 ; Hutchinson v State, 36 Tex. 293; United States v WorraU, 2 DaJl. (U. S.) 384; Comm. t) Callaghan, 2Va.Cas. 460. » State V Ellis, 33 N. J. L. 102. ' Walsh V People, 65 m. 58. ' Scarlet's Case, 18 Coke 98. 822 INDEX. The references are to the sections. Abandonment : Sec. when ofllce forfeited by 418—423 See also, Forfeiture ; Neglect. of oflBlce, etc., by officer de facto, effect of. 666 Abolition : of office, effected by repeal of statute or ordinance creating it, or transfer of functions to another officer 304, 315 officer, removable for cause only, cannot be removed by abol- ishing his office, and transferring duties etc., to another 350 of office, ends compensation, although appropriation not exhausted , 475 exception in a special case 476 where office abolished, there can no longer be an officer de facto 639 exception in a peculiar case 640 Absence ; Absentee : children of absent citizens, are citizens 128 effect of, upon residence 131 absentees from poUs, deemed to assent to result of election 139 ; when office forfeited by failure to attend, etc 418 — 423 See Forfeiture. ceasing to reside in district, etc 424 — 426 See Forfeiture. constitutional provision, that Ueutenant governor shall act as governor, during governor's absence from state, does not apply to a short casual absence 423, 502 statute for deduction of salary for, unconstitutional, where con- stitution forbids diminution during term 469 unless statute so provides, officer's salary does not stop during his absence 499 — 501 See Compensation. deputy, empowered by statute to act in principal's absence, acts as deputy, not principal 586 823 INDEX Absence — continued. Sac. intrusion of claimant, during incumbent's temporary absence, will not make him an oflacer de facto 644 Abuse : of discretionary power, equity will restrain 849 punishable criminally at common law 856 Acceptance : of second office, when it vacates the first 30 — 40 See also. Incompatible Offices. necessary to vest title to office ; what suffices as 164, 170 penalty for refusal 165 — 169 See Eefusal. refusal to accept, when office forfeited by 427, 428 Accounts: failure to keep correctly, is a breach of an official bond 344 of principal, evidence against sureties in official bond ; whether conclusive, or only prima facie 245 on indictment, failure to account, or negUgence in accounts, raises a presumption of fraud 854 Acknowledgment : of official bond, effect of defects in. See Bond, Official. Act of God : money lost by, whether official bond liable for 221 — 229 Action : whether members of a board of registration are liable to a private action 136 upon official bond, materially deviating from the statute, regu- lations relating to 189 for compensation, officer unlawfully appointed cannot main- tain ! 96, 659 nor officer who has failed to quahfy 175, 472 whether, after qualifying, he can recover retrospective compensation from beginning of term 473 by officer against municipal corporation, will not he, for wrong- ful removal, by officers empowered by statute to remove 514 to recover his compensation, may be maintained . .509, 510 rulings relating to such actions, defences therein, etc 510-519 For detailed analysis, see Compensation. 824 INDEX Action — continued. Sec. against officer, to recover back excess of fees paid him, or a statutory penalty for taking the same 524—530 For detailed analysis, see Extortion. officer has implied power to sue, whenever necessary to proper discharge of his duties 544 against principal officer, for his deputy's act or omission. . . .588 — 591 See Deputy. public officer, when not liable to, for act or omission of his clerk, assistant, subordinate, etc 592 when it lies or does not lie, against a municipal corporation, for act or omission of its officer 551, 593 against a county, township, school district, etc., for same 593 officer cannot maintain, upon personal or official demand, Unless he is dejure, as well as de facto 659 after ouster, officer de jure may maintain action against officer de facto, to recover emoluments of office ; . . . .521 — 523, 663 officer de facto Uable to, as if he was officer dejure : . 664 his sureties liable in like manner. 665 but he may withdraw, and then no longer liable 666 officer sued, may always show that he was officer de facto ; this raises presumption that he was dejure 660. For other rules of evidence in an action against an officer. See Evidence ; Presumptions. foundation of a private action against an officer is breach of a duty owing to the plaintifE 707 action does not lie for neglect of duty owing to another ; instance 707 private action does not lie for failure to discharge duty owing only to the public ; even by person epecially injured ; instances 708 so it will not he for any act or omission in the discharge of legislative functions ; but it lies against legislative officer exer- cising ministerial functions 709 constitutional provisions, exempting members of the legislature from private actions 710 poUtical officers, when exempt from Uability ; the president of U. S. ; the governor of a state 711, 712 other executive officers liable ; whether president or governor can be controlled by mandamus, etc., or made liable to a private action 713 825 INDEX Action — continued. Sec. a private action does not lie for misconduct, however gross, La the performance of judicial duties 713 reasons for this immunity 713 held, that chancellor not liable to statutory penalty, for recom- mitting a prisoner discharged upon habeas corpus 714 the rule of immunity apphes, where the power exercised is quasi judicial ; instances 713, 715 and to arbitrators 716 but immunity from liability occurs only, where act was within the officer's jurisdiction 717 ruling of U. S. supreme court, that judges of courts of superior or general jurisdiction are not Uable for acts in excess of jurisdiction 718 rulings of N. Y. court of appeals, in Lange v. Benedict, as to liability of a judge of a superior court of record, for an act in excess of or beyond jurisdiction 719 semble, that a judge of an inferior court, or a quasi judicial officer, is not liable for an act in excess of jurisdiction, if there was any evidence before him, of the facts, upon which his jurisdiction depends 720, 731 whether a judge of an inferior court, or a quasi judicial officer, is Uable, where he has jurisdiction, but his action was maUcious or corrupt ; contradictory cases ; and difficulty of stating an exact rule 732 whether a justice of the peace is Uable, for acting under an unconstitutional statute, or a void municipal ordinance 733 commissioners for buUding a town Uable, for an excessive issue of bonds, upon an impUed warranty that their action was lawful 733 ministerial power, officer exercising, is Uable to any individual injured by his malfeasance or misfeasance 734 and to a person interested in the execution of the power, for his nonfeasance 734, 735 but not where the duty was owing to the pubUo only 725 officer's honest intent no defence 735 negligence ; officer owes to every person the duty of exercising due care in ministerial act, and is Uable to any person injured for want thereof 736 distinction in this respect between ministerial and judicial acts 736 >. 826 INDEX Action — continued. gjio. liability of mayor and aldermen for injury to person falling on sidewalk covered with ice , 737 of justice of peace, not entering judgment in four days . 737 of tender of drawbridge, negligence in opening the draw 738 judge or judicial oflScer liable for omission or neglect in minis- terial act 739 ministerial officer cannot justify under unconstitutional statute . 730 officer's liability not affected by the terms of his bond 731, 733 justice of the peace ; various adjudications that he was not liable, because the particular act was of a judicial character. . 733 various adjudications, that he was liable, because the particular act was of a ministerial character. ....... 734 not liable for incorrectly stating amount of judgment for appeal, as this was not official duty 735 highway officer; opening, etc., roads, etc., general manage- ment thereof, assessment of damages or benefits, are quasi judicial acts, for which a private action does not lie 786 keeping roads; etc., in repair is ministerial, and private action lies for injury by failure so to do, if officer had funds 737 or if he had the means of procuring funds 787 extent of care, which discharges officer 787 want of funds does not excuse misfeasance 787 rule where he had funds, but not sufficient for all repairs. . 737 liability of town to officer depends on statute 737 assessor of taxes ; general doctrine as to what acts are quasi judicial, and what ministerial, with reference to liabiUty to an action 788 the same subject ; instances of immunity because particu- lar act was within jurisdiction 789 rulings under Mass. statute, exempting assessors, except for want of integrity and fidelity 740 liability where vote lost, for failure to tax party 740 other rulings respecting liability 741 recording officer ; duties generally ministerial, and officer therefore liable ; instances ; but extent of damages, and whether Liable to subsequent grantee, present doubtful ques- tions 743 liable for imperfect index ; but extent of damages doubtful . 743 -837 INDEX Action — continued. Sec. for refusal to permit reasonable inspection, etc., of records 744 rule where request made insultingly (note) 744 for failure to furnish correct searches, copies, etc 744 clerk of a court ; various rulings respecting his liability for particular acts or omissions 745 election officer ; his general duties ministeria.1 ; action by quali- fied voter for refusing vote ; statutes restricting the liability ; construction and effect of Mass. statute; cases without the statute 746 Maine statute, construction and effect ; when punitive damages not given 747 in absence of statute, officer liable to qualified voter, who has compUed with statutqry requirements ; honesty and good faith no defence 748 but cases conflict, as to necessity and effect of proof of malice 749 registration officer, whether liable for refusal to put quaUfled voter's name on the registry 750 postmaster ; his general duties ministerial ; liable for failure to deUver mail matter to person addressed 751 liable for refusal to deliver newspaper without pay- ment of letter postage, on mistaken decision as to mark thereon 751 semble, letter carrier and mail contractor liable for loss of letter 751 postmaster not hable for negligence of subordinate 751 where letter, directed to be registered, is sent by ordi- nary mail, postmaster, and clerk receiving it, are both hable 752 when not liable to suit in equity to enforce a trust, created for benefit of persons whose money letters had been robbed 752 sheriff, marshal, coroner, constable ; their ordinary functions ministerial, and they are liable accordingly 753, 754 liability may accrue, either to person in whose favor pro- cess issued ; or person against whoin it issued ; or to stranger 754 as a general rule, officer acts at his peril, and is not excused by honesty and good faith 754 828 INDEX Action — continued. Sec. liable for arresting the wrong person, unless person arrested has misled him into supposing that he is the person intended 754 references to cases cited elsewhere 755 protection of a ministerial officer by his process : general rule ; meaning of word " process " within the rule 756 doctrine comparatively modern ; leading case in New York, establishing rules, where process issues from a court 757 same rules extended to process, in its more liberal sense ; officer protected by process "fair on its face " 758 officer's bad faith, or knowledge of defects, back of the pro- cess, does not deprive him of protection ; instances 759 some rulings to the contrary 760 these rulings criticized ; more cases supporting the doctrine 761 when process is, or is not, " fair on its face" 763 where process does not show jurisdiction, officer may prove jurisdiction aliunde 763 officer not protected, unless he obeys command of process and rules of law ; not protected in case of oppression, etc. , or seizing property of person not named in process 763 officer is protected in arresting a privileged person or an infant 764 when he is, and when he is not, protected in arresting the wrong person , 765 whether officer, holding process in replevin, is protected in taking property from a person not named 766 where process contains lawful and unlawful directions, officer is protected only in following the lawful 767 where he has a discretion, he may pursue either mode, although from improper motives 767 lawful process protects him, although he also acts under unlawful 767 officer's assistants, also protected ; qusre, as to volunteers ; party not protected 768 officer may lawfully refuse to execute process " fair on its face," when issued without jurisdiction ; but if he exe- cutes it, he cannot afterwards set up the defect 769 officer's protection a shield, not a sword ; he cannot main- tain action upon process intrinsically defective 770 829 INDEX Action — continued. Sec. action by officer ; general doctrine ; references elsewhere 771 doctrine of scandalnm magnatum, not adopted here 771 officer not liable upon his contract, lawfully made in behalf of public 773 where he exceeds his powers, he is generally liable, like a pri- vate agent 778 but presumption always is, that he acts in behalf of the pubUc. . 774 references to cases elsewhere, as to officer's liability 775 no action Ues against a juror for a wrong verdict 863 action to recover a statutory penalty. See Penalty (Statutory). For other rulings as to the liability of an officer and his sureties to an action, see Sureties in Official Bonus. For rulings, as to the hability of the principal national and state officers, to judicial supervision and control, and as to the nature of the powers of officers, whether judicial, quasi judicial or ministerialj see Certiorari ; Injunction ; Mandamus ; Powers, etc.; Prohibition. Adjournment : See also. Appointment. of place of holding polls, when allowed 1^9 whether per diem compensation of members of the legislature, runs during a recess 506 Administrative Officers: See Action ; Powers ; Public Officers ; United States. general definitions of 23 — 24 powers and duties of. See Powers and Duties. cannot be enjoined from exercising their ordinary functions. . . 843 Age: fuU, voter must have attained 130 when a man attains 130 person enfeebled by, not disqualified to vote, under provision excluding persons of unsound mind, etc 130 to what officers a constitutional provision, forbidding judge, etc., to hold after 70 years of age, does not apply 809 Agency, Agent: special agent of state, a public officer, although not sworn 8 agent or commissioner for swamp lands, a public officer 10 public office is a public agency 8, 18, 81 I 830 INDEX AGEScy—oontinned. gj,(,_ state, etc., bound by officer's acts, where within his powers; not where his xwwer exceeded 21, 551 See further, Powers, etc. Aldermen : See Municipal Ooepokation. Alien : disqualified from holding office by ' ' the common political law. " 72 child of citizen sojourning abroad, not an alien 128 presumption of naturalization of 130 Almshouse : inmate of, excluded from voting . 131 who deemed such 154 Alteration : in official bond, after execution, without surety's consent, dis- charges him 197 of duties, term, etc., of officer, whether sureties discharged by 268—279 See SuKETiEs in Official Bonds. Amotion : . See Removal, Application of Payments : to charge or discharge siireties in official bond 318 Appointment : See also, Qoveenoe ; Vacancy. distinction between appointment and election 84 contract for procuring, through another's influence, void. . . .50 — 53 contract between candidates, that one shall withdraw, and com- pensation be divided, etc., void 54 contract between members of appointing board, to vote for par- ticular persons, void 55 contract to exchange offices, void 55 general rules relating to appointments : appointment refers to action by another officer or a board, etc., as distinguished from election by people 84 legislature may confer power to appoint upon unofficial persons 85 appointment valid only when in writing ; when com- plete 86— 88 831 INDEX Appointment — continued. Sec. reconsideration or recission, validity of ; when CQnunission valid, although not transmitted 88, 89 subsequent appointment before term expires, void, unless there is a power of removal, or iirst appointment was unlawful 90 vaUdity of prospective or conditional appointment 91, 93 of appointment "at" expiration of term; or after the time fixed by statute 93 appointment, made clandestinely and malaflde, by part of appointing officers, or participation of one whose term had expired, void 94 statutes, requiring examinations by civil service commissioners, and preferring veteran soldiers and sailors : when such statutes are or are not constitutional 95 remedy for violation, if constitutional 96 preference to veterans not absolute, but only over others equally qualified ; civil service examination of veterans ; retirement of veterans, when prohibited 97 preferential statute not applicable to promotion, or aboli- tion of office ; miscellaneous rulings thereupon 98 appointments made upon nomination by one officer, and consent of, or confirmation by, others ; appointment by governor subject to senate's confirmation; when senate is or is not deemed in session, during a recess ; appointment made during recess, cannot be revoked before action of senate thereupon 99, 100 when appointment by mayor, subject to confirmation by common council, is temporary ; appointment for less than statutory term is for a full term 101 person appointed must have a majority of confirming body 103 rule where there are several districts, and appointment does not specify the district 103 appointments made by one or more boards ; or by the concur- rent action of three or more officers : cases, holding that a public power can be exercised by a majority, only where all are assembled, and there are no vacancies. ." ■ 105, 106 minority cannot prevent action, by withdrawing; eflfect of subsequent assent or ratification 107 832 INDEX Appointment— comh'MMed. Sec. presumption is that all met ; where proceedings must show that fact 108 cases, holding rule extends to private transactions, disap- proved 109 various rulings as to effect of statutes on the rule 110 rule modified, to allow notice in lieu of presence, in case of corporation Ill American rulings, that in all cases of public concern, majority may act, if all were notified to attend 113 sufficiency of notice; participation precludes objection. . . . 113 at stated meeting, if fixed by rule, or where statute fixes time, majority may act ; powers of stated meeting ; adjournments 114 same rule holds, in case of a jury to appraise damages 115 mode and vaUdity of appointment, where power is con- ferred on two or more separate bodies 116, 117 cases, where majority disregard statute ; or a constituent portion disregards it 118 construction of votes of concurrence or non-concurrence by separate bodies 119 whether power to appoint is judicial ; whether a member of appointing body can be appointed *. ... . .120, 611 validity of official action, where majority have bound themselves by a caucus 131 whether a re-appointment or a re-election prevents a second removal of an officer for the same cause 378 prospective appointment, to fill future vacancy, lawful, with- out statute ; prospective election not lawful 485 direction to appoint " forthwith," does not require appointment same day 436 by governor, where no vacancy exists, void, and not vaUdated by incumbent's surrender of office 437 where city charter allows appointment, only by consent of council, removal cannot be made without such consent 474 whether a person is disqualified from being appointed, because he is a member of the appointing board 120, 161. See Interested Officer. whether an appointment by an officer de facto entitles person appointed to hold, after the former is ousted 655—657. 833 INDEX Appropriation : sec. compensation, fixed by constitution, may be paid without 455 when insufficient to pay salary, whether it reduces the salary 457, 461 for monthly compensation, entitles officer to monthly payments. 464 not exhausted, does not continue compensation after office abolished 476 necessary for mandamus to disbursing officer, to pay officer's compensation 509, 824 gross, for specific services, remedy of successor of officer, who has received the same, and only partly performed the services 520 Approval : of official bond. See Bond, Official. Appurtenances : of an office, proceedings to recover. See BOOKS and Papers. Arbitrator : not liable to an action, although award corrupt, etc 716 Architect : landscape, in department of public parks, not a public officer. . 6 Army : retired officer of, eligible to civil public office 37, 39 See also. Military Authority; Military Commission. Arrest : wrongful, when action lies or does not lie for. See Action. Assessor of Taxes, etc. : is a public officer 10 what acts by, are judicial in their nature 541 if only two of three qualify, they cannot assess or issue warrant . 605 when not disqualified from acting, by reason of interest 617 general doctrine, as to when his official acts are quasi judicial, and when ministerial, with reference to liabihty to an action. 738 the same ; instances of immunity, because act qtiasi judicial, and within jurisdiction 739 rulings under Mass. statute, restricting liability 740 liability where vote lost for omitting to tax party 740 . other rulings relating to liability 741 refusing to obey mandate to levy tax, to pay judgment against county, liable to judgment creditor 725 rulings as to mandamus against assessor 830 834 INDEX Assignment : g^ of an office, valid in certain cases in England, void here in all cases 41 of future emoluments of an office, void ; exceptions 43—44 salary or fees already earned may be assigned 45 rules as to validity of assignment of a pension 46, 47 unearned emoluments cannot be reached by attachment, gar- nishee process, etc 48 contracts to assign, divide, etc. ; compensation, vrhen lawful, and when unlawful. See Conteacts. Assistant : See also, Deputy ; Employee ; Subordinate. assistant clerk of board of aldermen, a pubUc officer 7 assistant clerk of a court, maybe member of legislature 34 when officer not removable for incapacity of 374 when officer not liable to an action, for act or default of his assistant 593 Asylum : public, inmate of, excluded from voting 131 who deemed such inmate 154 state, director of, is a public officer 10 Attachment : wiU not reach compensation of officer, not due 43 receiptor's contract, for goods levied upon. See Receiptor. Attaint : of jurors for false verdict, under old law 863 Attendance : failure to attend, when office forfeited by 418—433 See Forfeiture. Attendant : upon court, not a public officer 5 Attorney and Counsellor at Law: city attorney is a pubUc officer 10 whether attorneys, counsellors, barristers, and solicitors, are pubUc officers 13 — 15 whether a woman may be an attorney, etc 70 attorney taking unlawful fee, guilty of extortion 536 Attorney-General : opinion of, not sufficient to discharge sureties of officer acting in accordance with 243 835 INDEX Attorney-General — continued. Sec. powers and duties of, in proceedings to oust a usurper or intruder. See Quo Warranto. with respect to the judicial supervision, review, and control of officers. See Certiorari; Injunction; Mandamus; Prohibition. Auditor : of state, general nature of his powers. 34 of county, cannot have compensation, for publishing delin- quent tax hst in his own newspaper 612 may be compelled by mandamus to audit an account, but not in a particular wa,y 830 of public park, not entitled to compensation beyond his salary, for procuring a loan for commissioners 483 Australian System of voting : constitutlonalty of statute establishing it 143 Authority : of officers. See ACTION ; Powers and Duties. Bail: rules respecting, before statute 33 H. VI, ch. 9 669 since that statute, any other bail bond is void 669, 676 but a bond to appear, etc., in a criminal cause, taken by an officer not authorized to let to bail, is good at common law 678 Ballot : sufficiency of ; rulings under statutes prohibiting distinguishing marks upon 143 — 145 defective, power of canvassers to allow 158 remedy upon rejection of 159 See Election. Bank: whether sureties in official bond liable for interest, paid by bank on deposits of public money 365 whether such sureties are liable for public money, lost by failure of bank of deposit 335—338 notes of, whether such sureties liable for depreciation of 353 Bargain : for influencing official action, when valid and when void. See Contracts. trafficking in offices, void 49 — 53 836 INDEX Barrister : seo. See Attorney and Counsellor at Law. Bidders : for fumishmg to the government supplies, etc., when agree- ments between them are vaUd, and when void 60 — 64 Board : See Appointment ; Election ; Municipal Corporation ; Removal. Board of Supervisors: See Supervisors. Bond: See also. Contract. for appearance in a criminal cause, good at common law, although taken by an ofllcer not authorized to admit to baU. 678 to sheriff by prisoner, to ensure less rigorous confinement, when valid 680 Official bond. See Bond, Ofeicial. Bond of indemnity, generally. See'lNDEMNiTY. Bond of indemnity by deputy to principal. See Deputy. Bond, taken for ease and favor, or otherwise colore offlcii. See Colore Officii. Bond, Official: For ruUngs, relating to the rights and liabiUties of sureties in official bonds, See Sureties in Official Bonds. giving official bond, is evidence of acceptance of office 164, 170 officer empowered to take, no power to decide upon title of per- son offering it 170 whether officer succeeding to new office, ex-offleio, must give new bond ; holding under color of title, evidence that bond was given 171 time of giving, statute fixing time not appUcable, where person kept out of office, or where votes equal in number 173 such a statute generally deemed directory, although fail- ure made ground of forfeiture ; contrary rulings there- upon 173, 174 whether failure to give bond, for an office held ex-offlcio, vacates the principal office 174 refusal of approving officer excuses failure, but mistake does not ; officer faiUng cannot justify or have his salary 175 where bond not filed, and office forfeited, and same person 837 INDEX Bond, Official — continued. Sec. re-appointed, bond prepared for former appointment does not hold sureties 176 validity not affected by omissions of, or defects in, acknowledg- ment, approval, or justification 182 various rulings as to approval 183 evidence of approval ; when approval inferred 184 defects in approval and acknowledgement 185 when official bond takes effect 186 general principle, that courts are Uberal in disregarding defects, etc., which do not go to the substance 187 bond, materially departing from the statute, when it may be sustained as a common law bond 188 proceedings where the bond is thus sustained 189 effect of departure from the statute, as respects the obhgee.190, 191 as respects the condition ■. . . . 193, 193 where the instrument was signed but not sealed 194 where principal not a party ; where names of obligors not in body 195 where executed with blanks left unfilled 196 where altered after execution 197 effect of departure from the statute, as respects the penalty 198 as respects joint and several character ; or the number of the sureties 199 as respects the residences of the sureties, and the time of the officer's appointment 200 various other rulings as to vaUdity, etc., considered in chapter 12, relating to sureties 201 See Sureties in Official Bonds. penalty of, limits the liability of sureties, except perhaps, for interest 294 time to give, when limited by receipt of commission, is limited by actual, not constructive receipt 434 officer not entitled to salary, until bond given; then he is entitled from commencement of term 472 of municipal officer, if approved by mayor, who is surety therein, notice to mayor of fact invalidating it, is not notice to the city 630 officer failing to give, but continuing in possession, is officer de facto 629, 630 See De Facto, etc. of judicial officer, covers only his ministerial acts 237, 731 officer's personal liability not affected by 731 838 INDEX Books and Papers : skc, proceedings to recover the same, and other appurtenances of an office 787—792 cases where mandamus or replevin will lie for that purpose, but the title of the officer cannot be tried 787 special statutory proceeding in many of the states , 788 who may pursue the remedy 788 applicant must have prima facie title ; respondent's con- duct must be wilful, and without apparent justification. 789 how far the title to the office may be investigated 790 but a frivolous claim by respondent will not defeat the pro- ceedings 791 statutory directions must be closely followed 792 Breach of Trust : in execution of discretionary power, equity will restrain 849 respecting public funds or property, pimishable criminally. . . . 857 Bribery : any contract by an officer, whereby his official action is influenced for a reward, is bribery, unless the reward goes to the public 66 of voter, etc., whether it disquaUfies a person from holding office 75, 76 not comprehended in term " infamous crime " 77 test oath against ; its falsity does not vacate office 177 rule where candidate procures election, by promise to accept less than lawful compensation 76 giving a bribe to, or receiving a bribe by, an officer, or an at- tempt to bribe him, is indictable at common law 864 so is an oflEer by an officer to receive a bribe 864 so is bribery of voters, at a parUamentary election {note) 864 Burden of Proof: in quo warranto, on whom it rests, and how it is shifted 785 Candidate : procuring election, by pubhc promise to accept less than lawful compensation 76 statutes requiring examination of, by a civil service conunis- sion; their validity and effect , 95 — 97 when agreements between candidates valid, and when void. See Contracts. rules, where successful candidate cannot lawfully hold the office 160—163 839 INDEX Candidate — continued. Sue. See Election. time to file oath, etc. , does not run, where each of two candi- dates has equal numher of votes 173 falsity of test oath does not vacate office 177 Canvassers: of election returns, their duties ministerial 156, 538, 746 — 750 powers and duties of 156 — 159 See Election. mandamus against 156, 157 Caucus : validity of appointment, where majority of appointing oiHcers have previously bound themselves by a caucus 121 poUtical, power of legislature to regulate 127 Certificate : of election or appointment to office. See Commission. Certiorari : matter, resting in discretion or judgment of inferior tribunal, cannot be reviewed by. . .• 370, 394^396 what questions may be considered upon 398 proceedings to remove officer, when may be reviewed upon. . . 379 when error, if person concerned participated 879 not so, when member of board concerned officially 390 ■sufficiency of the proceedings 379 — 390 See Removal. whether the official acts of any officers are exempt from judicial supervision and review : judges, having no superiors, their acts exempt 793 so as to members of the legislature, and of local and muni- cipal legislatures, with respect to their legislative acts 793, 803 whether acts of the president of the U. S. are exempt 794 whether those of the governor of a state are exempt, and if all are not exempt, what acts are liable to such review, etc., 795, 796 the same questions, respecting the principal officers of the U. S. government 797 respecting the principal officers of a state govern- ment 798 no question arises respecting other officers 799 840 INDEX Certioeari — contiimed. Seo. at common law, certiorari lies only to bring up a record; remedy extended to other cases by statute, but rules of com- mon law certiorari govern 800 the writ defined, and its ofiioe stated 801 it lies only to review a judicial or quasi judicial decision 802 but the exercise of judgment by the officer does not, per se, make his decision of a judicial character 537-539, 803 where an official body is permanent, it Ues, notwithstanding changes of members 803 or the transfer of its records to another body 803 it is not taken away by any but clear statutory expressions. . . . 803 instances of action, not judicial, and therefore not reviewable by certiorari 803 certiorari does not he to try the title to an office 803 not a writ of right ; issues only by leave of court upon appUca- tion 803 granting or refusing leave is discretionary, and cannot be reviewed ; exceptions 808 will be refused, where laches have occurred, or party has assented 804 will not lie, where party has another adequate remedy ; except tions 805 or to review an executed decision 806 or where the decision is void 807 whether it is confined to a case where the decision is final .808, 809 will not he, to review a decision, resting in the discretion of tribunal below, or its judgment as to expediency or propriety . 810 it lies only for errors in law, and brings up only errors in law for review ; extent of power of court to review a finding, where evidence legally insufficient 8H where objection must have been taken below 811 error in exercise of authority conferred, and irregularities in the proceedings, not reviewable 811 miscellaneous ruUngs in particular cases 870, 379, 381, 389, 387 383, 387, 392, 394-398, 510, 533 Child : of citizen sojourning abroad, deemed native citizen 128 Chosen Freeholders : See Supervisors. 841 INDEX Citizen : shc. when citizenship requisite as a qualification for holding office . 73 — 74 construction of constitutional and statutory provisions requir- ing it 80 foreign born child of citizen, deemed native citizen 138 citizenship requisite to constitute a voter 134 City: See Municipal Coepoeation. Civil Service Commission : statutes requiring examination by, before appointment to office, constitutionality, etc. , of 95 how such statutes enforced 96 veterans, when required to pass the examination, under statute giving them preferences , . 97 Civil War : constitutional provisions, disqualifying from holding office, cer- tain persons engaged in 73, 78 See also, Militaey Authoeity. Clandestine : appointment, made mala fide, when invalid 94 Classification : of officers, according to their general fimctions 33 — 34 into general and local officers 35 — 39 of officers' powers and functions. See Action ; Powees and Duties. Clergyman : performing marriage ceremony, is quoad hoc, a public officer. . 9 in England, indictable for refusing to marry 863 Clerk of a Court : deputy, not a public officer 13 office not incompatible with that of member of the legislature 34 if made ex-officio clerk of another court, this is holding two offices 38 sufficiency of cause for removal of 376 what acts by, are judicial, and what ministerial 589 cannot lawfully act as agent for a litigant 613 may issue attachment or enter judgment by confession in his own favor 614 various rulings, as to the liability of a clerk and his sureties to a private action, for particular acts or omissions 308, 331, 333, 343, 249, 391, 539, 539, 540, 614, 745 843 INDEX Clmee op a Cottrt — continued. Sec. various rulings as to acts or omissions, with respect to the liability of the sureties in his official bond 208, 231, 233, 236,243,249, 276 Clerks, miscellaneous: of board of aldermen, his assistant is a pubUc officer 7, 10 in state department, is a public officer 10 in United States offices. See United States. Club-house : when poUce authorities may or may not be enjoined from entering 845 Co-incident : when officers' powers and duties are 546 — 550 See Powers and Duties. Collector : of taxes, is a pubUc officer 10 general nature of his powers 24 various rulings, as to the Uability of the sureties in his official bond, for particular acts and defaults 209, 215, 317, 219, 221, 223, 228, 230, 336, 238, 245, 247, 251, 253, 373, 274, 283, 284, 289, 290, 291 when he may, after expiration of his term, give deed for land sold during term 337 power to seize and sell property is ministerial 538 when liable or not, for act or omission of his subordinate, etc. . 592 rulings where sheriff is also the collector of taxes. See Sheriff. cannot purchase at tax sale 612 See Interested Officer. collector de facto, his liability for taxes 664 mandamus Ues against collector, to pay over pubUc money in his hands, although thare is a remedy on his official bond 818 Colore Officii: whether sureties in an official bond are liable for unlawful acts, done colore officii 238 — 341 See Sureties in Official Bonds. officer's indemnity from deputy, not taken colore officii 596, 682 statute 33 Hen. VI, ch. 9, regulating bail, and prohibiting aU other securities, taken for ease and favor, or colore officii 670 similar statute in each of the states in the Union ; semble, that tliey are only declaratory of the common law 670 843 INDEX Colore OFyicn— continued. Sbc. statute does not mean that excepted securities must be allowed by a statute fi'i'l definition of " colore offlcii " and " virtute officii " 671, 673 security, not leading to breach of duty, oppression, etc., not within the statute 671 whether a corrupt intent is necessary, to avoid a security, within the statute 672 held, in New York, that corrupt intent is not necessary ; that the parties are not in pari delicto; and that contract in the^ nature of a pledge, is not executed until foreclosure 673 whether the statute applies to a security voluntarily given to an officer 674 it does not apply to a security voluntarily given to the party, not the officer ; instances 675 where statute prescribes form of security, and other provisions are added, the bond is void in toto 676 but, semble, additional security does not affect that which is valid 676 security void, when given to induce officer to violate his duty. . 677 or to act contrary to, or otherwise than provided by, the statute 677 or where officer had no power or jurisdiction. 678 exception, as to bond to appear and answer 678 but where officer exceeds his power, in talking contract for the state, state may ratify and enforce it 678 bond void, taken by highway commissioners, to relieve inhab- itants from assessment on opening highway 679 when bond to sheriff to induce less rigorous confinement, and promise to a jailor by sick prisoner, to pay for extraordinary services, held vaUd 680 contracts to indemnify an officer against liability in the execu- tion of process, when not within the statute 681, 682 See Indemnity. contracts of receiptors, when not within the statutes 697 See Bbcbiptoe. Commission : or other written evidence, necessary to validity of appoint- ment 86—88 officer dying before it is issued, deemed to have been in office. . 88 valid, although not transmitted to officer 88 844 INDEX CJoMMissiON — continited. Sec. or certificate of election or appointment, best evidence of title to office 397 not appointment, but evidence thereof ; necessity and effect of a commission ; is prima facie evidence of title ; where issued erroneously, may be revoked 398 special case, where two held similar commissions, earlier deemed controlling 399 evidence of official action, when and for what purposes suffi- cient 300—303 See De Facto, Officer. statement of duration of term in, does not control'; confers office for the lawful term 313 regularly issued by governor, cannot be revoked, unless he has power of removal 89, 349 receipt of, time Umited by, means actual, not constructive receipt 434 Commission, Civil Service : See Civil Service Commission. Commissioners, miscellaneous : are public officers, swamp land 10 drainage 10 levee '. 10 water 10 county loan 10 for internal improvements 10 to lay out a road 10 to erect a public buUding 10 contra 13 United States Centennial 10 for geological survey 10 are not public officers, to fund floating debt of city 13 to liquidate an insolvent bank 12 water committee 12 civil service. See Civil Service Commission. of town, sureties of, liable for improperly issuing town bonds. . 354 Common Council: See Municipal Corporation. Common Law : offences at. See CiUMES ; Misdemeanob. 845 INDEX Common Law — continued. Sec. at common law, no limit to the number of offices one may hold, if compatible 30 rule where two offices, held by one person, are incompatible 30 sale, etc., of pubUc office void, and parties indictable. . . 49, 54, 55 ■whether bribery of voters, etc., disquaUfles person, elected to office, from holding it 75 contracts for official influence, when void. See Contracts. information or indictment Ues for refusal to accept office 165 official bond good at common law, although it departs from statute ; proceedings thereupon 188 — 190 receiving interest from a depositary of pubUo money, by an officer, not a common law offence (note) 255 whether officer holds over at. 333 — 325 sheriff, etc., may complete, after term expires, execution of process begun during term 336 officer not removable at, except for cause, and after hearing. . . 363 resignation of office, may be by parol 408 acceptance of, may be implied 408 whether valid, without acceptance 409 — 412 when office forfeited, by non-attendance, non-user, etc 418 — 432 promise to pay a public officer, more than the law allows him, void at common law 477 extortion is a crime at common law 535 and unlawful fee paid may be recovered back 530 powers that may or may not be delegated, at 569—576 See PowEES, Etc. deputy, appointment by parol, valid at 577 powers of, contract to restrain, invahd 583 office granted to two or more, if one dies, no survivorship, and office determined 603 rule, as to disquaUflcation of judge interested 608 exception, where interest small, and he only can act.. 609, 617 statute against securities, taken colore officii, declaratory of common law 670 See Colore Offich. when bond for appearance in a criminal cause, good at common law, although taken by officer not authorized to let to bail. . . 678 at common lav, certiorari lies only to bring up a record ; extended by statute to other caaes ; but common law rules prevail in them 800 846 INDEX C!OMMON Law — continued. Sec. mandamus a common law writ ; courts of equity no power to issue it 812 " Common Political Law:" requisites imder, as to holding office 72 Compatible and Incompatible Offices : See Incompatible Offices. Compensation: character of public office not dependent upon 3 when legislature may or may not change 19, 30, 443, 455 of an officer, not assignable before it is due 42 — 44 but after it is due, it is assignable 45 imeamed, cannot be reached by attachment, garnishee pro- cess, etc 48 unlawful for appointing power, to contract with appointee, to receive less than the lawful compensation 53, 453, 456 the rule qualified 453 or for candidates to agree to divide compensation, upon one withdrawing in the other's favor 54 or to agree to pay for support for an office 54 or for lobby services 56 — 58 See, further. Contracts. whether candidate's public promise, to accept less than lawful compensation, vitiates his election 76 officer unlawfully appointed cannot recover 96 whether a person is punishable, for refusing to accept an office, for which there is no compensation 166 officer, failing to give official oath or bond, cannot recover .... 175 officer holding over entitled to 335 suspended officer entitled to, in England, during suspension. . . 401 but not in United States 406 " salary " and " emoluments;" meaning of those words 441 "compensation," as used in constitution, whether it includes expenses 442 belongs to the officer not under contract, but as an incident attached by law to his office, although he has also earned money in another emplojrment 443 statute, increasing, decreasing, etc., changing from salary to fees, etc., constitutional unless constitution fixes it 443 so a municipal corporation, if not restrained by statute, may change by ordinance its officer's compensation 444 847 INDEX Compensation— cowfinzted. Sec. semble, rule is othei-wise in case of professional employment. . . 444 in England, certain fees allowed by immemorial usage ; not so inU. S 445 here the rule is, that services are gratuitous, unless compensa- tion provided by statute or municipal ordinance 446 rule applies, whether compensation is salary, or fees, paya- ble by public authorities or individual 447 exceptions recognized in certain cases 448 where statute allows officer a reasonable compensation, this does not apply to services rendered to the state or a county 449 power granted to a city to allow its attorney " fees," authorizes allowance of commission on money collected 449 where statute allows municipal officer compensation out of assessments, he has no claim, till assessments collected, unless city has not been diligent 450 where statute provides that each policeman shall receive a salary of not over $900, that does not authorize the commis- sioners to divide them into grades, some having less than $900. 451 release of salary, etc., in consideration of a fixed sum, when vaUd 452, 453 power to iix compensation, case where held to be not contin- uous 454 . where compensation fixed by constitution, may be paid without appropriation 455 required by constitution to be paid by county, statute for payment by state unconstitutional 455 to be fixed by county board, statute fixing it, is uncon- stitutional 455 ruling, as to effect of constitutional provision for continuing compensation of judge, after expiration of term, where he has served ten years 455 when appointing power may or may not increase or reduce compensation , 456 when power of principal, to reduce subordinates' compensation, implied from a reduction of appropriation for salaries 457 receipt of reduced compensation, when it does, or does not, con- stitute a release or waiver of right to original compensa- tion 453, 454, 456, 457, 461, 465 power to increase or diminish compensation does not confer power to abolish it, or reduce it to a nominal sum 458 statute constitutional, allowing common council of city to fix 848 INDEX Compensation — continued. Seo. oiHcer's salary, and requiring county to pay it 459 but board of apportionment cannot change salary of assist- ant district attorney, who is a state officer 459 statute fixing county clerk's salary, and providing for payment out of fees, does not limit salary to fees received 460 but in such case, if fees pay salary, successor may coUect them 460 when insufficient appropriation to pay salary is, or is not, a reduction of the salary 461 rule, where statute provides that an officer shaU have the same compensation as another, and the latter's is afterwards re- duced or increased 462 foreign minister of U. S. , entitled to be paid in U. S. money, or its equivalent 463 where salary is required to be fixed in advance of appointment, fixing it once suffices for several successive appointments. . . . 463 reduction of salary may be made by clear implication, without express resolution to reduce 464 if body is authorized to fix salaries, subject to approval of another body, latter body cannot change amount so fixed . . . 464 where sheriflf given such fees as court orders, he can have noth- ing until court fixes 464 statute giving officer a monthly sum, entitles him to monthly payments 464 constitutional or statutory provision, forbidding increase or diminution of compensation during office, not applicable to second term 465 but cannot be evaded by resignation and reappointment. . . 465 applies, however short the time since term began 465 applies to officer appointed to flU vacancy for unexpired term 465 does not prevent payment in U. S. notes, though depreci- ated 466 or allowance for expenses 466 when it applies or does not apply to commission, fees, etc. 466 does not apply, unless compensation fixed before statute . . 467 but applies to city ordinance passed before, but taking effect after, the term begins 467 does not prevent increased compensation for additional duties 468 849 INDEX Compensation — continued. Sec. prevents a deduction from salary by reason of absence. 469 where it specifies a " law," it does not apply to a city ordi- nance 470 or proceedings of county boards 470 applies to officer holding during good behavior 470 when it applies to officers of chartered city, reorganized under general law 471 officer entitled to salary, after qualification, from previous beginning of term ; but where he must pass an examination, salary begins after passing 472 officer not entitled for time when he was not incumbent; exceptions 473 compensation ends when term ends; officer pas'able quarterly not entitled to remainder of quarter's salary, after removal. . 474 where consent of another body is required for appointment, salary does not begin tillsuch consent 474 abohtion of office ends compensation, though appropriation not exhausted 475 exception in a special case 476 contract to pay officer for doing that which he is obliged to do, or more than the law allows, is void 477 compensation, given to an Officer by law, is in full for his ser- vices, although his duties increased, etc 478 he cannot therefore demand any additional pay 478 instances, where duties of officer increased, and extraordinary risks incurred, without entitling him to additional pay 479 clerk in U. S. department, sent to London as agent of U. S. ; secretary of territory, acting as governor, not entitled to additional pay 480 promise by individual, to pay for extraordinary labor, in per- forming service by officer, is void 481 instances, where a sheriflE can have no compensation, except statutory fees , 483 no compensation to auditor of public park, for negotiating a loan 483 promise to pay naval officer, proportion of profits of a voyage, for convoying a ship, is void 484 or a pilot for aiding a vessel in distress 484 reward, offered by public authorities or an individual, if service in line of x)fficer's duties, cannot be claimed by him 485 ,850 INDEX Compensation — continued. Seo. instances ; police officers, etc. , making arrests 485 but, officer may have reward, if service not in line of his duty 486 as where rendered out of his district 486, 487 fireman, when entitled to reward offered for entering a burning building 488 informer's share in confiscated property, when officer entitled to. 489 various rulings under the U. S. statute, forbidding additional compensation to officers and employees of government.. .490, 491 officer may have additional compensation from the public, for services out of the line of his official employment ; instances. 492 sheriff and jailor, when may enforce an agreement for extra compensation 493 extra compensation allowed, when such appears to be the intent of the statute fixing 494 officer when entitled to reimbursement, for extraordinaiy expenses or liabilities, incurred in discharging duty 495 one, holding two or more offices, if incompatible, forfeits com- pensation of first ; if compatible, may have compensation of each 496 but cannot have two or more per diem allowances 496 and where one office is incidental to, and necessarily held with the other, he can have only the compensation of the principal office 497 secretary of state, acting as governor, entitled to salary of gov- ernor 498 officer's compensation cannot be reduced, in consequence of his absence, or failure to discharge the duties of his office. 499, 500, 501 grant of power by statute to principal officer, to impose a penalty, to a specified sum, does not authorize, forfeiture of a month's pay, exceeding the specified sum 501 constitutional provision, that lieutenant governor shall have powers and salary of governor, during governor's absence, not applicable to a short absence, etc 503 statute for discipline, etc., of police force, does not authorize forfeiture of pay, for absence caused by sickness, etc. ; but physician's certificate may be required to prevent such for- feiture • 503 policeman, arrested on criminal charge, and afterwards acquitted, entitled to his pay for time of confinement 504 851 INDEX Compensation— conimwed Sec. where statute allows superior to deduct from inferior's pay, this vests a large discretion in the former 505 instance where such discretion may be controlled by courts. 505 members and officers of legislature entitled to per diem com- pensation, during a short recess, but not where adjournment was for one month 506 in such a case, resolution of one house to pay officers is nugatory 506 suspended officer, not entitled to salary during suspension 507 unless suspension wrongful, and not then, if he has other- wise agreed 507 constructive suspensions, ruling relating to 508 officer entitled to salary during stay by injunction 508 officer's remedy for his salary against government officers 509 may maintain action against municipality, etc., therefor 509 but if wrongfully removed, cannot recover for subse- quent time, until reinstated 510 so where salary fixed at less than lawful amount 510 cannot recover, unless he is de jure, and in posses- sion 510, 511 exceptions to right of officer dejure to recover 510 officer de jure cannot recover from city, commissions on assessments collected by officer de facto, whom it recognized. 511 whether municipality liable in any case for fees or commissions. 512 municipality not liable to officer de jure, after ouster of officer de facto, where it has paid the compensation to the latter. 513—516 nor is it liable for damages for wrongful removal by officers empowered 514 but it is liable to officer de jure, wrongfully removed, where no person specifically appointed to fill his place 515 where liable, there can be no deduction for earnings by plaintiff in another employment 515, 516 cases, holding that municipality is liable, although it has paid officer de facto 516 municipality, though protected, may defend action for com- pensation, on the ground that plaintiff is officer de facto only, and not dejure 517, 518, 661 where statute allows municipal officer commissions on money disbursed, city cannot defeat hia right, by placing money in 852 INDEX Compensation — continued. Sec. another officer's hands for disbursement 519 where gross appropriation for specified services, and incumbent receives the whole, leaving pai-t of services to be performed by his successor, the latter's remedy is against the state, and the state may recover against former incumbent 520 person in possession, and having prima facie title, entitled to receive the compensation of an office 521 after judgment of ouster, officer dejure may recover from in- truder, the compensation received by him 523, 663 but not from person appointed to fill vacancy during con- troversy ; 532 right not affected by fact, that intruder went into possession, under a judgment which was reversed 522 rule same as to fees, one case contra; qu., whether defend- ant may deduct expense of earning fees 533 extortion. See that title. officer may have mandamus against disbursing officer, for his fixed salary, but not where no appropriation therefor made or warrant issued 509, 824 or where his title disputed 826 oaees contra 827 exceptions 838 Comptroller: of the state, is a public officer 10 Condition: resignation and appointment upon , 91 whether sureties in an official bond are Uable, where it was executed upon a condition, which was not fulfilled 359 — 266 See Sureties in Official Bonds. Confirmation: of governor's appointment by senate 99, 100, 102 See Appointment ; Goveenoe. of mayor's appointment by common council 101, 102 See Appointment ; Municipal Cohpoeation. Constable: See Action ; Sheeipf. sureties in his official bond, various rulings as to their liabil- ity 193, 208-310, 339, 330, 332, 235, 239-243, 251, 252, 293 may complete, at common law, after term expires, execution of process begun during term 336 853 INDEX Constable— cowimtted. Sec. promise by individual to pay more than fixed compensation, or where no fee allowed for services, although extraordinary, is Void 481, 485 but extra compensation allowed, for services not in line of duty 486, 487 validity, construction, effect, etc., of agreements to indemnify against liability upon service of process 681 — 696 See Indemnity. guilty of a misdemeanor, at common law, for refusing to arrest felon 863 or to pursue hue and cry against burglar 863 or for not taking to prison person committed 863 or for failing to return precept 863 Constitution : effect of constitutional provisions, upon power of legislature to change or take away compensation, duties, term of office, etc 19, 20, 443, 455, 456 office not deemed property, within constitutional protection. 19, 30 rulings upon constitutional provisions, relating to the selection, etc., of general or local officers 26 — 29 the same, where the holding of two offices, or of a state and a federal office, is forbidden 38 — 40 of the United States. See United States Constitution. qualifications and disqualifications for holding office, enumer- ated in constitution, extent of power of legislature to add thereto 73—75, 79 rulings upon provisions, disqualifying from holding office, cer- tain persons who took part in the civil war 78 no implied prohibition in, against confering power upon unofficial persons to appoint a public officer 85 validity of statutes, requiring persons appointed to office, to have passed a civil service examination, and giving prefer- ences in appointments to discharged soldiers and sailors 95 validity of statutes, superadding requirements for voting, to those contained in the constitution 125 — 127 validity of statutes requiring registration of voters ..132 — 134 effect of unconstitutionalty of such statutes up6n election 137 whether statutes, providing for "minority representation" or "cumulative voting, " are constitutional 140 validity and construction of statutes forbidding distinguishing marks upon ballots 143 854 INDEX Constitution— confmited Sec. statute, inflicting penalty for refusal to accept office, is constitu- tional 167 constitutionality of statute requiring an oflScial test oath 177 legislature no power to alter term of office fixed by constitution, or to enact a statute which would create a vacancy 19, 20, 305 but change of time of election not unconstitutional, although term incidentally extended 305 provision, forbidding judge or justice to hold office after reach- ing 70 years of age, not applicable to surrogate, justice of peace, or county commissioners 309 provision, that certain officers shall be elected, prevents legisla- ture from changing terms of incumbents 311 where it fixes officer's term, a statute, providing for election for a shorter term, is vaUd as to the election, and void as to length of term 311 provision, fixing time for computation of term, applies to person appointed for unexpired portion of a term 314 where it specifies cause or mode of officer's removal, legislature cannot provide for other causes, or another mode 341 rulings upon attempts to evade this rule 341 when provision for ofBcer's removal is self -operative ; when it leaves no discretion 342 statute constitutional, which allows municipal body to remove and disqualify officer 343 removal of officer, withput notice, etc., not contrary to bill of rights 343 power of, granted to governor, as respects officers appointed by him, includes those appointed with concur- rence of senate 344 when governor may determine, as he thinks proper, exist- ence of cause, but officer must have notice, etc 344 legislature's power to provide for, when practically unlim- ited 345 but qu. , whether it can remove an officer by statute, etc. 346 held, in New Jersey, that power to remove can be constitu- tionally exercised only by court 346 contrary rulings elsewhere 346 specification in constitution, of causes of removal, does not invalidate a statute, excluding the person for failure to qualify. 346 constitutional power of removal may be exercised, although impeachment lies for same cause ' 356 855 INDEX Constitution — continued. Sec. of U. S. and of New York, statement of provisions for impeach- ment 399 how provisions of, aflfect power of legislature to provide for officer's suspension 403 provision for Ueutenant-governor acting as governor, while governor absent from state, not applicable to temporary casual absence , 433 if governor authorized to fill vacancy, statute for election unconstitutional 433 where vacancy required to be filled by election, statute author- izing filling by appointment until next election, constitutional. 488 statute, increasing or diminishing officer's compensation, not violation of contract, or ex post facto law 443 if it fixes officer's salary, held, appropriation not necessary .... 455 if it directs payment of salary by county, statute 'for payment by state unconstitutional 455 if it provides for fixing amount of salary by county board, statute fixing the same unconstitutional 455 ruUng, as to effect of provision, continuing salary of retired judge, after ten years service 455 statute, providing for fixing city officer's salary by common council, and payment by county, constitutional 459 provisions, forbidding increase or diminution of officers' com- pensation during their official terms, various rulings, as to construction and effect of 465—471 See Compensation. statute constitutional, for appointment by municipal corpo- ration of commissioners to take land for streets 573 officer in possession, chosen under unconstitutional statute, is officerde/acto 637 but not where the office was created by an unconstitutional statute; qu., however, as to before judicial declaration of unconstitutionality 638 constitutional provisions, respecting immunity of legislators from private action, etc 710 whether an officer can justify under unconstitutional statute.738, 730 where it confines jurisdiction of a court to appellate proceed- ings, statute empowering the court to issue a mandamus, unconstitutional 813 constitutionality of statute cannot be tested, on mandamus to perform ministerial duty 831 856 INDEX Constitution — continued. Sec an injunction does not lie, to restrain a judge from acting under an unconstitutional statute 843 but it Ues, in a like case, against a municipal officer 846 Contested Election: See Election ; Quo Wareanto. Contractor: pubUc, distinction between, and officer 1 — 9 Contract: by officer, within his authority ; binds the public ; otherwise if he exceeds his euthority 21 lawful and unlawful contracts ; trafficking in offices, or other contract for compensation for appointment, or for influence to secure appointment, unlawful 49— 58 contract that person appointed shall receive less than law- ful compensation, unlawful 53 contract between applicants that one shall withdraw ; con- tract to pay for support in procuring office, unlawful ... 54 contract between members of appointing board, to Vote for particular persons, unlawful 55 "lobby services," contract for, unlawful; what contracts for services before legislature are lawful 56 — 58 contract to procure a pardon, or other official action; when lawful and when unlawful 59 — 62 contract between bidders for supplies, etc., to the govern- ment ; when lawful and when unlawful 60 — 64 contract for discharge of drafted men from army, unlawful 62 contract to induce officer to violate his duty, unlawful. .65, '66 contract for reward to officer unlawful, except where con- sideration enures to public 66 to pay officer for doing what he is required by law to do, or more than the law allows, is void, unless the services are out of the line of his duty, in which case it is valid. . .477—493 See Compensation. between officer and his deputy for payment to principal, when valid and when void 578 — 582 See Deputy. 857 INDEX Contract — continued. Sec for indemnity against deputy's acts, etc., when valid and when void 594 — 596 See Deputy. effect and construction of 597 — 601 to appoint deputy, made in advance, unlawful 580 not to remove deputy, unlawful 582 that deputy shall not exercise certain powers, void as to the public 583 for ease and favor, or otherwise colore officii. See Colore Officii. oflSce not held by contract, and not protected by constitutional provisions against impairing the obligation of contracts, etc.. 19 30,443,455, 456 by officer within his powers, binds the state or municipaUty 551, 593 but not where he exceeds his powers. 551 aU persons bound to take notice of officer's powers 551 difference in that respect between pubhc and private agents. . . 551 to indemnify officer upon service of process. See Indemnity. when the law implies such a contract 688 of sheriff's receiptor, relating to goods levied upon. See Re- ceiptor. Convention : political, power of legislature to regulate, etc 137 of officers or boards, vested with public powers. See Appoint- ment. Coroner : See Sheriff. at common law, misdemeanor for him to refuse to hold an inquest 863 Corporation : municipal. See Municipal Corporation. where corporate act is vaUd, if passed by majority present, all having been notified Ill Corrupt : intent. See Corruption ; Intent. Corruption : not essential to render invalid a contract between appointing power and officer, that officer shall have less than his lawful 858 INDEX CJOREUPTION — continued. Seo. emoluments 53 contract for official influence, etc., when unlawful and cor- rupt. See Contract. judge not punishable by indictment for corruption 860 whether essential to constitute extortion 527 officer having discretionary power, punishable criminally for 856 justice of peace and other inferior judicial officers, punishable for, but not for an honest mistake, etc., 860, 861 See further, Beibery; Intent. Co-surety : in official bond. See Sureties in Official Bonds. Counsellor at Law : See Attorney and Counsellor at Law. County : county officers, who are and who are not 36, 27 when not liable under general statute 449 not Uable for wrongful acts, etc., of its officers, except by statute 593 County Board : See Supervisors. County Clerk : sec. rulings relating to, as a recording officer. See Eecordino Officer. as the clerk of a court See Clerk op a Court. deputy, is a public officer 10 sureties in official bond, when liable 339 See Clerk, etc. sufficiency of cause for removal of 383 rulings as to his liabiUty for a statutory penalty, for charging excessive fees 530 County Commissioners : See Supervisors. not included in a constitutional provision, forbidding a judge to hold office after 70 years of age 309 County Solicitor: general nature of his powers 24 Courts: clerk of. See Clerk of a court. attendant upon, whether a public officer 5 859 INDEX Courts — continued. Sec. interpreter for, is a public officer 10 when constitutional or statutory provision, making a body- judge of election, etc., of its members, does not exclude jurisdiction of court to determine controversy respecting membership 397,439, 777 where office pertains to a court, right of possession may be determined on motion 664 judicial supervision and review of inferior courts and officers. See Cektioeari ; Injunction; Judicial Supbrvision, etc.; Mandamus; Prohibition. Crimes: See also, Common Law ; Indictment; Misdemeanor. rules respecting, as a disqualification for holding office 74, 77 refusal to accept office, punishable criminally 165, 166, 409 receipt of interest, etc., by public officer from depositary of public money, not a crime at common law (note) 255 indictment for assaulting an officer, sustained by proof of official action 301 charge of, whether officer can be removed upon, before con- viction 371 office forfeited by conviction of, not restored by pardon 430 extortion 534—530 See that title, of deputy, principal not answerable civilly or criminally for 588, 589, 857 whether perjury can be assigned upon an oath, taken before an officer, disqualified to hold the office 646, 653 defendant convicted of, cannot question the title of the judge trymg him 634, 637, 651 officer de facto, resistance to, punishable as if he was dejure. . 654 indicted for kiUing person resisting him, deemed de jure. . 654 punishable as if he was de jure 668 criminal proceedings, may not be restrained by injunction .... 843 may be restrained by prohibition. See Prohibition. review of, by certiorari. See Certiorari. mandamus relating to. See Mandamus. crime at common law; bargaining for office or official con- duct 40, 55 neglect to perform, or misconduct in perfomlance of, official duty 855 860 INDEX Crimes — continued. Sec. wilful or corrupt abuse of discretionary power 856 fraud or breach of trust, respecting public funds or other public property 857 gross negligence, evidence of 857 but officer not liable for deputy's act 857 superior officers of national and state governments, not punish- able by indictment; only by impeachment 858 members of legislature, not punishable by indictment ; gu., if they are liable to impeachment 858 judicial and quasi judicial officers, not punishable for an hon- est mistake 859 judges of courts of record, not punishable by indictment, only by impeachment 860 justice of the peace, punishable for misconduct, but not for error of judgment, not proceeding from corrupt, etc., motive 860, 861 but if he acts wilfully, and in defiance of the law, honest motive will not save him 861 instances of common law misdemeanors by justices of the peace 861 jurors, formerly liable to attaint for wrong verdict; punish- ment upon attaint; now abolished 862 liable also to prosecution in star chamber 863 now not punishable, except as prescribed by statute 863 ministerial officers, miscellaneous rulings as to their common law liabUity to punishment criminally 863 overseer of poor, misfeasance or malfeasance as to relief of poor 863 clergyman, refusing to marry 868 constable, refusing to arrest felon, or to pursue hueand cry. 863 coroner, refusing to hold inquest 863 sheriff, refusing to execute sentenced criminal 863 sheriff or constable, not taking to prison person committed. 863 jailor, refusing to receive in prison such a person 863 sheriff or constable, failing to return precept 863 bribery, giving or receiving bribe, or attempt to bribe, when punishable at common law 864 proposition by officer to receive a bribe, punishable 864 usurpation of office, punishable at common law 865 Criminal Proceedings : See Crimes. 861 INDEX Cumulative voting : Sec. constitutionality of statute providing for 140 Damages : measure of, in action against sureties in official bond 293 limited by penalty of oflftoial bond, except interest 294 state or municipality liable for prospective profits, on breach of contract, to same extent as an individual 551 upon deputy's bond of indemnity ; when expenses of defence recoverable 598 measure of, or contract to indemnify officer 695 sheriff's receiptor cannot mitigate, by showing property not worth the debt 697 unsettled questions respecting measure of, in action against recording officer 742, 743 of rightful ofi&cer, after judgment of ouster of intruder, recoverable by separate action 256, 521-523, 663, 786 See Compensation. Death : of appointed officer, before his commission is issued, creates a vacancy 88 of successful candidate, before election, renders new election necessary 163 of surety in official bond, after delivery but before approval, does not vacate bond 183 of person chosen to office, before commencement of term, when incumbent may or may not hold over 829 of person elected, before ballots counted, vacancy may be declared 432 De Facto and De Jure ; Officers : holding office under color of title, is evidence that official oath and bond were furnished 171 but if not, officer cannot justify, or recover his compensation. . 175 if oath taken before one not authorized to administer it, person is still officer de facto 178 effect of failure to procure approval of official bond. 175, 185 officer de facto, liable to officer de jure for emoluments, etc., of office, after ouster 256, 522, 663 but sureties in his official bond not liable 256 his sureties liable for official acts, as if officer dejure. .288, 665 proof of official acts raises presumption of title and quaUfica- 863 INDEX De Facto and De JtmE; Otficbrs— continued. Sbc. tion ; enables an oflBcer to justify, untii rebutted 300 suffices upon indictment for assaulting officer 801 suffices to prove official character of foreign officer 303 defective oath, does not prevent one from being officer dejure 180, 181 sureties in official bond of officer dejure, not liable for acts of officer de facto, although condition broad enough to cover them 387 officer de jure in possession can, but officer de facto cannot, recover for salary, etc 510, 511 cannot recover from city, commissions on assessments collected by officer de facto, recognized by it 511 after judgment of ouster, cannot recover from municipal- ity, salary, etc., paid by it to officer de facto in posses- sion 518—516 or damages for wrongful removal by officers em- powered 514 may recover salary, while kept out, if no person has been specifically put in his place 515 when entitled to recover, no deductionforeamiags..515, 516 municipality may defend action by officer for his salary, on the ground that he is de facto only, not de jure 517, 518 officer de facto, generally entitled to receive emoluments of office 521 after judgment of ouster, officer de jure may recover from officer de facto, compensation received by him 356, 533, 663 but not from person appointed to fill vacancy 523 right not affected by a reversed judgment in favor of defendant 533 rule same as to fees, one case contra ; qu., if expense of earning fees may be deducted 523 general definitions of officer de juie, and officer de facto ; gen- eral rule as to eflfect of exercise of power by the latter. . .622, 649 distinction between officer de facto, and inti-uder or usurper ; acts of the latter are void ; color of authority required to constitute an officer de facto ; whether color of title required. 623 two rules stated, and fortified by authorities, which are irre- concilable with the doctrine that color of title is necessary. . 634 Lord Ellenborough's definition of officer de /acto, now gener- ally recognized 635 863 INDEX De Facto and De Jure ; Officers— confrntted. Sec. the modern doctrine, as to the definition of an officer de facto, and the distinction between him and a usurper, as estab- lished in Massachusetts 636 the same in North Carohna and New York 627 the same in Connecticut ; the four heads, under which exer- cise of power by an officer de facto is sustained, as given by Butler, Ch. J. in the leading case, 38 Conn. 449 628 officer in possession, who has failed to give official oath or bond, said to be officer dejure with defeasible title 639 but usually treated as officer de facto ; his official acts valid, where they concern the public or third persons ; instances 630 officer in possession, who has forfeited his office, or whose term has expired, is officer de facto, whose acts are valid in like cases ; instances 631, 633 officer in possession, whose appointment or election was irreg- ular or invalid, is officer de facto, whose acts are vaUd in like cases ; instances 633, 634 party, even in criminal cause, cannot attack his title. 634 rule covers officer of state government, in rebellion against the U. S., and officer appointed by military authorities, during military occupation of such a state 635 officer in possession, who was disqualified from holding the office, recognized as officer de facto, and same consequences follow ; one exception 636 officer in possession, where statute, under which he was chosen, was unconstitutional, is a good officer de facto, and same consequences follow 637 but where the office itself was created by an unconstitu- tional statute, the incumbent cannot be officer de facto, though held in one case that he is such officer, until statute adjudged unconstitutional 638 person in possession, whose office has been abolished, cannot be officer de facto 639 exception, where one who has held an abolished office, pre- sided under color thereof, at a meeting of chosen free- holders 640 who is deemed an officer in possession ; only one who actually and exclusively possesses and controls the office 641 864 INDEX De Facto and De Jxjre ; Ovwicers— continued. Sec. there cannot be two persons in possession at the same time 641 instances where two are acting at the same time 641 where an oiHcer de Jure is in possession of the oiHce, another cannot constitute himself oflficer de facto by official acts ; instance 643 case of two rival claimants of office of governor, each performing official acts 643 but governor holding over, under claim of reelection, validates a bill by his approval, although afterwards ousted 643 wrongful intrusion, or taking possession of documents, etc., by claimant, during inciimbent's absence, does not make him officer in possession 644 officer de facto must act under claim of title 645 instance in Louisiana, where judge, not being "recused," unlawfully appointed a lawyer to act in his place 645 ruling in New York, that indictment for perjury will not he, upon an affidavit, taken before a notary public, who was dis- qualified to hold the office 646 acts, upon which officer de facto founds his claim, must be such as he could lawfully perform as officer dejure 647 where color of authority ceases, as where judgment of ouster is rendered, person ceases to be officer de facto, although he appeals 648 the rule, as to the effect of an exercise of power by an officer de facto, restated more precisely, and f ortffied by numerous authorities 649 payment by disbursing officer, to officer de facto, protects him and the public 650 person convicted of criminal offence, although capital, cannot question authority of judge before whom he was tried 651 other instances, where authority of a judge de facto cannot be questioned 652 perjury, whether person may be convicted in any case, where the false oath was taken before one, who was merely officer de facto 646, 653 on indictment for resisting officer, or indictment of officer for killing person resisting him, officer de facto deemed officer dejure 654 865 INDEX De Facto and De Juee; Officers— continued. Sec. whether an officer de facto can confer upon one appointed to office by him, a better title than his own ; English cases 655 the same subject ; American cases 656, 657 an officer who seeks to enforce any right, personally or in virtue of his office, must show himself to be dejure as well as de facto 659 instances ; officer de facto only cannot justify ; but proof that he was de facto raises presumption that he was de jure ; 660 but one acting in his aid may justify 660 officer cannot recover fees or salary unless he is dejure 661 nor can he recover statutory penalty; but municipality may recover penalty, for violation of rules established by officers de facto 663 after judgment of ouster, officer dejure may recover emolu- ments of office from officer de facto 256, 523, 663 when office pertains to court, right of possession may be deter- mined on motion 663 officer de facto liable for malfeasance, etc., as if dejure 664 his sureties are also so liable 388, 665 officer de facto cannot be restrained by injunction, from exer- cising office 666 he is liable to mandamus, like an officer dejure 666 withdrawal ; officer de facto may withdraw from the office, and thenceforth he is not liable to an action, or to a statutory penalty for nonfeasance 666 where, while mandamus is pending against officer de facto, he is ousted ; officer dejure may be substituted in his place 667 officer de facto liable, in like manner as officer de jure, to indictment and punishment for misconduct, etc 668 when officer de jure may be put into possession by man- damus 837, 838 may recover by mandamus, papers, etc., illegally taken or withheld 644, 787, 838 For proceedings to try the title of an officer, and to oust a usurper. See Quo ■Waeeanto, Defaulter : validity and effect of statutes rendering a defaulter ineligible to another office 79 liability of sureties of. See Sureties in Official Bonds. 866 INDEX Defect : Sec. See Erkoe; iREEatrLARiTT ; Mistake. Definition : " public officer" 2 — 7 " public office" ; 3—7, 16—18 "judicial" and "ministerial officers" 3S — 34 "political," "executive," or "administrative officers" 33 — 34 " state officers " 39 general, local, county, town, city officers 36, 37, 39 bribery ." 32—34, 77 "infamous crime" 77 "guilty" , 77 "common political law " 73 " citizen " includes a woman 70 "election" and "appointment" 84 "people," for political purposes , 133 " idiot, lunatic, or person of unsound mind," as used in statute excluding such persons from the elective franchise 130 "irresistible superhuman cause," does not include accidental &-e 334 "judge or justice," in constitutional provision, forbidding hold- ing office after attaining 70 years of age 809 " next regular election " 308 "term" 303 " from " a certain date, in an officer's commission 317 removal of officer, various equivalent expressions 347 causes for, "disorderly behavior;" "misconduct in office;" "malpractice in office;" "neglect of duty;" and other similar expressions 367 — 370 implied resignation ; forfeiture of office 407 "vacant;" "vacancy" 431 " forthwith," does not necessarily mean same day 486 "salary;" "emolument" 441 " compensation " 443 ' ' extortion " 534 legislative acts ; judicial acts • -533, 588 judicial and ministerial powers 538, 585—537 quasi judicial powers 533 " may" in statute, when equivalent to " must" 546—550 officer dejure, and officer de /acto 623 — 638 usurper ^33 867 INDEX Definition — continued. Sec. " colore offleii; " " virtute officii" 671, 672 "process,' within the rule that ministerial officer is pro- tected by '''56 "process, fair on its face," within same rule 758, 762 information in the nature of a quo warranto 776 certiorari v 801 mandamus °^° prohibition i •" °"5 Delegation of Powers : what powers may or may not be delegated 569 — 576 See Powers and Duties. deputy, appointment, tenure, powers, liabilities, etc., of 577—601 See Deputy. Demand : when necessary or not necessary, to charge sureties in official bond 395 Depositary : of public money, whether officer's sureties are liable to public authorities, for interest paid to him by 255 not an offence at common law to take such interest (note) 225 loss by failure of, whether officer's sureties are liable for. .225 — 228 See Sureties in Official Bonds. Deputy : For other rulings respecting deputies, see the titles of the principal offices. deputy's term expires with principal's, if the latter has a new term, deputy cannot act, unless reappointed 304, 582, 632 when officer cannot be removed for incapacity, etc., of deputy 874 in general, judicial or quasi judicial powers cannot be dele- gated, but ministerial powers may be delegated, and exer- cised by a deputy; instances 569 — 576 See Powers and Duties. deputy cannot appoint a general deputy, but he may appoint a bailiflf or clerk to do a particular act, or may ratify such an act 575 sheriff cannot delegate to another power to appoint deputy sheriff 575 one employed by officer, not authorized to appoint deputy, is officer's servant, and his acts do not bind the public 576 868 INDEX Deputy — continued. Sec. deputy may be appointed by parol, at common law 577 held, in England, that contract by deputy to pay principal a certain sum, out of emoluments of office, valid ; but to pay absolutely, void 578 the same rule established in U. S.; but where statute gives deputy a certain portion of profits, contract to pay principal a larger proportion, or a fixed sum, is void 579 validity of such contracts does not depend upon parties' intent 580 contract to appoint deputy, made in advance, unlawful 580 where deputation illegally sold, indemnity against deputy's acts invalid ; but not if made after illegal sale 581 deputy's term expires with principal's 304, 582, 632 where principal office devolves upon another by death, etc., deputy cannot act, without new appointment and new oath, etc 582 deputy may be removed at any time, although principal has contracted not to remove him 582 deputy has aU the powers of principal ; and contract that he shall not exercise certain powers, void as to public 583, 584 so if sheriff is also tax collector. 584 so deputy county clerk has full powers of principal as to taxes 584 where statute empowers deputy to act during principal's absence, or during vacancy ; deputy is acting officer during vacancy, but only deputy during'absence 586 deputy must act in principal's name, unless otherwise empowered by statute 585 rule that process cannot be served upon deputy by sheriff, or vice versa, or by one deputy upon another 587 officer liable civilly, but not criminally, for his deputy's act or omission, unless party has assumed direction, etc 588 but not liable civilly for deputy's criminal act 589 party's remedy is against principal, not deputy 590 but principal not liable for deputy's unofficial act ; in- stances 591 public officer is not liable to action, for act or omission of subor- dinate ; reason for rule 593 when a municipal corporation is or is not liable for the act or omission of an officer thereof 551. 593 869 INDEX Depttty — continued. Sec. a county, town, school district, etc., is not liable for officer's acts, etc 593 indemnity, given by deputy to principal, against deputy's acts, etc , 594 if statute does not prescribe form, any reasonable bond or other security sufficient 595 such securities not taken colore officii 596 when confined to future defaults ; when covers antecedent defaults 597 liability of deputy and sureties generally coextensive with principal's Uability to person injured 598 cases in which principal may recover expenses of succes- ful defence to action against him 598 cannot recover, where his own default contributed to injury 599 no defence to sheriff's action, that he refused to remove deputy; or failed to notify sureties; or paid the judgment. 600 where sheriff is tax collector, deputy's general bond of indemnity, covers default respecting taxes 601 continuing to act, after expiration of principal's term, is not even officer de facto 633 mandamus will not lie against 834 officer not punishable criminally, for deputy's act, v^thout his participation 857 Detur Digniori : maxim as to filling an office 50 See Contract. Diminution : of officer's compensation, during his term. See Compensation. Directory or mandatory : provisions of statutes relating to elections 146 — 149 See Election. fixing time, within which to furnish official oath and bond 173, 174 specifying officers, by whom official oath may be admin- istered 178 prescribing terms, etc., of official bond 185, 187 — 200 when " may" in a statute is or is not equivalent to "must". 546 — 550 when officer's powers and his duties are co-incident. See Powers and Duties. 870 INDEX Discretion : sbc. See also, Certioraei ; Injunction ; Mandamus ; Removal. rule as to the exercise of power, conferred upon a board or body of officers, to act in a matter of public concern, requiring discretion or judgment 104 — 131 See Appointment. matter resting in, courts wiU not generally review decision of inferior tribunal relating to ; exceptions to rule. 365, 394 — 396, 406, 505, 555 granting a certiorari, rests in discretion of court 398, 803 same as to mandamus 815 same as to prohibition 836 decision resting in, cannot be reviewed by certiorari 810 nor by mandamus 822 nor by injunction 849 corrupt, etc. , abuse of discretionary power, indictable at com- mon law 856 Dismissal : of officer. See Removal. Disqualifications : See also. Qualifications. from holding office. See Eligibility. from acting, where officer is interested. See Interested Officer. disqualified person, in possession of office. See De Facto, etc. Distinguishing Marks : upon ballots, validity and construction of statutes forbid- ding 142—144 See Election. District Attorney : See Attorney, etc. delegation of power by, void, and action to recover compensa- tion for services will not lie 574 Districts : constitutionaHty of statutes, creating districts for purposes of police, fire, etc. , and providing for appointment of officers. 28, 29 where appointment is valid for a district, although distiict not specified therein 103 Domicil : determines place of residence 131 See Resident. 871 INDEX Drawing Lots : seo. selection of officer by, unlawful 90 Duel : statute disqualifying parties to, constitutional 74 Duties of Public Officers : See Powers and Duties, and Exercise thereof. contract to induce officer to violate his duty, void 65, 677 See Contract. when it is officer's duty to exercise a power vested in him.. 546 — 550 See Powers, etc. contract to reward officer for doing his duty, void. See Con- tract. action against an officer is founded on breach of duty to plain- tiff .707, 735 will not lie, where duty is owing to another 707 or where owing to the pubUo only 708, 735 Earnings : in another employment, of officer kept out, cannot be deducted from his salary 515, 516 See Compensation. Ease and Favor : contracts for. See Colore Opficii. East India Company : contracts to procure appointments from; when lawful, and when unlawful 51 Election : validity of, when procured by candidate's promise to accept less than lawful compensation 76 distinction between, and appointment 84 regulated by special provisions in each state; general rules only to be considered 133 nature of, andright to, the elective franchise; and how it is con- ferred and regulated : right to vote is a franchise, regulated at pleasure of state; people, as a political body, means those entitled to vote. . . 133 congress has power to declare who is a citizen; otherwise states have exclusive power to regulate franchise; effect of the 14th and 15th amendments of the U. S. constitu- tion 134, 128, 129 872 INDEX Election — continued. smc. state exercises power through its constitution; instances where statute making different regulations is uncon- stitutional : 135 but statute superadding requirements, not inconsistent, is constitutional. . .' 126 and legislature may regulate political caucuses and con- ventions, and ratify unlawful elections 127 who is, and who is not, entitled to vote : citizens only can vote; each state determines who are citi- zens, subject to the 14th amendment of U. S. constitution; children of citizen sojourning abroad are citizens; pre- sumptive evidence of alien's naturalization 128 women generally not entitled to vote; 14th amendment does not affect them; effect of provision giving suffrage to males 129 voter must have attained majority; when a man is deemed of age; provision excluding lunatics, etc., not applicable to one enfeebled by age, etc., or subject to hallucinations. 130 residence, provisions as to; domicil deemed residence; when residence not lost or gained by absence, attendance at college, etc. ; rule as to inmate of almshouse, asylum, etc . 131 validity and effect of registration laws : such laws are constitutional, if reasonable, etc 132 various rulings, as to whether particular l^ws are reason- able 138, 134 legislature may exclude from voting those who fail to reg- ister; when applicants after expiration of time are entitled to registry 135 whether powers of board are judicial; and whether mem- bers are liable to private actions 136, 750 effect upon election of unconstitutionalty of law, or mis- conduct of registration officers 137 proceedings not invalidated by formal errors 138 general principles respecting elections and voting thereat ; ballots; defective ballots : where majority of votes not expressly required, a plurality • wiU elect ; absentees deemed to assent ; rule where two or more officers of same grade are to be chosen 139 constitutionality of statutes, prescribing voting so as to secure " minority representation" 140 873 INDEX 'Electioth— continued. Sec. voting by proxy, or in instalments, or twice, not allowed ; when voting through another is not voting by proxy 141 voting by, ballot when necessary; printed baUot suffices; effect of statute forbidding marked ballots 142 constitutionality and effect of statutes forbidding distin- guishing marks, etc., and providing for numbering ballots 143 rulings in particular cases, upon statutes forbidding dis- tinguishing marks 144 [See also, Postscript, p. 172.] effect of an excess of names upon a ballot; of name defect- ively given; of imperfect erasure or substitution of name 145 rulesof construction of statutes regulating the time, place, and man- ner of holding elections, and the notices thereof : generally, election not valid unless statute followed ; but regulations as to form, detail, etc., deemed directory. 146, 147 directions as to time generally mandatory; but slight vari- ations, not affecting the result, disregarded 148 same rule respecting place; but under special circum- stances, election may be held in another place; instances . 149 when notice required by statute is essential, and when not 150 instances where elections held valid or invalid, for want of notice 151, 152 general powers, duties, and liabilities of inspectors or judges of election and of canvassers ; duties of inspectors, etc., ministerial 153, 538, 746 — 750 extent of their power to decide as to voter's qualifica- tions 153, 154 after votes counted and statement made, board is functus officio, and cannot reassemble and recount, etc 155 duties of canvassers also ministerial; they must act upon returns; power to decide as to validity of returns. . . .156, 538, 746—750 mandamus to compel them to act. . ; 156, 157 will not be granted to compel them to grant certificate to ineligible candidate. [See Postscript, p. 172.J must accept returns of majority of inspectors; after can- 874 INDEX Election— cowimwed. Sec. vass and certificate, cannot reassemble and recan- vass, etc 157 their power to allow a candidate defective or imperfect ballots 158 remedy, where they reject such ballots; when their cer- tificate is prima fade evidence only 159 rulings as totheir liability to a private action 746 — 750 See Action. rule where the successful candidate cannot lawfully hold the office: English rule, that validity of vote depends upon voter's knowledge of disquaUfication, and, after such invaUd votes are rejected, the candidate having the majority is elected 160 American cases, recognizing the same rule 161, 162 but the weight of American authorities holds, that in such a case a new election must be had 163 new election also, where successful candidate had died before the election 163 statute fixing time for, not unconstitutional, because it will incidentally extend an officer's constitutional term 305 where vacancy to be filled at first election, occurring more than 30 days thereafter, if vacancy happens within the 30 days, officer may be elected for full term BOS officer, holding until " the next regular election," holds until the next election to fill that office 308 incumbent, candidate for reelection, cannot hold office against the certificate of election of his competitor, on allegation of falsity, etc.; but must surrender, and take proceedings to oust competitor 333 whether reelection of expelled member, prevents a new expul- sion for same cause 369, 378 prospective election to fiU future vacancy, not lawful, unless authorized by statute 435 power to elect or appoint includes power to fill vacancy 436 contested election; caiinot be tried by certiorari 802 or by mandamus 825 exceptions to the rule 836, 827 or by injunction 850 mode of trying the same. See Quo Warranto. 875 INDEX Election — continued. Sec. election officers cannot be enjoined from counting votes, declaring result, or holding election 843 Election Officers : powers, duties, etc. See Election. liability of, to a private action. See Action. Elective Franchise : nature of, how conferred, etc 133—127 how exercised. See Election. Electors : See Election. Eligibility : to public office under state, of person holding office under U. S., where constitution forbids such a person to hold office 39. 40 when an infant may or may not hold an office 67 when a woman may or may not hold an office 68 — 70 disqualification on the ground of the person's unfitness 71 quahfications and disquahfications under U. S. constitution. . . 72 general principles of disqualification, under the "common political law" 72 qualifications and disqualifications under state constitutions. . . 73 power of legislature to add other reasonable, etc., qualifica- tions 73, 74, 79 to require members of board, etc. to belong to different political parties 73 < particular officers to be experts 73 to exclude those convicted of crime 74, 77 to require ability to read and write 74 payment of taxes 74 whether bribery disqualifies at common law ; and rulings upon provisions applicable to bribery 75 cases, where candidate procures votes, by public promises to accept less than the lawful compensation 76 rulings upon provisions disqualifying for crime 77 the provisions of the U. S. and state constitutions, disqual- ifying certain persons who took part in the civil war. ... 78 statutes requiring proof, that public money has been accounted for 79 construction of provisions, relating to citizenship, residence, otc. 80 876 INDEX Eligibility — continued. Seo. validity and effect of provisions, preventing a person from holding two or more offices 81 mode of determining questions, relating to qualifications for office 82 effect of a provision, preventing a member of the legislature from holding an office, created, etc., during his term 83 validity and effect of statutes, requiring an examination, etc., by a civil service commission ^5, 97 rules where the successful candidate at an election is not eligi- ble to the office 160—163 such a person not entitled to mandamus to compel granting him certificate. [See Postscript, p. 173.] person not eligible, not Uable to penalty, etc., for refusing to accept office 166, 167 officer empowered to take official oath or approve official bond, no power to decide as to eligibility, etc 82, 170 whether a member of a public body can be expelled, for a matter affecting his eligibility, which existed when he was elected 878 one who is ineligible, cannot create vacancy by declining office. 413 person may be officer de facto, although not eUgible 636 exception, where perjury is assigned, upon an oath, taken ■ before an officer not eligible 646, 653 Emoluments : of an office. See Compensation. defined 441 assignment of 42 — 48 See Assignment. Employee : distinction between, and officer 1 — 9 of officer not empowered to appoint deputy is a mere servant. . 676 Employment: distinction between, and office 1 — 9 See Public Officers. English Statutes : 13 Rich. II, ch. 3; 5 & 6 Edw. VI, ch. 16; 49 Geo. Ill, 126, against granting offices for reward, favor, etc 49, 50 6 & 6 Edw. VI, ch. 16, against procuring an office by bribery. . 75 3 Edw. I, ch. 36 (statute of Westminster) against extortion, ... 535 877 INDEX English Statutes— conMnwed. Seo. W. I, ch. 10, against coroners taking fees 535 23 Hen. VI, eh. 9, bail ; contracts for ease and favor, and colore officii 669 3 Wm. IV, ch. 45, elections 746 9 Anne, ch. 30, information in the nature of a quo warranto . . 781 6 Geo. IV. ch. 50, attaint of jurors abolished 863 Equity: interference of, in case of unlawful contracts for office, or offi- cial influence 50 control of officers by. See Injunction. on bill to set aside officers' act, plaintiff is bound affirmatively to show irregularity 563 when court has no power to restrain assessors 541 court of, has no power to grant mandamus 813 Error : See also. Irregularity ; Mistake. in proceedings of registration boards, when not fatal 138 in following statutory directions as to elections, effect of. . .146 — 153 of canvassers in rejecting votes, remedy for 159 in candidate's name, on ballot 145 in form, etc. , of official oath or bond. See Bond, Official ; Oath, Official ; Sureties, etc. correction of, by judicial review. See Certiorari. honest error of judgment, not a breach of an official bond. . . 348 nor is it punishable by criminal proceedings 859 nor is it ground for removal of judicial officer 367 of officer, government not responsible for 281 Estoppel : See also. Evidence. sureties in official bond, not estopped, although principal is, to show that defalcation occurred before bond was given 208 not estopped by settlements with principal, or his accounts, reports, etc 345, 333 are estopped to show defects in principal's title to office, or his want of power, etc 388 391 whether officer, contracting for a gross sum in lieu of his fees, is estopped, after receipt of the money, from claiming the difference , 453 878 INDEX Estoppel — continued. Sbo. whether discharge of duties, and receipt of reduced compensa- tion, estop officer from insisting that reduction was unlaw- ful 453, 454, 456, 457, 461, 465 government not estopped, but municipaUty is, to show real power of agent, acting under apparent authority 551 sheriff's receiptor, when estopped, as against sheriflE, to show goods not debtor's 703 when sheriff estopped, as against creditor, to show the same 703 Evidence : See also. Estoppel. effect of canvassers' certificate, in proceedings to test validity of election 159 of acceptance of office 164, 170 of having furnished official oath or bond 171, 179 of legislative intent to dispense with official oath 177 of approval of official bond 184 presumption of due performance of official duty 108 As to other presumptions, see that title. sureties in official bond may show that defalcation occurred before bond was given, although officer estopped 208 may show mistakes, etc., in settlement with principal, 283 and such mistakes may be shown against them 282 whether reports, accounts, settlements, etc., of princi- pal are conclusive against them, or only prima facie evidence 244, 245, 283 they cannot show defects in principal's title, or other- wise question his power to act 288 — 391 vldence of title to a public office : See also, De Facto, etc. commission, or certificate of election or appointment, issued pursuant to a statute, the best evidence of title 397 oral appointment to office, invalid 86, 87, 397 commission not appointment, only evidence ; effect and necessity of *^° special case, where two persons held s imila r commissions. . 299 proof of and presumptions from official action 300 upon indictment for assaulting officer, proof that he was acting suffices rule the same with respect to a forefgn officer 803 879 INDEX Evidence — continued. Sec. in proceedings to remove an officer, requisites of 379, 380 mode of taking 385, 886 judgment on certiorari or quo warranto, when evidence against intruder 532 title of officer in possession cannot be questioned collaterally. . 624 proof of possession of office, sufficient to prove official character 624 officer sued, may always show himself officer de facto ; such proof raises presumption that he was dejure 660 officer suing for compensation, or to enforce a personal or official claim, must show that he is dejure 661, 662 burden of proof, in information in the nature of a quo warranto. 785 power of court to review, on certiorari, decision made on evi- dence legally insufficient 398, 811 Ex Officio : whether officer, succeeding ex officio to a new office, must fur- nish new official oath or bond 171 whether failure to give a bond, for an office held ex officio, for- feits the principal office 174 whether a bond given for the principal office, covers the acts and omisions of the officer in another, held ex officio 236 rulings where the sheriff is ex offi,cio tax collector. See Sheriff. where clerk of a court is made ex officio clerk of another court, this is holding two offices 88 Ex post Facto : statute reducing officer's compensation, during his term, not unconstitutional, as being an ex post facto law 448 See Compensation. Examination : by civil service commission, validity and effect of statutes re- quiring it, from persons appointed to office 95— QT Exchange : of offices, contracts for, unlawful 55 Exclusion: as a synonym for removal, considered under that head 340 See Eemoval. Executive Officers : general definition of 22—24 powers, duties, and liabilities of. See Powers, etc.; Publio OrncERS. 880 INDEX Executive Officers— eontinued. Sec. supervision and control of their action by the courts. See Judicial Supervision, etc. Executor : not a public oflB.cer, and bo not subject to mandamus 884 Exemption : what officers are, and what officers are not, exempt from Ua- biUty in a civil action. See Action. whether any officers are exempt from supervision and control by the courts. See Judicial Supervision, etc. . Expert : constitutionality of a statute, requiring a particular office to be flUed by an expert, although constitution prescribes general quaUflcations ; 73 Expiration : of term, holding over after. See Holding Over.. powers of officer after 336 — 338 Explanation : ruLLngs upon statutory provision, requiring officer to have opportunity for, before removal 365, 366 Expulsion : as a synonym for removal, considered under that head 340 See Removal. Extension : of principal's term, time to account, etc., effect of, upon liabil- ity of sureties in official bond 368 — 279 See Sureties in Official Bonds. of statute fixing official term, extends the term 315 legislature cannot constitutionally extend incumbent's term, where constitution requires office to be filled by election 311 Extortion : extortion defined 524 made an offence in England, by statute of Westminster, 3 Edw. I. ch. 26 • 5S5 this statute, and W. I, ch. 10, were only in affirmance of the common law 525 but in England, voluntary and " usual " rewards may be law- fully taken 535 881 INDEX ExTORTiou — continued. Sec. attorney, receiving unlawful fees, is guilty of extortion ; other rulings relating to other officers 526 officer not guilty, where he takes the fee without corrupt in- tent ; qu., whether absence of such intent is a defence to an action for a statutory penalty. : 527 when an action for a statutory penalty Ues, or does not lie . . . 537 no defence to action for penalty, that party taxed and collected the unlawful fee paid ; or that defendant omitted to charge lawful fees, or tendered restitution 528 county clerk hable to statutory penalty for excessive fees, although allowed by county board ; but not where fees to be fixed by board 529 independently of any statute, attorney may recover back un- lawful fee paid to sheriff ; or court may give summary redress on motion 530 so money, unlawfully exacted by any public officer, may be re- covered back, although paid without protest 530 Failure : of depositary of public money, whether officer's sureties liable for 225—228 Favor, Ease and : contracts for. See Ooloee Offich. Feeble Mind : person of, not excluded from voting, by provisions excluding persons of unsound mind, etc ; 130 Fees: See Compensation. Fine : upon judgment of ouster, in information in the nature of a quo warranto 776, 777, 786 Fire : loss of public money by, whether officer's sureties liable for. .. 224 loss by, not included in exemption from loss by "irresistible superhuman cause " 234 Firemen ; Fire Department : whether firemen, etc., are pubUc officers 9, 10, 12 .examiners Qf buildings, are not 12 .883 INDEX Fibemen; Fire Department.— cowimwed. Seo. constitutionality of statutes, creating fire districts, and provid- ing for appointment of officers thereof 38, 29 various rulings, relating to the removal of firemen, and officers of fire depai-tment, under statute requiring notice, hearing, etc 347, 348, 357, 370, 374, 389 duty of fireman as to entering burning building ; when con- tract to pay him therefor valid 488 Foreign Officer: his official character may be proved by official acts 302 authorized to sue at home, may sue here 544 Forestalling: appointments by outgoing officers to forestal their successors, validity of 92 Forfeiture : of office, by accepting an incompatible office 30, 31, 417 exceptions to the rule 30 — 32 rules to determine whether offices are incompatible, and decisions respecting particular offices 83—37 constitutional and statutory provisions, forbidding a person to hold two or more offices, or one under the state, and one under the U. S 38—40 '• refusal to serve in office may be treated as a forfeiture 169 whether statute, declaring a forfeiture of office for failure to furnish an official oath or bond, effects a forfeiture without judicial proceedings. 173, 174 officer cannot hold over, after judgment of forfeiture 327 implied resignation, equivalent to forfeiture 407 when it occurs 407 by nonuser, absence, and nonattendance 418 — 422 English rulings upon the question 418 American rulings ; various and conflicting rulings, whether an office is deemed abandoned by nonuser, etc., without a judicial determination 419, 420 non-user must be total and complete, so as to indicate relin- quishment 420, 422 where person is discharging duties, forfeiture cannot be declared collaterally ■. 421 qu. , whether nonuser, etc. , can ever work a forfeiture, with- out judicial decision 431 883 INDEX Forfeiture — continued. Sbc. cases where this question was decided in the negative .... 423 but in action to recover salary, an abandonment may be found 423 when lieutenant-governor is authorized to act, in case of gov- ernor's absence from the state 433 by ceasing to be a resident of the district, or, in case of a state officer, of the state 424-^26 constitution or statute provides for forfeiture in such a case 484 adjudication not necessary to create forfeiture, under such provision 425 but temporary removal, without change of residence, does not create forfeiture 425 if once forfeited by removal, return and reoccupationdoes not restore office 435 removal of county officer to another district, in the coxinty, no forfeiture 436 where change of boundaries places officer's residence with- out the county, district, etc., he forfeits office, unless he removes his residence within.' 436 change of number of circuit judge's district, no forfeiture 426 by refusal to accept the office 427, 428 where statute changes the name, etc., of office, and pro- vides that incumbent shall continue under statute, his , refusal to act in new office is a forfeiture, and cannot be retracted 427 refusal to qualify, to give a new bond, etc. , when vacates office 428 statutory provision, that office shall be forfeited, unless busi- ness office kept open during certain hours, can be enforced only by direct proceedings 429 statute, making certain act a misdemeanor and cause of forfeit- ure, does not require conviction before forfeiture 429 courts have power to enforce forfeiture, although statute con- fers power on body, of which accused is a member 439 where office forfeited by conviction for felony, it is not restored by a pardon 430 power to flu vacancy does not confer power to create or declare vacancy 437 resolution that office forfeited, and appointment of another, only authorize him to take judicial proceedings for for- feiture 438 884 INDEX FoEFEiTUEE — contintied. Sbc. of officer's compensation, when it occurs, and when not. See Compensation. money paid, on purchase at tax sale by officer interested, is for- feited to the public, where sale set aside 631 Forgery : whether surety in official bond discharged by forgery, etc., of co-surety's name 367 Franchise, elective : See Election; Elective Fkanchise. Fraud : equity will control exercise of discretionary power, in case of fraud 849 respecting public property, punishable at common law 857 Garnishee Process : will not reach officer's compensation, before it has been earned 48 Good Behavior: officer holding during, cannot be removed, except on notice, hearing, etc 364 is within a provision, against increasing or reducing an officer's salary during his term 470 Good Faith : See Intent. Government : contracts relating to suppUes for, and other matters requiring official action, when lawful, and when unlawful. See Con- tract. not Uable for acts or omissions of public officers 381 disbursing officer of, remedy against, for another officer's com- pensation 509 not estopped to show real power of agent, acting under appar- ent power 551 may ratify act in excess of power 551 there is no state de facto ; but there may be a government de facto in a state 635, 653 Governor : For various rulings, as to his power to appoint officers, or to fill vacancies, with or without the concurrence of the senate, and 885 INDEX GovEENOE — continued. Sec. the tenure, term , etc. , of an officer so appointed. See Appoint- ment ; Commission ; Constitution ; Senate ; Teem, Offi- cial; Vacancy. For various rulings, as to his power to remove officers, with or without the concurrence of the senate, and the mode and effect of such removals. See Constitution ; Removal ; ^ Vacancy. where constitution designates secretary of state to discharge governor's duties, during a vacancy, secretary holds till vacancy ffiled, although his own term expires earlier. . . .332, 498 constitutional provision, for discharge of governor's duties by lieutenant-governor, while governor absent, when not appli- cable to short casual absence 433, 503 his pardon does not restore office forfeited for crime 430 secretary of territory, acting as, not entitled to additional com- pensation 480 secretary of state, so acting under state constitution, entitled to pay aa governor, and holds for governor's term, though his term as secretary expires earlier 498 governor's order, pursuant to president's, to call out the mihtia, is a judicial act, and conclusive upon subordinates 536 where each of two rival claimants is exercising official powers, neither is governor de facto, and court must determine as to apparent right 643 de facto, his approval validates a statute, although he is after- wards ousted 643 whether he is exempt from a private action, for an official act or omission ' 711, 713 whether he is exempt from judicial supervision and control, by mandamus, etc. , either completely, or with respect to particu- lar official acts 795, 796 rerfloval of officer by, upon changes, when final, and not to be tested on quo warranto 778 where his approval is required, upon removal of a city officer by the mayor, certiorari lies upon the mayor's order, before approval 809 when, as party to an action in IT. S. supreme court, he repre- sents the state 834 official bond, given to governor, etc., where statute requires that it be given to the state, is common law bond, and governor's successor cannot enforce it 191 886 INDEX Habeas Corpus : Sec. granting and issuing, are ministerial acts 534 chancellor not liable to penalty, for recommitting discharged prisoner 714 Health Officer : of a city, is a public officer 10 of New York, whether a local or general officer 2& Hearing : when officer entitled to, before removal, and proceedings thereupon. See Eemoval. Hereditament : certain offices are in England ; none in U. S 16, 17 Highway Officer : has power to loan money in his hands 543 empowered to sue, may settle controversy, and take security for amount 543 when not disquaUfled from acting, by interest 617 bond to, on opening highway, to reheve inhabitants from assessments, void , 679 when he is, or is not, liable to a private action, for an official act or omission 786, 737 See Action. town not liable to reimburse him, in absence of a statute 787 Holding Office : who is capable or incapable of. See Eligibility. Holding over : Uability of officer's sureties, where he holds over beyond his term 312, 213, 839 conffict of cases, whether, at common law, an officer holds over 833 English rulings thereupon 324 American cases, weight of authorities establishes right to hold over, except in case of judicial and legislative officers 825 statute, providing that appointed officer shall hold over, does not apply to officer elected ; and vice versa 325 whether officer holds over, where constitution fixes his term . . . 326 officer does not hold over, where his successor cannot be chosen 326 nor after judgment of forfeiture, or a removal 837 887 INDEX Holding over — continued. Sec. whether he holds over, after resignation, and before acceptance . 327 holding over continues, till successor is fully and lawfully quaU- fled ; instances and illustrations 338 where successor chosen qualifies, and dies before term begins, officer does not hold over; aliter, if successor dies before qualifying 339 where successor is to be appointed by legislature, and legislature faUs to appoint, oflScer holds over, and governor cannot appoint to fill a vacancy 330 so, where vacancy occurs in a body, which body may fill, until the next meeting of the legislature, or term expires during recess of legislature 330 oflacer, chosen for a fragment of a term, holds over ; so where appointed to fiU a vacancy 331 question, whether the incumbent of ofiice, who is reappointed or reelected, and fails to qualify; or is a candidate, when no choice is made, or result contested; holds over; authorities thereupon 333, 333 where a statute gives an officer the same term as another, and the latter is empowered by statute to hold over, that provision does not apply to the former 834 officer holding over is entitled to emoluments of office 335 power of officer after expiration of term 336 — 338 See Powers, etc. Idiot: disqualified from holding office, by the common political law. . 72 See also. Lunatic. Immunity: of certain officers from private action. See Action. from judicial supervision and control, by mandamus, injunction, etc. See Judicial Supervision, etc, from punishment by indictment. See Crime. Impeachment: liability of officer to, no objection to removal in another mode 356, 400 provisions of constitutions of U. S. and New York, relating to. 399 speaker of house of representatives, not liable to (note) 400 suspension upon, when constitution provides for, articles must be first presented to a constitutional quorum of senate 405 INDEX Impeachment— Kon^mMed. V gj,c_ principal officers of national and state governments, and judges of courts of record, punishable by impeachment, not indict- ment 858, 859 qu. , if members of the legislature are liable to 858 Implied Notice: aU persons dealing with an officer, chargeable with notice of his actual powers 31, 551 Implied Powers: of officers 548 — 545 See Powers, etc. Implied Promise: to indemnify officer, when raised 688 Implied Resignation; of office. See Fobpeituee. Incidental Powers : of officers 542—545 See Powers, etc. Incompatible Offices : cannot be held by same person; acceptance of the second va- cates the first 30, 81, 496 exceptions to the rule' 30 — 32 general rules, to determine compatibility or incompatibility of offices ; 33, 34 English rulings respecting particular offices 35 American rulings that particular offices are incompatible 36 American ruHngs that particular offices are not incompatible. . 37 rulings upon constitutional or statutory provisions, forbidding one person to hold two or more offices 38, 81 the same, where the prohibition is against holding an office under the state, and one under the United States 39, 40 whether one, holding an incompatible office, is liable to a pen- alty for refusing another office, or may hold both offices. . 82, 167 acceptance of incompatible office, an implied resignation of the first 407, 417 Increase : or diminution of officer's compensation during his term. See Compensation. 889 INDEX Indemnity : seo. bond of, from deputy to sheriff, takes effect upon delivery, and does not cover a previous transaction, although dated back. . 186 contract of, given by deputy to principal, against deputy's acts, etc 594 in absence of statute, parties may agree upon reasonable terms 595 such a security not taken colore offldi 596, 683 wlien confined to future defaults; when covers antecedent defaults 597 liability upon, generally co-extensive with principal's to third person 598 when expenses of defence of action recoverable upon 598 principal cannot recover, if injury occasioned partly by his fault 599 may recover, although he failed to remove deputy on request 600 or failed to notify sureties, or paid the judgment 600 where sheriff is tax coUeotor, deputy's general bond covers taxes 601 contract, given to officer to indemnify him against liability, in execution of process, when not taken colore officii 681 principles, upon which such indemnities are sustained or avoided gSi vahdity depends upon officer's good faith, and doubt whether the act is unlawful. 682 cannot lawfully extend beyond officer's liability 688 if given against future known unlawful act, void., 683, 686 void, where officer no power to act, or where he is pro- tected by law gg^ will not be construed, as intended to cover unlawful act, although its terms are broad enough to cover it; instances. 685 unlawful, when given to prevent return of attached prop- erty, after attachment dissolved; immaterial, in such a case, that indemnitors defended action against sheriff. .. 686 given against a past unlawful act, when valid 687 voluntarily given, valid, though not authorized, if not con- trary to the policy of the law; as upon replevin 687 when plaintiff directs levy upon particular property, law im- plies a promise of indemnity 688 when such a promise is not implied; instances 688 890 INDEX tsDEMNiTY— continued. „ Sec. indemnitors are liable as trespassers, if officer's act unlawful. . . 689 after accepting indemnity, officer bound to act, and to pay over the money ggQ when indemnity covers only proceedings, duly taken under the statute, and when valid, although statute departed from 691 officer cannot recover upon, unless he compUes strictly with the conditions thereof ggg officer may lawfuUy take collateral security, in addition to indemnity g93 condition of bond of indemnity broken, upon recovery of judg- ment against officer g94 officer entitled to recover, besides judgment against him, his reasonable expenses, including counsel fees 695 when he may recover expenses of successful defence « . . 696 Indictment : See Common Law; Crime. for assaulting an officer, sustained by proof of official action. . . 301 Ineligibility : rules, where the successful candidate at an election is ineligi- ble 160—163 revocation of appointment of ineligible person, not a removal, within statutory or constitutional restrictions 348 generally. See Eligibility. Infant : when an infant may or may not hold office 67, 73 if elected, officer may not refuse to administer official oath .... 82 not competent to vote at elections 130 when a person attains majority 130 effect of his acts, etc. , when elected constable 660 Inferior Court : when judge of, is, or is not, hable to a private action. See Action. Influence : official, contracts for, when unlawful. See Contract. Information : See Common Law; Quo Waeranto. Informer : when officer may share as, in proceeds of confiscated property. 489 891 INDEX Initials : sec. use of, or error in, upon ballots, wOien ballot vitiated 145, 158 remedy for rejection of such ballots by canvassers 159 Injunction : See also. Equity. vsrhether any officers are exempt from judicial supervision and control, by injunction, mandamus, etc 793 — 799 See Judicial Supervision, etc. oflScer stayed by, entitled to his compensation while enjoined. 508 when injunction will not he against assessors 541 does not lie, to restrain officer de facto from exercising func- tions of office 666 order, under codes of procedure, governed by same rules as writ 841 injunction does not lie against public officers, acting within their official powers 843, 843 instances of the application of this rule 843 will not lie, to prevent judge from acting under unconsti- tutional statute; or to restrain criminal proceedings, man- damus, or prohibition 843 w^hether it will lie, to prevent the passage of a municipal ordinance 844 when police authorities may be restrained from entering a private club-house, and when not 845 injunction lies to restrain ministerial officers, acting without lawful authority, to the plaintiff's prejudice 846 as where they are acting under an unconstitutional statute 846 other instances of illegal action, which may be restrained . . 846 to sustain injunction on account of irregularities, etc., plaintiff must show that he will sufiEer irreparable injury 847 an injunction will not lie, where there is an adequate remedy at law; instances 848 nor will it be granted, where act complained of is within the officer's discretion or judgment; except in case of abuse, fraud, gross injustice, or violation of a trust 849 injunction does not he, to try the title to a public office, either directly, by ousting the usurper, or indirectly, by preventing payment of salary, etc 850 whether a suit for an injunction lies, in the absence of a statute, in favor of a citizen and a taxpayer, to prevent unlawful 893 INDEX Injunction— coniinited. g^c. increase of taxation, or diversion of public property; author- ities denying the right 851 authorities affirming the right 852 rulings under the N. Y. statute, allowing such a suit and injunction 853 Insa,ne Person : See Lunatic. Inspectors of Election : their powers and duties are ministerial 153, 538, 746 — 750 powers and duties of, considered 153 — 155 Intent: whether corrupt intent necessary to constitu^ extortion 527 to avoid security taken colore officii 672, 678 whether a corrupt or malicious intent renders an inferior judicial oflScer liable to a private action, for a judicial act. . . 722 honest, no defence to action against ministerial officer . . . .725, 754 whether a malicious intent is necessary to render an election officer Uable 748, 749 validity of officer's lawful act, not affected by his maUcious, etc., intent 567 nor by his intent not to bind the public, or to act under a void statute, etc 568 justices of the peace, and other inferior judicial and quasi judicial officers, not liable to punishment criminally, for errors without dishonest, etc., intent 860, 861 corrupt or guilty intent, not necessary to avoid a contract, exacted from officer appointed, that he wUl take less than his lawful compensation 52 Interest : whether officer's sureties are liable for interest on public money, paid to the officer by a depositary, etc 255 receipt of interest, etc., from depositary by public officer, to his own use, not a crime at common law (note) 255 whether sureties are liable for, beyond the penalty of an official bond 294 Interested Officer : whether a member of an appointing board can be appointed to the office 120 893 INDEX Interested Officer — continued. Sec. general rule is, that interested officer may not act, where the power is judicial or quasi judicial, but he may, where it is ministerial 607 judge, at common law, cannot sit in his own cause, but con- sanguinity or affinity to party does not disqualify; such dis- qualification established by statute 608 but may act where his interest is small, and he alone has the power 609, 617 where a quasi judicial power is given to several, some authori- ties hold, that exercise of power, in which one is interested, is void , 610 other authorities confine the rule to a case, where the inter- ested officer's vote or presence was necessary 611 where officer becomes interested, after a public contract is made, that is a fraud upon public, and agreement to let him in is void 611 various instances given, where interest invalidates exercise of quasi judicial power. . . ., 613, 613 the rule extends to cases, where the officer is associated in interest with another 613 or where he acts in another's name 613 where the power is ministerial, interest does not disqualify the officer 614 various instances of the application of this rule 614, 615 where officer authorized to sell pubUc land at a fixed price, held, that he might purchase 616 officer, charged with performance of a duty for pubUc benefit, and affecting interests of several, is not disqualified, because he is one of those affected 617 various instances of the application of this rule 617 effect of unlawful action by interested officer; general princi- ples 618 statute, allowing city to declare contract void, in equity, does not prevent city from setting up illegality as a defence at law 619 unlawful contract, with municipal officer, cannot be ratified by council, of which he is a member 620 unlawful purchase at tax sale, protects subsequent inno- cent purchaser; but may be set aside by land owner ; ic. which case the money paid is forfeited to the public 631 894 INDEX Interpreter : seo. person ignorant of any foreign language, disqualified to be 71 Intruder : who is, and remedy of rightful officer against. See De Facto, ETC.; QtjoWaekanto. Irregularity : See also. Error ; Mistake. in proceedings of registration boards, effect of 138 in conducting an election, when fatal, and when not 146—152 in filing official oath or bond 175 in administering ofiicial oath, by an officer not specially empowered 178 in form, etc., of official oath 180, 181 inform, etc., of official bond, or acknowledgment thereof , or justification, or approval of sureties therein 182 — 200 Jailor : prisoner's promise to pay him, for extraordinary services, when vaUd 680 guilty of misdemeanor, at common law, for refusing to receive prisoner 863 Joint Authority : See Appointment ; Powers, etc.. Survivor. Judge : See also. Action ; Judicial Officer ; Powers, etc. Judge of election. See Inspectors of Election. Judge of probate. See Surrogate. is a pubUc officer 10 w^hat officers are not included in a constitutional provision, for- bidding judge or justice to hold office after seventy years of age 309 a judge cannot be required by statute, to do an act, inconsistent with the discharge of his official duty 566 cannot delegate his power; instance of telegraphing clerk to discharge jury 571 at common law, disqualified only in his own cause, not for con- sanguinity to party ; that disqualification statutory 608 but may act, where his interest is small, and only he has the power. 609, 617 when he may or may not purchase under a judicial sale 615 895 INDEX Judge — continued. Sec. de facto, person convicted of criminal offence, cannot question his title 634, 637, 651 other cases, where his authority cannot be questioned 653 of court of record, not liable to a private action, for any act etc., in performance of his judicial duties 713 — 715, 718 As to the liability of a judge of an inferior court. See Action. but judge, performing ministerial duty, is liable as a ministerial officer 729 vrhere he has no superior, he is exempt from mandamus, certio- rari, prohibition, etc. 793 when a judge may, or may not, be compelled by mandamus, to sign and seal a bill of exceptions 814 or to take etc., the bond of a clerk 814 rule as to control, probably the same as in case of quasi judicial power 814, 820 cannot be required to entertain a statutory proceeding, where his whole time occupied by duties in court. . . 823 cannot be restrained by injunction, from acting under uncon- stitutional statute 843 although ministerial officer may be so restrained 846 of court of record, punishable only by impeachment, not indictment 860 of inferior court, indictable only where intent dishonest or corrupt 859 Judicial Officer: See also. Action ; Judge ; Justice op the Peace ; Powers, etc. general definitions of 23 -^24 at common law, infant cannot be 67 nor woman 68 — 70 semble, cannot hold over, without special provision 335 not removable for honest mistake, etc 367 acta of, when ministerial 539, 540 official bond of, covers only ministerial acts ; exceptions. ..237, 731 liability of, to a private action. See Action. not punishable criminally, for honest error or mistake 859 Judicial Powers and Duties: also quasi judicial. See Powers and Duties, etc. Judicial Supervision and Control: of official action, whether any officers are exempt from, by mandamus, injunction, etc. : 896 INDEX Judicial Supeeyision and Control— conhnwed. Sec. judges having no superiors are exempt 793 members of national and state legislature are exempt 793 members of bodies, possessing powers of municipal and local legislation, are exempt, while acting legislatively.793, 803. 814 but speaker may be compelled to perform a ministerial act 814 whether the president of the United States is exempt 794 whether the governor of a state is exempt ; and, if not en- tirely exempt, for what official acts, etc., is he not exempt ; conflicting authorities 795, 796 the same questions, with respect to the principal officers of the U. S. government 797 the same questions, with respect to the principal officers of a state government 798 no question has arisen with respect to other officers. ...... 799 Rulings, etc., respecting judicial supervision and control of official acts of officers liable thereto. See Certiorari ; In- junction; Mandamus; Prohibition. Jurisdiction : See also. Action ; Quo Wabranto. constitutional or statutory provision, that a pubhc body shall be the judge, respecting qualifications, etc,, of its members, does not oust the courts of jurisdiction to determine a contro- versy respecting membership 397, 439, 777 so, where office of councilman declared forfeited by a certain act, and statute provides for impeachment, etc. , by council, courts have jurisdiction to oust the offender 439 officer not exempt from private action, unless he has jurisdic- tion 717 For various rulings on this subject. See Action. effect of jurisdiction, or want of jurisdiction, upon the protec- tion of a ministerial officer by his process. See Action. of the courts to review, compel, or restrain official action. See Certiorari; Injunction; Judicial Supervision, etc.; Mandamus ; Prohibition. Jurors : formerly punishable by attaint, proceedings in the star chamber, etc., for erroneous verdict 863 now not liable civilly or criminally, except as statute pro- vides 863 897 INDEX Jury : Sec. of appraisal, when a majority may act 115 Justice of the Peace : is a public officer 10 whether he is a town or a county officer 37 compatibility or incompatibility of the office, with certain other offices 36, 37 rulings under constitutional or statutory provisions, forbidding a justice of the peace to hold another office 88, 39 at common law, infant or woman cannot be 67, 69 , effect of defective official bond, and failure to furnish the same within the statutory time 174, 175 official bond of, covers ministerial, not judicial, acts ; excep- tions 237, 781 liability of sureties in, ruUngs as to 335, 337, 388 justice's UahUity, not aflEected by terms of bond 781 not included iu a constitutional provision, forbidding judges or justices to hold office after seventy years of age 309 not liable to be removed for an honest mistake 367 general rule as to sufficiency of causes for removal of 367 not guilty of extortion, for demanding his fee in advance, in a criminal cause 536 what acts of, are judicial, and what ministerial 539 when he is a good officer de facto 630 — 634 whether liable to a private action, where he acts under uncon- stitutional statute, or void municipal ordinance 733 various ruUngs relating to the judicial or ministerial character of particular acts, etc. , with reference to his liability to a private action 335, 237, 338, 539, 727, 738, 734, 735 whether, w'here he has jurisdiction, he is Uable for a judicial act, performed maliciously or corruptly 733 For gfeneral rules relating to an officer's liability. See Action. not punishable criminally, for error or mistake, without evil intent 860, 861 but punishable, without reference to intent, for wilful disobe- dience to the law , . 861 as where he imprisons a person without authority 861 or encourages, etc., a riot 861 or acts as agent for litigating party 861 Justification: of sureties in official bond. See Bond, Official. 898 INDEX Justification— confintted. Sec officer, not having furnished offlcial oath or bond, cannot justify, in an action against him I75 nor can officer who is only de facto, for any other reason 660 but those acting in his aid, may justify 660 whether officer can justify under unconstitutional statute. . 723, 730 See further, Action. Laches : of officer, government not responsible for 31, 381 of appointing, accounting, receiving, or approving officer, no defence to action against sureties in official bond 381—286 See Sureties in Ofpiciai, Bonds. effect of, on application for leave to bring information in the nature of a quo warranto 782 for a certiorari 804 for a mandamus 815 for prohibition, 886 Land Office : in Pennsylvania, is a public office 10 swamp land agent or commissioner is a public officer 10 Legislative Officer: See also. Legislature; Powers, etc.; Senate. general definitions of legislative officers 23 — 34 effect of a constitutional provision, forbidding a member to hold an office, created, etc., during his term 83 semble, cannot hold over, without express provision 325 though having powers only of municipal or other local legisla- tion, he cannot be controlled or restrained by mandamus, injunction, etc 793, 814, 820 Legislative Powers and Acts: See Action; Judicial Supervision, etc.; Powers, etc.; Public Officers. Legislature : See also. Constitution ; Legislative Officer ; Senate. member of, his powers, duties, and liabilities. See Legisla- tive Officer. is a public officer 10 power of, as to term, compensation, duties, etc., of officers.. 19, 20 whether legislature can remove an officer 20, 344, 345 member of, may be also deputy clerk of a court 34 INDEX iMOrisXjA.TVKE— continued. Seo. contracts for "lobby services" unlawful; what contracts for services, respecting matters before the legislature, are lawful 56—58 constitutionality of acts of. See Constitution. not deemed to be in session, during a long recess ; aliter, if recess is short 100 speaker not liable to impeachment {note) 400 per diem compensation of officers and members continues, dur- ing a short recess, but not during an adjournment for a month 506 private action does not lie for exercise of legislative powers. . . 709 constitutional provisions, exempting members of the legislature from actions, etc 710 member of, not hable to be controlled in his official acts, by mandamus, etc 793, 814, 830 exception as to ministerial act of speaker 814 not punishable by indictment for official act, etc , except under statute 858 qu., if liable to impeachment 858 not prevented from holding an office, by a constitutional prohibition, relating to increase of emoluments during his term, where emoluments were thus increased after his election to the office 83 Liability : of officer and his sureties. See Action ; Powers, etb. ; Sure- ties IN Official Bonds. Librarian : state, is a public officer 10 Lien : statutory, upon tax collector's land, his sureties entitled to be subrogated thereto 303 receiptor to sheriff, entitled to, for his reasonable charges 704 Lieutenant-Governor : See Governor. Lobby Services : contracts for, unlawful ; what contracts for services in matters before the legislature are lawful 56—58 Loss: of public money, when officer and his sureties liable for. See Sureties in Official Bonds. 900 INDEX Lot : Sec. appointment to office by, unlawful 90 Lunatic : excluded from office by the " common political law" 73 or person of unsound mind, does not include one enfeebled by age, etc. , or subject to hallucinations 130 may be removed from office, upon notice, charges, etc. 357, 365, 374 resignation of, valid 461 Mail Carrier : when not a pubUc officer 13 liability of, to an action by private individual for negligence. . 751 Majority : actual majority required to validate confli-mation, although presiding officer announces that nominee is confirmed 101 when a majority of a board, nested with public powers, may act, in the absence, etc., of the other members 104r— 181 See Appointment. when a person attains majority, or becomes of age 130 when a majority of all the votes, cast at an election, is not necessary to elect, but a plurality suffices 139 Malfeasance : generally. See Tort. whether an officer's sureties are liable for 338—341 See Sureties in Official Bonds. officer's habiUty to action for. See Action. to indictment for. See Crime. removal of officer for 368, 369 See Removal. Malice : See Intent. Mandamus : not proper, to determine whether officer is eligible 83 statutes, prescribing civU service examination, and preference to veteran soldiers, etc., enforced by 96 when it Ues, against canvassers of election returns 156 — 158 [See also. Postscript to ch. 9, p. 173.] lies against person, refusing to serve in public office, although he has paid the penalty 166 lies, to compel payment of officer's fixed salary, by disbursing officer, but not where no appropriation, etc 509 901 INDEX Mandamus— conhnued. Sec. lies against oflficer de facto, as if he was de jure 660 but not where he withdrew from the office 660 if, pending the proceedings, officer de facto ousted, officer dejure may be substituted 667 when it hes for books, papers, and other appurtenances of an office 644,787, 838 whether any officers are exempt from judicial control, by man- damus, either generally or for particular official acts : judges having no superiors are exempt 793 also members of national and state legislatures 793 also members of bodies, having powers of municipal or local legislation, but only for their legislative acts 798 whether the president of the United States is exempt 794 whether the governor of a state is exempt, and to what extent 795, 796 the same questions as to the principal officers of the U. S. government 797 as to the principal state officers 798 no question as to any other officers 799 is a common law writ, whereby a civil action is commenced ; court of equity no power to grant it; nor has appellate court, except in aid of its appellate proceedings 812 the writ defined, and its office and object stated 818 — 815 it will not he, to compel action with respect to legislative or political duties 814 exception as to ministerial action by speaker of assem- bly 814 its usual function is to compel execution of ministerial duty. . . 814 but, in certain cases, it vsriU compel execution of judicial or quasi judicial duty 814 instances where a judge or a court may be controlled by mandamus 814 issues only by special direction of court 815 granting or refusing leave discretionary ; but discretion reviewable 815 rules, which govern the court, in granting or refusing leave 815 effect of laches, hardship, injustice, or inequitable con- duct of appUcant * 815 there must be a clear legal right and a clear legal duty .... 815 will not lie, to compel canvassers to give a certificate of election 902 IKDEX Mandamus — continued. g^c to majority candidate, where he is ineUgible. [See Postscript to ch. 9, p, 173.] relator must have a special interest ; quere, whether a mere citizen and taxpayer can have mandamus, in matter affect- ing amount of taxes 816 attorney-general may have mandamus, of course, in matter of public interest ; application not properly made by him in private cases 817 general rule, that mandamus will not lie, where there is another adequate remedy by appeal, etc 818 or where an action lies to recover damages 818 but public authorities may have it against financial officer, though he has given bond 818 new statutory remedy does not bar a mandamus 818 nor does the existence of an equitable remedy 818 remedy must be adequate, to bar mandamus 819 liability of officer to indictment does not bar it 819 judicial or quasi judicial power ; mandamus lies, to compel officer to exercise such power, but not in a particular way. . . 820 nor will mandamus he to reverse a decision 830 but if decision reversed, mandamtis lies to restore rights lost. . . 830 ministerial power, mandamus will direct the performance of the particular act, and specify the mode of performance 821 instances of such acts ; supervisors,, municipal officers, etc. 821 mandamus will not He, to control the action of an officer or tribunal, in a matter left to his or its judgment or discretion. 833 but in certain cases, where discretion abused, it will lie. . . . 823 it will not he, to compel performance of an act, which officer cannot lawfully perform, or where he has not power to per- form it 823 rule extends to cases, where officer unable, in consequence of other occupations 833 it wiU not lie, to compel a financial officer to pay a demand, where no appropriation has been made, or no warrant issued. 834 it wUl not He, to determine the title to an office, either directly, or indirectly, as by compelUng recognition of claimant, or payment of his compensation 835, 836 but some cases rule otherwise on this question 827 and officer may be put into possession by mandamus, where there is no other claimant, or he has recovered judgment of ouster 828 903 INDEX Mandamus — continued. Sec. mandamus lies, to compel municipal officer to qualify . 828- or against claimant, who wrongfully takes official paper from officer in possession. . . '. 828 practice, proceedings, etc. ; references elsewhere 829 particular rulings, respecting mandamus in tax cases 830 mandamus lies against a tribunal, which erroneously dismisses the relator's controversy, on the ground of want of jurisdic- tion 831 it lies, to compel an officer to make a certificate, without which the relator cannot be paid his salary, etc 831 a mandamus against a municipal officer will not be refused, because the act required will be burdensome to him 832 it will not he, tb enforce a mere private right ; only an official duty 833 other rulings in particular cases 833 it will not lie, against an executor, or a deputy ; when it issues to enforce a continuing duty, change in office does not affect it ; rule, where it issues against the governor of a state, as representing the state 834 proceedings in, cannot be restrained by injunction 843 miscellaneous rulings, as to whether mandamus will lie in par- ticular oases 96, 98, 188, 148, 155—157, 166, 359, 392, 394, 411, 413, 443, 451, 457, 458, 509, 519, 539, 641, 666, 667 Mandatory or directory : statutory provisions. See Dir^ECTOEY OE Mandatory. Marriage : officer empowered to issue license for, rulings as to the liability of his sureties 250 See also, Cleeqyman. Marks : on ballots, construction of statutes prohibiting 143 — 144 See Election. Marshal : See Sheeiff. " May :" used in statute, when equivalent to " must " 546 — 550 Mayor : See MxjNiciPAL Coepoeation. 904 INDEX Meeting : s^c of board or officers, vested with public powers. See Appoint- ment. Member : of legislature. See Legislative Officer ; Legislature. of board or body. See the appropriate title of the board or body. Mental Incapacity: See Feeble Mind ; Lunatic. Messenger : of president of board of aldermen, not a public officer 7 Military Authority: civil officer appointed by, during war ; his term ceases with restoration of civil authority 316 officer thus appointed is officer de facto 635 Military Commissions : formerly might be sold, in England ; reasons for permitting the practice 53 Ministerial Officer: general definition of 32 — ^34 Ministerial Powers and Duties : See Action; Powers and Duties, etc. Minor : See Infant. Minority Representation : constitutional power of the legislature, to provide for voting, so as to secure 140 Misconduct : of registration officers, effect of, upon an election -Z^-^^^^ whether sureties in official bond liable for wrongs, com- mitted by principal 238 — 341 of officer, government not responsible for. , 381 removal of an officer for 368, 369 when officer punishable criminally for 855 — 857 liability of officer to an action for. See Action. Misdemeanor : See also, Common Law ; Crime ; Indictment. 905 INDEX Misdemeanor — continued. Sec. at common law, trafficking in offices, or appointing to office for favor, reward, etc 49, 50, 55 refusal to accept a public office 165 judgment upon, where charge is neglect of duty, cannot include forfeiture of office 439 forfeiture of office by, when may be effected without convic- tion : 439 extortion, when punishable, etc. See Extortion. For ruhngs, with respect to various acts and omissions of offi- cers, which are misdemeanors at common law. See Crime. Misfeasance : whether sureties in officer's bond are liable for. . .338 — 341, 343, 354 See Sureties in Official Bonds. officer's liability to an action for. See Action. to criminal punishment for. See Crime. removal of officer for 388, 369 See Removal. Mistake : See also, Error. in proceedings of registration boards, when not fatal 138 in following statutory directions. See Directory, etc. ; Elec- tion ; Error ; Irregularity. no excuse for failure seasonably to furnish official oath or bond 175 of officer, government not responsible for 381 judicial or quasi judicial officer, not punishable criminally, at common law, for honest mistake 859 condition of officer's bond, not broken by honest mistake or want of skill 243 Municipal Corporation : whether certain officers of, are or are not public officers. 4 — 10, 13 power of, to change duties, compensation, term, etc., of its officers 19, 444 who are, and who are not, officers of a city 39 validity or invalidity of appointment of officers in particular cases. See Appointment. may impose a penalty upon a member, refusing to serve in a municipal office 165 whether an appointment by the mayor is for a full term, or an unexpired term 101 906 INDEX MXJNICIPAL COEPOEATION— con^Mitted. Sec. officer, appointed or confirmed by council, must have a majority of votes, although presiding oflScer announces that he is con- firmed, etc 102 rule, where the district of a municipal officer is not specified in the nomination or confirmation 103 when council may act, although presiding officer, without a vote, declares meeting adjourned, and he, and others qmt tlie room, leaving less than a quorum 138 power to regulate appointment and removal of officers, gives power to fix official term 307 new mayor, elected under special statute, before expiration of former mayor's term, when entitled to immediate possession of office 307 various rulings, respecting the vaUdity and effect of proceedings to remove an officer 843, 851, 352, 355, 862, 864," 869, 871 See Removal. various rulings, respecting the expulsion of a member of the council, etc 343, 369, 378, 389, 394, 397 whether member, who has been expelled and reelected, can be again expelled for the same cause 878 power, granted to municipal body, to judge of election, etc., of its members, does not oust the courts of jurisdiction of a con- troversy 897 ruUngs, as to the power to suspend a municipal officer 408 — 406 See Suspension. officer of, can claim compensation, only under ordinance or statute 444 empowered to allow its officer "fees,'' may allow him commis- sions 449 not liable to officer, allowed compensation out of assessments, unless assessments collected, or for want of diligence in col- lecting 450 agreement with officer, to allow him other than statutory com- pensation, when valid or invalid 52, 58, 452 458, 456 when power, conferred by statute, to fix salaries, is not continu- ous 454 power to change officers' salaries, not a power to abolish them, or make them merely nominal 458 statute constitutional, providing for selection of officer by coun- cil, and payment by county 459 907 INDEX Municipal Corporation— conimwed Sbo. but council cannot change salary of officer, not muni- cipal 459 statute, requiring salary to be fixed before appointment, satis- fied by fixing it once for several terms 463 For other rulings, respecting officers' compensation. See Com- pensation. constitutional prohibition to pass a "law," increasing, etc., officer's salary, does not apply to municipal ordinance 470 where charter empowers heads of departments to appoint sub- ordinates, with consent of council, removal not valid, with- out such consent 474 resolution of council, to allow mayor additional sum, for extra- ordinary services, etc. , void 479 but municipal officer may have additional compensation, for services out of the line of his duties 493 or reimbursement for extraordinary expenses or liabilities. 495 when action lies by officer against, to recover his compensa- tion ; defences in such an action 509 — 519 For detailed analysis. See Compensation. where officer allowed by statute a commission on disburse- ments, his right cannot be defeated, by transferring power of disbursement to another officer '. 519 when estopped to show officer's real power, if he had apparent power 551 may ratify act in excess of officer's power 551 municipal authorities or officers cannot delegate their powers , not even to a committee ; effect of subsequent ratification . 573, 573 when liable, and when not liable, for its officer's acts or omis- sions 551, 593 when officer of, may or may not act, in case where he is in- terested. See Interested Officer. statute, allowing equitable suit to annul unlawful contract, does not prevent setting up illegality as a defence 619 whether taxpayer can maintain such a suit 619, 851, 853 unlawful contract with officer cannot be ratified by council, of which he is a member 620 qu. , if such a contract is capable of ratification 620 if mayor approves official bond, in which he is surety, notice to him of invalidity not notice to the city 620 may recover statutory penalty, for violation of regulations made by officers de facto 663 908 INDEX Municipal Corporation— coniinMei. Sec. aldermen not liable to action by lowest bidder, for not giving him contract 708 or for act in discharge of legislative functions 708 or of quasi judicial functions 715 but liable for discharge of ministerial functions 708, 715 mayor and aldermen, having powers of commissioners of high- ways, Uable to person falling on icy sidewalk 727 only attorney -general can being quo warranto to oust an officer, on the ground that corporation has no legal existence 781 members of municipal legislative body, cannot be controlled, with respect to their legislative action, by mandamus, injunc- tion, etc 793, 814, 820 instances of acts of, which are not judicial, and therefore not reviewable on certiorari 803 where officer removable by mayor, on approval of governor, certiorari lies on mayoir's order of removal, before governor's approval 809 mandamus does not lie, to compel alderman to attend meetings of the board 814 when validity of ordinance cannot be tested upon mandamus . . 821 mandamus will be granted against an officer, to remove a nui- sance, although requiring "an army of workmen,'' etc., etc. 832 does not lie, to compel officer to obey orders of board. .'.... 833 where office is continuous, mandamus not affected by changes . 834 officers cannot be enjoined from exercising ordinary poUce powers 843 whether passage of ordinance can be restrained by injunction . . 844 whether taxpayer, in absence of a statute, may maintain suit in equity, to prevent, etc., unlawful expenditure, etc. . .619, 851, 852 construction of New York statute, allowing such a suit 853 taxpayer may have injunction, to prevent collection of unlaw- ful tax against him 846 Name: effect of erroneous giving of candidate's name in baUot, and other similar defects 145 Naturalization : See Alien. Neglect : of official duties, forfeiture of office for 418—433 909 INDEX Neglect — continued. Sec. See FORFEITUEB. removal of officer for 367 — 369 See Removal. punishable criminally at common law 855 of financial officers, in accounting, evidence of fraud 857 Negligence : liability of officer and his sureties for. See Action; Sueeties IN Official Bonds. Nomination: and confirmation, appointment by. See APPOINTMENT ; Gov- ernor ; Municipal Corporation ; Vacancy. Non-attendance : forfeiture of office for 418—428 See Forfeiture. Nonfeasance : liability of officer and his sureties for. See Action ; Sueeties IN Official Bonds. removal of officer for 368, 369 See also, Neglect. Non-user : forfeiture of office for 418—433 See Forfeiture. Notary Public : is a public officer 10 when office may be held by an infant 67 rulings, as to liabiUtity of his sureties, for particular acts or omissions 334 perjury cannot be assigned, upon an oath taken before a notary, who was not a resident of the state 646, 653 Notice : of meeting of officers vested with public powers, sufficiency, etc. , of. See Appointment. of election, how want of or errors in, affect the election. . .150 — 153 See Election. to officer, when required, in order to validate proceedings for , officer's removal. See Removal. whether required, after removal, to render it effect- ual {note) 854, 398 910 INDEX Notice— conitntted. gj^_ when notice of invalidity, etc., of official bond, is notice to and binds the public. See Bond, Official ; Sureties, etc. all persons, dealing with an officer, in behalf of the public, bound to take notice of his powers 31, 551 Oath: legislature no power to require from voter test oath, unless allowed by constitution 125 when a test oath may or may not be required from an officer.. 177 falsity of test oath does not vacate office 177 Oath, Official: falsity of, when cannot be inquired into 75 must be administered, although officer ineligible 82, 170 taking is evidence of acceptance of office 164, 171 where new oath required, when officer succeeds ex officio to new office 171 statute, fixing time of taking, not applicable to one kept out of office, or where each candidate has an equal number of votes 172 such statutes generally deemed directory, although they declare the office forfeited for failure ; rulings on each side 173, 174 whether failure to take oath, for an office held ex officio, vacates the principal office 174 refusal of proper officer to administer, excuses failure to give oath in time ; mistake no excuse ; officer failing cannot justify or have his salary 175 test oath, when it may be required ; its falsity does not vacate the office ; evidence of legislative intent to dispense with oath. 177 who authorized to administer official oath ; effect of taking it before one not authorized 178 various rulings, respecting the sufficiency of the oath, and evi- dence that it was duly taken 179 various rulings, respecting formal defects in an official oath ; whether such defects affect the officer's title 180, 181 when statute requires, by impUcation 328 officer not entitled to salary, until he files his official oath ; whether he is then entitled retrospectively, from beginning of his term 472 officer failing to take, is yet officer de facto 629, 630 See De Facto, etc. 911 INDEX Offences : sbc. crimmal, at common law. See Ceimb. Office, Public: See Public Offices. Officer de Facto: Officer de Jure: Officer, Public: See De Facto, etc. See De Facto, etc. See Public Officees. Official Action : contracts to influence, when unlawful. See Conteact. See further, Powers, etc. Official Bond : See Bond, Official ; Sttreties, etc. Official Influence : contract for, in procuring appointment to office, or official action, when unlawful. See Contract. Official Oath : See Oath, Official. Oral: appointment of a public officer, invaUd 86—88 resignation of office, valid 408 voting at election valid, unless ballot expressly required 142 Ordinances: See Municipal Corporation. Ouster : of an intruder etc., from a public office. See Quo Warranto. Papers : and other appurtenances of an office; proceedings to re- cover. .' 387—293 See Books and Papers. Pardon : contracts to procure, when lawful, and when unlawful 59 does not restore office forfeited by conviction 430 validity, of, when granted by one of two rival claimants of office of governor, each of which is performing official acts. 643 913 INDEX Parol : SBC. appointment to office void, unless in writing 86—88 but writing not necessary for resignation 408 deputy may be appointed by, and may execute deed 577 Partnership : when it provides that officer's compensation shall go into the firm, validity of 44 Penalty : of official bond. See Bond, Official. limits amount of sureties' liability 294 Penalty, statutory : whether, if a penalty is attached to the refusal of an office, the rule as to incompatible offices applies 32, 167 muuicipal corporation may impose a penalty, for refusal to accept office 165 such refusal is also punishable at common law 165 payment of penalty, no defence to mandamus to compel person to serve ; but disquaUflcation to hold the office is a de- fence 166, 167 whether a penalty can be imposed, if no compensation is at- tached to the office 166 statute, imposing such a penalty, is constitutional 1G7 officer who resigns, incurs the penalty for refusal to serve. . . . 168 but one who has paid the penalty, not liable to a second penalty upon reappointment 163 sufficiency of refusal ; it may be treated as a forfeiture 169 sureties in official bond not liable for 258 for extortion, action to recover, and defences in 534 — 529 See Extortion. officer cannot recover, unless he is dejure, as well as de facto. 66S officer de facto not liable to, after he has withdrawn from office 668 chancellor not liable to penalty, for recommitting prisoner dis- charged on habeas corpus 714 Pension : ruUngs, upon the question whether it is assignable 47, 48 U. S. pension agent, not a public officer 13, 40 Per Diem Compensation: officer, when not entitled to two or more such allowances, for different offices held by him 496 to members, etc., of legislature, runs during a short recess, but not during an adjournment for one month 506 913 INDEX Perjury : sec. an indictment for, v/ill not lie, upon an oath taken before an ofBoer, who was a non-resident of the state 646, 653 Pilot : not a public offlcer 13 contract to pay him, for aid to vessel in distress, when void 484 Place : of holding election, ruUngs upon validity of election, if held elsewhere 149 Pleasure : when office held at pleasure of appointing power 304 See Removal ; Term. officer holding at pleasure has no term, and may be removed at any time, without notice, charges, etc 303, 304, 854, 361 Plurality : of offices, held by the same person 30 — 40 See Incompatible Offices ; Public Officees. of persons, holding the same office 67 See also, De Facto, etc. effect of provisions forbidding the holding of two or more offices 81 of votec, when it suffices to elect a candidate 139 person holding two connected offices, when removal from one does not affect the other 353 when entitled to compensation of only one office 497 person holding two or more disconnected and compatible offices, entitled to salary of each, but only onejper diem com- pensation 496 Police ; Police Department : whether a policeman is a public officer 10, 12 constitutionality of statutes, creating police districts, and provid- ing for the appointment of the officers thereof 28, 29 various rulings, as to the validity, etc., of the removal of a policeman, etc., where statute requires notice, charges, and a hearing. . . .347, 348, 355, 359, 370, 371, 372, 374, 380, 381, 884, 889 as to his cpmpensation. See Compensation. policeman presumed to have common law powers of peace officers 565 when police officers may or may not be enjoined, from entering a club-house 845 , exercise of ordinary police powers cannot be prevented by in- junction 843 914 INDEX Police Board: gj.^ See SuPEEvisoRS. Police Jury: member of, held not a public officer 12 powers, duties, liabilities, etc., of. See Supervisors. Political Caucuses and Conventions: constitutional power of legislature to regulate them 127 Political Officers: general definitions of 22 — 24 whether subject to supervision, review, and control by the courts. See Judicial Supervision, etc. cannot be enjoined from discharging their ordinary functions. 843 See further, Action ; Powers, etc. ; Public Officers ; United States. Political Parties: whether a statute, requiring membei-s of a board to belong to different poKtical parties, is constitutional 73 Postmaster : is a public officer 10 not liable to publisher of paper, having the largest circulation, for not giving him advertisment of letters 708 liable for failure to deUver mail matter to person addressed. . . . 751 for refusal to deliver newspaper, without payment of letter postage, upon mistaken decision as to mark thereupon. . 751 not liable for negUgence of subordinates 751 liable for loss of letter, directed to be registered, and sent by ordinary mail 752 his clerk receiving it, liable also 752 not liable to equitable suit, to enforce a trust for persons robbed 752 senible, letter carrier and mail contractor liable for loss of letter . 751 Postmaster-General : not liable for miscarriage of mails, etc (note) 752 or for acts, etc., of his subordinates 592 Powers and Duties; and Exercise thereof: of public officer, ■when may or may not be enlarged or dimin- ished by legislature or municipality 19, 30 acts of public officers, within their powers, bind the public ; aliter, if in excess of powers 21, 551, 576 aU persons bound to take notice of extent of officer's powers.31, 551 915 INDEX Powers and Duties; and Exercise tbekeof— continued. sec. character of particular power, not of general functions of ofHcer, determines questions arising upon officer's act 24 power to appoint to public office, may be granted to unofficial persons 85 exercise, by the majority, in the absence or against the votes of the minority, of a public power, granted to one or more boards, or to three or more officers 104 — 131 See Appointment. whether board of registration exercises judicial powers 136 inspectors of election exercise only ministerial powers 153 . extent of their powers 153—155, 538, 746—750 canvassers of election returns, exercise only ministerial powers 156, 538, 746—750 extent of their powers 156-^159 remedies for errors in exercise thereof 157, 159 powers of officer, after expiration of his term 336 — 838 sheriff, constable, etc., may complete the execution of process, begun during his term 336 statute oonstmed to require collector of assessments, to give deed, after expiration of term, of land sold during term 337 arious and conflicting rulings, as to powers of town officers, and other officers, after expiration of terms 338 to elect or appoint, includes power to fill vacancy 436 to fill vacancy, does not include power to make or declare vacancy 437 to fix compensation, when not continuous 454 does not confer power to abolish it, or make it nominal 458 whether a power of appointment is judicial 130 bond of justice of the peace, or other judicial officer, does not cover judicial acts 337 power of removal, whether it is judicial 346 when exercised after a hearing, etc. , it is quasi judi- cial, and reviewable on certiorari 346, 379, 398 See Certiorari. classification of public officers, according to tlie general nature of their powers 33—34 reasons why it is of minor importance 35 classification of powers exercised by officers 531—639 principles of this classification; poUtical powers, etc 531 916 INDEX Powers and Duties ; and Exercise thereof — continued. seo. difference between legislative and judicial powers 532 supervisors, etc., nature of their powers and duties 533 legislative powers, by whom exercised, etc 582 difference between judicial and ministerial powers 533 quasi judicial powers defined 533 general rules, as to personal liability of officer performing judicial or ministerial acts 534 habeas corpus, issuing is a ministerial act 534 powers of commissioners to receive subscriptions to stock of corporation, and distribute the same, partly judicial, partly ministerial 535 additional definitions of judicial and ministerial powers, and illustrations thereof 535 — 537 order of president of U. S., calling out militia, and of governor pursuant thereto, are judicial acts, and conclu- sive upon subordinates 536 act, requiring the exercise of judgment or discretion, in what cases it is ministerial, and not judicial or quasi judicial. .537, 538 ministerial acts, performed by judicial oflScers, are not judicial ; instances 593 so judicial acts, performed by ministerial officers, are not minis- terial ; instances 540 assessors' acts, when judicial 541 officers' implied and incidental powers 542 — 545 officer has such powers, in addition to those given by statute, as are necessary for the execution of powers given, or may be fairly implied from statute ; instances. 542 supervisors, etc., no general power to contract debts; in- stances where such a power impUed from statute 543 officer has impUed power to sue. whenever requisite for proper discharge of duties 544 when power to sue implies power to settle controversy, and take security 544 officer cannot be deprived, by implication, of powers given him 545 when officer's power and his duty are or are not coincident. 546 — 550 statutory construction; word •' may," conferring power on officer, when tantamount to '-must" 546, 547 where an individual has an interest in the execution of the power, permissive words in a statute are deemed per- emptory ; instances 548 917 INDEX Powers and Duties ; and Exercise thereof— conimweti. sec. but the interest must be a definite and absolute right; instance, where individual's interest was too remote, to entitle him to benefit of rule 549 another instance of this qualification of the rule 550 contract or other act of officer, within his power, binds state or municipal corporation ; is protected by U. S. constitution ; and damages are the same, as in case of individual, including prospective profits 21, 551 aliter, if power exceeded; and person deaUng with officer must ascertain extent of officer's powers at his peril. . . . 551 government not estopped, but municipal body may be, by apparent, where no real power ; either may ratify excess of power 551 judicial and quasi judicial acts conclusive, except for re- view 552, 553 rule extends to discretionary power ; instances 553, 554 but it does not include cases, where there is no jurisdiction 554 or where power is exceeded 554 instances of acts of supervisors and similar officers. . . . 554 exceptions to the rule, that act resting in discretion cannot be reviewed 555 exercise of ministerial power invalid, unless statute strictly pursued 556 rulings as to business, transacted at supervisors' meeting, irregularly called, etc 557 presumption always in favor of correct performance of officer's duty 558 and of jurisdiction, happening of contingency, etc. . . . 558 but not of existence of vital jurisdictional fact ; this must be proved 559 so, in proceedings to divest a man of his property, such as tax sales, laying out of highways, etc., authority must be strictly proved 560 no presumption in favor of sheriff, sued for money col- lected 561 where certificate evidence, must show all the facts re- quired 561 but, in equity suit, plaintiff must prove facts showing invalidity 562 whether a power conferred by statute is continuous, or exhausted by a single act 563, 564 918 INDEX Powers and Duties ; and Exercise thereof— cowiinwed. sec. when policeman, U. S. provost marshal, etc., presumed to have common law powers of peace officers 565 judge cannot be required by statute, to do act inconsistent with performance of his official duty 56ft presumption is that officer has acted with caution and good faith 567. when officer's act lawful, his motives cannot be inquired into, to affect the validity of his act, or his protection 567 nor can the unlawful or malicious acts of the parties 567' effect of officer's lawful act cannot be affected, by his under- taking to act under a void statute, or his intent not to render his act binding 568' delegation of powers 569 — 576 what powers may or may not be delegated at common law 569 American rule, that ministerial powers may, and judicial powers may not, be exercised by deputy 570, 571 so quasi judicial powers may not be delegated 573 municipal authorities, authorized to do certain acts, cannot delegate the power to other officers, or a committee, etc. ; instances 572, 573 so, prosecuting attorney cannot delegate his authority to another ; and contract to compensate another for exercis- ing it is void S 574 deputy cannot appoint a deputy; nor can sheriff delegate power to appoint deputy; but deputy may authorize clerk, bailiff, etc., to perform particular act 575 other instances of the rule ' 576 deputy; appointment, powers, duties, liabilities; liability of principal; and indemnity against such liability 577 — 601 For detailed analysis. See Deputy. act of, where officer not authorized to appoint, does not bind state 576 exercise of power, granted to two or more officers, where one or more vacancies exist 603 — 606 reference to questions considered under appointment 603 English rule, that there is no survivorship, and office deter- mined 603 American rule is otherwise, if a quorum remains ; but senible, if one of two dies, the vacancy must be fiUed . . 604, 605 exception, where a statute intends that all shaU act 605 where two are authorized to act, they must join in the act; exceptions in special cases 606 919 INDEX PowEES AND Duties ; and Exercise thereof — continued. sec. officer interested, cases where he may or may not exercise a power 607—617 effect of milawful action by 618 — 631 For detailed analysis. See Interested Officer. exercise of power by an oiBcer de facto 623 — 668 For detailed analysis. See Db Facto, etc. action by a private person against an officer, for failure to exercise a power, or by reason of, or for an act in the course of, the exercise of a power 707 — 775 For detailed analysis. See Action. For various other ruUngs, respecting the nature, etc., of partic- ular powers, with reference to the liability of the officer, exercising the same, to a private action; or judicial review, compulsion, etc., with respect to the exercise thereof . See Action; Certioeaei; Injunction; Mandamus; Prohibi- tion. Preferences : validity and effect of statutes, requiring persons appointed to office, to pass a civil service examination, or preferring for appointments discharged soldiers and saUors 95 — 98 President of the United States : See also, United States; United States Constitution. constitutional provision, relating to qualification, etc., of 78 whether he is liable to a private action, for an official act or omission 711, 713 whether his official action is subject to judicial control, review, etc 794 Presumptions : See also. Evidence. as to time, when principal's default occurred, as between sure- ties in successive bonds 317 of officer's title to office and qualification, raised by proof of official action 171, 300 See also, De Facto, etc. in favor of officer's jurisdiction, correct performance of duty, etc 108, 558 but not of existence of vital jurisdictional fe,ct. . : 560 or of regularity of proceedings to divest property; such as tax sale, etc 560 920, INDEX PEEStnsiPTiONS— conMnwed. g^p or in favor of sheriff, sued for money collected 561 rule in equity upon bill to invalidate officer's act 562 that poUcemen and U. S. provost marshal have common law powers of peace officers 5g5 that officer has acted with caution and in good faith 567 that officer in possession is officer dejure, as well as de facto . . 660 that officer, actmg in behalf of the pubhc, does not bind him- self .j,^4 of officer's guilt, on indictment, from failure to account 857 Probate : judge of. See Subrogate. Process : cannot be served by sheriff on deputy, or vice versa; or by one deputy on another 587 validity, construction, effect, etc., of agreement to inderonify officer on service of 681 696 See INDEMKITY. protection of ministerial officer by 756^770 See Action. when " fair on its face" 758, 762 Professor : in state university, not a public officer 3 Profits : for use of public money, liability of officer's sureties for 255 receiving same, not a common law offence (note) 255 prospective, when state or municipality liable for 551 Prohibition : whether any officers are exempt from control by this writ: judges having no superiors are exempt 793 members of the national and state legislatures are exempt 793 and of bodies, having power of municipal or other local legislation, with respect to their legislative powers only 793, 814, 830 whether the president of the United States is exempt 794 whether the governor of a state is exempt, and if only with respect to particular powers, what are such powers 795, 796 the same questions, respecting the other principal officers of the United States 797 931 INDEX Prohibttion— conimwed. Sec. respecting the other principal officers of a state 798 no question arises respecting other officers 799 office and functions of the writ : 835 it lies only with respect to judicial or quasi judicial acts. . 835 writ issues only by special direction of court : granting or re- fusing discretionary, but reviewable 835 attending circumstances considered on application 836 but applicant must show objection taken below ; unless, perhaps, when want of jurisdiction appears on the record 836 want of jurisdiction is foundation of writ ; it will not lie, where tribunal below had jurisdiction, or papers presented a case proper for its consideration 837 qUere, whether it lies after final judgment 837 whether it wiU lie, where there is another adequate remedy. . . 838 issues only to officer or tribunal, having judicial or quasi judicial power 839 does not he, to prevent the exercise of any other power . . . 839 or the usurpation of an office 839 lies, to prevent action under unconstitutional statute, or void judgment 840 proceedings in, injunction does not lie to restrain 843 Promotion : of officer, not affected by statute preferring veterans, etc 98 Proof: See Evidence. Property : certain offices in England, treated as property 16 not so in the United States 17—19, 345 Prosecuting Attorney : delegation of his powers void, and will not sustain an action for services 574 Prospective : appointment, validity of 91 profits, liability of state or municipality for 551 Protection : of ministerial officer by his process 756—770 See Action. 932 INDEX Prothonotary : sec. See Clerk ; Recording Officer. Proxy : voting by, at election, not allowed 141 what is, or is not, deemed to be voting by proxy 141 Public Enemy : loss by, sureties of oflScer exempt from liability for 233 Public Improvement : contract to procure, when lawful, and when unlawful 59 Public Money : vaUdity and effect of statutes, requiring an officer, in order to be eUgible, to have accounted for all public money 79 profits upon, liability of officer's sureties for 355 making, not an offence at common law {note) 355 loss of, by officer without his fault, whether his sureties liable for 331—339 Public Office : See also. Public Officer. general definitions of 3 — 9 in England, deemed an incorporeal hereditament 3, 16, 41 not deemed property in the United States .17 — 19 term, compensation, etc., when legislature mayor may not change 19, 20 is a public agency; state, etc., bound, when officer acts within his jurisdiction; but not when he exceeds it 31, 551 several offices may be held by one person, if compatible 30 but acceptance of incompatible office vacates an office, then held by person accepting 80, 31 exceptions to the rule 30 — 33 rules as to compatibility or incompatibility of offices, and decis- ions respecting particular offices 33 — 37 ruUngs, upon constitutional or statutory prohibitions, against holding two or more offices, or a state and a national office 38—40 trafficking in public offices, unlawful 49 — 53 sale of certain town offices, allowed in New England 53 contracts to influence official action, when lawful, and when unlawful 54^56 See Contract. 933 INDEX Public Otfice— continued. Sec: who may, or may not, hold a public office. See Eligibility. appointment to. See Appointment. election to. See Election. acceptance or refusal; penalty for refusal. See Acceptance ; Penalty. term of office. See Term, Official. abolished by repeal of statute or ordinance creating it 304, 475 whether certain statutes create permanent or temporary offices 310 removal from. See Eemoval. suspension from. See Suspension. resignation of, express. See Resignation. implied, or forfeiture. See Forfeiture. vacancy in, and filling same. See Vacancy. compensation attached to. See Compensation. officer, holding two or more, forfeits compensation of first, if incompatible, but if compatible, may have compensation of each 496 aliter, if second only incidental to first 497 Public Officer: who is a public officer 1 — 15 general definitions of 2 — 7 miscellaneous rulings, whether holders of particular employ- ments, are or are not, public officers 4 — 13 question not dependent upon extent of territorial jurisdic- tion, or receipt of emoluments, or taking of oath 8 whether counsellors, barristers, attorneys, and solicitors are, or are not, public officers 13—15 nature and general incidents of a public office 16 — 21 some offices treated in England as property ; such doctrine not recognized in this country 16 — 18 legislature, when constitution does not prevent, may change duties, term, compensation, etc. ; aliter, if fixed by constitution 19, 20 officer is a public agent, whose acts bind the state, etc., if within powers, but not when powers exceeded 21, 551 government not chargeable for officer's default, etc 21 classification of pubUc officers 32 — 39 according to their general functions 22—34 leasons why this classification is of minor importance 35 934 INDEX Public Officer — continued. gjic. into general and local officers ; rulings upon constitutional questions, relating to such officers 26—29 who are or are not " state officers " 39 two or more offices, held by one person 30 — 40 no limit to the number of offices one may hold, if they are compatible 30 acceptance of an incompatible office vacates a prior office, held by the person so accepting 30, 81 exceptions to this rule 30, 31 exception, where a penalty attaches to failure to accept the second office 32 rules to determine compatibility or incompatibility of offices 33, 34 rulings in England, respecting the compatibility or incom- patibility of particular offices 35 American rulings, that particular offices are incompatible.. 36 American rulings, that particular offices are not incom- patible 37 rulings upon constitutional or statutory provisions, against holding two or more offices 38, 81 rulings upon Hke provisions, against holding an office under the state and the national government 39, 40 assignment of an office, or of the emoluments thereof 41 — 48 certain offices assignable in England ; none assignable here 41 assignment of future emoluments of an office is void. ..43, 43 apparent exceptions to the rule 44 emoluments actually earned may be assigned ; so if payable upon a contingency 45 rules as to validity of assignment of a pension 46, 47 unearned emoluments cannot be reached by attachment, garnishee process, etc 48 trafficking in offices, a misdemeanor 49, 55 contracts for procuring an office through influence, etc., void.' 50, 53. 55 rule applies to East India company's offices 51 corruption not essential ; sale of military commissions in England 53 applicant or candidate, withdrawing in favor of another, on agreement to divide compensation 54 935 INDEX PuELic Officer— continued. Sec. agreement by candidate to pay for efforts to elect him 54 members of appointing board, agreeing inter sese as to votes ; contracts for resigning or exchanging offices. ... 55 ' ' lobby contracts " void ; what contracts for services before legislature valid 56—58 contract to procure pardon or other official action, when valid, and when void 59 contract for supplies for public use, when agreement relat- ing thereto vahd, and when void 60 — 64 contract for discharge of drafted men 62 contract between bidders, for supplies, etc., to government, when valid, and when void 63, 64 contract to induce officer to violate his duty, void 65, 66 exception, where reward enures to public benefit 66 sale of certain town offices, allowed in New England 53 who may or may not hold a public office 67 — 83 For detailed analysis. See Eligibility. appointment by one or more officers or boards 84 — 121 For detailed analysis. See Appointment. election of officers by the people 122 — 168 For detailed analysis. See Election. acceptance necessary to vest title to office ; what suffices for that purpose 164 indictment and penalty for refusal to serve 165—169 mandamus also hes for such refusal 166 defences to action for penalty 167, 168 what suffices as a refusal 169 official oath ; official bond 170—201 For detailed analysis. See Oath, Official ; Bond, OFFICLiL. rights and Uabilities of the sureties in an official bond 203—396 For detailed analysis. See Sureties in Official Bonds. government not responsible for officer's acts or omissions 281 evidence of title to a public office 297—802 rulings relating to a commission or certificate 397—299 evidence of official acts 800, 301 the same, respecting a foreign officer 302 See also, Evidence. term of office 303—332 For detailed analysis. See Term. Official. 926 INDEX Public Officer — continued. sec. officer holding over, after his term expires 333—335 For detailed analysis. See Holding Over. powers of an officer, after expiration of his term 336—338 For detailed analysis. See Powers. removal of an officer 340—400 For detailed analysis. See Removal. suspension of an officer, 401 — 406 For detailed analysis. See Suspension. resignation of an office, express 407 — 416 For detailed analysis. See Eesignation. resignation of an office by implication, or forfeiture 417 — 430 For detailed analysis. See Forfeiture. vacancy in office, and declaring and filling the same 431 — 440 For detailed analysis. See Vacancy. compensation ; general principles, fixing, increasing, and dimin- ishing compensation 441 — 476 For detailed analysis. See Compensation. cases, where an officer may or may not have compensation, in excess of that fixed by law 477 — 498 For detailed analysis. See Compensation. right of officer to receive his fixed compensation, without deductions 499—508 For detailed analysis. See Compensation. officer's remedies to recover his compensation 509 — 523 For detailed analysis. See Compensation. extortion ; criminal proceedings for ; action to recover a statu- tory penalty for ; action to recover back unlawful fees. . .534 — 530 For detailed analysis. See Extortion. powers and duties ; classification of, into judicial, ministerial, legislative, etc., and definitions and illustrations of each class 531—541 officers' implied and incidental powers 543—545 when officer's powers and duties are coincident 546 — 550 effect of exercise of power 551 — 555 statutory power must be strictly pursued, presumptions in support of regularity of exercise thereof 556 — 562 miscellaneous rulings 563 — 568 For detailed analysis. See Powers. what powers may, and what powers may not, be delegated 569—576 For detailed analysis. See Powers, etc. 937 INDEX Public Officer— continued. SEa deputies; appointment, tenure of ofl&ce, powers, liabilities; lia- bilities of principal; and indemnity against the same 577 — 601 For detailed analysis. See Deputy. public officer not liable to action, for misfeasance, nonfeasance, malfeasance, etc., of subordinates, appointed pursuant to law 592 exercise of power granted to two or more officers, where one or more vacancies exist 602 — 606 For detailed analysis. See Powers, etc. exercise of power by an interested officer 607 — 621 For detailed analysis. See Interested Officer. exercise of power by an officer de facto 622 — 668 For detailed analysis. See De Facto, etc. contracts, taken by an officer for ease and favor, or otherwise colore offlcii 669—680 For detailed analysis . See Colore Officii. contract to indemnify an officer, on execution of process . . . 681 — 696 For detailed analysis. See Indemnity. contract to an officer by a receiptor of goods levied upon 697 — 706 For detailed analysis. See Eeceiptor. when an officer is, and when he is not, liable to a private action, sounding in tort; general principles 707 — 731 For detailed analysis. See Action. special rulings, as to the liability of particular officers to private actions 732—755 For detailed analysis. See Action. protection of a ministerial officer by his process 756 — 770 For detailed analysis. See Action. miscellaneous actions by or against officers 771 — 775 For detailed analysis. See Action. information in the nature of a quo warranto, or statutory sub- stitute therefor, to oust an intruder, and put the rightful officer into possession 776 — 786 For detailed analysis. See Quo Warranto. proceedings by an officer to recover the books, papers, and other appurtenances of his office 787 — 792 For detailed analysis. See Books and Papers. whether any public officers are exempt from judicial super- vision and control, by mandamus, injunction, etc 793 — 799 For detailed analysis. See Judicial Supervision, etc. 938 INDEX Public OFFicmi— continued. g^.^ certiorari 800—811 For detailed analysis. See tliat title, mandamus g]^2 834 For detailed analysis. See that title. prohibition 835—840 For detailed analysis. See that title, injimction 841—853 For detailed analysis. See that title. common law crimes by public officers 854 865 For detailed analysis. See Crime. Public Policy : See Contract; De Facto, etc.; Interested Officer. Qualification : and disquaUflcation for holding office. See Eligibility. on the ground of interest. See Interested Officer. of voters. See Election. person disqualified, not liable to penalty, for refusal to serve . . 166 qualifying by taking official oath. See Oath, Official. giving official bond. See Bond, Official. rule as to holding over, where officer's successor dies, before or after qualifying 339 refusal in advance to qualify, when it creates a vacancy 428 person not qualified to hold office, may be an officer de facto . . 636 See De Facto, etc. Quasi Judicial : powers and duties, defined '. 533 For rules pertaining to the exercise, etc., thereof. See Powers, etc. liability to a private action, of an officer exercising the same. See Action. Quo Warranto, Information in the Nature of: proper mode of determining, whether an officer is eUgible. ... 83 proper remedy, for rejection by inspectors or canvassers, of defective ballots ; proceedings thereupon 145, 159 founded upon failiu-e to seasonably furnish official oath or bond, rulings in 173 — 175 upon irregularities or defects in an official bond 187 — 300 state court no jurisdiction to oust federal officer ; proceedings where federal officer accepts incompatible state office 39 939 INDEX Qtjo Warranto — continued. Sec. incumbent of office, who is candidate for reelection, must sur- render office, to competitor having certificate of election, and seek redress by ; he cannot hold the office 333 lies, to determine controversy as to membership of a public body, although body declared to be judge of election, etc., of its members 397, 439, 777 right of possession of contested office, pertaining to a court, may be determined on motion 663 ancient writ of quo warranto, superseded by information ; reasons 776 information in the nature of a quo warranto defined ; its scope 776 now regarded as a civil proceeding, though criminal in form. . 776 is granted, where writ formerly would lie ; statutory substi- tutes for it in several states ; whether a summary statutory proceeding takes it away 777 not taken away by a provision, allowing a body to judge of the election, etc., of its members 397, 439, 777 not essential that it should aim to put rightful officer in possession ; may be confined to ouster of intruder 778 various cases, in which it may be prosecuted by the attorney- general. 778 must be prosecuted by sovereign power, from which office pro- ceeds; will not lie in state court to oust a presidential elector 779 does not lie, where relief can be obtained by another remedy. . 780 statute requires leave of court, before filing information, etc... 781 granting or refusing rests in sound discretion of court 781 but where attorney-general applies, court must grant it. . . 781 exception 782 iprivate person, applying as relator, must show an interest 781 ■whether a mere taxpayer can maintain the proceeding for ;an ouster 781 if relator claims the office, he must show title 781 attorney-general only can maintain information, to oust muni- cipal officer, on allegation that the body has no legal existence 781 application or leave, by private person, will not be granted, if matter of small importance, or term nearly expired 783 so, where there has been acquiescence or delay 783 controversy must relate to a lawful public office, but petty officer may be ousted 783 can be brought only against one, in actual possession of the office; what suffices to constitute such possession 784 930 INDEX Quo "Waeeanto — continued. Sbc. burden of proof, upon trial of information, rests on respondent; but relator cannot be put in, unless he proves his title 785 judgment of ouster should be rendered against, intruder, al- though usurpation not continued 786 rules, respecting imposition of a fine 776, 777, 786 unless statute otherwise provides, damages recoverable only in separate action 786 For proceedings to recover the books, papers, and other appurtenances of an office. See Books and Papers. title to office triable only by, not by certiorari 802 or by mandamus 825 exceptions to the rule 826, 827 or by injunction 850 or by prohibition 839 Quorum : rules, respecting the validity or invalidity of public acts, by a quorum of one or more boards of officers, or three or more officers 104—131 See Appointment. a quorum suffices, to enable a board to act, which is empowered to remove an officer, upon charges, and after a trial, etc 386 Ratification : by appointing power, of insufficient appointment 107 of unlawful election, power of legislature thereupon 127 by state or municipality, of offlser's act, in excess of power 551 municipality cannot ratify officer's imlawful contract, by act of council of which he is a member; qu. , if capable of ratifica- tion 620 ratification by state, of contract in excess of officer's power; instance • 678 Receiptor: to sheriff, etc., of property levied on, his contract not within the statute against securities taken colore officii 697 he cannot sho'w:, in reduction of damages, that property was worth less than the debt 697 receiptor a bailee ; his general rights and liabilities, and those of officer 698, 699 receiptor not discharged by debtor's commitment ; when not discharged by debtor's discharge in bankruptcy or insolvency; or hy delay, etc ^^0 931 INDEX Receiptor — continued. Sec. where property was exempt, receiptor not discharged, if taken from debtor 701 when he is discharged, where execution, etc., was against member of insolvent firm 701 whether receiptor is estopped, to show goods were not the debtor's ■• 703 when sheriff estopped, against creditor, to show the same fact. 703 receiptor has a lien, against debtor, for his reasonable charges 704 where receiptor has a prior lien, and reserves it, it is not dis- charged 704 certain irregularities in the proceedings, which do not dis- charge the receiptor 705 when receiptor is, or is not, liable without a special demand. . . 706 Recess : the legislature is not deemed to be in session, during a long recess ; aliter, if the recess is short 100 Reconsideration : of an appointment, when valid, when invalid 88 — 90, 100 See Appointment. RecoMing Officer : See also, COUNTY Clerk; Clerk of a Court. rulings, as to the liability of his sureties, for particular acts or omissions. 248, 393 not liable to A, for defects in a search ordered by B 707 various rulings, respecting his liability for negligence, etc 742 whether liable to subsequent grantee 743 measure of damages in action against; doubtful questions. 743, 748 Uable for imperfect index to conveyances 743 for refusal to permit reasonable inspection of records, etc . 744 rule, where demand was made insultingly (nqie) 744 for failure to furnish correct searches, copies, etc 744 when mandamus does not lie against, to compel record of a deed to be cancelled : 833 Referee : in an action, is a public officer 4 Refusal : to administer official oath, unlawful, though person ineligible . 83 to accept office; and punishment therefor 165 — 169 See Penalty. 933 INDEX Refusal — continued. gj,g_ mandamus lies to compel acceptance 166 to accept office, when it creates a vacancy 437, 438, 433 Register : of deeds, etc. See Eecokding Officer. Registration : of voters for election, power of legislature to require; and rul- ings, relating to registration 133 — 138 See Election. lia,bility of officer, for refusal to put qualified voter on the list. . 750 Release : when continued discharge of official duties, and receipt of reduced compensation, constitute a release by an officer, of any right to the original compensation, although reduction was unlawful or irregular 453, 454, 456, 457, 461, 465 of salary, cannot be impeached by proof that it was given to induce votes 453 See also. Waiver. Removal : when reconsideration, recission, or revocation of an appoint- ment, is valid as a removal, and when invalid 88 — 90, 100 See Appointment. where no term fixed by statute, ordinance, or constitution, officer may be removed at pleasure of appointing power. 304, 354, 364 after removal, officer cannot hold over, till successor qualifies. 337 different kinds of removal 340 effect of express constitutional provisions, upon the power to remove an officer : if constitution specifies mode or causes of removal, legis- lature cannot provide for removal for any other cause or in any other mode ; instances of attempted evasion of such a provision 341 when provision is self -operative; when it leaves no discre- tion 843 power may be given to municipal body to remove and dis- qualify; removal without notice not contrary to "biU of rights" 343 power to governor to remove officer appointed by him, extends to officer appointed with concurrence of senate; 933 INDEX Removal — continued. Sec. if causes specified, but no mode, governor may deter- mine existence of cause as he thinks proper; unnecessary to specify causes 344 power of the legislature, in the absence of constitutional limi- tations : whether the legislature can directly or indirectly remove an officer by statute .30, 346 power of the legislature to provide for removals, is practic- ally unlimited, except by express restrictions in the con- stitution 345 whether the power is judicial or ministerial; ruling in New Jersey that is judicial, and can be exercised only by the court 346 contrary rulings elsewhere ; specification of causes in con- stitution does not invalidate statute, excluding officer for failure to qualify 346 what is or is not a removal, specially within the constitutional or statutory restrictions of the power : provisions as to cause, notice, and hearing, do not apply to a dismissal, for some reason other than officer's act, etc. . . 847 such as want of funds, transfer, etc 347 but change must be made in good faith 847 not removal within statute, where appointment revoked, because officer ineUgible, or promoted officer restored to his former position, because no vacancy ... 348 when appointment is complete, a revocation or rescission thereof, is a removal, and validity depends on same reasons 849 appointment of successor is ipso facto a removal, and must be valid as such 350 removal ineflfectual, unless intent clear ; but intent may be inferred, if circumstances leave no doubt 851 abolition of office, and transfer of duties to another, consti- tute a removal 353 where office is double, a removal from one leaves officer in possession of the other, where no successor to latter ap- pointed 353 rules, determining the officer, etc. , vested with power to remove : where term not fixed, appointing power may remove at pleasure 354, 361 where power to appoint given by statute, which is silent as 934 INDEX Removal — continited. g^.^ to removal, officer may be removed for cause, after hear- ing, etc 354 where term fixed, no absolute power of removal 354 oflice cannot be held during pleasure, unless appointing power is continuous 354 where ofiicer, though elected, and acting in, and paid by, a city, is a state officer, city authorities no power to re- move him 355 power to remove, vested in two or more authorities, must be exercised by both ; if vested in one, cannot be exer- cised by two 355 constitutional provision for removal, applies to case where impeachment lies 356 who Uable to be removed ; who entitled to benefit of restric- tions upon power : lunatic may be removed upon notice, charges, and a trial 857, 365 officer appointed to fill vacancy, liable to be removed 358 pohceman, entitled to be retired upon pension, may be re- moved on charges, etc 359 restrictions upon power of removal apply only to officer who has qualified, and has been regularly appointed ; exception 360 cases, where officer may be removed without cause assigned, and where only for cause : where officer removable at pleasure, no cause required to be assigned 361 at common law, officer removable only for cause, and after a hearing 363 various rulings upon statutory provisions, relating to re- movals for cause 362 statute requiring cause for removal cannot be evaded 363 cases, where removal can be made only upon notice and a hear- ing : ' notice and hearing required, where officer holds during good behavior '. 364 so where he holds for a fixed term, and is removable only for cause 364 requisition of notice and hearing impUes, that testimony must be produced ; but not where an opportunity for " explanation '' only is required 365 935 INDEX Removal — continued. Sec. where removal allowed only " on conviction by a jury," prosecuting oflficer must make charges, and jury must sustain them 365 causes which are or are not sufficient for removal : where removal allowed only for cause, and after oppor- tunity for "explanation," what causes suffice, and what explanation allowed 366 where cause specified in statute is "official misconduct," etc., this applies to acts in performance of official duties, not private breaches of morality. 367 judicial officer not removable for an honest mistake 367 instances of " misconduct in office," for which officer re- movable 368 "disorderly behavior," malconduct in office," "mal- practice in office," " neglect of duty," etc 869 various ruUngs, respecting intoxication as a cause for removal 370 whether an officer can be removed upon a charge, amount- ing to a crime, before conviction 371 various rulings, as to acts constituting " conduct unbecom- ing an officer," or " neglect of duty," or violation of rules, as causes for removal of policemen 373 rulings, as to causes of removal of town railroad commis- sioner, and coiuity treasurer 873 of officer for inefficiency or incapacity of himself or his deputy 374 of a sheriff 375 of the clerk of a court , . 876 of a clerk of a Are department, for allowing violation of fire regulations 377 whether reappointment or reelection bars a second removal for same cause 378 legal sufficiency of the proceedings to. remove an officer for cause, and after notice and a hearing : proceeding is judicial in its character, and reviewable by certiorari ; it is error, if person interested, necessary to make a quorum, takes part 379 but not a common law trial ; what is requisite to validity ; upon what considerations removing power must act.;. . . . 380 what notice and what certainty, in statement of charges, required .381, 383 936 INDEX Ekmoval — contirmed. g^o. removal invalid, if made for cause not specified in charges 383 effect of rule, requiring charges to be verified 384 accused may cross-examine and have counsel ; testimony may be taken by stenographer, under direction of mem- ber of board, and submitted to board 385 quorum of board sufiBcient to act ; proceedings may be adjourned ; if two bodies to act, both must participate ; rulings, where testimony excluded 386 ruling, where officer was removed in his absence, caused by illness 387 when accused waives notice, hearing, etc., when waiver may be withdrawn 388 removal before testimony submitted ; error cured by new decision, after testimony submitted 389 where statute requires retirement at 60, board no discretion . . 389 where board sentenced fireman to be retired on a pension, held, valid removal, and remainder of sentence void 389 whether removal effectual, until officer notified.. (nofe) 354, 389 removal may be made by a majority vote 389 when member of board may participate in proceedings, although accused charged with improper conduct towards him 390 review by the courts of proceedings for removal : general observations 391 various modes of review, and application thereof 393 general principles as to power to review ; English ruling. . 393 courts will not interfere, if removing body vested with discretion, unless clearly abused 394 various instances, where power deemed discretionary 394 sufficiency of "explanation," where that is required by statute, is matter of discretion .' 395 where removal allowed " for cause," but no cause specified, removing body has discretion 396 courts have jurisdiction to review removal, or decide any other controversy, respecting membership of a body, although constitution or statute makes the body judge • of qualifications, etc., of members ; qu., as to exceptions 397. 439, 777 what questions will be considered, upon certiorari to review proceedings for removal 398, 811 See also, Cektioeaei, 937 INDEX Removal — continued. Sbc. removal by impeachment : abstract of provisions of constitutions of U. S. and New York 399 provisions for impeachment do not affect power of legis- lature, to provide for other mode of removal, for same cause 356, 400 speaker of house of representives not liable to impeach- ment - (note) 400 whether power to remove includes power to suspend 401 — i06 See Suspension. power of removal not exercised by resolution, that oflfice is vacant 438 power given to heads of municipal departments, to appoint sub- ordinates, with consent of council, prevents removal without such consent ." 474 ofScer, wrongfully removed, must be reinstated, before he can maintain an action for his compensation, while not discharg- ing duty 510 For other ruUngs, respecting such an action. See Com- pensation. city not hable for damages for wrongful removal, by oflB.oers authorized by statute 514 contract by officer not to remove deputy, unlawful 582 where member of school board interested, and his presence necessary to a quorum, removal of teacher void ! 611 of officer, by governor, on charges, etc.. final, and not to be tested by quo warranto ' 778 where city officer may be removed by mayor, on governor's approval, certiorari lies upon mayor's order, before governor's approval 809 Repeal : of statute creating an office, abolishes the office 304 and effects a removal of the officer 352 Replevin : granting order for seizure in, is a ministerial act 539 whether officer protected by his process, for seizing goods in hands of a stranger 766 when it lies, for books, papers, and other appurtenances of an office 787 938 INDEX Rescission: g^„ of a completed appointment, when vaUd, when invalid.88— 90, 100 Resident ; Residence : rule of "common political law," that only a resident can hold office 1^3 construction of certain constitutional and statutory provisions, to the same effect 80 construction of statutory and constitutional provisions, requir- ing residence to qualify a voter 131, 1S4 See Election. as to forfeiture of office, by change of residence, or by change of boundaries, which places officer out of the district 434 — 438 See FoEPEiTUEE. Resignation: by implication, or forfeiture of office, by acceptance of an incompatible office 30 — 37 See " Incompatible Offices." by acceptance of a second office, or an office under the state and one under the United States, where the consti- tution, etc., so provides 88 — 40 contract for, and to procure appointment of another, or to exchange offices with another, unlawful 55 officer resigning office, for refusal to accept which a penalty is imposed, is liable to the penalty 168 effect of, upon the liability of the sureties in the officer's bond. 311 officer presenting, whether he holds over till acceptance 337 may be express or implied ; implied resignation equivalent to forfeiture 407 express resignation may be by parol ; acceptance may be impUed 408 must be made to appointing power, or power authorized to call an election to fill vacancy 408 English rule, that at common law, officer cannot resign his office, without express or implied assent of appointing power 409 American authorities are conflicting ; cases, holding that he may resign at pleasure 410 these cases hold office vacant), when resignation takes effect 410 cases, holding that resignation invalid, tUl acceptance, and officer may be compelled to act by mandamus 411, 413 939 INDEX Resignation — continued. Sec. one, who has not entered in possession, cannot resign 413 nor can one who is ineligible 413 withdrawal of resignation, rulings, that it cannot be made, without consent of appointing power 410, 414 prospective, may be withdrawn before time specified, unless successor appointed; qu., if consent of appointing power necessary to withdrawal 415 may be withdrawn, although successor appointed, if resigna- tion was transmitted without officer's consent 415 resignation of a lunatic, and appointment of successor, valid. . 416 implied resignation, or forfeiture. See Foefeituee. officer de facto may withdraw from office, and thus escape penalty, etc 666 Retired Army Officer : eligible to oivU public office 37, 39 Review : courts have power to review decision of body, as to member- ship, etc., although body made judge of election, etc., of its members 397,429, 777 by courts, of proceedings to remove an officer. See Removal. See further, Ceetioeaei ; Judicial Supervision, etc. Revocation : of an appointment, when valid, and when invalid 88 — 90, 100 See Appointment. when commission issued regularly, cannot be revoked by governor, unless he has power of removal 349 erroneously, may be revoked 298 of appointment for ineligibility, is not a removal 347 for other cause, is a removal, if appointment complete 349 when complete for that purpose 87 — 90 Reward : taking or giving for public office, unlawful at common law. 49, 50 contract to reward officer for doing his duty, void . 66, 477 — 480, 484 unless, perhaps, where the reward enures to the public 66 contract to reward officer for violating his duty, void 65, 66 See further on this subject, Conteact. cases, where an officer is or is not entitled to a reward, offered for a special service, by an individual, or the public authori- ties 485—488 See Compensation. 940 INDEX Road District : Sec. not liable for officer's act, etc., unless statute so provides 593 Robbery : public money lost by, whether officer's sureties liable for. . .221—239 Sailors : See Soldiers and Sailors. Salary : See also. Compensation. assignment of, when valid, when invalid 42—45 officer not entitled to, where he fails to furnish official oath or bond " 175 suspended officer, semble, is entitled to, during suspension, under the English rulings 401 but not under the American rulings 406 defined 441 Sale: of office or official influence, unlawful. See Contract. of certain town offices, allowed in New England 53 validity of, by officer interested. See Interested Officer, Scandalum Magnatum : doctrine not adopted in United States 771 School Officers : trustee of school district, is a public officer 7 school superintendent, is a public officer 10 district not liable for their acts, unless statute so provides 593 removal of teacher by school board, void, if member of board, whose presence necessary to a quorum, is interested 611 Seal: failure to affix to an instrument, given as an official bond, validity of instrument, and remedy thereupon 194 Secretary : of state or territory, his compensation and term of office, when acting as governor 480, 498 Securities : taken by officer, on exercise of power. See Colore Officii ; Contract ; Indemnitt ; Eeceiptor, 941 INDEX Senate : seo. appointment of officer by governor, subject to confijnation Of.. 99 not deemed to be in session, during a long recess ; aliter, if recess is short 100 wlien person appointed holds till senate acts, and appointment cannot be revoked before 100 For various rulings, relating to the appointment and removal of oiflcers, by the governor, with the concurrence of the senate. See Appointment ; Removal ; Term, Official ; Vacancy. powers, duties, etc., upon impeachment. See Impeachment. Settlement : between principal and auditing officers, effect of, upon the liability of sureties in official bond 382 — 385 effect of, as evidence against sureties 244, 345, 282, 285 against third persons 385 failure of proper officers to make or compel, no defence to sureties S83 Sheriff: special deputy, not a public officer 12 sureties in official bond, various rulings, as to their liability for particular acts or omissions. .. 193, 306, 308, 210, 215, 330, 282, 336, 340, 341, 342, 347, 253, 355, 357, 365, 291, 393 may complete, after expiration of term, execution of process begun during term 338 removal of, various rulings as to sufficiency of cause for . 358, 370, 375 appointed to fill vacancy, when he holds for full term. See Teem, Official. promise by individual, to pay more than statutory compensation, void, though service extraordinary 481, 485 when valid 493 can have no compensation, beyond statutory allowance 483 except where service out of hia duty 486, 487 See Compensation. receiving fees unlawfully, misdemeanor ; statutory penalty ; and action to recover back fees 534 530 See Extortion. presumption of due performance of official duty, does not extend to sheriff, sued for money collected 561 cannot delegate to another power to appoint deputy sheriff 575 deputy sheriff ; appointment, tenure, powers, liabilities ; liability 942 INDEX Sheeifp — continued. Sec. of sheriff for his acts, etc. ; and indemnity against such lia- bility 577—601 See Deputy; Indemnity. process cannot be served by, upon deputy, or vice versa, nor can deputy serve process upon another deputy 587 selling goods under execution, etc. , cannot act as agent for party 612 bonds, etc., taken colore officii, void. See Coloee Officii. bond to, by prisoner, for less rigorous confinement, when valid 680 validity, effect, construction, etc., of contracts to indemnify him on execution of process 681 — 696 See Indemnity. of receiptor's contract 697 — 706 See Eeceiptor. general rules, as to his UabiUty to an action, for acts or omissions in the execution of process. See Action. rulings in particular cases 243, 253, 291, 561, 753—755 doctrine as to the protection of an officer by his process. . . .756 — 770 For detailed analysis. See Action. guilty of misdemeanor, at common law, for not executing sentenced criminal 863 for not taking to prison person committed 863 for failure to return precept 863 when sheriff is ex officio tax collector, and voluntarily gives a separate bond as collector, such bond is valid 188 but where separate bonds are required, sureties in one not liable for acts, etc., in the other office 236 when sheriff is removed, but no person appointed to col- lect the taxes, he is stiU bound to collect them, and his sureties are liable for his failure 353 deputy has all the powers of the sheriff, respecting taxes . . 584 and deputy's bond of indemnity covers the taxes. 601 See further, Ex Officio. Skill : want of. See Mistake. Soldiers and Sailors : honorably discharged, statutes giving preferences to, in appointments to office, when constitutional 95 how such statutes may be enforced ^'6 preferences not absolute, only over those equally qualified; when veteran must pass civil service examination; when he 943 INDEX Soldiers and BailotiS— continued. Sec. cannot be retired 9'^ statutes not applicable to promotions ; or to abolition of oflloe ; miscellaneous rulings, as to construction, etc., of statutes. . . 98 statutes authorizing them to vote by prOxy at elections 141 Solicitor : See Attorney, etc Speaker : of lower house of legislature, not liable to impeachment (note). 400 may be compelled by mandamus to perform ministerial act 814 but not to send to senate a bill, which has passed his house 814 State : when bound, and when not bound, by acts of public offlcera 31,381, 576 who are, and who are not, " state officers " 39 when constitution, etc., forbids holding two or more offices, or holding one office under the state, and one under the U. S . 38 — 40 has power to regulate elective franchise; how far the U. S. constitution affects such power 133 — 135 general statute, allowing officer reasonable compensation for services, does not include services rendered to the state 449 not estopped to deny officer's real authority to bind it, in conse- quence of apparent authority 551 may ratify and enforce officer's act, in excess of his power. 551, 678 political divisions of, when not liable for their officers' acts or omissions ., 593 a state de facto is unknown to the constitution and laws 685 quo warranto not maintainable in a state court for a national office, ex. gir., that of elector of president and vice president. 779 whether governor and other principal officers of, are subject to judicial supervision and control, by mandamus, injunction, etc 795, 796, 798 state may have mandamus against officer, to pay over public money ; although he has given an official bond 818 when governor, as party in the U. S. supreme court, represents the state 834 principal officers of, not punishable for official misconduct, etc., by indictment, but by impeachment 858 State Auditor : See Auditor. 944 INDEX State Officers : sbc. defined 29 See GovBENOE ; Legislattjee ; Senate ; State. State Printer : when a public officer 10 when not 18 Statute : English statutes cited. See English Statutes. whether particular statutes are or are not constitutional. See Constitution. relating to term, tenure of office, etc., construed, in doubtful cases, so as to avoid a vacancy 308 and to give the shortest term 308 permissive words in, when deemed mandatory 546 — 550 See PowEES. against securities, taken by an officer for ease and favor, or otherwise cotor-e offlcii. See Coloee Ofpich. Student : at college, etc., where his residence is 131 Subordinates : officer not responsible for acts, etc., of 592 Subrogation : right to, of sureties in official bond ; eflfect of impairing such right upon their liability 203 Successor : proceedings by, to obtain from predecessor, books, papers, and other appurtenance of the office 787 — 798 See Books and Papbes. Superintendent: of penitentiary, is a public officer 10 Supervisors; County Commissioners; Chosen Free- holders; Police Jury; County Board: constitutional prohibition of "law," increasing or reducing officers' compensation, does not apply to act of county board 470 various natures of their powers and duties 532—553 when particular acts are the exercise of judicial, ministerial, or legislative powers • 538,540,553-554 generally, no implied power to contract debts ; exceptions in 945 INDEX StTERVisoES, ETC. — continued. Sec. particular cases 543 judicial acts of, when conclusive 553 rulings, respecting business done at meetings, irregularly- called, etc 557 cannot delegate their judicial or governmental functions ; but may delegate " mechanical and physical work " 573 cannot bind county by contract with one of their number 610 when disqualified by interest. See Interested Ofpicee. when not so disqualified 617 not liable to private action, for discharge of legislative func- tions 709 or in decision of claim against county 715 not subject to mandamus, injunction, etc., for discharge of legislative functions 798, 814, 830 instances of acts, not judicial, and therefore not reviewable on certiorari 803 may be compelled by mandamus to audit an account, but not in a particular way 830 but where facts are undisputed, they are deemed mere represen- tatives of the debtor, and may be comjteUed by mandamus to audit and pay the demand 831 Supplies: to be furnished to government, contracts between intending bidders, when lawful, when unlawful 60 — 64 Sureties in Official Bonds : sureties are liable, notwithstanding failure to justify, or omis- sion of or defects in approval, or the like, 183, 183 For rulings, respecting the effect of various other formal defects or irregularities in the bond, upon the liability of the sureties therein. See Bond, OrnciAL. surety liable, when he dies after delivery, but before approval. 183 rights of sureties, under general law of principal and surety ; how modified, in case of an official bond 303, 303 rules, relating to the right of subrogation of a surety in an official bond 303 time when default must have occurred, to render sureties liable : general rule, that sureties liable only for future defaults. . . 304 and for defaults during the term, for which the bond was given 305 946 INDEX Sureties in Official Bonds — continued. Sec. exceptions to rule, that they are liable only for future defaults ; cases where they are liable for previous defaults 206 rule, that they are not liable beyond the term, not affected by general language in condition 207 miscellaneous cases, respecting time when default took place, so as to charge sureties ; sureties net estopped to show actual time 208 ruUngs, where officer acted partly ui one, and partly in another term 209, 210 liability for money received by principal at date of bond ; whether liable for defaults after resignation 211 liability, where default occurs while officer holds over, after the expiration of his term 212, 213, 339 respective liabilities of sureties in two or more successive bonds of the same officer : where bonds given for different terms, sureties in each bond liable for defaults, etc., during their term 214 but where successive bonds given in same term, security is cumulative, and all the bonds liable pro rata for future defaults 215 exceptions to this rule 216 presumptions between sureties in successive bonds 217 rule, where money misappropriated by officer in one term, and balance carried over to next; so as to successive bonds in one term; unapplied sums applied to oldest charges 218, 219 respective liabilities of sureties in a general bond, and sureties in a special bond, given by the same officer : the rule is, thatsureties in each are liable for defaults in their own bond, and not in the other; so, where statute requires a special bond for particular duties, but it is not given, sureties in general bond not liable for defaults in those duties ; several Ulutrations 220 liability of sureties, for money lost by theft, robbery, etc., or the failure of a depositary : where the bond or the statute makes the officer a debtor for the money, his sureties are liable; cases turning upon the phraseology of statute or bond 331 where no such peculiar feature, the U. S. supreme court holds, that sureties are liable, for money lost by theft, robbery, etc.. 233, 233 947 INDEX SuEETiES IN Official Boufvs— continued. Seo. exception where money was seized by public enemy. . 233 decisions of state courts, following this rule 224 lire, not an " irresistible superhuman cause" 224 same rule applied, where money lost by failure of a deposi- tary in good credit, etc 235 contrary rulings, that officer and his sureties not liable, where money lost by. either of those causes, without his fault ; New York ; South Carolina 236 the same; Maine 237 the same; Alabama 338 rule, where the money was delivered to one officer by another 329 sureties' liability, depending upon the official or unofficial character of the officer's act or omission : general rule is, that sureties not liable, where the law does not require the officer to do the act 330 various illustrations of the rule and its apphcation 331, 333 the rule applied to the sureties of the clerk of a court 238 of a notary public 334 of a justice of the peace, or constable 235 where the bond did not cover the particular official capacity, as where the principal held two offices 238 what acts or omissions hold the sureties of a justice of the peace, or other judicial officer ; 337 sureties' liability for acts of misfeasance, or wrongs committed colore officii : contradictory rulings upon this question 338, 239 the preponderance of American authorities holds the sure- ties of a sheriff, constable, etc., liable, for wrongful seiz- ure under process ; but the cases are not harmonious. 240, 241 various other rulings, respecting sureties' liability in particular cases : sureties are liable for negligence 243 not liable for honest mistake or want of skill ; effect of attorney-general's opinion 343 liable for failure to keep correct accounts, and make reports ; and for failure to make faithful disbursement 344 whether principal's accounts, etc., as settled, are conclusive, or prima facie evidence against sureties 244, 345, 382 omission of county treasurer to foreclose mortgage ; whether sureties liable for loss 346 948 INDEX Sureties in Official Bonds — continued. Sec. whether sureties are liable for acts or omissions, out of officer's district 347 miscellaneous rulings, as to liability of sureties of a record- ing officer 248 of the clerk of a court 349 of officer issuing marriage license 250 sureties not liable, where deficiency in accounts is only apparent ; keeping funds distinct, etc 351 miscellaneous rulings, as to liability of sureties of a sheriff, constable, or marshal 353 when sureties not liable for depreciation of bank notes ; for uncollected taxes ; for inspection fees 353 town commissioners' sureties liable, for improperly issuing bonds of town ; statute ratifying their acts unconstitu- tional 354 whether sureties are liable, for profits made by an officer, from the use of public funds in his hands 355 receiving interest on deposits, not a common law of- fence (note) 255 sureties of officer de/acto, not liable to officer dejure, for emoluments of office, after ouster 256 sureties not liable to printers, etc., for advertising ; mail contractor's sureties not liable to a private person 357 sureties not liable for a statutory penalty 358 sureties' liability, where the bond was executed upon a condi- tion, which has not been fulfilled : rule, in case of private contract, where surety stipulated that instrument should not be delivered, until executed by one or more co-sureties, who did not execute it 359 same rule established by U. S. courts, in case of official bonds ; officer approving or receiving bond, taking place of obligee in private bond 360 rulings in New York upon the same subject 361 rulings in other States 263, 263 these cases agree, in assimilating the approving officer to the obligee in a private bond ; the author's criticisms thereupon, and his conclusion, that such a ruling is erro- neous 364 additional seal, not notice of condition ; surety, who is present when bond delivered, and makes no objection, waives the condition ; whether, if bond not binding on 949 INDEX Sureties in Official Boyms— continued. Sec. those who have executed it, one subsequently executing it, in ignorance thereof, is bound. 865 where principal is named in bond, but does not execute it, sureties executing it are not bound 366 surety's liability, when co-surety's signature is forged, or aflQxed without authority : cases conflict ; but recent cases hold surety liable 267 surety's hability, as affected by a subsequent alteration of the oflScer's duties, or the tenure of the oflSce : leading English case, Pybus v Gibta, holding that surety is discharged, by subsequent material alteration in princi- pal's duties, etc , 368 other English decisions to the same effect 269 U. S. courts follow this ruling 370 in state courts, preponderance of authority is against this ruUng, and supports doctrine, that sureties not discharged, if new duties are appropriate to the oflSce 371 some cases, sustaining the English doctrine 373 whether, where principal's term or his time to account, etc., is extended by statute, sureties are bound for the addi- tional time ; conflict of inilings 373 addition of new districts, or redistricting county, does not discharge the sureties 374 change of compensation, or amount or mode of payment of money to officer, or a revision of ordinances; sureties not discharged 375 instances, where it was held, that sureties were not hable for additional duties imposed upon the ofiicer 376 author's comments upon these rulings, and suggestions that the rule established thereby is too favorable to the sureties 377 even if not liable for new duties, sureties continue to be liable for former duties, according to the Ainerican cases. 378 sureties liable, where new duties were imposed, before bond was given, or where bond provides for duties "now or hereafter" required 379 effect, upon sureties' liability, of acts or omissions of other ofl&cers, including transactions with the principal: rule, in cases of private contract, modified by peculiar character, etc., of obligee in official bond 280 general rule, that government is not responsible for acts or omissions of its oflcers 381 960 INDEX SuBETiES IN Official Bonds — eoritinued. Seo. settlement between principal and auditing officers, when opened in favor of or against sureties 283, 283 failure of proper officers to settle accounts of principal, or to take proceedings against defaulting principal, no de- fence to sureties 283 so, sureties liable for money, advanced to officer by U. S. authorities, without president's direction. . - 283f effect, upon the sureties' liability, of improper transactions between the principal, and the officers authorized to settle his accounts, or receive money from him 284 illegal cancellation does not discharge sureties; settlement with officers empowered, sureties may avail themselves thereof 285 sureties liable, although appointing power knew principal to be a defaulter when appointed, or falsely represented that his former accounts were settled, etc 286 sureties of collector dejure, not liable for taxes collected by collector de facto, although bond general for taxes 287 defences of sureties, founded upon defects in principal's title, or proceedings to charge him : all the obligors estopped frotn showing any defects in princi- pal's title, etc 288, 665 collector's sureties are liable, for money collected imder defective papers, etc., or under unconstitutional statute. 289 or where rate exceeds lawful rate 290 treasurer's sureties liable, if he receives from collector war- rants taken by latter without authority 290 miscellaneous rulings, as to the liability of sureties for money received by principal irregularly, etc 291 miscellaneous questions, as to the amount recoverable against sureties, proceedings to charge them, etc. : generally, surety's liability same as principal's ; but principal liable for many acts not covered by the bond 293 generally, actual damages recoverable ; cases, where only nominal damages may be recovered 293 penalty of bond limits sureties' liability, except, perhaps, for interest 294 when demand is or is not necessary, before charging sureties 295 sureties of U. S. officer, when liable for expenses of neglected duties ; sureties not liable, for money delivered to govern- ment agent for principal, without proof that it came to 951 INDEX Sureties in Official Bo^bs— continued. Sec. his, hands; when state may sue official bond, before expiration of officer's term 396 sureties of officer de facto liable, as if he was dejure 665 Surrogate; Probate Judge: temporary, to act for a particular estate, not a public officer. . . 4 liability of the sureties in his official bond, various rulings as to 230,336,237, 250 not included in a constitutional provision, forbidding a judge to hold office, after 70 years of age 309 Surveyor-General : of the state, is a public officer 10 Survivor: at common law, where an office is granted to two or more, and one dies, there is no survivorship, and office determines 603 See Powers ; Vacancy. Suspension: in England, suspension is royal prerogative ; semble, that it does not create a vacancy, and that officer entitled to his Salary, while suspended 401 no prerogative in U. S. ; legislature may provide for, although officer's term fixed by constitution ; but not where constitu- tion regulates removal 403 whether a power to remove an officer implies a power to sus- pend him ; American cases in the affirmative 403 the same question ; American cases in the negative ; weight of authority with them 404 rulings upon statutes, giving mayor of a city power to suspend. 405 where officer suspended by impeachment, articles must be re- ceived by senate having a constitutional quorum 405 power of person, appointed in place of suspended officer 406 exercise of power of suspension discretionary, and not review- able by courts 406 in this country, officer not entitled to salary, etc., during suspension 406, 507 aliter, while stayed by injunction 508 rulings upon constructive suspension 508 Swamp Land Agent or Commissioner: is a public officer 10 953 INDEX Tax: gEo. payment of, as a requisite to eligibility to office 74 Tax Officers: in a city, are city officers, within constitutional provisions 39 See Assessor op Taxes ; Collectoe ; Sheriff. Tax Payer: whether, without a statute, he can maintain equitable suit to vacate or restrain unlawful transactions of officers. .619, 816, 851, 853 construction of the New York statute allowing such a suit. 853 he may have an injunction, to prevent the collection of an illegal tax against him 846 Tax Sale : presumption of due performance of official duty, not applicable to 560 officer empowered to make, cannot purchase at 613 but purchase in another's name protects innocent grantee, except, etc 631 such purchase may be set aside, upon landowner's application, whereupon money paid forfeited to public 631 not invalid, because conducted by officer de facto 633 Tenure of "Office: See Term, Official. Term, Official: See also, Vacancy. when legislature may or may not change 19, 30, 305, 311 person appointed by governor, during recess of senate, holds till senate acts, and cannot be removed 100 when mayor's appointment of city officer, subject to confirma- tion by council, is temporary, or for a full term 101 person, appointed for less than statutory term, holds for full term 101 holding over, after expiration of. See Holding Over. effect of alteration of, upon liabiUty of officer's sureties 368—379 See Sureties in Official Bonds. term, defined ^^^ officer holding at pleasure has no official term 303 where no term fixed by lav7 oi- constitution, officer holds at pleasure of appointing power 304, 354 tenure not affected by changes in appointing power ; quere, if affected by abolition t'.iereof 304 953 INDEX Term, Official — continued. Sec. office abolished, by repeal of statute creating it 304, 315 power of legislature, where constitution fixes term ; where constitution fixes a maximum ; where it forbids extension. . . 305 effect of general statute fixing terms, where office is held at pleasure 306 statute, authorizing city council to regulate appointment and removal, authorizes it to fix term ; when neWly elected ofiicer begins to hold, in the absence of time specified by law. . .307, 314 law abhors a vacancy, and doubtful statute construed so as to avoid it 308 but construction favored, which gives shortest term 308 construction of statute, providing for holding till next regular election, etc 308 for election to fill vacancy, at first election "within 30 days " 308 constitutional provision, limiting official term of judge till he reaches 70 years of age 309 whether certain statutes create permanent or temporary offices 310 where constitution requires officer to be elected, etc., legisla- ture cannot extend incumbent's term ; where it fixes term, statute providing for election for shorter term, valid as to election, void as to term ^ 311 if elected officer dies, before term begins, and constitution pro- vides, that vacancy shall be fiUed by governor, till successor elected, etc., and a person is appointed to fiU the vacancy, his term does not expire, when new term would have begun; but continues till successor elected, etc 312 so officer, appointed for less than statutory term, holds for full term, although his bond, etc., recited the shorter term 313 if commission or certificate of election states the term errone- ously, officer holds, nevertheless, for the lawful term 313 various rulings, as to the time when a term begins to run, where not fixed by statute or constitution 307, 314 provision, fixing time for computation of term, applies to ap- pointment for unexpired term 314 extension of statute fixing term, extends term 315 where elective term expires before election, it is extended till election 316 term of officer, appointed by military authority, expires with restoration of civil authority 316 effect of the word " from," in a commission ' 317 9S4 INDEX Tesh, Official — continued. Sec. term of officer, appointed by governor, and afterwards con- flrmed by senate, runs from his appointment; where new office created, beginning of first officer's term determines that of subsequent terms , 318 whether, wliere officer is elected or appointed to fill a vacancy, and no provision is made for duration of his term, he holds for a full term, or only for unexpired portion of predecessor's term ; contrary rulings upon the question 319 — 323 where, in case of vacancy in office of governor, secretary of state designated to perform duties, he holds tiU vacancy is filled, although his own term expires earlier 323, 498 expiration of term, powers of officer thereafter 386 — 338 sheriff, etc., completion of execution of process begun during term 336 collector of assessments, deed for land sold during term. . . 337 town officers, and other officers 338 officer, appointed by governor, subject to confirmation by sen- ate, holds until senate confirms his or a new appointment. . . 331 of deputy, expires with that of principal ; and if latter has new term, deputy must be reappointed 304, 583 removal of officer, before expiration of. See Removal. resignation of officer, before expiration of. See Resignation. forfeiture of office, before expiration of. See Forfeiture. Test Oath: power of legislature to require, from voter 125 from officer ; effect of falsity. . ., 177 Testimony: See also, Evidence. requisites for sufficiency of, in proceedings to remove an officer for cause 379, 380 how taken in such proceedings 385> 386 See, further. Removal. Theft: loss of public money by, whether officer's sureties are liable for 221—329 For detailed analysis. See Sureties in Official Bonds. Time: of holding election, effect of disregard of statutory provision fixing / ^^ 955 INDEX Time — continued. Seo. for voters to be registered, when may be extended, although fixed by statute 135 faiiure to furnish official oath or bond, within statutory time, when it constitutes a forfeiture of the office, and when not 173—175 when act or omission must have occurred, to render officer's sureties hable therefor 204 — 219 See Sureties in Official Bonds. to account, pay over, etc., effect of extension of, upon liability of officer's sureties 368—379 See Sureties, etc. Title: to office, how acquired and proved. See Appointment ; Elec- tion; EVIbENCE. how tested. See Quo Warranto. how far triable, upon proceedings to recover books, and other appurtenances of office 790, 791 not triable on certiorari 803 or on mandamus 825 exceptions to this rule 836, 827 or on an injunction 850 or on prohibition 839 acceptance necessary to vest title ; what suffices as an accept- ance 164 Town; Town Offices; Town Officers: See also the titles of the different town officers. whether certain officers are, or are not, town officers 35 — 39 certain town offices may be sold in New England 53 various rulings, as to the power of certain town officers, after terms expired 338 town not liable for acts, etc. , of officer, unless made so by stat- ute 593 whether town liable to reimburse officer, sued for official act or omission 495, 737 town railroad commissioner's sureties, liable for unlawful issue of town bonds 354 Tort: whether sureties in official bond are liiable for 338 — 341 officer's liability for. See Action, INDEX ToET — continued. Sec. when a municipal corporation is, or is not, liable for the tort of its officer 551, 593 counties, towns, school districts, and other poHticpl divisions of the state, not liable for their officers' torts, unless statute so provides 593 Trafficking in Offices: unlawful 49 See OONTBACT. Treasurer : county, a public officer 10 city, held, in Delaware, not a public officer 13 various rulings, as to the liability of the sureties in his official bond, for particular acts or omissions 806, 309, 317, 318, 230, 331, 334, 336, 237, 233, 243, 244, 346, 351, 355, 363, 371, 278, 383-287, 290, 291, 295 sufficiency of cause for removal of 373 cannot lawfully purchase at tax sale 613 unlawful purchase in name of another, unless set aside, protects innocent grantee 621 if set aside, money paid is forfeited to public 621 state may enforce payment of pubUc money by mandamus, although it has remedy upon treasurer's bond 818 officer may compel payment of his salary by mandamus ; but not where there is no appropriation, or no warrant 834 See further, Accounts ; Bond, Official ; Compensation. Trespass: See also. Tort. indemnity to officer against. See Indemnity. liability of officer and his sureties for. See Action ; Sureties IN Official Bonds. Trial: upon proceedings to remove an officer. See Removal. Trust: breach of. See Breach of Trust. Trustee : of school district. See School Officers. of state library, is a public officer 10 of jury fund, is a public officer 10 967 INDEX Ultra Vires: sbc. See Municipal Corporation; Powers, etc. Unconstitutional Statute : See Action ; Constitution ; Powers, etc. ; Removal. Unfitness: to discharge the duties of an office, when a disquahfication. ... 71 United States: clerk in treasury department, a public officer 10 agent of fortifications, a pubUc officer '.3, 10 marshal, and district court, a pubUc officer 10 rulings, as to whether persons employed in public offices, etc., were entitled to the increase of 20 per centum on officers' com- pensation, given by joiat resolution in 1867 11 watchman of U. S. building, not public officer 13 nor is deputy collector of internal revenue 13 nor is pension agent 13, 40 nor is carrier of the mail 13 semble, letter carrier and mail contractor may be 751 office under U. S., and office under state, when holding by the same person is forbidden 39, 40 postmaster. See that title. constitution of. See United States Constitution. officer on retired list of army, may hold another office 37, 39 foreign minister of, entitled to pay in U. S. money or equiva- lent 463 bills of, payment of salary in, not a reduction of salary, though depreciated 466 officer of navy, contract to compensate for convoying promisor's vessel, void 484 various ruliags, under statute of, forbidding U. S. officers or employees, having a fixed compensation, to receive additional compensation 490, 491, 496 president's order, calling out militia, and governor's order thereupon, are judicial acts, and conclusive upon subordinates 536 provost marshal, presumed to have common law powers of peace officers 565 quo warranto for a federal office, not maintainable in a state court 779 whether the president is exempt from a private action, for an official act, etc 711, 713 958 INDEX United States — continued. Sec. whether the president is exempt from judicial supervision or control of his official acts 794 whether the principal officers of the government are thus exempt 797 when mandamus is prayed for against the governor of a state, as representing the state, the U. S. supreme court has juris- diction 834 principal officers of, punishable for official misconduct, by im- peachment, not by indictment 858 power to declare who shall be a citizen, affects power of states to regulate the elective franchise 134 United States Constitution : See also, Constitution: United States. office is not property or vested right, within protection of U. S. constitution 18, 19 provisions of, respecting eligibiUty to office 72 disqualiflcatian of certain persons, who took part in the civil war 78 indirect power of congress to affect elective franchise, by de- termining who shall be a citizen 134, 138 effect of 14th and 15th amendments, upon the elective fran- chise 134, 138, 139 provisions, respecting the immunity of members of the national legislature from action, etc 710 provisions relating to impeachment 399 Unlawful Contracts: See Colore Officii; Contract Usurper of Office : defined 633, 62-7 his acts void, unless he holds long enough to become officer de facto 633, 637 See De Facto, etc.; Quo Warranto. proceedings to oust from office. See Quo Warranto. punishable criminally at common law 865 Vacancy: See also, Appointment; Governor; Holding Over; Re- moval ; Resignation ; Teem, Official. death of appointed officer, before his commission is issued, creates a vacancy 88 959 INDEX Vacancy — continued. ■ Sdc. appointment to fill vacancy in state or municipal office. . . .100, 101 whether an appointing board can act, if tliere is a vacancy. . . . 106 death of successful candidate, before election, creates vacancy 163 law abhors a vacancy, and, in doubtful case, statute construed so as to avoid it : 308 where vacancy to be filled at first election after 30 days, if vaoaney happens within 30 days of election, officer may be elected for full term 308 provision, that officer holds till "next regular election,'' means till next regular election for that office 308 officer, appointed to fill vacancy, for a shorter time than statute prescribes, holds for full time, although bond, etc., recite shorter time 313 so, if appointed for longer time, holds only for prescribed time. 313 provision, fixing time for computation of term, applies to officer appointed to fill vacancy 314 officer appointed to fill vacancy, by governor, during recess of senate, and afterwards confirmed by senate, holds from origi- nal appointment 318 whether person, appointed or elected to fill a vacancy, holds for a. full term, or for unexpired portion of original term, in the absence of an express provision 319 333 secretary of state, designated to perform governor's duties in case of vacancy, holds till vacancy is filled, although his term expires earlier 333 495 created by judgment of forfeiture, or by resignation or removal 327 filled by governor's appointment, subject to senate's confirma- tion, person holds till senate confirms his or a new appoint- "lent 100^ 338 occurs, where officer's successor is chosen and qualifies, but dies before term begins ; but no vacancy, if he dies before qualify- ing 339 no vacancy, where legislature fails to elect incumbent's suc- cessor; and governor cannot appoint on adjournment ; so, where incumbent's term exi)ire8 during recess 330 though statute provides, that a vacancy occurs on failure to qualify, yet person appointed for fragment of a term, or to fill a vacancy, holds over, if his successor is chosen, and fails to qualify ggj person appointed to fill, removable like any other officer 358 not created by officer's suspension 401 960 INDEX Vacancy — continued. gj.£,_ qu. , whether created by resignation without acceptance.409-412, 415 See Resignation. one not eligible, etc., cannot create, by declining office 413 when created by refusal in advance to qualify, or give new se- curity 438 meaning and application of the words "vacant" and "va- cancy" 431 no vacancy, where a person is authorized to act. though tempo- rarily 431, 439 death of person elected, before votes are counted ; refusal to ac- cept office ; when vacancies created thereby 432 statute, allowing appointment to fiU vacancy till next election, not in conflict v^th constitutional provision, that vacancy be filled by election 433 w^here statute provides that office is vacant, unless person cho- sen qualifies within ten days after receipt of commission, this means actual, not constructive, receipt 434 unless prospective electioi^ to fill vacancy is authorized by stat- ute, it is invalid 435 but prospective appointment is valid 435 power to appoint includes power to fill vacancy 436 direction to appoint "forthwith," does not require appointment on same day 436 power to fiU a vacancy does not confer power to create a va- cancy, or declare that vacancy exists ; void appointment not validated by incumbent's surrender of office ; appointment by legislature, where governor has power to appoint, is not validated by governor's commission 437 other instances of void appointments to fill vacancies 437 resolution that office is vacant, not the exercise of a power of removal 438 but appointment will enable the person chosen, to take pro- ceedings to procure judgment of forfeiture 438 contested election does not authorize governor to appoint, as in case of vacancy 439 nor does judgment in quo warranto against incumbent, on the ground thatrelator has better title 439 Where term will expire, before next session of senate, and senate is in session, it is governor's duty to nominate to fill the vacancy ; if he fails so to do, he cannot fill the vacancy, by appointment during the recess 440 961 INDEX Vacancy — continued. Sec. where statute empowers deputy to act during vacancy, he is then the actir-g officer 586 by death , in oflice gi-anted to two or more, determines the office, at common law 604 American rule is, that vacancy does not prevent survivors from acting, if enough remain to form a quorum 604, 605 exception, where intent of statute is that all shall act 605 cases, where one of two survivors may act, to prevent a failure of justice 606 Validity: of statutes, as .respects the constitution of a state. See Consti- tution. as respects the constitution of the United States. See United States Constitution. Veterans ; See Soldiers and Sailors. Virtute Officii: See Colore Officii. Voting and Voters: See Election. Waiver: acceptance of an office, a waiver of right to object to a provis- ion, excluding an officer from voting Igg of objection to validity of transfer to inferior office, by accept- ance of duties, compensation, etc., of that office 347 of right to notice, hearing, etc., on removal ; and withdrawal thereof 3gg of legal objection to reduction of salary, when it arises, or does not arise, from continued discharge of duties, and receipt of reduced salary 453, 454^ 455, 457^ 491^ 465 War: See Civil War; Military Authority. Withdrawal: of officer's resignation ; when allowed, and eflPect of. ..410, 414, 415 See Resignation. from office, by officer de facto, saves him from liabiUty and penalty 666 962 INDEX Writ: SBC. of inquiry, execution of, a ministerial act 539 of habeas corpus, granting, etc., ministerial acts 534 of quo warranto, superseded by information ; reason therefor 776, 777 of certiorari. See Ceetioraei. of mandamus. See Mandamus. of prohibition. See Prohibition. of injunction. See Injunction. Woman: what offices, in the absence of an express provision, may or may not be held by a woman 67 — 70 not entitled to vote at election, unless expressly allowed; effect of provision conferring suffrage upon males 139 Wrong : See also, Tort. whether officer's sureties are liable for 338 — 341 officer's liability for. See Action. Writing: necessary to validate appointment to office 86 — 88 printed ballot satisfies provision, requiring it to be in writing. . 143 not necessary to validate resignation of office 408 or appointment of deputy 577 In all, UJ^ pages. 963