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CHAPTER III.

DE FACTO OFFICERS

I. INTRUDERS.

STATE EX REL. VAN AMRINGE V. TAYLOR.

Supreme Court of North Carolina. February, 1891.

108 N. C. 196.

MERRIMON, C. J. The ascertainment of the popular will or desire of the electors under the mere semblance of an election unauthorized by law is wholly without legal force or effect, because such election has no legal sanction. In settled, well-regulated government, the voice of electors must be expressed and ascertained in an orderly way prescribed by law. It is this that gives order, certainty, integrity of character, dignity, direction and authority of government to the expression of the popular will. An election without the sanction of the law expresses simply the voice of disorder, confusion and revolution, however honestly expressed. Government cannot take notice of such voice until it shall in some lawful way take on the quality and character of lawful authority. This is essential to the integrity and authority of government. Hence, if a person assume to be a registrar of elections and four others likewise assume to be judges of election, and purport and undertake to hold an election on election day, in an election precinct, and take and count the votes cast at it honestly, such action and proceeding would be no election, nor would it be accepted and treated as such by authority. An essential element of a valid election is that it shall be held by lawful authority, substantially as prescribed by law. It is not sufficient that it be simply conducted honestly, it must as well have legal sanction. The statutory provisions and regulations in respect to public elections in this State must be observed and prevail, certainly in their substance. Otherwise, the election will be void and so treated. Therefore, the contention that if the election in question was simply conducted fairly and honestly it was valid, is unfounded.

The court instructed the jury that Thomas was registrar de facto if they believed either of the two aspects of the evidence, and

the election would hence be valid. As to this there was no exception. But the court said further: "If you find from the evidence. that Cowan continued to act as registrar and employed Thomas as clerk to assist him, and that Thomas, whilst sustaining this relation to Cowan, fraudulently obtained possession of the books on the second Saturday preceding the election with a promise to return them, and assumed to act as registrar, he was an intruder and had no authority and could perform no lawful official act, and in consequence the election held by him and his appointees was void, and your answer to the issue should be No." This is made the principal ground of assignment of error.

The instruction thus complained of must be taken in connection with the whole of the instructions given, and in view of all the evidence pertinent. The evidence tended to prove that one Cowan was duly appointed to be registrar; that he accepted the office, and acted as and claimed to be such, continuously, until the day of the election; that he did not resign, or profess to resign; that he did not appoint, or undertake to appoint Thomas to be registrar; that he was employed and treated simply as his clerk; that Thomas fraudulently got the registration books from the registrar under the false promise to return the same; that he did not do so, but on the day of election expressly refused to surrender the registration books, and then assumed to be registrar, acted as such, and undertook and purported to appoint three judges of election, who, with a judge regularly appointed, co-operated with him in holding the election. The evidence fully warranted the instruction, if it was correct in point of law.

It is difficult to define, in precise terms, what constitutes an officer de facto in all cases. Indeed, what may constitute such officer in one case, may not in another. A variety of facts and circumstances, tending to show authority of the person claiming and exercising it, go to constitute such officer, and upon grounds of necessity and public policy, to give his acts validity as to the public and persons taking benefit of his official acts. There must be something, some consideration, evidence, facts, circumstances or conditions that reasonably lead those persons who, in the course of the administration and discharge of the duties of the office, must, in some way, have relations or business with it, to recognize and treat the person claiming to be officer as the lawful incumbent.

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A mere intruder or usurper is not ordinarily, but may become, an officer de facto in some cases. This can happen only

by the continued exercise of the office by him and the acquiescence therein by the public authorities and the public for such length of time as to afford to citizens generally a strong presumption that he had been duly appointed. But when without color of authority he simply assumes to act, to exercise authority as an officer, and the public know the fact, or reasonably ought to know that he is an usurper, his acts are absolutely void for all purposes. The mere fact that, apart from his usurpation, his supposed official acts were fair and honest could not impart to them validity and efficiency.

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The citizen is justly chargeable with laches, does that which is his own wrong and wrong to the public, when he recognizes, tolerates, encourages and sustains a mere usurper, one whom he knows, or ought, under the circumstances, to know to be such. In such cases, neither justice, necessity nor public policy requires that the acts of the usurper shall be upheld as valid for any purpose. Indeed, these things, the spirit and purpose of government strongly suggest the contrary.

When, therefore, Thomas obtained from the registrar (Cowan) the registration books, fraudulently, under promise to return the same and assumed to act as registrar, he was simply an intruder, and had no authority and could perform no lawful act as such, and the election which he and the supposed judges, his appointees, cooperating with him, held, was void. The instruction of the court to the jury excepted to was pertinent, and had reference to the evidence going to prove that Thomas so fraudulently obtained the registration books and assumed to act as registrar, and the jury must have found that he did. The jury found that he was not registrar de facto by reason of color of appointment. They found also that he was a fraudulent intruder, but they did not findnor was there evidence to warrant such finding-that he was an intruder under such circumstances and conditions as to constitute him registrar de facto. The evidence went to show that he had been the clerk of the registrar; that he did not claim to be or act as registrar until the day of the election; that he had no such reputation; that the electors had not so recognized him; that no public authority had so recognized him at any time; and that, on the morning of the day of the election, in the presence of electors, the lawful registrar had publicly demanded that he surrender to him the registration books to the end that he and the lawfully appointed judges of election might hold the election ac

cording to law, and he refused to do so. The evidence went to prove, and the jury found, that Thomas was a naked intruder, with no attending circumstances and conditions that rendered him registrar de facto. The electors had notice that Cowan was the lawful registrar; that he had been duly appointed; that he acted as such. There was no notice that he had resigned his office, nor had he done so. On the contrary, on the morning of the election he claimed his right and authority to hold the election. This was notice-important notice-that Thomas was an intruder, and the election was not such in contemplation of law. The electors ought not to have recognized the intruder. They did so in their own wrong. They ought to have demanded and required that the registrar and lawful judges of election hold the election according to law. It was their duty to themselves and to the public to have done so, and, failing in this for any cause, they ought not to have gone through an empty form that had no legal effect. They lost their votes and their voice, in part, through their own laches.

The issue of fact submitted to the jury was broad and comprehensive. It embraced the whole of the matter at issue. The relator could readily, as he did, put in all pertinent evidence and avail himself of it before the jury. He was not necessarily prejudiced by it, nor can we see, nor does it at all appear, that he was. The other exceptions are without merit.

Judgment affirmed.

II. WHO ARE DE FACTO OFFICERS.

STATE V. CARROLL.

Supreme Court of Errors of Connecticut. 1871.

38 Conn. 449.

The prisoner moved to erase the case from the docket for the following reasons:

First, because the court before which he was tried was an irreg ular and pretended court, not holden by H. Lynde Harrison, Esq., the only judge of said court, but by one William H. Morse, who was never elected judge of the same by the General Assembly.

BUTLER, C. J.

If the principle that an officer who exercises the duties of an office under and pursuant to the provisions of an unconstitutional law is as to the public and third persons an officer de facto, be sound, Mr. Morse was such officer, and the judgment is valid. The principle was questioned in the argument of that case, and in the dissenting opinion, mainly on two grounds, viz.: First, on the ground that there must be in order to constitute an officer de facto, color of election or appointment by the only body which had power to elect or appoint; and second, on the ground that a law manifestly unconstitutional has not even the semblance of authority, and cannot confer any color whatever.

First, then, as to the point that in order to constitute an officer de facto there must be color of appointment or election by the only body which had the power to appoint or elect. No authority was cited for it except an expression used by Judge Hinman in Douglass v. Wickwire, 19 Conn. 492, and quoted in State v. Brennan's Liquors, 25 Conn. 283. The claim was that the expression was used as a definition of that which constitutes an officer de facto. The expression was this: "It is enough if the officer acts under color of an election or appointment, by the only body which has the power to make it."

2. But if it were admitted that such a definition was intended. it would be entitled to no respect. None such is to be found anywhere, with or without the qualification 'prima facie,' in any of the more than two hundred cases which have been decided in England and this country, in respect to this matter. Such a definition is directly in conflict with the principles which underlie the de facto doctrine, and to a strong and irresistible current of decision in England and in this country, commencing with the earliest case in the Year Books, and extending to the present time.

The de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interests of the public and individuals, where those interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. It was seen, as was said, that the public could not reasonably be compelled to inquire into the title of an officer, nor be compelled to show a title, and these became settled principles in the law. But to protect those who dealt with such officers when apparent incumbents of offices under such apparent circumstances of reputation

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