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things done. Society could hardly exist without such a rule. The people are prosecuting for a breach of the public peace; and it is enough that Lascells was an officer de facto, having color of lawful authority. The rights of the creditor, the due administration of justice, and the good order of society, all concur in requiring that he should be respected as an officer until his title has been set aside by due process of law." See also, to the same effect, Heath v. State, 36 Ala. 273. Bishop says the better opinion is that third persons may be indicted for resisting a de facto officer. 1 Bish. on Crim. Law (8 ed.), sec. 464. Wharton, in making reference to this current of authority, says the rule ought not to be extended to cases where the object is to test the right of the party resisted to hold office. Whar. on Crim. Law (8 ed.), sec. 648.

The authorities show that Horne, and indeed, Jackson, had no right to resist defendant, when in the performance of the legitimate duties of a constable, and would be liable for an indictment for so doing. This being so, it is difficult to see why the defendant may not say that he was an officer de facto, and be entitled to protection to the extent that others were bound to respect his official character. It can hardly be said that the state resorts to this proceeding to test the right of the defendant to perform the functions of a deputy constable, when there are so many other more appropriate proceedings at hand; but it may rather be said the state here seeks to punish him for doing that which he had no right to do, though an officer he was. The question is by no means free from doubt, but we conclude the defendant should be treated in this case as an officer, and the instructions should proceed upon the theory that he was one. There seems to be no doubt but the defendant believed he was a deputy constable by right, in all respects, and the conclusion we reached we believe to be in the interest of good order.

The judgment is reversed, and the cause remanded for trial de novo. All concur.

One who resists a de facto officer in the discharge of the duties of the office may be punished for unlawful resistance to an officer. Bohannan v. State, 89 Ga. 451.

BOONE COUNTY V. JONES ET AL.

Supreme Court of Iowa. December, 1880.

54 Iowa Reports, 699.

At the general election in the year 1873, the defendant Geo. E. Jones was elected county treasurer of Boone county, for two years from January, 1874. He served the full term of the office to which he was elected. At the general election in 1875, one J. W. Snell was elected to said office, for the term commencing in January, 1876. After the said election, and before the first Monday in January, 1876, the said Snell departed this life without having qualified, or in any manner entered upon the duties of said office. A vacancy was thereby created and on the 3d day of January, 1876, the defendant Jones executed a bond to said county as a holding over officer, and otherwise qualified and continued as the incumbent of said office, until the expiration of the term in January, 1878. At the general election in 1876 the electors of said county again voted and balloted for candidates to fill the vacancy in said office, for the residue of the said term to which said Snell had been elected, and the said Geo. E. Jones was again declared duly elected, and thereafter, and on the 17th day of November, 1876, the said Jones, and the other defendants as his sureties, executed a treasurer's bond to said county.

This action was brought upon this bond, and it was claimed that upon his final settlement with the county in January, 1878, the said Jones proved to be a defaulter in a large amount of money, for which judgment was prayed against him and the other defendants as his sureties.

The answers of the defendants in substance denied the validity of said election and bond and denied that Jones ever held the office under said pretended election, and averred that he held the full term for which said Snell was elected as a holding over officer, and said Jones averred that there were two other actions pending against him for the same cause of action embraced in this suit.

There was a trial by jury, and a verdict and judgment for the plaintiff for $13,598. Defendants appeal.

ROTHROCK, J. I.

When the bond was offered in evidence, objection was made thereto upon the grounds that it

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was not a valid instrument, because the election therein recited was void, not being authorized by law, and because there was no vacancy at that time existing. These objections were overruled. The same questions were presented in certain instructions which the defendants asked to be given to the jury, and the instructions were refused.

We think it is not material to inquire whether the defendant Jones was entitled to hold over for the full term for which Snell was elected, nor to determine whether his election to fill a vacancy was regular, and authorized by law. We are united in the opinion that Jones and his sureties are concluded by the recitals in this bond, and cannot be heard to dispute the regularity of the election. Under the recitals of this bond he was, as between the parties thereto, de facto the treasurer of the county. If public officers are allowed to escape the consequences of malfeasance in office after the full term of their election has. expired, because of an alleged illegal election, it would be a bolder and more glaring instance of allowing a man to take advantage of his own wrong than any case that has come under our observation.

Affirmed.

The rule that one in possession of an office may not impeach his own title prevents an incumbent in office from escaping the consequences of either a tortious or criminal act committed by him in the discharge of the functions of the office. Longacre v. State, 3 Miss. 637; Diggs v. State, 49 Ala. 311.

CHAPTER IV.

QUALIFICATIONS FOR OFFICE.

I. POWER OF LEGISLATURE TO PROVIDE QUALIFICATIONS.

1. In General.

BRADLEY V. CLARK.

Supreme Court of California. June, 1901.
133 California, 196.

HENSHAW, J. This is an action instituted by an elector of the city of Sacramento, under the provisions of the Purity of Elections Act (Stats. 1893, p. 15), contesting the right of the defendant, mayor-elect of the city, to his offce. After trial, judgment passed for the defendant, and from that judgment contestant appeals, the evidence being brought up for review by bill of exceptions.

It is charged by contestant that, in violation of the Purity of Elections Act, the defendant was guilty of certain improper practices, in that, 1. He did not file a statement of his election expenses, supported by his affidavit, as required by law;

Respondent contends that these provisions, or at least such of them as require a successful candidate to support his statement by his oath as a prerequisite to his right to take office, are violative of the constitution of the state, and therefore void. From this conclusion we think there can be no escape. Section 3 of article XX of our state constitution declares: "Members of the legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation: 'I do solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States and the constitution of the state of California, and that I will faithfully discharge the duties of the office of according to the best of my ability,' and no other oath, declaration, or test shall be required as a

qualification for any office or public trust. The constitution itself speaks of this prescribed oath as a "qualification" for an office. Equally is the oath required to be taken by the successful candidate a qualification for office, for the very provision of the act is, that, for his refusal or neglect in this regard, or for the making of a false statement, he shall be deprived of his office, and shall forfeit any office to which he may have been elected.

Had our constitution merely declared, as some do, that no other "test" than the one prescribed should be exacted of an officer elect, it might then be argued with some force that it had reference to such tests, in their nature religious, as those required by the act of Charles II, directed against Roman Catholics and dissenters, which remained a blot upon the English statutebooks until 1828. But the constitution has designedly said, not alone that no other test should be required, but that no other "oath or declaration" should be exacted. This language leaves as the only matter for determination the single question, whether this act does impose an oath or test substantially differing from that prescribed by the constitution. (Cohen v. Wright, 22 Cal. 294.) That it does prescribe a substantially different oath, in addition to that made exclusive by the language of the constitution, the very reading of the section makes manifest. But, in holding that the legislature may not prescribe this additional oath upon a successful candidate as a prerequisite to his right to take office, and as an additional qualification to those enunciated by the constitution, we do not mean to be understood as saying that the legislature may not with propriety provide that a candidate shall forfeit his office for the doing of any of the inhibited acts, or for the failure to do any of the required acts set forth in the Purity of Elections Act. The legislature would have the undoubted power to require an officer elect to file just such a statement as the law now prescribes, and to provide that for a failure so to do he should forfeit his office, or his right to office; but, under the strict mandate of the constitution, it has no right to exact this different and additional oath or affirmation before the taking of office, as a prerequisite thereto. So much, therefore, of the act as requires the candidate to support his statement by the above-quoted oath as a prerequisite to the right to take office is void.

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