the school district, commanding certain moneys to be levied as a tax, and amongst others of McCoy, and proved by parol that Jayne and Fox were reputed to be, and acted as, trustees of the district, and also proved by parol that he, the defendant, had acted as collector, and that as such collector he had levied upon the watch of the plaintiff. The plaintiff objected to the parol evidence when offered, but the objection was overruled. He also objected to the warrant being received in evidence, until the erection of the district was shown by the production of the records of the towns of Warwick and Goshen, and insisted that, even were they produced, the warrant was illegal in having been issued by only two instead of three trustees. These objections were also overruled. The jury, under the charge of the court, found a verdict for the defendant, and the plaintiff sued out a writ of error. SUTHERLAND, J. It is a general rule in relation to all public officers that they may establish their official character by proving that they are generally reputed to be, and have acted as, such officers, without producing their commission or other evidence of their appointment. This is well established, as to all peace officers, sheriffs, constables, justices of the peace, etc. 4 T. R. 366; Potter v. Luther, 3 Johns. 431; Cowen's Tr. 572, note "m"; Young v. Commonwealth, 6 Bin. (Pa.) 88; Fowler v. Bebee, 9 Mass. 231, 6 Am. Dec. 62; People v. Collins, Johns. 549; McInstry v. Tanner, 9 Johns. 135; Reed v. Gillet, 12 Johns. 296; Wilcox v. Smith, 5 Wend. 231, 21 Am. Dec. 213; 16 Viner, 113, 14. In Rex v. Jones, 2 Campb. 131, a letter was permitted to be read purporting to be from the lords commissioners of the treasury, without any evidence except what appeared on the face of the letter that they were commissioners. That, too, was a criminal case, and it was distinctly objected on the part of the defendant that the authority of the commissioners should be shown by producing the commission by which they were appointed. The trustees and collector of a school district are regular officers, annually chosen, with powers and duties. well defined and regulated by statute; and it is not perceived why their official characters may not be shown in the same manner as that of a justice of the peace or a constable. They are officers of almost equal notoriety, and the duties of a collector are very much of the same nature, as those of a constable. Laws 1819, p. 198, §§ 20 to 25. I am inclined to think, therefore, the parol evidence upon these points was admissible. Whether it was sufficient or not is a question which does not arise on this bill of exceptions. The objections are specifically to the nature of the evidence, and not to its defect or sufficiency. * * * 21 Judgment affirmed. 21 For rest of opinion, see ante, p. 89. PATTERSON v. MILLER. (Court of Appeals of Kentucky, 1859. 2 Metc. 493.) Chief Justice SIMPSON delivered the opinion of the court.22 This action was brought by William F. Patterson against James P. Miller and William H. Haynes, to recover damages for an alleged illegal seizure and sale by them of his personal property. The plaintiff stated in his petition that the defendant Miller pretending to be the sheriff of Russell county, when in reality he was not the constitutional sheriff of that county, unlawfully and without authority took into his possession and sold a sorrel mare, the property of the plaintiff, and that the defendant Haynes purchased said mare at the aforesaid illegal sale and converted her to his own use. The defendant Miller averred in his answer that he was the sheriff of Russell county, duly elected and qualified according to law, and as such seized the property in the petition mentioned, and made sale thereof, under and by virtue of two executions which issued from the office of the presiding judge of the Russell county court, and were placed in his hands for collection; and the defendant Haynes, in his answer, admitted that he had purchased the property so sold, and insisted that he had a right to make the purchase, as the property was sold under execution by a person who was acting as sheriff of the county. The defendant Miller read as evidence upon the trial the certificate of his election as the sheriff of Russell county, and the records of the county court, by which it appeared that he had qualified and executed an official bond as sheriff, according to law. The plaintiff then offered to prove that Miller was not a resident of Russell county at the time he was elected, but was then, and still was, a resident of Adair county. This testimony was rejected by the court on the ground that the certificate of the examining board was conclusive evidence, not only of Miller's election as sheriff, but also of his eligibility to the office. The court, however, decided that evidence might be offered to show that he had removed from the county since his election, although evidence that he was not a resident of the county at the time of his election was inadmissible. The correctness of this decision of the court below is the only question presented for our consideration. By the sixth article of the Constitution it is provided that no person shall be eligible to the office of sheriff who has not resided one. year next preceding the election in the county for which he is a candidate. * * * Whether the acts of a sheriff, who has forfeited his office by a removal from the county, would be valid, and could be relied on for his own protection, until his office should, by a direct proceeding against him, be declared vacant, it is not necessary now to de 22 Only a portion of the opinion is printed. termine. Such acts would, however, according to well-settled principles, be legal and valid, so far as third parties were concerned. But where a person is constitutionally ineligible to an office, he will not be the lawful incumbent thereof, although he may be elected, obtain a certificate of his election from the examining board, take the oath of office, and execute the bond prescribed by law. Are the acts of the officer in such a case legal to any extent; and, if so, to what extent are they legal? As he holds his office by color of right, and acts as sheriff, all his acts as such are regarded as lawful, so far as third parties are concerned. Public policy requires that they should be so regarded, and that his official authority should not be questioned collaterally. He acts as the sheriff of the county, and it is to the interest of its citizens that his acts should be declared to be valid, so long as he continues thus to act. It has been accordingly held that a person unconstitutionally commissioned a justice of the peace was an officer de facto, and his acts valid as to third persons. Justices of Jefferson County v. Clark, 1 T. B. Mon. 86; Wilson v. King, 3 Litt. 459, 14 Am. Dec. 84. He remains an officer de facto, until his office shall be declared to be vacant or forfeited, by a direct proceeding against him, instituted and carried on for that purpose. Stokes v. Kirkpatrick, 1 Metc. 143. Can he, however, in an action against himself, for acting as sheriff, and seizing and selling the property of the plaintiff without lawful authority, defeat the right of recovery, by showing that he acted as an officer de facto, or by relying on his certificate of election and qualification in the county court, as conclusive evidence that he was the lawful sheriff of the county? The principle is well established that, although the acts of an officer de facto are valid as to third persons, nevertheless they are invalid so far as he is himself concerned; and his mere color of title to the office will not avail him as a protection in actions against him for trespasses on person or property. Rodman v. Harcourt, 4 B. Mon. 229. It only, therefore, remains for us to inquire whether the certificate of election and the fact that he qualified and gave bond in the county court, as prescribed by law, furnish conclusive evidence that he was the lawful incumbent of the office of sheriff of Russell county. The examining board is constituted by law for the mere purpose of comparing the polls, and giving a certificate of his election to the candidate having the largest number of votes, according to the returns. which have been made by the officers who conducted the election at the different places of voting in the county. It is not the duty of this board to examine into or decide upon the qualifications of the candidates for the office to which they are elected. Consequently the certificate which it issues to a candidate that he is elected to an office is not even prima facie evidence that he was eligible to the office, although conclusive evidence that he was elected thereto, unless his election be contested before the proper board. The duty which the law devolves upon the county court, in regard to the sheriff, only extends to the administration of the appropriate oath of office, and the taking of a bond with sufficient sureties to be approved of by it. The performance of this duty is incumbent on the county court whenever a person claiming to be entitled to the office of sheriff presents a certificate of his election from the proper board. The court has no power to inquire into his eligibility, or to refuse to permit him to qualify and execute a bond according to law, on the ground that he is ineligible to the office. Consequently, the fact that he has qualified and given an official bond in the county court as sheriff cannot be relied upon to prove his eligibility to the office. * * * We decide, therefore, in this case, that as Miller acted under color of title to the office of sheriff the sale made by him under the executions in his hands is sufficient to protect the purchaser. But if he were constitutionally ineligible to the office of sheriff when elected, the law will not so far encourage a violation of the Constitution as to permit him to protect himself under a mere color of authority, exercised in opposition to an express mandate of the Constitution, when, too, he must have known that his title to the office was not legal, and, therefore, that all his acts as sheriff were without authority and against law. The court below, therefore, erred in rejecting the evidence, which was offered to be introduced on the trial, to prove that Miller was not a resident of Russell county when he was elected to the office of sheriff. Wherefore the judgment is reversed, and cause remanded for a new trial and further proceedings not inconsistent with the principles of this opinion. The judgment for the appellant's costs in this court must be against Miller alone.23 SECTION 18.-DE FACTO OFFICE AND AUTHORITY PEOPLE ex. rel. BUSH v. COLLINS. (Supreme Court of New York, 1811. 7 Johns. 549.) An alternative mandamus was directed to a town clerk, commanding him to record the survey of a road, pursuant to the act (Laws 24th Sess. c. 186), or show cause; and the clerk returned that he did not record the survey because the commissioners had not taken the oath of office, and filed a certificate of the oath with the clerk, according to the act. 23 See Courser v. Powers, 34 Vt. 517 (1861). PER CURIAM.24 * * Nor is the allegation material, in this case, that the commissioners had not caused a certificate of their oath of office to be filed in the town clerk's office. If the commissioners of highways acted without taking the oath required by law, they were liable to a penalty; or the town, upon their default in complying with the requisition of the statute, might have proceeded to a new choice of commissioners. But if the town did not (and it does not appear that they did in this case), the subsequent acts of the commissioners, as such, were valid, as far as the rights of third persons and of the public were concerned in them. They were commissioners de facto, since they came to their office by color of title; and it is a well-settled principle of law that the acts of such persons are valid when they concern the public, or the rights of third persons who have an interest in the act done; and this rule is adopted to prevent the failure of justice. The limitation to this rule is as to such acts as are arbitrary and voluntary, and do not affect the public utility. The doctrine on this subject is to be found at large, in the case of Rex v. Lisle, Andrews, 263. It certainly did not lie with the defendant, as a mere ministerial officer, to adjudge the act of the commissioners null. It was his duty to record the paper; valeat quantum valere potest. It was enough for him that those persons had been duly elected commissioners within. the year, and were in the actual exercise of the office. It may be that the oath was duly taken, and that the omission to file the certificate of it was owing to casualty or mistake. The validity of the title of the commissioners to their office must not be determined in this collateral way. The opinion of the court, accordingly, is that the rule for a peremptory mandamus be granted.25 PEOPLE v. HOPSON. (Supreme Court of New York, 1845. 1 Denio, 574.) The defendants were indicted for assaulting and beating Peter Lascells, a constable of the town of Salisbury, Herkimer county, and resisting him in the execution of his duty as such constable. * * * BRONSON, C. J.26 The next question is on the offer to show that Lascells had not taken the oath of office, or given security, and so was not a legal officer. The evidence would be proper if Lascells, instead of the people, was the party complaining of an injury. If he were suing to recover damages for the assault, it would probably 24 Only a portion of the opinion is printed. 25 See State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409 (1871); also an arti cle on De Facto Office by K. R. Wallach, in 22 Political Science Quarterly, 450. 26 Only a portion of the opinion is printed. |