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 It is a br of peace to resist act of de facto of. This title cautbegqnd collaterally NB 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 article on De Facto Office by K. R. Wallach, in 22 Political Science Quarterly, 450. 26 Only a portion of the opinion is printed. a Å 1420 be a good answer to the action that he was not a legal officer, but a wrongdoer, who might be resisted. And clearly he cannot recover 63/127. ; 28/21. fees, or set up any right of property, on the ground that he is an officer de facto, unless he be also an officer de jure. Riddle v. County of Bedford, Serg. & R. (Pa.) 386; Keyser v. McKissan, 2 Rawle (Pa.) 139; Fowler v. Beebe, 9 Mass. 231, 6 Am. Dec. 62; Green v. Burke, 23 Wend. 490; People v. White, 24 Wend. 526. When one man attempts to exercise dominion over the person or property of another, it becomes him to see that he has an unquestionable title. But it is equally well settled that the acts of an officer de facto, though his title may be bad, are valid so far as they concern the public, or the rights of third persons who have an interest in the things done. Society could hardly exist without such a rule. I will only refer to two or three cases where many of the others have been collected. People v. Stevens, 5 Hill, 630; Green v. Burke, 23 Wend. 490; Taylor v. Skrine, 2 Tread. Const. (S. C.) 696. Now here, although Lascells is a witness, he is not a party; nor is this a proceeding for his benefit. 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 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. The evidence offered was properly rejected. * * * 27 A def. Or cant manitar mand. to compel & to be dortohein SPEOPLE ex rel. WINSTANLEY v. WEBER. (Supreme Court of Illinois, 1878. 89 Ill. 347.) This was an application in this court by Thomas Winstanley, as city treasurer of the city of East St. Louis, for a writ of mandamus against Herman G. Weber, county collector of St. Clair county, to compel him to pay over to the relator moneys collected by him and taxes belonging to the city of East St. Louis. The defendant's plea presented the question of the validity of the relator's election. Mr. Justice DICKEY delivered the opinion of the court.28 While the acts of an officer de facto are valid, in so far as the rights of the public are involved, and in so far as the rights of third persons 27 Accord: Heath v. State, 36 Ala. 273 (1860); State v. Dierberger, 90 Mo. 369, 2 S. W. 286 (1886). See Commonwealth v. Kane, 108 Mass. 423, 11 Am. Rep. 373 (1871). See, also, Rodman v. Harcourt, 4 B. Mon. (Ky.) 224, 230 (1843), warrant of justice de facto protects constable; Bedford v. Rice, 58 N. H. 446 (1878), on action for penalty by town sufficient that health officers were officers de facto only. See, also, Patterson v. Miller, 2 Metc. (Ky.) 493 (1859), ante, p. 109, purchaser from de facto sheriff protected. 28 Only a portion of the opinion is printed. having an interest in such acts are concerned, still, where a party sues or defends in his own right as a public officer, it is not sufficient that he be merely an officer de facto. To do this he must be an officer de jure. As an officer de facto he can claim nothing for himself. People ex rel. Sullivan v. Weber, 86 Ill. 283. * * * The commission under which relator claims title recites that it is issued in pursuance of an election held on the 16th day of April, 1878, and the answer to relator's petition states that "it is from this pretended election that relator obtains all the title he has to the pretended office claimed by him." This allegation of the answer is confessed by demurrer. * * * * 29 * In the case of Stephens v. People ex rel., 89 Ill. 337, we have held void the election through which relator claims to have acquired the supposed office. It follows that the relator is not a public officer of the character held necessary to entitle him to the relief sought. The application for a writ of mandamus must be denied. PENNSYLVANIA. Assisst mechanical not reggexercise of que jol porns (Supreme Court of United States, 1890. 134U. S. 232, 18 sup. Ct. 533, 33 L. Ed. 892.) Ray objects to St tax in bondortwosue owned by residents of Pa & deducted at source out of In Error to the Supreme Court of Pennsylvania. BRADLEY, J.1 * *By the law of Pennsylvania, all moneyed securities are subject to an annual state tax of three mills on the dollar of their actual value, except bonds and other securities issued by corpo- the intclue they rations, which are taxed at three mills on the dollar of the nominal or corpo.on. ・on grd par value. If the treasurer of a corporation fails to make return of the proceed dec its loans, as required by law, the Auditor General makes out and files an account against the company, charging it with the tax supposed to five an oppa to be the be due. This account, if approved by the State Treasurer, is served au Nominal value of scrip, bonds, and certificates of indebtedness own ed by residents of Pennsylvania, $539,000-tax, three mills.... $1,617 00 The company thereupon tendered an appeal, which was filed in the court of common pleas of Dauphin county, a declaration was filed on the part of the state, and the cause was tried by the court, a jury being waived. The appeal filed by the corporation (which was the 1 Only a portion of the opinion is printed. Terminology See Blacks article in Cyc. Levy = the formal plack of a leg body del wing declaring that a tax of a certant or a certn of ad val. shall be imposed. Thudes leg. cant the delegated to adm2 pr. 128 Wis. 553 tho extends assess realleety may be. Ibed Asst is a final listy of the persons oprop subject to the tax with and I estimate of the value of the property of each for the perpos of the tax ма Sisting of frop 4 tappayer usu agrégasbasis for asst. + list furnish? care beckig wone cye 995. aling 114 Mo 574 The preff:d to the roflar propwi to time. Completi & filing of asst roll fledare of the whelter impered on each district's delt tage districtise. Tax on face value Newton" need not Anal. basis of the proceedings in the court) contained eight grounds of objection to the tax. Most of these objections were founded upon the Constitution or laws of Pennsylvania, and need not be noticed here. The second objection, which refers to the Constitution of the United States, was as follows, to wit: "(2) The report of the company's treasurer was made under protest, and does not constitute an assessment, and the tax sought to be imposed on so much of the company's loans as the commonwealth claims to be held by residents of Pennsylvania for their nominal or face value, which varies from the market value on account of the differing rates of interest, etc., is illegal, and the said tax cannot be lawfully deducted by the company's treasurer from the interest payable to the holders of said loans, and the commonwealth's demands contravene section 1 of the fourteenth amendment to the Constitution of the United States, for the following reasons." Among the reasons then assigned are (1) that the nominal value of the bonds is not their real value; (2) that the owners of the bonds have no notice, and no opportunity of being heard; (3) that the company is taxed for property it does not own; (4) that the deduction of the tax from the interest payable to the bondholders is taking their property without due process of law, and denies to them the equal protection of the laws, since all other personal property in the state is taxed at its actual value, and upon notice to the owners. The seventh objection is as follows: "(7) The tax is void, as impairing the company's obligation to its creditors." * * * terest. As to want of notice to the owners of the bonds: What notice could they have which the law does not give them? They know that their bonds are to be assessed at their face value, and that a tax of three mills on the dollar of that value will be imposed, and that they will only be required to pay this tax when and as they receive the inIf the state may assess the tax upon the face value of the bonds, notice in pais is not necessary. We think that there is nothing in this objection which shows any infraction of the federal Constitution. It is urged that it is a taking of the bondholder's property without due process of law. We must confess that we cannot see it in this light. The process of taxation does not require the same kind of notice as is required in a suit at law, or even in proceedings for taking private property under the power of eminent domain. It involves no violation of due process of law when it is executed according to customary forms and established usages, or in subordination to the principles which underlie them. We see nothing in the process of taxation complained of which is obnoxious to constitutional objection on this score. Stockholders in the national banks are taxed in this way, and the method has been sustained by the express decision of this court. Bank v. Com., 9 Wall. 353, 19 L. Ed. 701. |