under color of title originally lawful, when acting in good faith, will protect third persons and the public in their dealing with them, whether serving alone or as members of a governing or legislative body" (37).

§ 45. Acquiescence and reputation. A mere intruder is not an officer de facto. His acts are void and are always open to attack. But long acquiescence and general reputation will render one, who was at first an intruder, an officer de facto even without color of title. Thus, a defendant had been tried in the United States courts on the ground that the murdered man was a United States citizen, when his citizenship depended on whether he had been duly naturalized as a citizen of the Cherokee nation and that depended largely on the validity of a marriage license purporting to be signed by a deputy clerk of the Cherokee nation but actually signed by his son. Mr. Justice Brewer said: "It is true that the younger Dennenberg who signed the marriage license, was neither clerk nor deputy, but he was an officer de facto, if not de jure. He was permitted by the clerk and the deputy to sign their names; he was the only person in charge of the office; he transacted the business of the office; and his acts in their behalf and in the discharge of the duties of the office were recognized by them and also by the Cherokee nation as valid. Under those circumstances his acts must be taken as official acts, and the license which he issued as of full legal force. As to third parties, at least, he was an officer de facto; and, if an officer de facto, the

(37) Oliver v. The Mayor, 63 N. J. L. 634.

same validity and the same presumptions attached to his actions as to those of an officer de jure" (38)

§ 46. Color of title. But in most cases there must be color of title. In the case of State v. Carroll (39) the prisoner moved to erase a case from the docket on the ground that the court before which he was tried was holden by one William H. Morse who had never been elected judge of the same by the general assembly. As a matter of fact Morse had been requested to act in the absence of the regular judge by the clerk of the court under a charter provision, but it was claimed that this provision was unconstitutional because the appointing power lay with the general assembly. It was claimed that there had to be color of appointment or election by the only body which had the power to appoint or elect, but the court went very elaborately into the cases and enumerated among the clearer cases of an officer de facto those where "he has color of appointment or election and yet is not a good officer for want of authority in the appointing power, or irregularity in exercising it, or because there was another lawful officer entitled to the office, or because the incumbent was ineligible, or had not qualified as the law required, or his term had expired." That the law of appointment might be unconstitutional, the court held, did not prevent its giving color of title. But there is no color of title where there has been an adjudication denying the right to the office.

§ 47. Possession. The very term de facto officer means

(38) Nofire v. United States, 164 U. S. 657.
(39) 38 Conn. 449.

that he must be officer in fact, that is, exercising the functions of the office. Thus, it was claimed that certain persons were de facto the board of county commissioners, but the court said that it did not seem from the record "that McWhirt and his associates ever got possession of any of the property of the county, or of any of the records, books, papers, the seal, or of anything else belonging to the county or connected in any manner with the office of county commissioners. If the offi

cer de jure is in possession of the office, if the officer de jure is also the officer de facto; then no other person can be an officer de facto for that office. Two persons cannot be officers de facto for the same office at the same time" (40).

§ 48. No officer de facto without an office de jure. The great weight of the authority of the Supreme Court of the United States is behind the proposition that "there can be no officer, either de jure or de facto, if there be no office to fill." So the court spoke where it repudiated the contention that a county could be bound by bonds issued by a board created under an unconstitutional law (41), and its dictum has been followed in many of the states. It is subject to the rule in most states, however, that the charter of a municipal corporation can not be attacked, even for unconstitutionality, except in a direct proceeding brought for that purpose, so that at least until that is done the title of the officer of such municipal corporation can not be called in question. And where

(40) McCahon v. Commissioners, 8 Kansas 437. (41) Norton v. Shelby County, 118 U. S. 425.

an irregularly constituted authority exercises general governmental powers for a considerable time it will be considered a de facto government and a large number of acts done by it recognized as valid. Thus the state governments in the south during the civil war were recognized as de facto governments by the United States courts and many of their acts, not in hostility to the United States, were recognized as valid, although those governments were denied to have a legal existence because of the rebellion.

§ 49. Rights and duties. Until a de facto officer is ousted from the office by quo warranto or similar proceedings his rights and duties are much the same as those of de jure officers. His right to the office cannot be questioned in proceedings to which he is not a party, and the principal proceedings to which he is a party in which the question of title can be raised are actions for the salary or other emoluments of the office, or civil actions, such as the old action of trespass, where in order to escape liability he justifies by setting up the official relation. He must then prove legal right to the office. These are the principal points in which the position of a de facto officer differs from that of a de jure officer. He can be compelled to perform the duties of the office and is equally liable for negligence and malfeasance in office.

CHAPTER III.

TERMINATION OF THE OFFICIAL RELATION.

SECTION 1. IN GENERAL.

§ 50. Abolition of office and expiration of term. As already seen (§ 4, above), the right to an office is not property nor is it based on contract. Therefore it is not protected by the United States Constitution and if it does not owe its existence to the constitution of the state may be abolished by the state legislature. The expiration of terms of office has already been treated (§ 41, above).

§ 51. Death. Death, of course, renders an office vacant where it is held by a single person. But when the office is held by several no such result follows. Thus in the case of People v. Palmer (1) it was claimed that certain accounts were not properly certified because one of the commissioners named in the act had died and another removed from the state, but 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 in the nature of a private franchise, which, when granted to two without words of survivorship, might not, by the rules of the common law, survive the death of one. But the policy

(1) 52 N. Y. 83.