The de facto officer is therefore distinguished from an intruder in that he had, when he took the office, color of title or has acquired certain rights by the acquiescence or laches of the public; and from a de jure officer in that he has not complied with all of the legal requirements necessary to give him perfect title or, having once complied with them, has for some reason ceased to possess all the necessary qualifications, yet continues to exercise the office. But as said by the court in the last cited case: "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. 47. Effects of acts of de facto officers.-The necessities of business demand that the acts of de facto officers should be recognized by the courts as valid. Any other rule would create such uncertainty as to property rights as to be intolerable. If a decision of a judge, in a court of last resort, determining the title to property, could be set aside when, years after, it was discovered that he was a de facto officer only, a whole chain of titles might be destroyed, for in the meantime the property may have passed through scores of hands. The same result would follow if the acts of a de facto sheriff who sells property under execution could be subsequently set aside upon discovery that he was a de facto officer merely. It

might even involve the right of liberty or security of life and limb. In the case of Nofire v. United States," the validity of an indictment in the circuit court of the United States depended upon the validity of the marriage of the murdered man into the Cherokee Nation, and the validity of this marriage depended upon whether the son of the clerk who granted the marriage license was a mere intruder or a de facto officer whose acts were valid. The court decided that the son of the clerk, though neither clerk or deputy, had nevertheless exercised the office for so long that he had become an officer de facto. Thus the license and marriage were valid, the circuit court was without jurisdiction and the conviction of murder was set aside.

48. Possession necessary.-It follows from the nature of a de facto officer's title that he must be in possession and exercising the functions of the office, for if the de jure officer, provided there be one, is in possession of the office, he is both de jure and de facto officer, and there can then be no other de facto officer, as two persons cannot be de facto officers for the same office at the same time.78 Where the right to an office rests, as in the case quoted, upon the fact of exercising the duties of it, and as this necessitates being in possession so that the public would act upon the supposition that they are dealing with a de jure officer, the fact of possession is indispensable, the very life-blood of the claimant's title to consideration as an official. But this possession

77 164 U. S. 657.

78 McCahon v. Commissioners, 8 Kan. 837.

79

need not of course be continuous physical possession, but rather such possession as would be exercised by a de jure officer under ordinary circumstances.

80

49. Powers, rights and duties.-The powers of a de facto officer, while he continues in the exercise of the office, are the same as those of a de jure officer. His rights differ in some very important respects. He may not sue and collect compensation for his official services, because in order to do so he would first have to prove title to the office, which of course he cannot do. In discussing this point, the Supreme Court of Illinois says, in People ex rel. Winstanley v. Weber: So "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 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." If the de facto officer has collected the salary he may be required to pay it over to the de jure officer. This rule is laid down with great clearness by the Supreme Court of New York in the case of Nichols v. Maclean:81 "The exclusion of a de jure officer from his office is a legal wrong committed by the intruder. In a legal view it is immaterial that the defendant may have acted in good

79 Braidy v. Theritt, 17 Kan. 468; Conover v. Devlin, 24 Barb. 587 (N. Y.).

80 89 Ill. 347.

81 101 N. Y. 526, LEADING ILLUSTRATIVE Cases.

faith, or that he supposed he had the better title. A good motive is not an adequate answer to a claim for indemnity for a violated right. There is a great preponderance of authority in support of the doctrine that the de jure officer can recover against the intruder the damages resulting from the intrusion, and that as a general rule the salary annexed to the office and received by the defendant measures the loss."

The de facto officer has a right to protection in the exercise of official duties and to use force against those who resist him to the same extent as a de jure officer.82 Third persons may be indicted for resisting a de facto officer.83 The duties of a de facto officer are the same as those of a de jure officer. No one can hold himself out as a public officer without becoming liable for the performance of all the duties of the office. He is liable both for misfeasance and nonfeasance, and when ordered by a writ of mandamus to perform a duty which as a de jure officer he could be compelled to perform, it is no defense for him to set up his lack of title to the office. This is another way of saying that he may not impeach his title to office.84 Not only is a de facto officer liable for his non-performance of duties to the same extent that a de jure officer would be, but the same is true as to the liability of his bondsmen.85

82 State v. Dierberger, 90 Mo. 369.

83 Vol. I, Bishop Crim. Law, § 464, 8th Ed.; Bohannon v. State, 89 Ga. 451.

84 Neale v. Allegheny Tp. Overseers of Poor, 5 Watts 538 (Pa.).

85 Boone County v. Jones et al., 54 Ia. 699.

CHAPTER VI.

COMPENSATION OF OFFICERS.

50. In general. It is almost a universal rule in the United States to provide for compensating public officers for their services. The right to compensation rests not on contract or common law, but upon statutory or constitutional provisions. If no such provisions exist, the officer has no rights to compensation either against the state or against private individuals to whom he has rendered the service.86 A failure to perform a part of the duties of the office may be sufficient cause for removal of an officer, but so long as he is not lawfully suspended or removed, it will not affect his compensation.87 An entire abandonment of the office will, however, forfeit one's right to compensation. As a failure to perform a part of the duties will not lessen the compensation, so the requirement of additional duties will not entitle an officer to extra salary, unless such duties are entirely outside the scope of the office to which the salary is attached. But in cases where an officer is required to perform duties extrinsic to those of his office, there is no right to extra compensation unless there is a promise, express or implied, to pay.89

88

86 Crofut v. Brandt, 58 N. Y. 106; Sikes v. Hatfield, 13 Gray 347 (Mass.).

87 Leonard v. City of Terre Haute, 93 N. E. 872; Reising v. City of Portland, 111 Pac. 377.

88 Barbour v. U. S., 17 C. C. 149 (U. S.). 89 Andrews v. U. S., 1 Fed. Cas. No. 381.