expires and the rule of the jurisdiction is against holding over, and no successor has been appointed, elected, or qualified, a vacancy results; as is also the case when the official relation is terminated in any of the familiar ways by death, resignation, removal, or loss of qualifications prior to the expiration of the term. The appointing power must determine the existence of the vacancy in the first place, but this is subject to the review of the courts.

§ 43. Term of appointee to fill vacancy. In the case of elective offices, where no provision for a special election is made, the appointee usually holds until the next general election has been held and his successor elected and qualified. In the case of officers appointed with the advice and consent of the upper house there is frequently a provision similar to that in the Constitution of the United States that "the President shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session" (34). During the administration of President Monroe the question arose whether he had the right to fill a vacancy which had not originated during a recess of the senate but which continued to exist after the senate had adjourned. AttorneyGeneral Wirt advised the President that although the letter of the Constitution might seem to deny the right, the reason and spirit of the Constitution would seem to allow the President to make the temporary appointment whenever the public interests required the office to be immediately filled and the advice and consent of the senate

could not be immediately asked because of the recess. This enables the President to keep an appointee in office where the senate has refused to confirm him, but it has been the practice of the Federal government ever since and was approved in New Jersey in 1889 (35). In Illinois, however, the constitutional provision is so worded as to prevent such a construction (36).

SECTION 5. DE FACTO OFFICERS.

§ 44. Validity of acts. It would be intolerable if the discovery of some disqualification on the part of one who had performed the duties of an office and been generally recognized as the incumbent thereof should invalidate all official acts done by him without a knowledge on the part of the public or of those dealing with him of the existence of the disqualification. Thus, a board of street and water commissioners had passed an ordinance granting a railroad permission to cross a certain street. Proceedings were brought, principally on the ground that one of the members of the board whose vote was necessary to the passage of the ordinance had accepted an incompatible office prior to the passage of the ordinance and that accordingly his vote had no efficacy. But the court held, as he was in possession of the office under color of a legal title and performing its legal duties without anyone else claiming a right to it, that he was an officer de facto and that there were no facts in this case to justify them "in relaxing the wise and ancient rule so deeply rooted in public policy, that the acts of de facto officers holding

(35) Fritts v. Kuhl, 51 N. J. L. 191.

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

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.

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 officer 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.