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.

of the law is to guard against the failure of a public service and therefore, by statute, it is provided that whenever any power, authority, or duty is confided by law to three or more persons, and whenever three or more persons or officers are authorized or required by law to perform any act, such act may be done and such power, authority, or duty may be exercised and performed by a majority of such persons or officers upon a uniting of all, unless special provision is otherwise made. all do meet when all who are living and qualified to act come together."

And

§ 52. Loss of qualifications. Loss of the qualifications necessary for holding an office is a frequent cause of the termination of the official relation. Thus, the active careers of most army and navy officers in time of peace are brought to a close by their reaching the age of retirement, and the establishment of an age limit in general is advantageous where the tenure of office is for life. Loss of residence may have a like effect. "Thus, where a county officer leaves the county with his family with the intention not to return, or goes to another state with the intention of there making it his home, or voluntarily enlists in the military service of the United States, he is held to have vacated his office; but a mere temporary absence, as to procure medical treatment, or to engage in business for a limited time, or to fill a temporary appointment, where the office may be and is filled by a deputy, does not operate to vacate it" (2).

§ 53. Abandonment and forfeiture. An office may be vacated by abandonment and a persistent neglect of duty may be so gross as to be held an abandonment, but, except on proceedings in the nature of quo warranto or under special statutory provisions, it is seldom held that neglect of duty has ipso facto vacated the office, and even the cases of quo warranto, where it has been held that the neglect of itself forfeited the office, are rare. Neglect of duty is, however, an important cause for removal from office. Likewise the commission of crime may ipso facto work a forfeiture of office, and that was the theory on which the Federal government acted with regard to state officers under the Confederacy, but it also is principally important as a cause for removal from office. Forfeiture of office ipso facto, however, frequently results from a conviction of crime.

SECTION 2. REMOVAL FROM OFFICE.

§ 54. Power to remove for cause essentially judicial. The courts have been inclined to view the removal of officers for cause as of an essentially judicial nature. This was the view taken by Chief Justice Marshall of Kentucky in the case of Page v. Hardin (3). In that case the governor had declared that the office of secretary of state had become vacant, because of refusal to reside at the seat of government and perform the duties of the office and had made an appointment to fill the vacancy. The auditor refused to pay the salary of the appointee and the latter brought suit. The court first decided that there had been no such abandonment of the office as to cause

a vacancy ipso facto and then proceeded to ascertain whether the action of the governor was valid as an exercising of the power of removal. It was provided in the constitution that the office of secretary of state should be held during good behavior so that the following remarks of the Chief Justice must be read with an office of that kind in mind, but they indicate the attitude taken towards the power of removal for cause in general. He said:

"And we shall not argue to prove that, in a government of laws, a conviction whereby an individual may be deprived of valuable rights and interests, and may moreover be seriously affected in his good fame and standing, implies a charge and trial and judgment, with the opportunity of defense and proof. The law too, prescribes the duties and tenure of the office, and thus furnishes a rule for the decision of the question involved. Such a proceeding for the ascertainment of fact and law, involving legal right and resulting in a decision which may terminate the right, is essentially judicial, and has been so considered here and elsewhere. By the common law, the forfeiture of an office held by patent or commission, was enforced by scire facias and the judgment of a court. The trial of an impeachment is universally regarded as a judicial function, and the senate, sitting for that purpose, as being a judicial body. Similar proceedings (for the removal of officers) in the county or other courts are held to be judicial. And we do not doubt that every proceeding for the removal of an officer for cause, that is for official misbehavior, is essentially an exercise