§ 644. Title to office. The right by one to exercise governmental powers must not only have its source, as suggested in the preceding section, but the particular individual must have derived the necessary conditions or personal power and authority to perform on behalf of the people certain specific duties or, in other words, the individual must possess a title to an office at least prima facie, conclusive and good.270 Title to office is usually obtained through the possession of a certificate of election or an appointment,277 where the office is an appointive one, and the assumption and the performance of the duties and exercise of the powers pertaining to the particular office.278 The legal right of title as dependent upon the qualifications possessed and the manner of securing it has been discussed in preceding sections, 270 and it is necessary now only to state the case as this, the presumption that official duty has been done cannot be made. Though there appears upon the records of the common council a resolution as adopted, it cannot be presumed from that that two-thirds of the members voted for it, for there was no duty upon them so to vote. The duty that they owed was to vote for or against as an intelligent and honest judgment bade them. Though it was the duty of the president of the common council to declare the resolution lost, unless there was such vote for it; and the duty of the clerk not to enter upon the records that it was adopted; still, in such case as this, it may not be presumed that, having done otherwise, they did their duty, though a general presumption should be aided somewhat by particular circumstances. To found the power to act against a private right of property, there must be affirmative proof of a compliance with the prerequisites; it is a jurisdictional fact that may not be presumed nor inferred." City of Albany v. McNamara, 117 N. Y. 168, 6 L. R. A. 212. 276 Opinion of Justices, 70 Me. 570. 277 United States v. Sykes, 58 Fed. 1000. When the commission to the deputy collector has been assigned and placed in the mail and he is notified by telegram, he is authorized to act. Pratt v. Luther, 45 Ind. 250. A town trustee has no power to act officially until the certificate of his election has been filed in the office of the clerk of the circuit court. State v. Capers, 37 La. Ann. 747; Luzerne County v. Trimmer, 95 Pa. 97; Booker v. Young, 12 Grat. (Va.) 303; Carr v. Wilson, 32 W. Va. 419, 9 S. E. 31, 3 L. R. A. 64. 278 Justices of Jefferson County v. Clark, 17 Ky. (1 T. B. Mon.) 82; Bruce v. Fox, 31 Ky. (1 Dana) 447; Toney v. Harris, 85 Ky. 453, 3 S. W. 614; Page v. Hardin, 47 Ky. (8 B. Mon.) 648. 279 State v. Swearingen, 12 Ga. 23. Where residence in the city is not required by law as a qualification to the office of clerk and treasurer, the one receiving the highest number of votes is entitled to hold this office although a nonresident at that time. Town of Springfield v. People's Deposit Bank, 111 Ky. 105, further and general principles that title to office cannot be questioned in a collateral proceeding 280 and that the possession of an office and the performance of its duties by virtue of authority prima facie valid and proper on its face is prima facie conclusive of the right of an individual to perform those duties.281 § 645. Official powers; where exercised. It is axiomatic that, since a public corporation can only exercise its functions within the geographical limits of its jurisdiction, that its officers and agents are limited also in this respect and can only perform their official duties within the limits of the corporation they represent.282 Powers; when exercised. The further general principle is also true that public officials can only exercise the duties of an office 63 S. W. 271; Hayter v. Benner, 67 N. J. Law, 359, 52 Atl. 351. See §§ 585 et seq., ante. 280 United States v. Alexander, 46 Fed. 728. But a sufficient inquiry may be made to ascertain whether the incumbent of an office is an intruder. Ex parte Henshaw, 73 Cal. 486, 15 Pac. 110; Douglass v. Wickwire, 19 Conn. 489; Corbitt v. McDaniel, 77 Ga. 544, 2 S. E. 692; Creighton v. Piper, 14 Ind. 182; State v. Crowe, 150 Ind. 455, 50 N. E. 471; Creager v. Hooper, 83 Md. 490; Facey v. Fuller, 13 Mich. 527; Tower v. Welker, 93 Mich. 332, 53 N. W. 527; Bean v. Thompson, 19 N. H. 290; Richman v. Adams, 59 N. J. Law, 280, 36 Atl. 699; In re Board of Health of Lansinburgh, 43 App. Div. 236, 60 N. Y. Supp. 27; In re Brenner, 35 Misc. 306, 71 N. Y. Supp. 44; Id., 35 Misc. 212, 70 N. Y. Supp. 744; In re Guden, 71 App. Div. 422, 75 N. Y. Supp. 794, reversing 37 Misc. 390, 75 N. Y. Supp. 786. Where the title to office is void beyond a substantial doubt, it may be passed on in a collateral proceeding. Com. v. McCombs, 56 Pa. 436. 281 State v. Jones, 19 Ind. 356; State v. Peelle, 124 Ind. 515, 24 N. E. 440, 8 L. R. A. 228; Manor v. State, 149 Ind. 310, 49 N. E. 160; Groome v. Gwinn, 43 Md. 572; Kobs v. City of Minneapolis, 22 Minn. 159; State v. Frantz, 55 Neb. 167, 75 N. W. 546; State v. Meder, 22 Nev. 264; Conklin v. Cunningham, 7 N. M. 445, 38 Pac. 170. But see In re Dudley, 33 App. Div. 465, 53 N. Y. Supp. 742. 282 Collier v. State, 2 Stew. (Ala.) 388. A county clerk may lawfully make, though not at that time within his county, a certificate of attestation of a record.. Hervy v. Armstrong, 15 Ark. 162; Moulton v. Parks, 64 Cal. 166, 30 Pac. 613; State v. Gurley, 37 Minn. 475, 35 N. W. 179; Gage v. Dudley, 64 N. H. 437, 13 Atl. 865; People v. Feitner, 156 N. Y. 694, 51 N. E. 1093. A deputy tax commissioner under § 888 of the Greater New York charter is not limited in the performance of his duties to the borough from which he was selected. Respublica v. M'Clean, 4 Yeates (Pa.) 399; Newburn v. Durham, 88 Tex. 288, 31 S. W. 195. But see Chrisman v. Carney, 33 Ark. 316. during their term of office which is limited by the time of its legal commencement and termination.283 In some instances, however, the law authorizes an officer to do certain official acts after the expiration of his term of office, which are necessary to complete official action or correct errors made during his term of office.23 And those cases, therefore, bearing upon the time of the beginning and the end of an official term of office are important because indirectly they determine the right of an officer to act authoritatively on behalf of his principal.285 283 Morrison v. Decatur County Com'rs, 16 Ind. App. 317, 44 N. E. 65. "The only question presented for our consideration is whether, under the circumstances, the county is liable for the supplies shipped by appellants in October, 1892, for use at the November election of that year, on the order made by the auditor in April, 1891, which supplies were not accepted or used by appellee. The judgment of the trial court was against appellants. In our opinion, no reason has been shown that would justify the court in reversing the judgment. The order was given by the auditor after his successor had been elected, within a few months of the expiration of his term of office. The supplies in question were not to be used until one year after the expiration of his term of office. No reason has been suggested for giving the order so long in advance of the time when the supplies would he required. Moreover, five months after the order was given, and fourteen months after the election, the board of commissioners entered into a contract with another to furnish supplies required in the conduct of public business. At this time appellee had no knowledge of the order given by the auditor to appellants. It is conceded that at this time appellants had done nothing in pursuance of the order, and the circumstances indicate that appellants had good reasons for be lieving that appellee and the suc cessful bidder construed the contract between them as including the election supplies in question. In our opinion, in any view of the case, the auditor was not acting within the scope of his authority in giving an order for such supplies after his successor had been elected." Town of Lemington v. Stevens, 48 Vt. 38. A conveyance of public lands executed during the official term of selectmen may be acknowledged by them after the expiration of their term of office. 284 Matthews v. Houghton, 11 Me. 377; O'Brien v. Annis, 120 Mass. 143; Kiley v. Cranor, 51 Mo. 541; Rugle v. Webster, 55 Mo. 246; Gibson v. Bailey, 9 N. H. 168; People v. Taylor, 9 Hun (N. Y.) 143; McKay v. Harrower, 27 Barb. (N. Y.) 463; German American Bank v. Morris Run Coal Co., 68 N. Y. 585; Oliver v. Town, 24 Wis. 512. A circuit judge may settle a bill of exceptions after his term is expired. But see Griffing v. Danbury, 41 Conn. 96; Johnson v. Foran, 58 Md. 148; Halleck V. Inhabitants of Boylston, 117 Mass. 469; People v. Caledonia Highway Com'rs, 16 Mich. 63. 285 Matter of Dorsey, 7 Port (Ala.) 393; Chism v. Martin, 57 Ark. 83. § 646. Powers exercised as affected by the nature of an office. The authority and power of a public officer to act in respect to a certain transaction, even where the apparent authority may exist, is determined in all cases not only by the existence of the of fice with its accompanying duties and powers but also by the character of those duties or the nature of the governmental functions performed by an official. The threefold division of governmental functions or powers into legislative, judicial and executive has already been fully considered in a preceding chapter and in this connection it is considered advisable to call attention to a familiar principle of the law that the inherent nature of an office or the character of its duties is not established or fixed by the terminology of a legislative or constitutional provision or by legislative action.28 287 A recent case 288 is instructive on this point. § 647. Public officials; executive or administrative. 286 The execution of legislation is given to the executive branch of government, and where the powers possessed by an official in this department partake of a political nature as well as adminis trative, the manner and the time of the exercise of the power or the performance of a duty discretionary in its character is dependent alone upon the will and the good judgment of the official to whom it has been entrusted.290 A distinction is frequently made between an office political in its character with respect to the nature of its duties, and executive or administrative, using those terms in their proper sense; with respect to the former the official is less subject to restraint than in respect to the latter; being answerable alone to the source of his authority, namely, those placing him in office whether this be an elective or an appointive one. § 648. Official duties; legislative. The making of laws has been confided by the American people to a particular branch of the government known as the legislative 286 Chapter VII, "Governing Bodies." 287 State v. Valle, 41 Mo. 29; Wines v. City of New York, 9 Hun (N. Y.) 659; Wood County Com'rs v. Pargillis, 6 Ohio Cir. Ct. Dec. 717. 288 Western Union Tel. Co. V. Myatt (C. C. A.) 98 Fed. 335. 289 Hudman v. Slaughter, 70 Ala. 546. The powers exercised by a mayor and council in counting votes at an election and declaring the result, are ministerial, not judicial. State v. Womack, 4 Wash. 19. 290 Biggs v. State, 49 Ala. 311; or law-making department,291 and, under our theories, this branch or department is regarded as one of the co-ordinate branches of government and responsible within its powers to no other.292 The legality of its action as tested or determined by well recognized legal and equitable principles controlling and affecting all branches of government it is true is for the judiciary to deter mine,293 but in respect to the expediency or advisability or character of legislation, the law-making branch is answerable to none and attempts by executive or judicial officers to dictate the character or the subjects of legislation can be justifiably resented as an unwarranted and impertinent interference.204 The presumption exists that a legislative body intended to keep within its constitutional powers and the courts will only declare its action invalid where a violation of constitutional provisions is clear. 205 The judiciary are not at liberty to hold legislative action void because of its inexpediency or apparent injustice nor because, in their opinion, the principles of good government have been abused, transcended or ignored.296 § 649. Official authority; the judiciary. To judicial officers is given the power of interpreting legislative action and determining its ultimate validity according to constitu Doyle v. Aldermen of Raleigh, 89 291 St. Paul Gaslight Co. v. Village of Sandstone, 73 Minn. 225; Leeper v. State, 103 Tenn. 500, 53 S. W. 962. Tenn. Laws 1899, c. 205, providing for uniform text books in public schools and for a commission to select the same is not unconstitutional as delegating to such commissioner legislative power. Burton v. Dupree, 19 Tex. Civ. App. 275. See chapter VII, ante, on Governing Bodies. 292 Kavanaugh v. State, 41 Ala. 399; State v. Finn, 8 Mo. App. 341. 293 State v. Doherty, 25 La. Ann. 119. 294 Koehler v. Hill, 60 Iowa, 617; Gibson v. Mason, 5 Nev. 283; State v. Tufly, 19 Nev. 391. See §§ 496 et seq., ante. 295 Pitman v. Brownlee, 9 Ky. (2 A. K. Marsh) 210. The usual rule obtains also that all officers will be presumed to have acted correctly and within their powers until the contrary is shown. Lowell v. Flint, 20 Me. 401. The presumption exists that persons acting in an of ficial capacity are properly authorized and that their official signatures are genuine. Eldodt v. Ter., 10 N. M. 141, 61 Pac. 105; Sheldon v. Wright, 7 Barb. (N. Y.) 39. The same presumption applies to the performance of official duties by executive or administrative officers. 296 Bansemer v. Mace, 18 Ind. 27; State v. Buckles, 39 Ind. 272. The |