acting as such 325 at a meeting duly called and authorized by law 326 and at which under the law or regular rules of procedure particular action can be taken.327 The question of whether the action of a majority of the board or body is to be considered as the legal action of the whole may depend upon the phraseology of their authority which may require unanimous consent.828 If the 825 People v. Coghill, 47 Cal. 361; Conger v. Latah County Com'rs, 5 Idaho, 347, 48 Pac. 1064; Louk v. Woods, 15 Ill. 256; Bouton v. McDonough County Sup'rs, 84 Ill. 384; Loesnitz v. Seelinger, 127 Ind. 422, 25 N. E. 1037, 26 N. E. 887; Blue v. Briggs, 12 Ind. App. 105, 39 N. E. 885; Forcum v. Independent School Dist., 99 Iowa, 435; Leavenworth County Com'rs v. Hamlin, 31 Kan. 105; Clark v. Cushman, 5 Mass. 505; Pell v. Ulmar, 21 Barb. (N. Y.) 500; McCortle v. Bates, 29 Ohio St. 419. An agreement before hand among members of a board of officers such as a township board of education, as to how they will vote or act at a future meeting is void as contrary to public policy. Their duty is to meet and discuss questions of corporate business. Matter of Beekman, 31 How. Pr. (N. Y.) 16; Mitchell v. Williams (Tenn. Ch. App.) 46 S. W. 325; Ball v. Presidio County, 88 Tex. 60, 29 S. W. 1042; Goshorn's Ex'rs v. County Court of Kanawha County, 42 W. Va. 735, 26 S. E. 452. 326 Goedgen v. Manitowoc Sup'rs, 2 Biss. 328, Fed. Cas. No. 5,501; Campbell v. Brackenridge, 8 Blackf. (Ind.) 471; Butterfield v. Treichler, 113 Iowa, 328, 85 N. W. 19. An adjournment of a regular meeting is considered a continuation of the regular meeting and, therefore, legal. State v. Powell, 101 Iowa, 382; Paola & Fall River R. Co. v. Anderson County Com'rs, 16 Kan. 302. The powers of a county are vested in a board of commissioners as a corporate entity and not in the commissioners as individual officers. Before a county board can act it must be, therefore, convened in legal session either regular, or special and a casual meeting of a majorty of the commissioners does not create such a legal session. Schafer v. School Dist. No. 1, 116 Mich. 206, 74 N. W. 465; Green v. Lancaster County, 61 Neb. 473, 85 N. W. 439. The presumption exists that a meeting has been legally convened for the transaction of business. Schumm v. Seymour, 24 N. J. Eq. (9 C. E. Green) 143; Townsend v. School Dist. No. 12, 41 N. J. Law, 312; Bronx Gas & Elec. Co. v. City of New York, 17 Misc. 433, 41 N. Y. Supp. 358; Pike County v. Rowland, 94 Pa. 238; Tamaqua & L. St. R. Co. v. Inter-County St. R. Co., 167 Pa. 91, 31 Atl. 473. 327 Mitchell County Sup'rs v. Horton, 75 Iowa, 271, 39 N. W. 394; Standeford v. Wingate, 63 Ky. (2 Duv.) 440; Brumfield v. Douglas County Com'rs, 2 Nev. 65. 328 Schenck v. Peay, 1 Woolw. 175, Fed. Cas. No. 12,450; Pulaski County v. Lincoln, 9 Ark. 320; People v. Coghill, 47 Cal. 361; Town of Haddam v. Town of East Lyme, 54 Conn. 34; Coffin v. Inhabitants of Nantucket, 59 Mass. (5 Cush.) 269; New York Life Ins. & Trust Co. v. Staats, 21 Barb. (N. Y.) 570; North Carolina R. Co. v. Swepson, 71 N. C. 350. law does not provide otherwise, the rule commonly obtains that a majority, but not less, can legally act and bind their associates by their action.329 § 656. De facto officers. In the preceding sections has been briefly considered the power and authority of officials to act on behalf of the public, they being those regarded by the law as de jure or acting under a legal election or appointment, and who are not only eligible but have properly qualified, and in a proceeding brought to determine the validity of their title to the office can successfully defend their claims.330 It frequently happens that one performing the duties of an office is a de facto officer only, and questions arise concerning the legality of his acts, his rights and liabilities. The presumption exists that one is an officer de jure and not de facto and that all acts and conditions necessary to constitute one as such have been done and exist.331 (a) De facto officers; definition. A de facto officer has been defined as one "who has the reputation of being the officer he assumes 329 Cumberland County Sup'rs v. Webster, 53 Ill. 141; Merrill v. Inhabitants of Berkshire, 28 Mass. (11 Pick.) 269; Inhabitants of Plymouth v. Plymouth County Com'rs, 82 Mass. (16 Gray) 341; Petrie v. Wofford, 30 Miss. 698; People v. Walker, 23 Barb. (N. Y.) 304; Parrott v. Knickerbocker Ice Co., 8 Abb. Pr. (N. S., N. Y.) 234; State v. King, 20 N. C. (4 Dev. & B.) 661; Austin v. Helms, 65 N. C. 560; Treichler v. Berks County, 2 Grant's Cas. (Pa.) 445; Cooper v. Lampeter Tp., 8 Watts (Pa.) 125; Jefferson County v. Slagle, 66 Pa. 202; Eshleman v. Martic Tp., 152 Pa. 68, 25 Atl. 178; Guyette v. Town of Bolton, 46 Vt. 228; Walker v. Rogan, 1 Wis. 597. 330 Buck v. City of Eureka, 109 Cal. 504, 42 Pac. 243, 30 L. R. A. 409. A de facto officer is estopped from showing that the prescribed mode for the creation of his office was not followed. State v. Bulkeley, 61 Conn. 287, 23 Atl. 186, 14 L. R .A. 657. 331 People v. Clingan, 5 Cal. 389; Bryan v. Walton, 14 Ga. 185; Allen v. State, 21 Ga. 217; Bradford v. Justices of Inferior Ct., 33 Ga. 332; North v. People, 139 Ill. 81, 28 N. E. 966; Burke v. Cutler, 78 Iowa, 299, 43 N. W. 204; Willis v. Sproule, 13 Kan. 257; Wilson v. Brown, 22 Ky. L. R. 708, 58 S. W. 595; Chambers v. Adair, 110 Ky. 942, 62 S. W. 1128; Damon v. Carrol, 163 Mass. 404, 40 N. E. 185; Perkins v. Fielding, 119 Mo. 149; People v. Holcomb, 5 disc. 459, 26 N. Y. Supp. 230; Nalle v. City of Austin, 23 Tex. Civ. App. 595, 56 S. W. 954; Callison v. Hedrick, 15 Grat. (Va.) 244; Spaulding v. Vincent, 24 Vt. 501; State v. Oates, 86 Wis. 634, 57 N. W. 296. to be, and yet is not a good officer in point of law." 332 There has been some doubt as to what conditions are necessary that one may be a de facto officer, because of the different occasions in which the question may be raised. Where the state is inquiring into the claim of an individual to an office,333 the requirements that must exist in order that one be considered a de facto officer are greater than where the question of the legality with respect to the public of the acts of one filling an official position and performing its duties alone is raised.334 An officer de facto, it has been held, is one who exercises the duties of an office under color of right, by virtue of an appointment or election to that office,335 being distinguished 332 Rex v. Bedford Level, 6 East, of third persons only are involved, 356. Definition by Lord Ellenbor- and in such cases it would not be ough. Wright v. United States, sufficient that they had publicly ex158 U. S. 232, following Norton v. ercised such office, but they might Shelby County, 118 U. S. 425; In re properly be called upon to show Manning, 139 U. S. 504; Ball v. they did so by virtue of some apUnited States, 140 U. S. 118. pointment or election, which they had a right to believe valid, even if it were otherwise." Gourley v. Han. kins, 2 Iowa, 75; Patterson v. Miller, 59 Ky. (2 Metc.) 493; Fetterman v. Hopkins, 5 Watts (Pa.) 539; Venable v. Curd, 39 Tenn. (2 Head) 582. 333 People v. Weber, 86 Ill. 283; State v. Oates, 86 Wis. 634, 57 N. W. 296; Mechem, Pub. Off. § 317. 334 Petersilea v. Stone, 119 Mass. 465. Where the court in its opinion say: "Third persons, from 335 Town of Plymouth v. Painter, 17 Conn. 585; Rice v. Com., 66 Ky. (3 Bush) 14; Brown v. Lunt, 37 Me. 423; Hooper v. Goodwin, 48 Me. 79; Holt County v. Scott, 53 Neb. 176, 73 N. W. 681; People v. Albertson, 8 How. Pr. (N. Y.) 363. "To constitute an officer de facto there must be color of title; a claim to an appointment of title to an office which, by law was elective or a claim to an election to an office which by law must be filled by appointment is no color of title and cannot constitute a claim of an officer de facto so that perjury can be assigned by an oath administered by him." People v. McDowell, 70 Hun, 1, 23 N. Y. Supp. 950; Trenton Com'rs v. McDaniel, 52 N. C. (7 Jones) on one hand from an officer de jure 336 and on the other from a mere usurper of an office 337 or, as again defined, one who performs the duties of an office with apparent right and under claim and color of an election or appointment but without being actually qualified in law so to act.338 There must be, in order that one be constituted an officer de facto, a colorable title to the office and a presumption that he is rightfully in office.339 After a decision by a competent tribunal against the claim of one to an office, this presumption cannot be said to exist.340 The subject and definitions have been thoroughly considered in a Connecticut case.311 107; Baker v. Hobgood, 126 N. C. 149, 35 S. E. 253. It is not necessary to constitute a de facto officer that one should be recognized by the public generally. Nalle v. City of Austin, 23 Tex. Civ. App. 595, 56 S. W. 954. 336 Town of Plymouth v. Painter, 17 Conn. 585; Kimball v. Alcorn, 45 Miss. 151; McMillin v. Richards, 45 Neb. 786; People v. Staton, 73 N. C. 546; Hamlin v. Kassafer, 15 Or. 456. 337 Usurper defined: Brown v. O'Connell, 36 Conn. 449; Hooper v. Goodwin, 48 Me. 79; Tucker V. Aiken, 7 N. H. 113; McCraw v. Williams, 33 Grat. (Va.) 510. 338 Northwestern Mut. Life Ins. Co. v. Seaman, 80 Fed. 357; Jeffords v. Hine, 2 Ariz. 162, 11 Pac. 351; People v. Hecht, 105 Cal. 621, 38 Pac. 941, 27 L. R. A. 203; Mapes v. People, 69 Ill. 523; McCahon v. Leavenworth County Com'rs, 8 Kan. 437. An officer de facto must be in the actual possession of the office and have the same under his control. Carli v. Rhener, 27 Minn. 292; Brinkerhoff v. Jersey City, 64 N. J. Law, 225, 46 Atl. 170; People v. Terry, 108 N. Y. 1, 14 N. E. 815. Hamlin v. Kassafer, 15 Or. 456. A color of right which constitutes one an officer de facto may consist in an election or an appointment or in holding over after the expiration of one's term or acquiescence by the public in the action of such an officer for such a length of time as to raise the presumption of colorable right by election or appointment. 339 State v. Miltenberger, 33 La. Ann. 265; Kimball v. Alcorn, 45 Miss. 151. To constitute an officer de facto there must be a color of right by election or appointment or an acquiescence by the public for that length of time which affords a strong presumption of a colorable right. Ex parte Strang, 21 Ohio St. 610. It is sufficient to constitute one an officer de facto of a legally existing office if he derives his appointment from one having colorable authority to appoint though not one competent to invest him with a good title to the office. 340 Mattingly v. Vancleave, 22 Ky. L. R. 1761, 61 S. W. 257; Petition of Town of Portsmouth, 19 N. H. 115; Hugg v. Ivins, 59 N. J. Law, 139, 36 Atl. 685; Rochester & G. V. R. Co. v. Clarke Nat. Bank, 60 Barb. (N. Y.) 234. "It is well settled that there must be color for the claim, and a colorable title to the office. * * When the color of title notoriously ceases, the rea (b) De jure officer and usurper defined. A de jure officer is one whose legal title to an office is clear; while a usurper is one who has intruded upon an office and assumes to exercise its functions without either color of right or the lawful title to it,342 though when his assumption to office is acquiesced in, he may grow into an officer de facto.3 343 son for sustaining their acts as the acts of officers de facto ceases. # Such presumption cannot be said to exist after the decision of a competent tribunal to the contrary." 341 State v. Carroll, 38 Conn. 449. "An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised." Douglas v. Wickwire, 19 Conn. 492; State v. Brennan's Liquors, 25 Conn. 283; Brown v. O'Connell, 36 Conn. 447; Carlton v. People, 10 Mich. 250; Mallett v. Uncle Sam Gold & Silver Min. Co., 1 Nev. 188; People v. Collins, 7 Johns, (N. Y.) 549; Parker V. Baker, 8 Paige (N. Y.) 428; People V. Kane, 23 Wend. (N. Y.) 414; People v. White, 24 Wend. (N. Y.) 520; Com. v. McCombs, 56 Pa. 436. 342 Town of Plymouth v. Painter, 17 Conn. 585; Olson V. Trego County Com'rs, 8 Kan. App. 414, 54 Pac. 805; Elliott v. Burke, 24 Ky. L. R. 292, 68 S. W. 445. A de facto officer is entitled to continue in office as against a usurper. Fitchburg R. Co. v. Grand Junction R. & D. Co., 83 Mass. (1 Allen) 552; Petersilea v. Stone, 119 Mass. 465; Montgomery v. Odell, 67 Hun, 169, 22 N. Y. Supp. 412; Hand v. Deady, 79 Hun, 75, 29 N. Y. Supp. 633; People v. Erie County Sup'rs, 33 App. Div. 634, 56 N. Y. Supp. 318; People v. Dike, 37 Misc. 401, 75 N. Y. Supp. 801; Hamlin v. Kassafer, 15 Or. 456; Brumby v. Boyd, 28 Tex. Civ. App. 164, 66 S. W. 874; Cummings v. Clark, 15 Vt. 653; McCraw v. Williams, 33 Grat. (Va.) 510. "A mere usurper is one who intrudes himself into an office which is vacant, and ousts the incumbent without any color of title whatever; and his acts are void in every respect." Kempster v. City of Milwaukee, 97 Wis. 343, 72 N. W. 743. 343 State v. Carroll, 38 Conn. 449, and cases therein cited. See, also, as distinguishing between an officer de facto, one de jure and an intruder, the following cases: Conover v. Devlin, 15 How. Pr. (N. Y.) 470. "The distinction between an officer de facto, one de jure, and a mere usurper, is recognized by the law for the benefit of the public and of third persons, and of the officer only in suits where he is not a party. A person unquestioned, claiming, entering upon, and exercising the duties of an officer under the forms or color of an appointment, or of an election; or a person without even the color of an election or appointment, permitted by the government for a length of time, unquestioned, to perform the duties of an office, acquires the reputation of being an officer in fact, although he may not be an officer in point of law. The public and third persons cannot be supposed to know, or to investigate his title to the office, whether he has com |