Board of Mississippi Levee Com'rs v. Montgomery

• Decision Date: 17 January 1927
• Docket Number: 26152
• Parties: BOARD OF MISSISSIPPI LEVEE COM'RS v. MONTGOMERY et al. [*]
• Court: Mississippi Supreme Court

110 So. 845

145 Miss. 578

BOARD OF MISSISSIPPI LEVEE COM'RS v. MONTGOMERY et al. ^[*]

No. 26152

Supreme Court of Mississippi

January 17, 1927

Division B

. (Division B.)

1 TRIAL. Trial court should direct verdict where there is no conflict in material evidence.

Where there is no conflict in material evidence, trial court should direct verdict one way or the other.

2. LEVEES AND FLOOD CONTROL. Tax collectors, appointed by levee board subsequently held to have been acting without authority, held not entitled to recover commission (Laws 1904, chapter 90, section 1; Hemingway's Code, section 2811).

Where two levee boards were attempting to function as a result of dispute as to title of two members, cotton tax collectors appointed in accordance with Law 1904, chapter 90, section 1, by one of such boards, which was subsequently held to have been acting without authority, may not recover commissions, since Code, 1906, section 3473 (Hemingway's Code, section 2811), declaring acts of de facto officer valid, is inapplicable.

3. OFFICERS. Acts of officer having legal right will be recognized in case of two de facto officers acting simultaneously under claim of right.

Where two de facto incumbents to office are acting simultaneously, each under claim of right, the acts of one who has legal right to the office will be recognized.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Washington county, HON. S. F. DAVIS, Judge.

Action by Sam Montgomery and another against the board of Mississippi levee commissioners. Judgment for plaintiffs, and defendant appeals. Reversed and judgment rendered.

Reversed.

Walton Shields and H. P. Farish, for appellant.

The peremptory instruction was evidently given on the theory that S. F. Witherspoon was a de facto member of the board of Mississippi levee commissioners at the regular July meeting 1924; and the board, organized with him acting as a member of the board in July, 1924, was a de facto board.

Waddy West was the de jure member of the board of Mississippi levee commissioners at the regular meeting in July, 1924. Witherspoon v. State, 103 So. 134. S. F. Witherspoon was a de facto member of the board of Mississippi levee commissioners until the de jure member, Waddy West, qualified, and when and after the de jure member qualified and took his seat as a member of the board of Mississippi levee commissioners and performed the duties thereof, S. F. Witherspoon was an usurper.

There cannot be a de facto and a de jure officer holding and exercising the functions of an office at the same time. Cohn v. Beal, 61 Miss. 398, 22 R. C. L. 589, section 309; Powers v. Commonwealth of Ky., 53 L. R. A. 245; State of Okla., ex rel. Wells, v. Cline, 35 L. R. A. (N. S.) 527; Oakland v. Donovale, 126 P. 388, 19 Cal.App. 480.

There cannot be two de facto incumbents of one office at the same time; and where two are acting simultaneously, each under claim of right, that one alone will be recognized who appears to have the better legal title. McKarney v. Horton, Auditor, 13 L. R. A. (N. S.) 661, 91 P. 598; 22 R. C. L. 589-90, section 309.

If there is an officer, or board of officers having a legal title to the office and claiming to be in possession of the office, being present and ready to exercise its functions, no other officer or board of officers can, during the same period by any colorable appointment, or by any acts, acquire a de facto character or become a de facto body, nor can the acts of that body become binding and valid where the de jure body is present and acting at the same time. Dienstagg v. Fagan, Mayor, et al., 65 A. 1011; Re L. C. Gunn, 19 L. R. A. 519; State ex rel. Harris v. Blossom, 10 P. 430; People v. Brantigan, 142 N.E. 208; State v. Archibald, 35 N.D. 359, 66 N.W. 234, 27 Ann. Cases, notes 678, 679, 1913 B; Chandler v. Starting, 121 N.W. 198.

But since this case was tried, this court has decided the case of State v. Baggett, So. , in which it was held that Mr. Baggett, claiming to hold over under color of title, was an usurper because there was a de jure officer acting on the board at the time Mr. Baggett was acting and claiming the right to act. Applying the reasoning there to this case, it will be seen that West, the de jure officer, was acting and performing the duties at the time Witherspoon was attempting also to perform the duties and that, therefore, Witherspoon was a usurper and his vote was null and void, and it took his vote to elect the appellees.

We say, therefore, that the peremptory instruction asked by appellants should have been granted.

Ernest Kellner, Jr., and Watson & Jayne, for appellees.

Appellees' position is that Witherspoon could be deprived of the possession of the office in only two ways, either by voluntarily surrendering it or by the judgment of a court of competent jurisdiction in a direct proceeding against Witherspoon for that purpose.

Appellees also contend that unless it appears that Witherspoon has been thus deprived of the possession of the office, all of his acts, including his vote for the employment of appellees as cotton tax collectors and back cotton tax collectors are binding upon appellant, and his right to act cannot be inquired into in this proceeding. See section 2811, Hemingway's Code, (section 3473, Code of 1906).

The record clearly shows that Witherspoon did not voluntarily surrender the possession of the office. In fact, the record shows that Witherspoon held the office until West did exactly what appellees contend was necessary to cut off the right of Witherspoon to function as a member of said board; that is, West filed a direct proceeding in quo warranto alleging that Witherspoon was unlawfully acting as a member of said board and withholding possession of the office claimed by West. See exhaustive note to Howard v. Burke, 140 A. S. R. 159; City of Vicksburg v. Lombard, 51 Miss. 111; Green v. Village of Rienzi, 87 Miss. 463; Norton v. Shelby, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178; Auditors of Wayne County v. Benoit, 20 Mich. 176, 4 Am. Rep. 382.

In the case at bar, as in the foregoing case, however much West may have been entitled to the possession of the office, so long as it remained in the possession of Witherspoon, the latter and not the former was the officer. Also, in the case at bar, West stood of record as ousted, admitting that the office was in the possession of Witherspoon, and demanding that he be ousted, but until he was ousted, the acts of West, the relator, could be in no sense official acts.

This court has consistently recognized the foregoing doctrine that until an officer de facto is ousted in the mode prescribed by law, no one will be heard to question his rights to act as such officer. Cooper v. Moore, 44 Miss. 386; City of Vicksburg v. Lombard, 51 Miss. 111; Rosetto v. City of Bay St. Louis, 97 Miss. 409; Town of Sumner v. Henderson, 116 Miss. 64.

In conclusion, appellees contend that on July 14, 1924, Witherspoon was the legal member of the board of Mississippi levee commissioners for the term ending the second Monday in July, 1926, for Washington county; that is, he was in possession of the office under color of authority; that in this suit, to which Witherspoon is not a party, the court can make no inquiry as to the right of Witherspoon as such member for the reason, as later recognized by West, that the right of Witherspoon as such member could be inquired into only in a direct proceeding in quo warranto to test such right and until such proceeding was had all of Witherspoon's acts, including his vote for the employment of appellees as cotton tax collectors of said board were legal and binding upon the public and third persons, including the appellant.

The judgment of the lower court is correct.

Argued orally by H. P. Farish and Walton Shields, for appellant, and Ernest Kellner, Jr., for appellees.

OPINION

ANDERSON, J.

Appellees brought this action in the circuit court of Washington county under section 1, chapter 90, Laws of 1904, to recover of appellant the sum of nine thousand dollars alleged to be due them by appellant in their capacity as cotton tax collectors as commissions at the rate of two cents a bale on all cotton on...