Burt v. Winona & St. P.R. Co.

• Decision Date: 28 January 1884
• Court: Minnesota Supreme Court
• Parties: BURT v WINONA & ST. P.R. CO.

31 Minn. 472

18 N.W. 285

BURTvWINONA & ST. P.R. CO.

Supreme Court of Minnesota.

Filed January 28, 1884.

Appeal from order of Mankato municipal court denying defendant's motion for a new trial.

Daniel Buck, for respondent, Ella Burt.

Wilson & Gale, for appellant, the Winona & St. P. R. Co.

GILFILLAN, C. J.

After the appeal in this case had been argued and submitted, but before it was decided, the defendant applied to the court asking it to “disaffirm” the judgment appealed from, on the alleged ground that the court rendering it is not a legal court, and its judgment therefore a nullity, because the act assuming to establish it, to-wit, the act of November 22, 1881, entitled “An act to establish a municipal court in the city of Mankato, Blue Earth county, Minnesota,” did not receive a vote of two-thirds of the entire senate in its passage through that body, and, consequently, did not pass according to the requirements of the constitution as construed by the court at this term in the case of State v. Gould, 17 N. W. REP. 276. To establish the fact it refers to the journal of the senate, and claims that the courts take judicial notice of the journals of the legislature in respect to the passage of bills.

The plaintiff answers that the court, if not a de jure, was at least a de facto, court, and its acts and judgments cannot be impeached collaterally for want of legality in the court itself, nor its legal existence be called in question, except in a direct proceeding on behalf of the state for that purpose, as was the case in the State v. Gould, supra.

The argument of the defendant is that a judgment rendered without jurisdiction is void; that want of jurisdiction may always be shown; that if the legislative act under which a court assumes to act as such be void, there is a want of jurisdiction; and that this act being void there was no jurisdiction. Ordinarily, if the record shows that a court has assumed jurisdiction over a matter not committed to it by the constitution or some valid statute, it may be inquired into and the excess of jurisdiction corrected or annulled on appeal from its judgment. The defect here alleged is in the non-existence in the law of the court itself. That presents a somewhat different case from an exception to the right of a court, admitted to exist, to try a particular matter. The latter is permitted, while public policy may prohibit the other.

The rule that the acts of de facto officers cannot be questioned collaterally includes the acts of judicial as fully as of other officers. In State v. Brown, 12 Minn. 538, (Gil. 448,) the court held that the judge who held the court below, at the trial of the defendant, was at least a de facto officer, and that until his right to the office should be determined in a direct proceeding for that purpose, it could not be questioned in a collateral proceeding. Many of the definitions of a de facto officer in the text-books and decided cases assume that there can be no de facto officer, except in a de jure office; and Dill. Mun. Corp. § 276, goes so far as to say, “in order that there may be a de facto officer, there must be a de jure office; and the notion that there can be a de facto office has been characterized as a political solecism, without foundation in reason and without support in law, and therefore a person cannot be a de facto officer of a municipal corporation when the corporation or people have in law no power, in any event, to elect or appoint such an officer.”

Whether there can be a de facto office-a de facto court-is the important question in the case, and it is one of no small difficulty; while there have been a great many cases in which it was attempted to call in question, in a collateral proceeding, the legal right of an officer to hold an office, there have been few where the legal existence of the office itself was contested. The reason given for the de facto doctrine applies as well to offices and courts as to officers. Said the court in State v. Carroll, 38 Conn. 467: “The de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interests of the public and of individuals whose interests were involved in the official acts of persons exercising the duties of an office without being lawful officers.” It would be a matter of almost intolerable inconvenience, and be productive of many injustices, of individual hardship and injustice, if third persons, whose interests or necessities require them to rely upon the acts of the occupants of public offices, should be required to ascertain at their peril the legal right to the offices which such occupants are permitted by the state to occupy. Taking even the narrowest definition of an officer de facto, viz., that he is one who is exercising the duties of an office under color of legal right to the office, the reasons that justify the doctrine apply with equal force to a court or office where the same may be said to exist under color of right; that is, under color of law. That there may be a de facto municipal corporation, and consequently de facto offices of the same, follows from the rule laid down in Cooley, Const, Lim. § 254: “If a municipal corporation appears to be acting under color of law and recognized by the state as such, such a question (that is of the legal existence of the corporation) should be raised by the state itself by quo warranto, or other direct proceeding”-and it is sustained by many authorities, holding that the question cannot be raised collaterally. State v. Carr, 5 N. H. 367;People v. Maynard, 15 Mich. 463;Stuart v. School-dist. 30 Mich. 69;Bird v. Perkins, 33 Mich. 28;President, etc., v. Thompson, 20 Ill. 197;Kittering v. Jacksonville, 50 Ill. 39;Geneva v. Cole, 61 Ill. 397;Kayser v. Bremen, 16 Mo. 88;State v. Weatherby, 45 Mo. 17;St. Louis v. Shields, 62 Mo. 247; 1 Dill. Mun. Corp. § 43.

In Secombe v. Kittelson, 29 Minn. 555, [S. C.12 N. W. REP. 519,] the court held, in effect, that there might be a de facto state government.

In the line of these authorities are the only two cases we have found in which an attempt was made to contest collaterally the legal existence of a court: Fraser v. Freelon, 53 Cal. 644, was certiorari to review the proceedings of the municipal court of...