Butler v. Phillips

• Citation: 38 Colo. 378,88 P. 480
• Parties: BUTLER v. PHILLIPS.
• Decision Date: 03 December 1906
• Court: Colorado Supreme Court

88 P. 480

38 Colo. 378

BUTLER v. PHILLIPS.

Supreme Court of Colorado, En Banc.

December 3, 1906

Rehearing Denied Jan. 7, 1907.

Error to County Court, City and County of Denver; Henry V. Johnson Judge.

Judicial proceedings on the administration of the estate of John C Butler, deceased. A claim in favor of William M. Phillips was allowed against the estate, and George W. Butler, as administrator, brings error. Affirmed.

Charles D. Hayt and Fred R. Wright, for plaintiff in error.

H. L Ritter and Lewis B. France, for defendant in error.

MAXWELL, J.

This is a writ of error to an order of the county court of the city and county of Denver, Hon. Henry V. Johnson, judge presiding allowing a claim against the estate of a decedent.

Plaintiff in error attacks the jurisdiction of the county court of the city and county of Denver and the right of Hon. Henry V Johnson, who presided in the county court at the trial of this case, to sit as a judge of said court. The question thus presented is important, as upon its determination depends the validity of a vast number of orders, judgments, and decrees made and entered by Judge Johnson during his incumbency of the office of county judge of the city and county of Denver for a period of more than one year. In People ex rel., etc., v. Johnson (Colo.) 86 P. 233, it was held that the respondent therein, Johnson, was unlawfully holding and exercising the office of county judge of the city and county of Denver, and a writ of ouster issued against said respondent. It is contended, however, by defendant in error that the order here under review, having been made by a de facto judge, should not be disturbed, if otherwise found correct. In State v. Carroll, 38 Conn. 449, 9 Am.Rep. 409, Chief Justice Butler, after an exhaustive examination of the English and American cases on the subject, defines an officer de facto in a case wherein the facts were: M., a justice of the peace, had been requested by the clerk of the city court to act as judge of the police court during the absence of the regular judge. This request was made in accordance with a statute providing that, in case of the sickness or absence of a judge of a city court, a justice of the peace should be called in by the clerk to hold a court. M. accordingly held the court, and a person convicted before him appealed on the ground that M. was not lawfully the judge of the court. It was urged that the statute above referred to was unconstitutional. The Supreme Court held that the circumstances under which M. acted constituted him an officer de facto, and declined to pass upon the unconstitutionality of the act, considering it unnecessary for the purposes of the case. Chief Justice Butler's definition of an officer de facto has been generally recognized and accepted by the courts of this country as being correct and full. It is: '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: First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like; third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; fourth, under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such.' In People v. Johnson, supra, this court held that the provisions of the charter of the city and county of Denver adopted March 29, 1904, increasing the number of the judges of the county court to two and changing the time of election of said judges to May 17, 1904, under which provisions and an election held pursuant thereto the judge presiding in the court below was discharging the functions of a judge of the county court, were unconstitutional. As to the validity of the acts of a de facto public officer, the rule, supported by a practically unanimous current of authority, is that such acts are valid so far as they concern the public or third persons who have an interest in the things done, and that such acts cannot be collaterally attacked. 8 Am. & Eng. Enc., 815. This rule is recognized in Darrow v. People, 8 Colo. 417, 8 P. 661. The reason for the rule is thus stated in Plymouth v. Painter, 17 Conn. 585, 44 Am.Dec. 574: 'The principle established * * * in regard to the proceedings of officers de facto, acting under color of title, is one founded in policy and convenience; is most salutary in its operation; and is, indeed, necessary for the protection of the rights of individuals, and the security of the public peace. The rights of no person claiming a title or interest under or through the proceedings of officers having an apparent authority to act, would be safe, if he were obliged to examine the legality of the title of such officer up to its original source, and the title or interest of such person were held to be invalidated, by some accidental defect or flaw in the appointment, election or qualifications of such officer, or in the rights of those from whom his appointment or election emanated; nor could the supremacy of the laws be maintained, or their execution enforced, if the acts of officers having a colorable, but not a legal title, were to be deemed invalid.' And in Norton v. Shelby County, 118 U.S. 425, 441, 6 S.Ct. 1121, 1125, 30 L.Ed. 178, Mr. Justice Field, writing the opinion, says: 'The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Officers are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question.'

It is apparent that the case here under consideration falls within the fourth subdivision of the definition given by Chief Justice Butler, supra: 'Fourth, under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such.' That the acts of a person holding a legally existing office, although the statute under the provisions of which he was elected or appointed be unconstitutional, are the acts of a de facto officer and as such are upheld by the courts is established by the authorities. In Campbell v. Commonwealth, 96 Pa. 344, two associate judges, unlearned in the law, sat with the president judge in Fayette county and participated in the trial and sentence of certain persons for arson. It was admitted that these associate judges acted under and by virtue of an election by the people of the county regularly commissioned by the Governor, but the validity of their title to office was questioned on the ground that, under the Constitution of 1874 and subsequent legislation, the people had no power to elect associate judges in Fayette county. The court, in affirming the judgment of the court below, through Mr. Justice Mercur, said: 'Under due forms of law they [the associate judges] hold their offices by title regular on its face; and they are performing the duties thereby imposed on them, and enjoying the profits and emoluments thereof. Thus they are judges de facto, and as against all parties but the commonwealth, they are judges de jure. Having at least colorable title to these offices, their right thereto cannot be questioned in any other form than by quo warranto, at the suit of the commonwealth. Clark v. Commonwealth, 29 Pa. 129. They are entitled to notice and an opportunity to be heard in defense of their rights before they shall be adjudged to be invalid. As their title then cannot be impeached in this collateral action, it is unnecessary to consider any question relating to their right as against the commonwealth.' In re Ah Lee (D. C.) 5 F. 899, 6 Sawy. 410, was a petition for a writ of habeas corpus wherein the petitioner alleged that he had been convicted of the crime of murder and sentenced to capital punishment by the circuit court of the county of Multnomah, Or., which judgment and sentence was affirmed by the Supreme Court; that neither the person who acted as judge of the circuit court nor those who acted as judges of the Supreme Court were holding their respective offices by appointment or election as judges of said courts in pursuance of any law or authority of the state of Oregon. The Constitution of Oregon provided that, when the population of the state reached 200,000, the Legislature should district the state into designated circuits, and provided for the election of judges to the circuit courts therein. The Legislature passed the act before the state attained the requisite population, and...