Dabney v. Hudson

• Decision Date: 02 February 1891
• Citation: 8 So. 545,68 Miss. 292
• Court: Mississippi Supreme Court
• Parties: R. L. DABNEY v. J. W. HUDSON

8 So. 545

68 Miss. 292

R. L. DABNEY v. J. W. HUDSON

Supreme Court of Mississippi

February 2, 1891

FROM the circuit court of De Soto county, HON. JAMES T. FANT Judge.

The opinion states the facts.

Section 415, code 1880, which is invoked by appellee, is as follows "The official acts of any person in possession of any public office, and exercising the functions thereof, shall be valid and binding as official acts, in regard to all persons interested or affected thereby, whether such person be lawfully entitled to hold such office or not, and whether such person shall be lawfully qualified or not; but such person shall be liable to all the penalties imposed by law for usurping or unlawfully holding such office or exercising the functions thereof, without lawful right or without being qualified according to law."

Writ quashed.

Perkins & Percy, for appellant.

Section 415, code 1880, has not so altered the common law that the validity of official acts cannot be inquired into in this proceeding. To constitute an officer de facto, there must be color of right by election, or appointment, or acquiescence by the public for a length of time that would afford strong presumption of a colorable right. Kimball v. Alcorn, 45 Miss. 158; Brady v. Howe, 50 Ib. 623.

Mere delivery of the docket to Hughey could not make him a de facto justice of the peace. There had been no acquiescence by any one in his unwarranted assumption of official authority.

McKenzie & Wall, for appellee.

Hughey was certainly a de facto officer in possession of, and exercising the functions of the office of justice of the peace, and his official acts as such are valid and binding as to all persons affected thereby. Code 1880, § 415.

There was no other person in the district in discharge of the duties of said office. Hughey, believing he had authority to act, filed his bond, took possession of the docket, and discharged the duties of the office.

In Cohn v. Beal, 61 Miss. 398, there was no de jure officer in actual possession of the office, and that case is not in point.

OPINION

COOPER, J.

At the November election in the year 1889 one Hughey was elected a justice of the peace for the 3d district in De Soto county for the term of two years, to begin on the first Monday of January thereafter. One Stewart was the predecessor of Hughey and he continued to reside in the district until after the beginning of the term for which Hughey had been elected, January 6, 1890. Both Stewart and Hughey seem to have rested under the belief that the term of Stewart ended, and that of Hughey began, on the first day instead of the first Monday of January for on that day Stewart delivered and Hughey received the docket belonging to the justice of that district and thereafter Stewart performed no official act. On the 2d day of January, 1890, an affidavit was made before Hughey for the writ of replevin in this cause, which writ was issued by him on the 4th day of January. At these dates Hughey had filed his bond as a justice of the peace for the term for which he had been elected, but had not taken the oath of office.

The administration of the oath to the plaintiff in replevin for the writ, and the issuance of the writ were the first and only official acts done by him, and, so far as the record shows, no part of the public except Stewart had recognized his claim to...