Erwin v. City of Jersey City

• Decision Date: 01 July 1897
• Parties: ERWIN v. CITY OF JERSEY CITY.
• Court: New Jersey Supreme Court

37 A. 732

60 N.J.L. 141

ERWIN

v. CITY OF JERSEY CITY.

Court of Errors and Appeals of New Jersey.

July 1, 1897.

(Syllabus by the Court.)

Error to supreme court.

Action by James S. Erwin against the city of Jersey City. Verdict for defendant, and plaintiff brings error. Reversed.

Charles L. Corbin, for plaintiff in error.

William D. Edwards, for defendant in error.

MAGIE, C. J. The record returned with this writ disclosed a judgment in favor of the city of Jersey City (which was the defendant below), and against Erwin (who was plaintiff below), upon the verdict of a jury. The bills of exception show that the verdict was directed by the trial judge. Erwin duly excepted to that direction, and has assigned error thereon. The issue in the cause had been previously tried by the same judge without a jury, and his finding was in Erwin's favor. A rule to show cause why that finding should not be set aside was allowed, and afterwards made absolute. The opinion of the late chief justice (with whom Mr. Justice Garrison concurred), and the dissenting opinion of Mr. Justice Dixon, are reported in 35 Atl. 948. The cause again going down for trial, the issue was submitted to a jury, by consent of both parties, upon the same evidence which had been presented to the trial judge upon the former trial, and on which he had found in Erwin's favor. In conformity with the views expressed in the prevailing opinion of the supreme court, a verdict was directed in favor of the city. The pleadings disclose that Erwin's action was brought to recover the compensation attached to the office of corporation attorney of the city of Jersey City for the period of three months.

At the trial, Erwin claimed (1) that he had been duly appointed to that office, and (2) that, if not so appointed, he filled the office de facto, and duly performed its duties for the period for which he claimed compensation. The prevailing opinion of the supreme court indicated two grounds upon which it was concluded that the finding in Erwin's favor, upon the same evidence which is now before us, could not be supported. In the first place, it was determined that the evidence showed that Erwin had not become corporation attorney de jure, because, conceding that the board of finance of Jersey City had power to appoint that officer, one of the members of that board, who acted with it, and whose vote was necessary to make a valid appointment, was afterwards adjudged, upon quo warranto, to have been a usurper in office, and was ousted therefrom. It was determined that the principle applicable in such a case was that a de facto board could not create a de jure officer by appointment. In the second place, it was determined that Erwin, although admitted to have been corporation attorney de facto during the period in question, could not recover the compensation attached to the office, because there was during that period another corporation attorney de facto, and that, under such circumstances, neither de facto officer could maintain an action for such compensation. The situation of the case before us practically compels a review of the decision of the supreme court. Passing for the present the conclusion of that court first above indicated, I find myself unable to discover, after a careful examination of the evidence, anything to support the conclusion secondly above indicated. As before stated, the supreme court determined that Erwin had become corporation attorney de facto. In that conclusion I entirely concur. By the provisions of section 1 of "An act concerning the appointment of municipal officers and boards in cities," approved March 11, 1893 (Laws 1893, p. 224), it was enacted that the law officers of cities of the first class (of which Jersey City is one) should be appointed by the board having charge of financial affairs by a vote of not less than two-thirds of all the members. In Jersey City the board pointed out by these provisions as intrusted with the appointing power of law officers was the board of finance, and that board, on December 27, 1893, while the act was still in force, appointed Erwin corporation attorney for the time limited by law.

It is, however, contended on the part of the city that Erwin not only did not acquire, by this appointment, a title to the office de jure, but none de facto. This contention is first put upon the ground that the act under which the board of finance made the appointment was not within the constitutional power of the legislature to enact. The successful maintenance of this proposition might affect Erwin's title as an officer de jure, but, in my judgment, would be without effect upon his position as an officer de facto; for, at the time the board of finance appointed him corporation attorney, the validity of the act of the legislature had never been judicially questioned. It conferred apparent authority to make such an appointment. It is admitted to be difficult, if not impossible, to express in a single formula what constitutes a public officer de facto. The masterly and exhaustive review of the adjudged case's on the subject made by Chief Justice Butler in his opinion in State v. Carroll, 38 Conn. 449, plainly discloses the difficulty of an exact definition, including all circumstances in which the law, because of public convenience and necessity, treats one as a public officer, although not such, and calls him an officer de facto. I deem it unnecessary to prolong this opinion by any account of my own consideration of the subject; for the circumstances of the case before us do not leave it upon any debatable ground. It plainly falls within at least one of the classes defined by Chief Justice Butler to which the doctrine derived from the cases he reviewed was deemed by him to be applicable. Other cases justifying the same conclusion may be found collected in 5 Am. & Eng. Enc. Law, p. 96. The definition may, I think, be thus stated: When an official person or body has apparent authority to appoint to public office, and apparently exercises such authority, and the person so appointed enters upon and performs the duties of such office, his acts will be held valid in respect to the public whom he represents, and to third persons with whom he deals officially, notwithstanding there was a want of power to appoint him in the person or body which professed to do so. Applying this definition to the facts before us, we find that Erwin unmistakably acquired the position of corporation attorney de facto; for the board of finance had apparent authority to appoint to that office, and exercised that authority, and Erwin accepted the appointment. It is beyond doubt that his acts on matters in which the corporation attorney could act would bind the city and parties dealing with the city.

It is, however, further contended that the appointment of Erwin by the board of finance gave him no apparent title to the office of corporation attorney, because, as is claimed, that action required the approval of the mayor of Jersey City, which approval, it appears, was refused. This contention is put upon the provisions of section 19 of "An act for the government of cities...