Faucette v. Gerlach

• Decision Date: 21 January 1918
• Docket Number: 102
• Citation: 200 S.W. 279,132 Ark. 58
• Parties: FAUCETTE, MAYOR, v. GERLACH
• Court: Arkansas Supreme Court

200 S.W. 279

132 Ark. 58

FAUCETTE, MAYOR, v. GERLACH

No. 102

Supreme Court of Arkansas

January 21, 1918

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; reversed.

Judgment reversed.

J. F Wills, Robt. L. Rogers and R. E. Wiley, for appellants.

1. Roberts was at least a de facto alderman, and his acts are valid and binding and can not be collaterally attacked. 38 Conn. 449; 9 Am. Rep. 409; 25 Ark. 336; 55 Id. 81; 1 Dillon, Mun. Corp. (4 ed.), § 276; 52 Mo.App. 540; 24 Wend. 520; 47 N.J.L. 383; 48 Id. 613; 10 Okla. 741; 54 L. R. A. 513; 131. Ky. 537; 115 S.W. 772; 61 Vt. 616; 49 Ark. 439; 3 Head. (40 Tenn.) 690; 48 Me. 79; 96 Pa. 344; 121 N.W. 614.

2. The authority of a de facto officer can not be collaterally questioned. 118 U.S. 425; 105 Me. 224; 24 L. R. A. (N. S.) 408; 49 Ark. 439; 55 Id. 81; 61 Vt. 616; 48 Me. 79; 39 Am. Dec. 231-3-4; 14 Wash. 236; 23 N.Y. 293. Judicial officers are within the rule.

A Gerlach and Hal L. Norwood, for appellee.

1. The cases cited do not apply. None of the reasons given in those cases exist in this case. 40 S.W. 650, 139 Mo. 106. Mr Roberts was objected to before the trial because he was not an elector, and this is not a collateral attack.

2. The proceedings were secret, behind closed doors, and void. Kirby's Digest, §§ 5607, 1522.

STATEMENT OF FACTS.

This appeal involves the validity of impeachment proceedings against James Gerlach, judge of the municipal court of the city of Argenta.

In April, 1915, James Gerlach was elected judge of the municipal court of Argenta for a term of four years. On March 5, 1917, impeachment proceedings were instituted against him on the ground of drunkenness. On March 8, 1917, the city council of Argenta organized itself into a court of impeachment for the trial of Gerlach. Objection was made to Mord Roberts serving as a member of the court of impeachment because he was not a qualified elector. Roberts was duly elected and qualified as a member of the city council and had been acting as such since said election for a period of nearly two years at the time of the impeachment proceedings. He was not a qualified elector of the city of Argenta at the time of his election as such member of the council and since that time, because he had not paid his poll tax as required by the statute. On this account an objection was made to his sitting as a member of the court of impeachment. Mord Roberts voted for the impeachment of James Gerlach and without his vote the resolution impeaching Gerlach would not have received the vote of two-thirds of the members elected to the council as required by the statute. James Gerlach was impeached by the city council of Argenta and removed from the office of judge of the municipal court on March 8, 1917. On March 14, 1917, Gerlach filed in Pulaski Circuit Court a petition for certiorari against the mayor and council of Argenta for the purpose of quashing the impeachment proceedings. On final hearing the circuit court quashed the proceedings and from the judgment rendered this appeal is prosecuted.

OPINION

HART, J., (after stating the facts).

In the discussion of the validity of the acts of an officer de facto because of ineligibility, Judge Constantineau said:

"A person who enters into an office and undertakes the performance of the duties thereof by virtue of an election or appointment, is an officer de facto, though he was ineligible at the time he was elected or appointed, or has subsequently become disabled to hold the office." Indeed, it is settled by a current of authority almost unbroken for over 500 years in England and this country, that ineligibility to hold an office does not prevent the ineligible incumbent, if in possession under color of right and authority, from being an officer de facto with respect to his official acts, in so far as third persons are concerned. The reason of the rule is that "the eligibility of an officer is as difficult of ascertainment as his actual election, and sound policy requires that the public should be no more required to investigate the one than the other, before according respect to his official position." Constantineau on the De Facto Doctrine, § 151. On the same question Judge Cooley said:

"An officer de facto is one who by some color of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact. His color of right may come from an election or appointment made by some officer or body having colorable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally removed; or made in favor of a party not having the legal qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputations as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be." Cooley on Constitutional Limitations (7 ed.), pages 897 and 898. Continuing, the learned author said: "But for the sake of order and regularity, and to prevent confusion in the conduct of public business and insecurity of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto can not be questioned collaterally." Ib. 898.

Chancellor Kent said: "In the case of public officers, who are such de facto acting under color of office by an election or appointment not strictly legal, or without having qualified themselves by the requisite tests, or by holding over after the period prescribed for a new appointment, as in the case of sheriffs, constables, etc.;...